Peter Jennings Project

The Jennings Blog Has Moved!

2011-11-23T10:57:00.003-05:00

As of October 1, 2011 the Jennings Project blog has moved and joined forces with Constitution Daily, the Center’s daily digest of smart conversation on the Constitution. All new posts will be published there, so be sure to subscribe and follow Constitution Daily on Twitter. If you are interested in submitting a post to Constitution Daily, please email Stefan Frank at JenningsProject@constitutioncenter.org.

PJP FELLOW JUSTIN MARTIN SAYS: AN ATTEMPT TO STOP "ANTI-ISRAELI" SPEECH ON CAMPUS IS AN AFFRONT TO THE FIRST AMENDMENT

2011-09-29T09:19:00.002-04:00

In an article in the Christian Science Monitor this month, PJP Fellow Justin Martin, who now teaches at the University of Maine, tells of an Israeli legal group's letter to American college and university presidents asking them to be sensitive to expressions of anti-Semitism on American campuses. Martin suggests that the real target was speech that condemned Israeli governmental policy is protected by the First Amendment. He quotes from the letter, authored by the Israel Law Center which says, in part, “[A]lthough academic and political freedom in the United States is a cherished right, there are limits to these rights that students and campus officials must be made aware, especially with regard to anti-Israel activities.." Martin feels that this gets dangerously close to First Amendment protections. He references a story from this summer when British fashion designer John Galliano was overheard making anti-Semitic remarks while at a Parisian bar. Galliano was convicted in a French court this month and fined $8,000 for his remarks, an unthinkable punishment here in America.

THE TOP 2012 PRESIDENTIAL CAMPAIGN THEME? IT'S THE CONSTITUTION, STUPID, THE CONSTITUTION!

2011-09-27T12:24:00.002-04:00

In 2008, when Sen. Barack Obama was running for president against Sen. John McCain, there were three formal televised presidential debates. The Constitution was not raised at all in the first debate or the second. In the third, it was raised three times: once when McCain said that as president he would put justices on the Supreme Court who would be in favor of strict adherence to the Constitution; once, when Obama said that he believed that the Constitution contained a right to privacy; and last, when Obama discussed the constitutionality of a ban on late-term abortions. Now compare that to the present environment. At last week's Republican debate in Florida, there were eight references to the Constitution, in either in a question or an answer. At the CNN-Tea Party debate on September 12, the Constitution was raised 13 times. At the Iowa debate in August, 24 times. What is happening here? Driven mostly by Republicans, the Constitution is fast becoming the central subject of the 2012 campaign.

The themes raised repeatedly at the Republican debates are easy to summarize: the Constitution is a document prescribing limited government and yet today our government is anything but limited (all). Social security is unconstitutional (Rick Perry) or maybe not (Perry, again), and "Obamacare" is most assuredly unconstitutional (Michele Bachmann, Mitt Romney, Newt Gingrich and many others). This much should seem familiar to most readers. Yet there are other claims, less familiar: Ron Paul insists that the Federal Reserve Act is facially unconstitutional and would dismantle the central bank. Gingrich, Rick Santorum, Romney and Bachmann all are in favor of a constitutional amendment banning same-sex marriage. And at the American Principles Project Debate on September 5, APP Founder and Princeton Professor Robert George asked the candidates if they would endorse legislation aimed at reading the 14th amendment's protection due process and equal protection provisions as protecting the "unborn," effectively ignoring the Court's 1973 decision on Roe v. Wade and challenging the Court's role as the final arbiter on what is constitutional. Three of the candidates present -- Bachmann, Herman Cain and Gingrich -- agreed that they would. Romney and Paul said they would not.

So much for new readings of old texts. How about a new text altogether? This past weekend, at the Harvard Law School, there was a conference calling for an Article V constitutional convention; in other words, a re-write. It was sponsored by the law school and two widely divergent organizations: the Tea Party Patriots -- a grass roots organization that works to mobilize efforts towards reducing government and taxation -- and fixcongressfirst.com which was co-founded by Harvard Law Professor Lawrence Lessig largely in response to the Citizens United decision of a couple of years ago. Its mission is to reduce the influence of private money in politics. The Harvard Crimson was appalled that the institution's esteemed law school would do something that would "legitimate the reactionary Tea Party movement." Not to be outdone, the Crimson editorial suggested that the law school turn instead to a "viable and emancipatory alternative": a constitution for "The New Socialist Republic in North America" as authored by the Revolutionary Communist Party, which advocates the overthrow of the capitalist system of the United States and the establishment of a dictatorship of the proletariat. You can read the entire document here.

That leads me to Seth Lipsky, the editor of the conservative New York Sun and author of "The Citizen's Constitution: An Annotated Guide." Lipsky wrote an editorial in the Wall Street Journal last week asking that the political parties consider doing a presidential debate next year exclusively on the Constitution. Wouldn't it be nice, he mused, if we knew what a prospective president thought about the document he or she might soon be asked to "preserve, protect, and defend'? Yes, and appropriate for a day and age when the Constitution seems to be on everyone's "reconsider list."

TB

Jennings Fellow Kay Campbell Receives Award for Commentary

2011-09-23T09:58:00.002-04:00

The Religion Newswriters Association of America has awarded Jennings Fellow Kay Campbell its honor for Religion Commentary of the Year. Congratulations to Kay.

THE CONSTITUTION, VERMONT, AND MY INNKEEPER

2011-09-17T07:30:00.001-04:00

When Texas governor Rick Perry suggested earlier this year that his state might consider seceding from the Union, it was greeted as the persistent echo of the Southern Confederacy. So I was surprised when, vacationing in Vermont last month, I listened to a local political activist there make his case for the Green Mountain State, of all places, seceding from the Union. As you might expect, the secessionist movement in Vermont, which has a socialist senator (Bernie Sanders) serving in Washington, is from the opposite side of the political spectrum, but as it turns out the passion for secession there is just as fervent as it is in the Lone Star State.

You can go to an interesting website to get acquainted with the cause. It's called "The Second Vermont Republic" and it says on its home page that it is committed to "(1) the peaceful breakup of meganations such as the United States, Russia, and China; (2) the political independence of breakaway states such as Quebec, Scotland, and Vermont; and (3) a strategic alliance with other small, democratic, nonviolent, affluent, socially responsible, cooperative, egalitarian, sustainable, ecofriendly nations such as Austria, Finland, Sweden, and Switzerland which share a high degree of environmental integrity and a strong sense of community."

Vermont is a beautiful state and while it is usually thought of as a bastion of liberalism, particularly with the respect to environmental issues (think former Governor Howard Dean), it has a strong conservative strain as well. In the early 2000s, "Take Back Vermont" signs were regularly seen on many front lawns across the state, a movement that referred to seizing control of the leftward drift of the state and returning it to its Republican roots. And wow, does Vermont ever have Republican roots! For 134 years, from the founding of the modern Republican party in 1854 to the election of George H. W. Bush 1988, Vermont voted for the Republican presidential candidate in all but one election, the 1964 landslide that was won by Democrat Lyndon Baines Johnson. Furthermore, for 109 years, from 1854 to 1963, Vermont had a Republican governor, a stretch that included fifty -- fifty! -- consecutive Republican chief executives. Since then the governor's office has alternated back and forth between the parties, with five Democratic governors and four Republicans occupying the chair. (While Montpelier is the capital of Vermont and the governor has offices there, there is no official "governor's mansion" and there never has been one. The present governor, Democrat Peter Shumlin, lives in a rented house.)

All of this is backdrop to the situation at the Wildflower Inn, in Lyndonville, VT where my family and I have stayed most Augusts over the past five or so years. The Inn is owned and run by Jim and Mary O'Reilly around 570 wooded acres. This is the part of Vermont that is known as the "Northeast Kingdom" and it as idyllic a spot as you can find in New England. People vacation at the inn for extended stays, and over the years it has been the site of many marriage ceremonies and receptions. The O'Reillys are an Irish Catholic family, but other than that casual observation, I have have never been subject to any political or religious message attached to their business. I still haven't, yet suddenly this summer the inn became the subject of a federal lawsuit and a vicious Internet posting campaign for its decision to deny a lesbian couple its grounds for their marriage rite. In their defense, the O'Reilly's made it clear that they have never denied same sex couples accommodations or dining nor have they discriminated on the basis of sexual orientation in their employment practices. But, due to their Catholic faith, they do not feel comfortable hosting "expressive events" which they regard to be tantamount to "compelled speech."

The words are chosen carefully as they point directly to the First Amendment and in fact the dispute here is a most assuredly a constitutional one. On the one hand, we have the lesbian couple's argument that they are being denied a service on account of their sexual orientation. They maintain this to be a violation of Vermont's Fair Housing and Public Accommodations Act and the O'Reilly's, in their response to the complaint, acknowledge that they are in breach of the statute, even though it was written long before the state recognized same sex civil unions (2000) and same sex marriage (2007). Still, they argue that the law should not apply when it would force a proprietor to host something that is contrary to his or her religious principles and that applying it is in violation of their First Amendment rights.

It is tempting to compare this to a resort in Georgia in, say, 1960, denying its grounds for a marriage ceremony because the couple was African-American. Unless, of course, you are a devout Catholic or belong to some other religious community that considers the marriage of a lesbian couple to be an affront to God. Then you would say that this is not discrimination but an expression of faith. We would not expect an obstetrician who believes that abortion is sinful must nonetheless perform them, but since the Wildflower Inn regularly hosts heterosexual marriages, the more accurate analogy here would be an obstetrician who was willing to perform abortions for some but not for others. It is interesting it all leads back to this question: is the marriage of a gay or lesbian couple somehow a different rite than the marriage of a heterosexual couple and of course that is what is at the heart of the same-sex union debate. In the case of the Wildlfower Inn in mostly liberal Vermont, the state legislature has already made it clear that this state's law now regards same sex unions as equivalent to heterosexual unions. That is good news for gay and lesbian couples looking to enjoy the ancient tradition of marriage, along with its legal and social benefits. But from the O'Reillys' point of view, if you are a Catholic businessman in Vermont, must you now also adhere to the state's definition of marriage or to look at it from the flip side, if you are a businessman who is Catholic, is it a breach of your faith, and an interruption to your "free exercise" of religion, that you are forced to facilitate and profit from a rite that your faith considers to be wrong?

Naturally, the lawsuit was Topic A among guests chatting by the pool or over dinner this summer and each now faces a moral dilemma of his or her own. The inn's clientele is mostly urban Northeasterners from the Boston or New York area and, by the most cursory observation, more likely to attach themselves to the liberal Vermont spirit than to the latent conservative one. So, for these people (myself included), the question now comes, are the guests implicitly endorsing discrimination by patronizing the inn? Or is this decision by the O'Reillys theirs to make, a private and personal choice that should not fairly be represented either implicitly or explicitly in any other transaction with their business? As guests mull those issues, the federal district court will be considering answers to the constitutional questions here When that decision is handed down, it may well set the standard for so many other states which have recently recognized same-sex unions as well.

TB

2011-09-16T07:30:00.001-04:00

“I believe that long after people have left my classes and forgotten what I have tried to teach them I want them to have the 14th Amendment floating around in their heads… when people have protested the denial of civil rights and civil liberties and claimed equal protection under the law, it’s the 14th Amendment that they rely on.” University of Iowa professor Linda Kerber, who has her students memorize the first section of the 14th amendment as a class project each year. She was speaking to The Daily Iowan over her concern that Constitution Day -- September 17 -- isn't being taken as seriously at the university as she thinks it should be. The report referred to a local establishent which is using the occasion to produce baked goods in the shape of the Constitution.

PJP FELLOW ANNAMARYA SCACCIA EXAMINES NEW HHS HEALTH CARE GUIDELINES AS MANDATED BY OBAMA HEALTH CARE REFORM;

2011-09-15T07:30:00.002-04:00

HOW CAN WE SQUARE THE OPTION FOR "RELIGIOUS EXEMPTIONS" WITH THE FIRST AMENDMENT?

Last month, the US Department of Health and Human Services (HHS) issued new Affordable Care Act guidelines requiring health insurance carriers to provide free access to birth control and women’s preventive services without cost-sharing beginning August 1, 2012. Adopted from recommendations made by the Institute of Medicine, these regulations mandate that new insurance policies must include annual gynecological and well-woman visits, breast-feeding support and counseling, STI counseling and domestic violence screening free of co-pay, co-insurance or deductible, while covering the costs of contraceptives and contraceptive counseling, HPV, HIV and gestational diabetes screenings, and DNA testing for women age 30 and older.

In addition to the guidelines, HHS also released an interim religious exemption amendment that would give religious employers the choice to not provide contraception services in their group health plans or coverage connected to such plans (the administration is welcoming comment on this rule until Friday, September 30).This First Amendment-friendly clause, based on established “conscience protections” available in most states already requiring contraception coverage, delineates a religious employer as one that:

has the inculcation of religious values as its purpose;
primarily employs persons who share its religious tenets;
primarily serves persons who share its religious tenets; and
is a non-profit organization.

In short, this classification is only relative to houses of worship like synagogues and churches—where possible anti-contraception views of the institution’s executive are commonly shared by the institution’s workers—thus ensuring that the constitutionally-protected right to religious freedom and right to privacy is intact across the board. Yet, for a number of Catholic intellectuals, this definition is just too narrow.

Religious academics and leaders, such as Georgetown University’s Rev. Thomas Reese and Catholic University’s Professor Stephen Schneck, contest the current language of the clause, claiming it excludes institutions that, while affiliated with religion, employ and serve people of all moral backgrounds. It infringes on their First Amendment right to freedom of religion, they say, instead suggesting the definition be broadened so that organizations like Catholic hospitals and charities can be included in this protection. But using language that encompasses those types of employers would only complicate the issue of the amendment’s constitutionality.

How so? Employees are protected by the 14th Amendment’s right to privacy as established in 1965’s Griswold v. Connecticut, and later affirmed in 1972’s Eisenstadt v. Baird and 2003’s Lawrence v. Texas. While the religious institution is offering the group health plan at a discounted rate, it is the employee who is paying the monthly premium to keep their coverage, which is typically deducted from their paycheck before taxes. Therefore, this shifts the responsibility of the health policy to the employee—the employer is the mere provider—turning it into a private individual matter. What contraceptives and services the employee uses as covered by said policy should not be impeded nor denied. Furthermore, if an organization that employs people of different faiths opts out of the contraceptive option, they are indeed infringing on their employees’ right to not only practice religion freely but to not be forced to adhere to opposing religious beliefs, as protected by the First Amendment.

But the corporation may also have some footing. As legal journalist Lyle Denniston recently discussed for Constitution Daily, corporations are privy to some constitutional rights, such a broad right to free speech as upheld in last year’s Citizens United v. Federal Election Commission. Additionally, he writes, corporate records are somewhat protected by the Fourth Amendment’s limit on government searches, and an 1886 California case established that the 14th Amendment’s equal protection clause does, in fact, apply to corporations. Even so, this question of “corporate personhood” is not exactly cut and dry—in this year’s Federal Communications Commission v. AT&T, the Supreme Court ruled that the Freedom of Information Act’s “personal privacy” protection does not apply to corporate records. Still, using the Citizens United ruling as a base, a religious institution would have a viable argument under the First Amendment’s freedom of religion clause if they are required to offer a service that goes against their moral judgment.

It would be interesting to see if and how HHS revamps the language of the religious exemption amendment. Would they chose the side of the individual or the corporation?

SAVING "FACE" OR SILENCING PROTEST?:

2011-09-14T12:53:00.002-04:00

PJP FELLOW CARRIE JOHNSON REPORTS ON RAMPED-UP ENFORCEMENT OF A STATUTE RESTRICTING SPEECH IN PROXIMITY TO ABORTION CLINICS

FACE, or the Freedom of Access to Clinic Entrances act, was signed into law by President Bill Clinton in 1994. It prohibits protesters at abortion clinics from blocking access to clinics or threatening those who work at the clinic or seek to use its services. The law was written in response to a rash of violent incidents at clinics, including the attempted murder of Kansas abortion doctor George Tiller (though he survived the 1993 attack, Tiller was murdered in 2009 by another anti-abortion activist). The Clinton administration justice department enforced the act fairly vigorously, but, claims PJP Fellow Carrie Johnson on NPR, the George W. Bush administration did not. Now, the Obama justice department has reinvigorated prosecution.

Since the act prohibits a form of peaceful protest, there are First Amendment issues to address. But it has been upheld in federal court on a number occasions, most recently in Ashcroft v. Norton, where the court asserted that the act actually limits conduct, not content, an important distinction for First Amendment doctrine. You can read Carrie's piece here and the court's opinion in Ashcroft here.

LISTENING FOR THE CONSTITUTION: THREE MORE LEADS

2011-09-12T14:53:00.002-04:00

1) “Do the world a favor and go kill yourself. P.S. Have a nice day.” That is just one of 8,000 Twitter messages sent anonymously by William Lawrence Cassidy to Alyce Zeoli, a Buddhist leader based in Maryland. Cassidy is being prosecuted in federal court for cyberstalking, based on the federal cyberstalking statute, which you can read here. The First Amendment distinction that a Maryland federal court must now decide is the following: is posting a public message on Twitter akin to speaking from an old-fashioned soapbox, or can it also be regarded as a means of direct personal communication, like a threatening letter or phone call?

2) "[We are just trying to ensure]...that taxpayer money isn't subsidizing somebody's drug habit." The words of a spokesman for Florida Governor Rick Scott on a state law requiring drug testing for welfare recipients. The ACLU has challenged the law, arguing it constitutes an unconstitutional use of search and seizure. Courts addressing this issue in the past have agreed with the ACLU's argument. Back in 1999, Michigan had a random drug testing policy for those applying for welfare, but it was ruled unconstitutional in a federal appeals court.

3) “Now you can have a shooting gallery in your backyard.” Shelley Vana, a Palm Beach County commissioner, speaking to the New York Times in a story you can read here. She is referring to a new Florida state law that will fine any county or municipality that enforces its own gun ordinance. Many localities in the state have ordinances that prevent guns from being carried into parks or libraries or shot into the air to celebrate. These will now have to be removed. Towns that enforce such ordinances risk a $100,000 fine. The motivation for banning local ordinances is to make it easier for people to navigate the state without having to determine what they can and cannot do from one locality to the next.

THE FEDERAL COURT NOMINATIONS BATTLES: HAVE WE CONSIDERED THE CONSEQUENCES?

2011-09-08T10:59:00.006-04:00

by Judge Timothy K. Lewis

Nineteen years ago, in the fall of 1992, I was nominated by President George H. W. Bush for a seat on the United States Court of Appeals for the Third Circuit. My confirmation hearing lasted one hour. In fact, I had no time to prepare for it. As a federal district judge, I was in the courtroom, charging a jury, when my secretary burst in with the news that my senate hearing was to be the very next day. That is how much notice I had. When the vote was called only a few days later, I was unanimously confirmed.

Don’t get me wrong. This is not to celebrate me. It is to reflect on a better time for our politics and ask how things went so wrong. Among the 192 Article III judges confirmed during the elder Bush’s presidency, only David Souter and Clarence Thomas faced confirmation battles (with Thomas undergoing a very difficult confirmation battle). But, of course, they were under consideration for the Supreme Court.

Compare that now with the Obama administration. The president has had only 96 Article III nominations confirmed and 55 others remain in limbo, awaiting senate action. They are stuck in a process that should by all constitutional standards remain rigorous, but shouldn’t it also be productive? In the same period of time, George W. Bush had 145 confirmed nominees and Bill Clinton had 163 confirmed.

The Obama administration was slow out of the gate on this one – nominations trickled forth in the early days of the administration when the president’s team should have been well-prepared with the names of nominees. But a considerable amount of the fault for this also has to be laid at the feet of Republicans who have made it a badge of honor to frustrate this president, himself a man of the law, from shaping the federal courts he inherited from George W. Bush. If you doubt this conclusion, reflect for a moment on the senate minority leader’s comment shortly before the 2010 mid-term election when he said that the top -- top -- political priority over the next two years should be to deny President Obama a second term in office. Really, senator? So where on the priority list do we put conducting the senate’s constitutional business?

What do we stand to lose? When compared to the debt-ceiling debate this summer, the lag in judicial confirmations may seem like the wrong fight to pick, but that would be a dangerous conclusion. For one, the president has an opportunity to make a significant contribution to the diversity of the federal courts. Of the confirmed nominees in the Obama presidency, nearly half are women (nearly twice that of the Bush and Clinton years) and about a fifth of them are African-American. There are also three openly gay nominees.

There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court's business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate. The old cliché is “justice delayed is justice denied,” but note that we are not only speaking here about the assertion of principle. There are real world consequences to this situation: businesses suffer while awaiting decisions on crucial matters; where there are liberty interests involved, people suffer. Imagine telling the man unfairly convicted that his appeal can’t be heard because there aren’t enough judges to handle it.

One has to consider what damage is done to the judicial profession itself. Throughout most of American history, we have tended to look upon the federal judiciary as non-partisan. There is a reason for this: the judiciary is meant to act as a counterweight to the political branches of our government, not move in lock step with them. While presidents, of course, tend to nominate those who share their perspective on judicial matters, and to some degree that is informed by politics, judges seek to make unbiased decisions based on neutral principles.

Naturally, then, judicial nominees should be confirmed on the basis of qualifications, rather than political affiliation and this was long the tradition. Yet a quick look at those Obama nominees who failed to get senate confirmation shows a dangerous development:

Goodwin Liu was nominated for the Ninth Circuit and received the endorsement of such high profile Republicans as Ken Starr and John Yoo, yet his name was withdrawn under threat of a Republican filibuster due to some intemperate remarks he made a few years ago about the nominations of Sam Alito and John Roberts to the Supreme Court as well as some scholarly papers that suggested a constitutional mandate for the welfare state.

Robert Chatigny, a Connecticut federal district judge, was put forward for the Second Circuit Court of Appeals, but withdrew his nomination after Republican critics accused him of being “soft” on the sentencing of sex offenders and for granting a stay of execution for Michael Bruce Ross, a serial killer who refused to oppose his own execution. Chatigny had wanted a clearer sense of whether Ross, who saw his execution as a release to another life, was competent to make that decision before allowing the execution to go ahead. Eventually, it did.

David Hamilton was eventually confirmed 57-39 for a seat on the Seventh Circuit Court of Appeals, but the opposition was substantial, based largely on two decisions: one finding an Indiana law requiring counseling and a waiting period before an abortion unconstitutionally burdensome and another in which he found the practice of opening sessions of the Indiana legislature with a Christian prayer to be a violation of the First Amendment establishment clause.

Finally, in what feels like a tit-for-tat political skirmish, Barbara Milano Keenan’s nomination to the Fourth Circuit was delayed by Republican filibuster in part because Democrats derailed the original nominee for the spot, William J. Haynes III, who had been put forward by George W. Bush way back in 2005. Haynes had been opposed by Democrats because, as a counsel at the Pentagon, he had been involved in conversations over the alleged "torture" of detainees. Once that nomination failed, the seat was left unfilled until Obama's inauguration. Keenan had no serious opposition; she was eventually confirmed 99-0.

With such tales, what chance is there for maintaining a judiciary indifferent to politics, as the Framers intended? And what chance is there that a talented judge would follow his convictions when a potentially controversial decision could make him politically unsuitable for promotion to a higher court? In each case, I'd like to think that principle would win out, but the partisan process of the past few years makes me worry.

IS EUROPE HAVING AN AMERICAN HISTORICAL MOMENT?

2011-09-06T10:30:00.001-04:00

European leaders, concerned about the growing fiscal crisis on that continent are examining the structure of the European Union, specifically the constitutional provision requiring decisions on many issues of importance to be determined by a unanimous vote of the member nations. That repeats the mistake of America’s first governing document, the Articles of Confederation, that was eventually abandoned for the Constitution. According to a story in the New York Times, when a European central bank official recently met with a financial official in Washington, “his host brandished the Articles of Confederation, the 1781 precursor to the United States Constitution, to use as an example of why stronger unions become necessary. The story of America’s failed early effort to operate as a loose confederation of 13 states is looking increasingly relevant for many European officials. The lack of strong central coordination of the euro zone’s debt and spending policies is a crucial reason Europe has been unable to resolve its financial crisis despite more than 18 months of effort.”

THE CONSTITUTION IN OUR MIDST: A SAMPLE OF STORIES FROM JUST THE PAST FEW DAYS

2011-09-02T07:00:00.002-04:00

To our Fellows, and all other interested journalists, I suggest that you do what I did a few hours ago. I examined the news from the past week or so and came up with dozens of stories that have constitutional implications. Take a look at five of them...

1) "This is all about safety, not about religion." That is a quote from Peter Tartaglia, deputy commissioner of the Westchester County (New York) Parks Department, reacting to an incident at the Playland amusement park where a group of Muslims objected when told that women would have to remove their hajibs, the traditional Muslim head scarves, or they would not be allowed on certain rides. A brawl broke out leading to the arrest of fifteen people. You can read about this here.

2) “This was a very dark chapter in the history of medical research sponsored by the U.S. government.” So said Amy Guttman, president of the University of Pennsylvania and the chair of the Presidential Commission for the Study of Bioethical Issues. She was referring to the Commission’s investigation of a 1940s era experiment run by the Public Health Service in which more than 5000 Guatemalan prisoners, soldiers and mental patients were purposely infected with syphilis, gonorrhea, and other venereal diseases in order to explore whether pencillin could be effective after exposure. The study was in response to the high number of American GIs who contracted venereal diseases during World War II. Read about it here.

3) “Harassment, intimidation or bullying means any gesture, any written, verbal or physical act, or any electronic communication…that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory [handicap] disability…” So reads New Jersey’s new Anti-Bullying Bill of Rights Act, signed into law this past week by Governor Chris Christie. The bill, which requires each school to designate an anti-bullying official to examine perceived instances of bullying, has received criticism from those who worry that it will further tax the resources of the state’s schools. There are also concerns that this will elevate the ordinary dispute to the level of administrative review when it might otherwise be worked out in a discussion between parties. Learn more here.

4) “It’s not about us wanting money, money, money...It’s really about getting [sexual abuse victims] the help they deserve.” The words of Rick Gipprich, a spokesman for Texas Association Against Sexual Abuse, on the news that the Texas Supreme Court had ruled the state’s Sexually Oriented Business Fee Act of 2007 constitutional. The bill, which requires the payment of a “pole tax” – as it has been amusingly called – of each and every patron of any nude dancing establishment that also serves alcohol, would mandate those funds to be spent on aiding sexual abuse victims. The bill had been challenged as an infringement on free speech. Read about it here.

5) “It [is] shocking just how unreliable your eyes can be.” A reflection from a writer with the New Prospect reflecting on a decision from the New Jersey Supreme Court that called into question the effectiveness of police lineups. The decision created more rigorous criteria for such identifications, looking to avoid the impact of stress on the viewer and a tendency to “recall” racial characteristics improperly. The decision relied on a study that demonstrated that those viewing lineups were as often wrong as they were right. Read about it here.

WHY DON’T THEY JUST COME OUT AND SAY IT? TEA PARTIERS ARE RUNNING AGAINST ABRAHAM LINCOLN

2011-09-01T11:43:00.003-04:00

“History is bunk,” pronounced Henry Ford in an expression that was widely appreciated in his era and in eras since. So you have to admire the members of the Tea Party, if only for their earnest attempts to reverse Americans' aversion to the past by injecting “history” into the public dialogue. This is a movement that positively thrives on historical references, many of them relating to the Constitution. Glenn Beck’s radio listeners, for instance, are regularly treated to a diatribe against the Progressive movement and its leaders, Teddy Roosevelt and Woodrow Wilson. With his high praise, Beck has made a best-seller out of Friedrich Hayek’s "The Road to Serfdom," a 1944 book that laid out the argument for classical, small-government libertarianism. Earlier this year Beck emerged with his latest book, a reworking of the 18th century American classic “The Federalist Papers” by James Madison, Alexander Hamilton, and John Jay. Beck's tome is called “The Original Argument: The Federalists’ Case for the Constitution, Adapted for the 21st Century.” One has to wonder why, if he is an originalist, Beck must show us how to “adapt” the language of the Federalists to the 21st century (isn’t adaptation the definition of the “living Constitution” he and others so abhor?) but that is not the point. Right-wing talk show hosts like Beck, Mark Levin, Rush Limbaugh, Michael Savage and now the Tea Party-leaning presidential candidates repeatedly look to history lessons, however unorthodox, to justify their positions.

Governor Rick Perry of Texas, the latest to enter the race for the Republican nomination, is another of this breed and judging by the results of a Gallup poll released last week, the favorite by far of those who identify themselves as Tea Partiers. A few years ago, he wrote a book called “Fed Up! Our Fight to Save America from Washington” in which he argued for, essentially, a return to America as it was in 1890. Perry wants the 16th amendment (giving Washington the power to institute the income tax) repealed as well as the 17th amendment (which provided for direct election of senators instead of their being chosen by state legislatures, as had been the Constitution’s original mandate). There are a few other constitutional changes he wants: a new amendment outlawing gay marriage and another outlawing abortion. But Perry’s vision, like that of most of the Tea Partiers, is mostly one of rolling back the Constitution, not adding to it.

A few years ago, “rolling back” meant disavowing the liberal Warren Court decisions of the 1960s; then, in what seemed a radical departure, a pre-New Deal Constitution, and now, by attacking the 16th and 17th amendments, the Tea Partiers are essentially asking us to go back to the time before the Progressive Era. But why not simply go all the way? The most revered president in American history, Abraham Lincoln, was the original Big Government man.

The income tax, which Perry describes as the first step on “the road to serfdom” (a reference, for all Beck listeners, to Hayek) -- was first instituted by Abraham Lincoln as a means of raising revenue to fight the Civil War. The Court later declared the tax, which ended with the war, unconstitutional, leading to the 16th amendment, ratified in 1913, that gave Congress the power to re-establish the income tax. But Lincoln did much more that Tea Partiers profess to resent. He fought the war to keep the Union intact. Perry has threatened to lead his state to secede from the Union and earlier this year mistakenly declared that Texas had made the right of secession a stipulation to its joining the Union in 1844. With the Emancipation Proclamation in 1863, Lincoln made the end of slavery a war aim as well. The Proclamation was a brazen display of executive power, preceded by an earlier display of executive power, the suspension of habeas corpus. Depending on whom you are speaking to, the Civil War was either a contest over the future of slavery or a contest over the future of states rights. But either way you look at it the South lost. As many historians have asserted, the “United States” was a plural noun before the war; a singular noun afterwards.

Pre-Civil War America was a Tea Partier’s dream: a decentralized republic where the post office was the only way that most people had any connection with the federal government. The war, and Lincoln’s vision for a new “birth of freedom” introduced federal taxes, a federally conscripted army, a wider jurisdiction for federal courts, a national currency system and a sense of America as one place, with Washington DC at its core. It is Lincoln’s Washington that Perry and other Tea Partiers are “fed up” with. Yet Lincoln remains among Americans' most admired presidents. You can find that in a recent Gallup poll as well.

TB

IS THE CELL PHONE THE MODERN DAY EQUIVALENT OF A BULL HORN?

2011-08-23T13:37:00.003-04:00

PJP FELLOW CARRIE JOHNSON REPORTS ON THE DECISION TO SHUT DOWN MOBILE SERVICE ON SAN FRANCISCO'S SUBWAY SYSTEM:

Jennings Fellow and NPR Correspondent Carrie Johnson reported last week on the decision by officials of the Bay Area Rapid Transit System (BART) to temporarily shut down cell service in some of its stations. The decision was made to frustrate organization of a protest of the shooting death of a BART system rider by BART police. Johnson quotes a BART spokesperson as saying that there is "a constitutional right to safety" and that the protest threatened to put riders at risk of injury. The Supreme Court has determined that subway stations are not a public forum, and therefore not subject to the kind of protection for public expression that might operate in a park or other above-ground venue. But Gene Policinski of the First Amendment Center tells her that BART's action raises questions "about government interfering with the ability of you and I to talk to each other." He describes the cell phone as the modern day equivalent of a bull horn, which was commonly used for organizing protesters in the 1960s.

WILL THE COURT SOON HAVE TO RECONSIDER ITS DECISION IN CITIZENS UNITED?

2011-08-17T15:22:00.002-04:00

Benjamin Bluman is a Canadian citizen who lives in the US legally on a temporary work visa. A recent graduate of Harvard Law, he practices in the New York City office of Sidley Austin, a prestigious Chicago firm. Dr. Asenath Steiman claims dual citizenship in both Canada and Israel, but she is now completing her medical residency at Beth Israel Hospital in Manhattan. Both Bluman and Steiman are politically active and would like to put money forward to advance their interests. For Steiman, that means contributing funds toward the election campaign of Sen. Tom Coburn of Oklahoma, a Republican, since he has been a vocal opponent of President Barack Obama's health care reform law. Bluman's politics fall on the opposite side of the aisle. He would like to support Diane Savino, a Democratic state senator in New York who has been a strong advocate for same-sex marriage, as well as the Obama re-eelction campaign. He would also like to print leaflets encouraging Obama's re-election and pass them out in Central Park.

But the Federal Elections Commission does not allow foreign nationals to make monetary contributions to any federal or state election campaign. In fact, it has not allowed them to do so since Congress passed a statute banning such contributions in 1974. More recently, Congress passed the Bipartisan Campaign Reform Act of 2002 (often referred to as "McCain-Feingold") which extended the ban by making it illegal for foreign nationals to make contributions through the "soft money" process (money given to political parties or other interest groups but not directly to a political campaign) as well as any other method of "express advocacy" that specifically advocates the choice of a particular candidate in a federal or state election. In Citizens United v. Federal Elections Commission, the Supreme Court overturned part of that law as inconsistent with the freedom of speech clause of the First Amendment, but never directly addressed the issue over whether restrictions on the spending of foreign nationals in the American political process can be regulated.

Now comes the view of a three-judge panel, parsing out the "foreign contributions" angle as it applies to the suit filed by Bluman and Steiman. Last week, in a decision written by George W. Bush appointee Brett Kavanaugh, who has twice served a PJP Moot Court Judge, the court sided with the FEC, arguing that speech restrictions like those made law under the Bipartisan Campaign Reform Act only demonstrate "...the sovereign's obligation to preserve the basic conception of a political community." In other words, Bluman and Steiman cannot vote in American elections, so they should not be allowed to spend money or make donations in support of candidates in those elections.

But how does this notion measure against the reasoning the Court adopted in Citizens United? There the majority opinion in what was a 5-4 decision proved unhelpful to Kavanaugh. In reaching a decision to reject the bill's limitations on corporate speech, the majority found it unnecessary to address McCain-Feingold's new limitations on "foreign nationals" (in the tradition of the Court, decisions are reached on the narrowest issue possible.) So Kavanaugh looked instead to the non-binding dissenting opinion, where the now-retired Justice John Paul Stevens argued that the Bipartisan Campaign Reform Act's restrictions on the speech of foreign nationals was consistent with the First Amendment. Four members of the Court joined that dissent.

So, what happens now? If the Supreme Court reviews the case and affirms the lower court opinion, it might undermine its own reasoning in Citizens United which, in rejecting limits on corporate spending, essentially adopted the position that more speech is good, no matter the source. Corporations cannot vote any more than foreign nationals can, so on what basis should the speech of temporary residents like Bluman and Steiman be curtailed while corporate speech is not? And what of the speech of foreign corporations operating in the United States? There is a long history of legislative curbs on this going back before McCain-Feingold, but that was before our day, when the multi-national corporation thrives. Given the spread of American corporate interest throughout the world, particularly China, can we really expect a domestic corporation to be any more invested in the integrity of our political community than an international firm? Of course, challenging the Court to reconsider its reasoning in Citizens United may well have been the primary motivation behind the suit brought by Bluman and Steiman. The two may get that chance now, on appeal.

TB

THE TALK IN TENNESSEE IS ABOUT THE CONSTITUTION

2011-08-08T10:10:00.001-04:00

At breakfast in Washington last week with Tom Ingram, the former chief of staff to Tennesseee Senator Lamar Alexander, I asked what the hot political talk was in Tennessee these days. It turns out that there is a lot of discussion around getting square with the constitution -- the 1870 Tennessee state constitution, that is. That constitution, banning slavery, was ratified as a requirement for re-admission of the former Confederate state back into the Union. But the discussion today has nothing, of course, to do with human bondage. In fact, it has to do with a holdover amendment from the 1853 Tennessee state constitution, requiring the election of judges.

That provision was dutifully followed with elections in the general sense of that term until the 1970s when, in order to buffer the judiciary from the political process, the state, through a legislative statute, adopted the "Tennessee Plan." Under the plan, trial judges are still subject to popular election, but appellate judges -- and since, 1994, the Supreme Court justices -- are chosen by the governor from a list of acceptable candidates, as determined by a state commission. Those judges and justices are then subject to a "yes/no" retention vote in the next general election. But is this really an "election" in the sense that Tennessee's framers imagined?

Now a movement is building to either amend the state constitution to incorporate the Tennessee Plan as the official method for judicial choice, or, by a new statute, require popular elections for all judges as clearly stated in the state's founding document. There is no doubt that the latter would lead to a more politicized judiciary. Since the Tennessee Plan was adopted, only one judge has ever lost a retention election: Penny White, whose 1996 decision to reject the death penalty in a murder and rape case led to a state-wide campaign to dump her. White's removal was endorsed by the state's two U.S. senators at the time, Bill Frist and Fred Thompson, as well as the governor, Don Sundquist, and yet, ironically, judicial ethics required her to remain silent throughout the campaign, unable to answer charges that she was "weak on crime."

The Tennessee Plan has been tested in the state's courts and survived constitutional scrutiny there. But those who oppose it insist that no panel of judges would rule against a plan that would subject them, and other judges, to public approval. The conversation is about to get ratcheted up a notch. Last March, Tennessee Lieutenant Governor Ron Ramsey cast the deciding vote in the state's Judiciary Committee, advancing a bill that would require popular elections of all judges. The bill now moves to another senate committee before it can be addressed by the state's House of Representative.

TB

Eight years after the Court’s Landmark Rulings in Grutter and Graz, Affirmative Action is on its Way Back to the Docket

2011-08-05T11:25:00.001-04:00

Two appeals court decisions announced this summer promise a return of affirmative action to the Supreme Court. In one, the full Fifth Circuit voted, 9 to 7, not to hear an appeal of a three-judge panel’s decision upholding the use of race as a “plus factor” in admission to the University of Texas. In the other, issued last month, the Sixth Circuit invalidated Michigan’s voter initiative that had resulted in the state constitution banning the use of affirmative action in government hiring and admissions to public education. A challenge to a similar ban in California is on appeal to the Ninth Circuit.

It has been fifty years since President John F. Kennedy issued Executive Order 10925, which included the first reference to the phrase “affirmative action.” The order was in the interest of establishing the Equal Opportunity Committee (later re-named the Equal Employment Opportunity Commission), and it read, in part, this way…

WHEREAS discrimination because of race, creed, color, or national origin is contrary to the Constitutional principles and policies of the United States…[all government contractors]…shall not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.

Even then, it was unclear what the Order meant by “affirmative action,” but over time we have come to associate the phrase with providing expanded opportunities to minorities through everything from quota systems to less overt methods like the “plus system” addressed in the Fifth Circuit opinion, all of them aimed at reversing entrenched racial discrimination. Of course, from the beginning many have noted the irony: in order to correct the centuries of wrong doing when racial minorities were denied equal access to education and jobs due to the color of their skin, we now give minorities a built-in advantage and majorities a built in disadvantage because of the color of their skin. Is that any way to assemble a “color-blind” society?

Only a few years ago, the Court examined this issue in Grutter and Graz, two cases from Michigan that looked at the question of affirmative action. In the first, Grutter, it allowed for the University of Michigan Law School’s use of race as a factor in admissions since it read the goal of a diverse student body as a “tailored use”; in Graz, however, which involved the undergraduate admissions policy of the University of Michigan, it ruled that the points system which the university used to determine acceptance was too “mechanistic.” (On a scale that required 100 points out of 150 maximum, it automatically gave twenty points to an underrepresented minority and just twelve points to someone who scored a perfect 1600 on the SAT tests). In the opinion (the two cases were decided together) Justice Sandra Day O'Connor noted that sometime in the future, maybe twenty-five years out, racial affirmative action would no longer be necessary in order to promote diversity. The statement – odd, since it suggests that the principle of equal protection in the constitution is not absolute; instead, it is time-sensitive – gave rise to the question: why twenty-five years from now? Why not twenty, ten or five? Indeed, why not now?

The voters spoke next. A ban on affirmative action was inserted in the Michigan state constitution after a 2006 voter initiative. Led by Jennifer Graz (seen here), the lead plaintiff in the undergraduate case, the initiative, known as Proposal Two, passed by 58 percent to 42 percent. Bans like Michigan’s are currently on the books in California, Nebraska and Washington. But the Sixth Circuit decision invalidating Proposal Two is binding only in Kentucky, Michigan, Ohio and Tennessee. That makes it ripe for Supreme Court review: the Court is determined to adjust differences between districts on issues of constitutional law.

TB

TWENTY-FIVE YEARS AGO, THE NOMINATION OF ROBERT BORK TO THE SUPREME COURT SPLIT WASHINGTON;

2011-08-03T09:45:00.002-04:00

NOW THE CONTROVERSIAL JUDGE HAS BECOME A TRUSTED ROMNEY ADVISER

Yesterday, the Mitt Romney campaign released the names of the members of a "Justice Advisory Committee" that will counsel the Republican presidential hopeful "on the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues.” The committee consists of 60 lawyers, most of them Washington insiders, but for those with a knowledge of judicial and, in particular, Supreme Court history, it is the leadership of the committee that will raise some eyebrows. Romney announced three co-chairs: Harvard Law professor Mary Ann Glendon, former head of the Federal Communications Commission Richard Wiley, and -- here is the headliner -- former DC Circuit Court judge Robert Bork.

Glendon, who is a forceful pro-life advocate, shores up Romney's position with social conservatives (he switched from pro-choice to pro-life in 2005) and Wiley is a savvy Washington communications lawyer. But Bork is the most divisive choice, a figure of considerable controversy whose nomination to the Supreme Court went down to defeat in 1987, thanks to a vigorous campaign against him by Democrats, particularly the late Senator Ted Kennedy. That campaign led to an unusual "achievement" for the now 84 year old former judge: his name became a verb. In fact, you can look it up. According to the Oxford English Dictionary, "bork" is an American slang term describing efforts "to defame or vilify" someone "with the aim of preventing his or her appointment to public office..."

Bork, who had been a professor at Yale Law School and served as Solicitor General in the Richard Nixon White House, was nominated by President Ronald Reagan for the seat that would eventually go to Anthony Kennedy, who is still a member of the Supreme Court today. Back then, the judge was feared by many on the Left, not only because he had strongly-articulated originalist views on how to read the Constitution, but also because he was an influential thinker whose views on privacy, especially, were well known. As a member of the DC Circuit Court of Appeals Bork had suggested that the Supreme Court erred in finding a "right to privacy" in the Constitution, leading many to wonder if he joined the Court he might persuade it to reverse Roe v Wade, the landmark 1973 abortion decision finding a privacy right that extended, under certain conditions, to the decision to have an abortion. Here is how Senator Kennedy, speaking on the floor of the senate, described what America would be like if Robert Bork became a justice on the Supreme Court: "...a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is -- and is often the only—protector of the individual rights that are the heart of our democracy...No justice would be better than this justice."

Kennedy's heated rhetoric was meant to scare and it worked. The nomination went down to defeat, 58-42, one of only twelve times in American history that the senate has rejected a president's nominee to the High Court. But with the Bork nomination, American politics changed. Historians looking for the origin point of the partisan rancor that has dominated our politics over the past two decades, culminating, perhaps, with the debt ceiling debate of the past few weeks, would do well to look here. Now, with Bork as a person of influence in the Romney campaign, can we expect him to become a lightning rod again?

TB

WHEN THE COURTROOM BECOMES A SOAPBOX: ANDERS BREIVIK AND THE RIGHT TO A PUBLIC TRIAL

2011-08-01T12:50:00.002-04:00

When Anders Breivik was arraigned in an Oslo court last week for his brazen acts of terrorism, it was in a hearing closed to the public and closed to the news media. The decision to do that was based on concern over whether Breivik would use the proceeding to send covert signals to accomplices ready to commit additional acts of violence. But it may also have been a way ensure that Breivik did not seize this as yet another opportunity to promote his now familiar right-wing manifesto warning of Europe’s decline into “Islamification” and the coming of a new Caliphate.

Breivik is the flip side of Osama bin Laden, who described the same kind of future for Europe approvingly, and indeed, there were equally strong concerns that had bin Laden been captured and not killed he might have used the stage provided by a trial proceeding to spew venom on America and recruit more soldiers for the jihad.

To each of these men, imprisonment and perhaps even death was a small price to pay for promoting their revolutionary ideas, all of which raises an interesting series of questions: how do we protect the need for a public and transparent judicial process without rewarding acts of violence with the very mission of their violence: publicity for a set of radical ideas? Can we? Should we?

Had Breivik been subjected to the American criminal justice process, it is doubtful that the judge would have closed the hearing. The Sixth Amendment to the Constitution protects the right to a public trial, in part to ensure that corruption is not at work in the courtroom, in part so that the “people” get to simply see their criminal justice system at work. Indeed, the public nature of trial proceedings is a hallmark of the American criminal justice system. Still, the Sixth Amendment does not address the kind of issue being raised here, that the public may find a “public trial” not in its interest.

The closest the Court has come to reviewing this idea would be the potential for inflammatory ideas like those espoused by Breivik leading to a mob reaction that would prevent a public trial from being a fair trial. In Moore v. Dempsey (1923) the Court ruled, 6-2, that when a trial proceeding is too public, it can turn into a circus that prevents a fair judgement. Justice Oliver Wendell Holmes, writing for the majority in that case, declared that “if the whole proceeding is a mask – that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion…neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this Court from securing the petitioners their constitutional rights.” It is easy to imagine that a trial of bin Laden or of Breivik would turn into just such a mob scene, justifying the closing of the door, and yet it is just as easy to argue that a proceeding of this magnitude demands public eyes. Few could dispute that it is of commanding interest to the public at large that those responsible for crimes like these are properly brought to justice.

There are few applicable precedents to consult. In the 1990s, the self-proclaimed “Unambomber,” Ted Kaczynski, terrorized the academic community by sending deadly mail bombs that killed three and injured 23. Kaczynski was looking for attention on his own manifesto, a 35,000 word rant against technology. He finally sent a letter to the New York Times saying that he would stop his terror campaign if the paper published his treatise and, urged on by law enforcement, the Times, in a move still criticized as rewarding violence, ultimately did. Police suspected that if the treatise was published it would result in someone recognizing Kaczynski and lead to his capture and that is precisely what happened when Kaczynski’s brother read the statement in the Times and identified him. There never was a “Unabomber” trial; Kaczynski pleaded guilty to the murders as a way of avoiding the death penalty. But thanks to the Times, his ideas had a wide public airing.

Ultimately, in America, the decision about whether to conduct a trial of this importance in public or behind closed doors would become a balancing act between the Sixth Amendment and the First Amendment. The trial would need to be conducted in a way that ensures the best chance of getting at the truth and expression, particularly political expression, would also need to be protected, no matter how odious its content. What will the Norwegians do? Breivik has asked for a public trial and his preference to attend "in uniform." Norway's notoriously lenient criminal law caps prison sentences at 21 years, meaning that Anders Behring Breivik, if convicted of the killings, will received just 82 days per victim. It also means that he will emerge to freedom in 2032 at age 53, still in the prime of his life.

TB

...and if Obama ignored the Congress and simply raised the debt ceiling on his own?

2011-07-29T13:42:00.006-04:00

PJP Faculty Member Jeffrey Rosen speculates how the Supreme Court might decide

Last week, President Obama decided not to pursue the option of raising the debt ceiling without Congressional approval. That idea (see earlier post below) had been raised by proponents of a strict reading of the Fourteenth Amendment, which says, in part, that "the validity of the public debt of the United States, authorized by law, … shall not be questioned.” Like so much of the Constitution, the original history is instructive. As PJP Faculty Member Jeff Rosen points out today in The New Republic Daily, the phrase was written to counter the efforts of former Southern rebels who had been newly elected to Congress and had plans to overthrow the government by repudiating the Union debt and assuming the Confederate debt. Yet in 1935, the Supreme Court ruled that this language could be read to apply to any government obligation. So, let's say that Obama stopped waiting for Congress and simply raised the debt ceiling on his own. If he was then sued, and the issue went to the Supreme Court, says Rosen, the four so-called "liberal" justices -- Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer -- would go with Obama. The five conservatives, however, might not vote as a bloc. Chief Justice John Roberts, Antonin Scalia and Samuel Alito, if they remain true to their judicial philosophies, would have to weigh their judgement according to a well-defined history of defending a broad vision of executive power. Rosen sees them going for Obama, resulting in a 7-2 victory for the president. But he also concedes that the three conservatives justices might ignore their own philosophies meaning that the decision would end up following party lines against him, 5-4.

"Watching the Cars Crash": the Constitution's Place in this Summer's Debt Limit Discussions

2011-07-26T13:14:00.003-04:00

What role has the Constitution played in the persistent argument over raising the debt ceiling? There is the Republican push for a constitutional amendment requiring a balanced budget (which I will address in a later post) and the Democratic argument, now abandoned, that the Fourteenth amendment makes it unnecessary for the President to get Congressional approval on raising the debt ceiling since, as section four of that amendment reads, "the validity of the public debt of the United States, authorized by law, including debts incurred for the payments of pension and bounties for service in suppressing insurrection or rebellion shall not be questioned."

This Democratic position created one of the more theatrical moments of the months-long debate when, at a Politico breakfast attended by dozens of reporters earlier in the summer, Treasury Secretary Timothy Geithner waved a copy of the Constitution and asked, rhetorically, of the president's Republican opponents: "Have you read the Fourteenth Amendment?" The statement surprised many in the audience since it was thought that any attempt to shut Congress out of the process would be politically disastrous, and, indeed, despite former President Bill Clinton chiming in to support the position, last Friday President Obama took it off the table. “I have talked to my lawyers,” said Obama, of the Fourteenth Amendment reasoning. “They are not persuaded that that is a winning argument.”

Why? Truth is, no one knows quite how to understand the fourth section of the Fourteenth Amendment since there is no doctrine to consult. The Court has not addressed the issue. "It's not clear, it's not been tested," said Jonathan Turley of George Washington University Law Center's Jonathan Turley to Keith Olbermann on Olbermann's Current TV program, "Countdown." "For a law professor who comes to watch the cars crash, it could be exciting. But I'm not too sure it's good for the country."

That last argument – what is “good for the country” – would almost certainly be part of any federal court decision on this issue and it would likely look at it this way: no matter how the language reads and no matter how we understand it to be applied in this circumstance, the size, scope, and particulars of the national budget are without a doubt a “political question.” In other words, a decision best left to the branches elected by the people, not the judiciary.

High school civics classes may leave us with the impression that the American system of government is split between three co-equal branches. But in fact, there is a priority to the two political branches – the executive and the Congress – which the Courts have traditionally respected as superior on many matters. Yes, constitutional doctrine does provide the judiciary with the power to overturn acts of Congress as inconsistent with the Constitution, but especially in areas, like the national budget, where the Constitution clearly establishes the responsibility for action with the political branches, the Courts, as the least democratic branch, are loath to intervene.

There is even a hierarchy between the two political branches with Congress holding a slight edge. Consider the Court’s landmark 1952 decision in the Steel Seizure case, also known as Youngstown Sheet and Tube Company v. Sawyer. The case, which involved President Harry Truman’s decision to take over the steel industry when it was in the midst of a labor dispute that threatened to stall production and create economic instability, ended with a stinging rebuke of the president and the establishment of a formula of sorts by which to judge the relative power positions held by these often competing branches of government. Justice Hugo Black wrote the Majority opinion, siding with the steel industry. But it was Justice Robert Jackson’s concurrence which carried forth as a guiding principle. Jackson said that there are three categories of Congressional-Executive disputes: those where the president is attempting to use power expressing or implicitly established by Congress; those where Congress has said nothing on the issue; and those where Congress has been clearly in opposition to the president. These, he said, should be seen in descending order of legitimacy. In other words, the president needs Congress’s assent or, barring that, silence to act within the scope of constitutional authority.

This Congress – our Congress, that is – may not, as of today, have spoken on the issue of raising the debt ceiling, but it has been anything but silent, suggesting, in Justice Jackson’s formula, that not only is the debt ceiling a “political issue,” but the president does not have the authority here to act alone. For an executive of the world's most powerful nation, that can be bitter medicine. Back in 1952, when the Court told Harry Truman to relinquish his hold over the steel industry, the combative president was stunned. Later that afternoon, Justice Hugo Black invited him over to his home for a drink. “Hugo,” the president reportedly said to his host, “I don’t much care for your law, by golly this bourbon is good.”

TB

Out of the 77,000 National Rifle Association (NRA) certified firearms trainers only 1,700 are women...

2011-07-23T07:30:00.000-04:00

2011 PJP Fellow Angela McKenzie found one proud Second Amendment advocate in Poughkeepsie, N.Y.'s JACKIE EMSLIE.

You can hear her profile of Emslie here.

2011 PJP Fellow Andrew Hedlund asks: Does the mere imposition of a debt ceiling violate the 14th Amendment?

2011-07-22T15:01:00.002-04:00

Section Four of the Fourteenth Amendment asserts that "the validity of the public debt of the United States, authorized by law...shall not be questioned." So, does President Obama really need to get Congressional approval to raise the debt ceiling? Andrew Hedlund, a 2009 PJP Fellow and a student at Arizona State University, published this discussion on the issue in the Tempe, Arizona East Valley Tribune.

2011-07-14T09:05:00.002-04:00

"Which pledge is most important... the pledge to uphold your oath to the Constitution of the United States or a pledge from a special interest group who claims to speak for all American conservatives when, in fact, they really don't? The fact is we have enormous urgent problems in front of us that have to be addressed and have to be addressed in a way that will get 60 votes in the Senate... and something that the president will sign... Where's the compromise that will save our country?"

Senator Tom Coburn, Oklahoma (R), speaking back in April on the debate over raising the debt limit. Ever since, Coburn has been chastised by editorial writers back in his home state who point to his signature on the "Taxpayer Protection Pledge," the work of a conservative activist organization (Americans for Tax Reform). The Pledge commits signers to opposing "any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.” It has been joined by 236 Congressmen (all but two of them Republicans) and 41 senators (all, except Sen. Ben Nelson of Colorado, Republican).

Did the Court's 2003 Ruling in Lawrence v. Texas inevitably lead to this?

2011-07-13T15:28:00.005-04:00

Of Reality Shows, Polygamy, Sodomy and the Constitution

When, in 2003, the Supreme Court ruled that intimate, consensual sexual activities were protected by the the due process clause of the 14th amendment, invalidating a Texas law prohibiting sodomy, Justice Antonin Scalia, in dissent, wrote that if legislatures were now to be banned from enacting laws that made moral choices, then why stop with sodomy? Shouldn't the Court also invalidate laws against bigamy, adult incest, prostitution, bestiality?

Well, here we go. In a case made for the 21st century, reality TV star Kody Brown and his four wives, Janelle, Christine, Meri, and Robyn, are challenging the state of Utah's ban on polygamy by arguing that, much like Texas's now invalid law against sodomy, the Utah law prosecutes them for their intimate, consensual relations. Brown, who appears with his four partners in the TLC reality program "Sister Wives," is being represented by Jonathan Turley, a professor at the Georgetown Law Center. In his complaint, Turley actually makes seven claims for relief: due process, equal protection, free exercise of religion, freedom of speech, freedom of association, and the ban on the establishment of state religion (the family claims polygamy as a religious practice). The Browns' appearance on TLC led Utah authorities to begin a criminal investigation. The "plural family," as they prefer to be known, has since fled to nearby Nevada.

Turley insists that the suit is in the spirit of the great justice Louis Brandeis who argued that one of the defining principles of America is "the right to be left alone." You can read the complaint on Turley's blog and search through dozens of posts on other laws he argues should be invalidated by the Court's ruling in Lawrence.

2011-07-01T07:30:00.001-04:00

THE WORD "GOD" NEVER APPEARS IN THE CONSTITUTION AND ARTICLE VI DECLARES THAT THERE SHALL BE "NO RELIGIOUS TEST" FOR PUBLIC OFFICE, SO WHY ARE SO MANY AMERICANS WORRIED ABOUT THE PROSPECT FOR A MORMON PRESIDENT? PJP PARTICIPANT JEFF GREENFIELD SPECULATES

Two of the prominent Republican candidates for president are Mormons: former Utah governor John Huntsman and former Massachusetts governor Mitt Romney. Should their religion give voters pause? Despite the Constitution's ban on a "religious test" for office, many remain concerned. Here Jeff Greenfield discusses why.

2010 PJP FELLOW JESSICA YELLIN NAMED CNN CHIEF WHITE HOUSE CORRESPONDENT

2011-06-30T07:30:00.000-04:00

Yellin, who also worked for ABC News, described her new position as a "dream job." You can read of her appointment here.

2010 PJP FELLOW CHANEL LEE EXPLAINS THE COURT'S DECISION ON THE SALE OF VIOLENT VIDEO GAMES TO MINORS

2011-06-29T16:00:00.000-04:00

In a post at the website howstuffworks.com, where she is an editor, Chanel Lee writes: "Although the Court focused on the obscenity portion of the case during oral arguments, the decision itself largely left that question alone, saying only that the California law is too vague and broadly drawn to pass the Miller test necessary to meet the obscenity standard. Then again, Associate Justice Antonin J. Scalia, who wrote the majority opinion, seems to have had it up to here with those who want to define obscenity as anything they don’t like: 'The most basic principle — that government lacks the power to restrict expression because of its message, ideas, subject matter, or content — is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.' "

You can read her entire post here.

How Results-Oriented Reporting Distorts Readers' Understanding of the Court and the Constitution

2011-06-29T13:35:00.004-04:00

by Todd Brewster

Here is the headline from Tuesday morning's New York Times: "Minors Can Buy Violent Video Games, Justices Decide." Okay, that is sort of true. It relates to the Court's decision to overturn a California law that regulated the sale of certain violent video games to minors. California had fashioned the law in such a way that it would mimic laws limiting the sale of pornographic literature to children, hoping that the Court would carve out a new class of exceptions to First Amendment protection around violent expression much as it has regarding obscenity. Instead, the Court demurred, determining, 7-2, that the Constitution protects the sale of even offensively violent "speech" to minors. Two justices dissented.

But the headline is misleading. A more accurate headline would have said, "Justices Decide that Violent Video Games, However Offensive, are Protected by the First Amendment." What is the difference? In the Times's headline, the focus is on the result. Yes, children will now not be hampered by a California law that prohibited them from buying some violent video games, but the decision cannot be reduced to the simple declaration that "Minors Can Buy Violent Video Games" as if the Court is a parent standing at the checkout counter, making buying decisions for all of us children. The decision was that California's regulation on the sale of violent video games to minors did not, in the judgement of seven justices of the Supreme Court, meet the very high bar established by the First Amendment for curbing access to speech.

Why is it important to make that distinction? The most basic civics class will describe the American government as divided between three branches: the executive, the legislative and the judicial. Each has its own peculiar function and when one crosses over to act like the other, it not only raises the temperature on talk radio, it also distorts our understanding of our founding document and of our system as it is supposed to work. Last week, Justice Stephen Breyer dissented in the Court's decision to nullify a Vermont law preventing pharmaceutical companies from using the data on doctors' patterns in prescribing certain drugs as a tool for marketing to those doctors. While the Majority found this a breach of the drug companies' speech rights, Breyer instead saw it as an economic regulation that fell properly to the legislative branch's decision-making power, not the judiciary's. He even compared the Majority's reasoning to the dreaded Lochner decision of 1905 when the Court overturned a New York state labor law limiting the hours of bakery employees as a breach of the right of contract -- a regrettable decision, later overturned, that has since made the term "Lochner" synonymous with the Court overreaching into the legislative function.

Breyer's Lochner reference may have gone too far. But no matter what one may think of either the Vermont or the California decisions announced this past week by the Court, it is imperative that journalists recognize and represent the difference between a legislative decision and a judicial one. If they do not, they are not only unfaithful to the reasoning of the justices, they are also unfaithful to their readers who through bad reporting are encouraged, increasingly, to see the Court as yet another political branch where the same kind of divisive and partisan expression that has corrupted our Congress and executive branch simply transfers to the men and women in robes.

A few months ago, while discussing this with the CBS News analyst Jeff Greenfield, he responded to my lament above by saying, "Yes, we may be treating the Court as if it is another political branch, but not out of ignorance. We do so out of recognition that the Court actually acts like another political branch." To Greenfield, and many others who have covered the Court for years, the tendency of reporters to see the Court's decisions less as aspects of judicial reasoning, limited by the language of the law, than as thinly-veiled political statements is based on their feeling that the justices tend to first decide and only then work backward to find the reasoning that justifies their decision.

That's a pretty cynical view and one I do not share. No one can get into the minds of the justices and journalists act presumptuously if they report as if they can. Furthermore, the very fact that the Court has to frame its decisions in relationship to judicial reasoning makes it important that journalists faithfully explain that reasoning as the basis of their reporting. Here, despite the Times's headline, the Court cannot be said to have decided that minors can buy violent video games. It can only be said to have asserted that the highest law of the land -- the Constitution -- prevented California from circumscribing the sale and consumption of a form of speech and that, not some determination about the appropriateness of violent expression, was the basis of its decision. Roughly eighty years ago, Justice Oliver Wendell Holmes, wrote in a dissenting opinion that "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate." In reporting on First Amendment decisions like the ones above, reporters would do well to recall Holmes's wisdom.

The Constitution in Your Medicine Cabinet

2011-06-27T16:16:00.002-04:00

This is one insidious way in which the law penetrates your everyday life. Last week, the Supreme Court ruled unconstitutional a Vermont law that limited the access of pharmaceutical companies to data on which doctors prescribed which medications. The companies sought such information in order to target their marketing towards specific doctors, a multi-million dollar practice that presumably affects which medicines your doctor prescribes to you.

Why? What could the Constitution have to say about something so personal and private? Read the First Amendment, or, more precisely, read it the way that six justices read it. The Vermont law restricted a practice called "detailing" where drug companies buy prescription information showing them which doctors most prescribe which kinds of medicine. This information, gathered by data mining companies who pay the pharmacies for access to their records, could still be sold or otherwise made available to journalists and insurance companies, just not drug companies. So, argued Justice Anthony Kennedy, the law was in fact restricting the use of truthful information based upon the identity of the speaker (a drug company) and the contents of its speech (pharmaceutical records) and that, to Justices Kennedy, Sotomayor, Thomas, Alito, Scalia and Chief Justice John Roberts was enough to overturn the law. “If pharmaceutical marketing affects treatment decisions,” Kennedy wrote, “it does so because doctors find it persuasive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it.”

Yet is this really speech? Or is it economic regulation? If it is speech, is it commercial speech (which has a lower standard of protection) or private speech? If economic regulation, then should it not be dealt with by the legislatures and not the courts? These were the questions raised by Justice Stephen Breyer in the dissent.

“At best,” Breyer wrote, “the court opens a Pandora’s box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message.” Breyer read the majority opinion as a akin to Lochner v. New York, the landmark 1905 decision that overturned a New York labor law.“ At worst,” he went on, "[the majority opinion] reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision-making where ordinary economic regulation is at issue.”

TB

"DEAR VANCOUVER, I APOLOGIZE…"

2011-06-24T08:34:00.003-04:00

WATCHING OUR ALL-TOO PUBLIC MEDIA HELP IDENTIFY THOSE WHO PARTICIPATED IN THE ALCOHOL-INDUCED RIOTS IN VANCOUVER, YOU HAD TO WONDER, IS THIS "ANOTHER FORM OF MOBBING"?

First, there was “Internet bullying.” Now, increasingly, we are facing "Internet mobbing." After the riots that followed the Vancouver Canucks defeat in the Stanley Cup hockey finals, a plethora of still pictures, home movies and cell phone snapshots posted on the Internet gave everyone the opportunity to be a detective. Who did it? Look, I know him! He's the water polo guy! And look over there, she's my office mate from work!

There is no denying that the rise of cell phone cameras, Tweets on Twitter and Facebook postings has given law enforcement new and invaluable tools for discovery and tabloid newspapers an unending source of material (just ask the disgraced Anthony Wiener), but you have to ask yourself, are we witnessing the return of a primitive, even barbaric, form of justice, one that provides plenty of satisfaction to those who enjoy watching public humiliations but which feels more like an electronic version of an Iranian town square stoning in the way that it skirts the principles of fairness and decency?

It's not that I think that looters should not be identified and punished, but we used to rely on the law enforcement agencies and courts to do that. Now, in an age of access, who wants to wait for all that deliberation? When Nathan Katylak, the Canadian Olympic water polo hopeful, was spotted on video postings lighting a police car on fire, he came forward publicly and asked for forgiveness. Now the Internet is filled with postings scoffing at the motives for his apology ("he's just trying to save his career"). Similarly, a blog post by Camile Cacnio, a student, acknowledges -- even re-posts! -- a Youtube video containing, literally, three seconds of video in which you see her running from a looted store, holding a stolen sweater. She introduces it with a 428 word apology that begins, "Vancouver, I am sorry..."

The Internet is such a strange phenomenon and, as with all technologies in the first years, even decades, after they have been introduced, society needs awhile to get adjusted to it. Think of how Orson Welles's "War of the Worlds" radio fiction stunned listeners into thinking there had been a Martian invasion back in 1938, so trusting were they of this new source of news that came directly into their living rooms, or, in a completely different technological surprise, how televised reports on the war in Vietnam during the 1960s brought home the realities of combat as never before to give us new and visceral sense of the horror of war -- one we never had, for instance, of World War II or, for that matter, the Civil War, even though those wars were just as brutal, if not more so -- with a crippling effect on foreign policy, one that could be debated as healthy or unhealthy, depending on your perspective.

In the case of “Internet law enforcement,” I am struck by the way that this dramatic new communications medium demonstrates the extremes of both "public-ness" and anonymity at the same time. Back in July, 1993, when the Internet was really new and the anonymity seemed to pose all kinds of exciting opportunities to say things you would not be held accountable for, The New Yorker published a Peter Steiner cartoon of a hound sitting at a chair in front of a computer, explaining to a canine companion, "On the Internet, nobody knows you're a dog..." while he presumably was posing in a chat room as something he is not. Very funny. But if the Internet is about some innocent kick provided by anonymity, tell that to Kotylak and Cacnia or anyone else who has been "outed" from some old pictures posted somewhere unbeknownst to the subject or by unsubstantiated attacks posted by a disgruntled worker or client. When prospective employers can peek in on your on-line profile, true or false, reputations can go up in smoke in nanoseconds.

As a system of justice, the Internet fails just about every standard of Western law. But perhaps the most critical one is the constitutional protections afforded by the Sixth Amendment. There it says, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defence.” Putting aside the fact that Vancouver is in Canada, not the United States, one may rest assured that there will eventually be trials for those caught looting there, but the punishment will pale next to what they experienced on the Internet where their infractions and anonymous reactions to them will be portrayed in vivid color for time in perpetuity.

TB

2011-06-23T09:11:00.004-04:00

IGNORING THE WAR POWERS ACT? PJP PARTICIPANT BRUCE ACKERMAN SAYS OBAMA, WHO CRITICIZED BUSH, IS SETTING A WORSE PRECEDENT FOR ARBITRARY EXECUTIVE POWER THAN HIS PREDECESSOR

In an interesting Op-ed in the New York Times, Yale Law professor and PJP participant Bruce Ackerman argues that President Obama's decision to join in the NATO air strikes on Libya has been unfaithful to the War Powers Act of 1973 -- in particular, the part of that Act which requires the president to get Congressional approval of military actions within 60 days of Congressional notice (more than 90 days have already passed). Ackerman points the finger at White House counsel Robert Bauer whose office rejected the arguments of the Justice Department's Office of Legal Counsel after it declared that Obama needed to adhere to the Act's reporting and approval procedures. Obama, he asserts, is following a dangerous precedent established by his predecessor, President George W. Bush, whose White House counsel, Alberto Gonzales, led an "ad hoc war council' that put pressure on the Office of Legal Counsel to approve the "torture" of terrorism suspects: when the OLC doesn't give you the interpretation you want, the president simply declares his own interpretation of the law, an abuse of executive power.

Hitchens v. Mamet

2011-06-22T07:30:00.006-04:00

The book is called "The Secret Wisdom" and, well, it's provocative. Here are some of the claims made by its author, the enormously successful playwright and essayist, David Mamet...

“America is a Christian country. Its Constitution is the distillation of the wisdom and experience of Christian men, in a tradition whose codification is the Bible.”

“the Israelis would like to live in peace within their borders; the Arabs would like to kill them all…”

“The federal government is merely the zoning board writ large…”

Affirmative Action is “as injust as chattel slavery,” comparable to Japanese internment and the Dred Scot decision

And here are a few reactions from a New York Times review by Vanity Fair contributing editor Christopher Hitchens:
"This is an extraordinarily irritating book, written by one of those people who smugly believe that, having lost their faith, they must ipso facto have found their reason."

"…you will not be surprised to know that Mamet regards global warming as a false alarm, and demands to be told “by what magical process” bumper stickers can “save whales, and free Tibet.” This again is not uncharacteristic of his pointlessly aggressive style: who on earth maintains that they can? If I were as prone to sloganizing as Mamet, I’d keep clear of bumper-sticker comparisons altogether."

"Mr. Beck is among those thanked in Mamet’s acknowledgments for helping free him from “the bemused and sad paternalism” of the liberal airwaves. Would that this were the only sign of the deep confusion that is all that alleviates Mamet’s commitment to the one-dimensional or the flat-out partisan."

2011-06-21T12:52:00.007-04:00

"This is my dad's church!" exclaimed the eight-year old daughter of an evangelical minister as she walked through the hallways of a public school in New York City...

Responding to the Appeals Court decision referenced in the June 4 post by Jordan Lorence below, author Katherine Stewart's Op-ed in last Sunday's New York Times describes the situation at her own child's New York City school. Stewart writes that her child's school is just one of 60 in New York that are used for worship services, free of rent, in an attempt to not discriminate student "clubs" for their religious beliefs. She describes the plethora of New York public school church worship meetings as "the work of national 'church-planing' organizations attracted to New York by the combination of cheap space and the opportunity to save the city from its apparent godlessness." The recent decision by the Second Circuit Court of Appeals disallows such meetings as a violation of the religious establishment clause of the First Amendment. Stewart is the author of the forthcoming book, “The Good News Club: The Christian Right’s Stealth Assault on America’s Children.”

THE SUPREME COURT’S UNANIMOUS VERDICT IN AL-KIDD SAYS IT ALL: THE VICTIMS OF POST 9/11 SUSPICION STILL CAN’T GET THEIR DAY IN COURT

2011-06-10T06:49:00.003-04:00

by Joe Pace, Featured Guest Blogger

If you told a lay person, unburdened by a law degree, that government officials could—without fear of legal consequence—scoop a law-abiding citizen off the streets without an iota of suspicion that they committed a crime, toss them into a high-security cell for two weeks, and subject them to daily humiliations like shackling and body-cavity searches, I suspect most people would be shocked. So the Supreme Court’s decision last week in Ashcroft v. al-Kidd—which held that former Attorney General John Ashcroft (pictured below) could not be sued for doing precisely that—makes for an edifying read.

The facts of the case are startling. It is well-documented that in the aftermath of 9/11, the Ashcroft-run Department of Justice misused the material witness statute to round up hundreds, if not thousands, of people, mostly Muslims and people of Arab descent. The material witness statute allows the government to detain someone who isn’t suspected of committing a crime upon a showing that a) the individual has information material to a criminal proceeding, and b) it is impracticable to secure the person’s testimony through subpoena. The statute makes clear: unless a “failure of justice” would result, the government cannot detain someone as a material witness.

Abdullah al-Kidd, a Kansas-born convert to Islam, was but one of the countless victims of this practice. In early 2003, the government filed an application to detain Mr. al-Kidd on the grounds that he had information material to the prosecution of Sami Omar Al-Hussayen, who was charged with making false statements on his visa application—this despite the fact they had no intention of calling him to testify.

The application asserted that al-Kidd had information “crucial” to the prosecution. What sort of information? How did he acquire it? How was it relevant to the prosecution? The affidavit does not say. (Ironically, due to the Court’s decision in Ashcroft v. Iqbal—another decision slamming the courthouse doors in the face of victims of the post 9/11 crackdown—if a victim of torture files suit on the basis of thinly supported assertions, the courts are obligated to toss the suit. So, under the current law, the government can imprison an innocent person based on naked assertions, but a victim of torture cannot even file a lawsuit without hard facts to rely upon).

And exactly why couldn’t the government obtain this mysterious information from al-Kidd through means short of locking him up? According to the affidavit, the answer is that al-Kidd had purchased a one-way, first-class ticket to Saudi Arabia, where he couldn’t be subpoenaed. But this was a lie. Al-Kidd bought a round-trip ticket, coach-class. Perhaps more important than what the affidavit misrepresented was what it omitted: that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him.

Once al-Kidd was picked up, he was treated as a common criminal: he was kept in a high-security prison inside a cell that was lit 24-hours a day; he was shackled at the arms, waste, and legs; he was subject to strip-searches and body-cavity searches. When released, he was subject to onerous conditions like a travel ban, consent to daily home inspections, and regular reporting to a parole officer for 15 months. The FBI director mistakenly, but very publicly, identified him as a major terrorist threat. By the time his ordeal was over, he had been fired from his job, lost a scholarship to study Arabic in Saudi Arabia, and was separated from his wife.

Al-Kidd was never called to testify. (Incidentally, al-Husayen—whose case formed the pretext for Al-Kidd’s detention—was later acquitted.)

So, to recap: government officials, carrying out John Ashcroft’s orders, finagled a material witness from a magistrate judge through false pretenses; detained someone they had no intention of calling as a witness; subjected him to daily humiliations; publicly slandered him; and cost him his wife and job. The Ninth Circuit decried this miscarriage of justice as “repugnant to the Constitution” and let the suit against John Ashcroft proceed. True to form, the Supreme Court reversed the Ninth Circuit.

All eight of the Court’s voting members (Justice Kagan did not participate) agreed that Ashcroft could assert qualified immunity against al-Kidd’s claim. The doctrine of qualified immunity says that officials cannot be held liable unless they violated law that was “clearly established” at the time of the offending action. The rationale behind this doctrine is that law is constantly changing and if officials could be held liable for overstepping constitutional boundaries that were fuzzy at the time of action, officials would become spend too much time fretting over lawsuits to effectively govern. Officials, the doctrine recognizes, need breathing space.

And at the time, according to the Court, there was no “clearly established” constitutional rule that barred the Attorney General from directing his subordinates to use the material witness law as a pre-text to round up people without probable cause. Five members of the Court went further, holding that the warrant was validly obtained and concluding: “an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.”

True, there was no case directly on point, but did the Attorney General need a case to understand that it is unlawful to order your subordinates to misuse existing law to skirt the requirements of the Fourth Amendment? Qualified immunity is based on notice: we don’t want officials being taken by surprise when a court finds their conduct unconstitutional. Are we really to believe that John Ashcroft would have been shocked to discover that the Constitution forbids the deliberate and systematic misuse of a law designed to secure the testimony of an uncooperative witness to arrest an individual that the government had no intention of using as a witness at all?

The Court not only answers these questions in the affirmative—it disclaimed the existence of a Fourth Amendment violation at all. To call this a “validly obtained warrant” blinks reality. The arrest warrant was issued in accordance with a law that explicitly prohibits arrest warrants where detention is unnecessary to secure testimony (and by implication, where testimony is not sought). And how did the government get this warrant? By falsely claiming that it sought al-Kidd’s testimony and by falsely overstating the difficulty of obtaining it without detention.

2011-06-04T07:30:00.004-04:00

"It’s very sad when government officials misinterpret the Constitution and attempt to kick such groups out...That is clearly not at all what the authors of the Constitution intended.”

Jordan Lorence, attorney for the Alliance Defense Fund, which represented the Bronx Household of Faith in a case heard before the Second Circuit Court of Appeals this term. The case was brought by the New York City Department of Education which sought to ban the church from holding "regular worship services" on public school property. Yesterday, the Second Circuit ruled against the church, arguing that while religious groups cannot be banned from meeting on school property, neither can they be allowed to conduct religious services there. Judge Pierre N. Leval, part of a three-judge panel, wrote that when services are conducted on school property “the place has, at least for a time, become the church,” adding that the city’s policy against services in the schools imposed “no restraint on the free expression of any point of view.” Rather, it applied only to “a certain type of activity — the conduct of worship services — and not to the free expression of religious views associated with it.” Judge John Walker dissented, arguing that the ban violated the free exercise clause of the First Amendment.

DID YOU KNOW?: RUSSIANS UNIMPRESSED BY DEMOCRACY

2011-06-03T07:30:00.001-04:00

In a recent survey conducted by WorldPublicOpinion.org, only 16 percent of Russians said it was "important to live in a country governed by a democracy." By contrast, 72 percent of Americans, 70 percent of the Chinese, and 91 percent in Argentina agreed with the same statement. You can read more of their study here.

ACCEPTANCE OF ABORTION GROWS SLIGHTLY IN NEW GALLUP POLL, BUT IS STILL SHORT OF MAJORITY

2011-06-02T07:30:00.001-04:00

In its annual poll of Americans' attitudes towards morally-charged subjects, the Gallup organization found that abortion rose in acceptance for the second year in a row (after hitting an all-time low in 2009.) The percentage of those who found abortion morally acceptable is now at 39 percent, still well below a majority. Among other constitutionally relevant issues that appeared on the poll, doctor-assisted suicide was the most divisive, with 45 percent finding it acceptable and 49 percent unacceptable. A full 62 percent were comfortable with stem cell research while only 12 percent found the cloning of a human being acceptable. You can view a summary of the findings here.

HERE'S ANOTHER TAKE ON THE IMPORTANCE OF DIVERSITY: DOES THE SUPREME COURT NEED A MILITARY VETERAN?

2011-06-01T14:29:00.004-04:00

Until Justice Sandra Day O'Connor was nominated by President Ronald Reagan in 1981,no woman had served on the Supreme Court. Today, there are three women -- Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor (who is also the Court's first Latino justice) and Justice Elena Kagan. The first Jewish Justice was Louis Brandeis, nominated by President Woodrow Wilson in 1918, and today the Court has three Jewish justices -- Kagan, Ginsburg and Stephen Breyer -- as well as six Catholics (Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, Justice Antonin Scalia, Justice Anthony Kennedy, and Sotomayor). Of course, Justice Thurgood Marshall became the first African-American on the Court, nominated by President Lyndon Johnson in 1967 and there has been one other African-American, Justice Thomas. But when Justice John Paul Stevens retired last year, the Court lost its only Protestant (in a majority Protestant nation) and its only military veteran.

Just as it was long argued that the Court could not substantively address issues important to women unless it included women among its members, so, one might argue, the loss of a military veteran could skew the Court's decisions in another important way. That at least is one reaction to the comments recently by the retired Justice Stevens (pictured here with Justice Kagan, who replaced him) on the decision in Synder v. Phelps, the Court's recent 8-1 decision supporting the First Amendment protections of protesters at military funerals. The case, which received a lot of attention for the odious nature of the protesters' message -- they carried signs with slogans like "Thank God for Dead Soldiers" as a way of protesting what they claim is America's increasing tolerance of homosexuality -- could be considered an affirmation of the First Amendment's protection of "the thought that we hate" (Justice Oliver Wendell Holmes, Jr.), but it was the dissent by Justice Samuel Alito, not the majority opinion, that received praise from retired Justice Stevens. "It might interest you to know," he told a group gathered at the Waldorf Astoria in New York City a few weeks ago, "that if I were still an active justice I would have joined [Alito's] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech."

Justice Stevens thought his audience might be surprised by that because Stevens was considered to be one of the more liberal justices on the Court while Justice Alito is a decided conservative and over the years in which they served together, they often clashed. But Justice Stevens, perhaps because he is a Navy veteran of World war II, saw eye-to-eye with Alito here. "To borrow Sam's phrase," said Justice Stevens, "the First Amendment does not transform solemn occasions like funerals into 'free-fire zones.'" The comment recalled Stevens's dissent in a 1989 First Amendment decision that gave protection to the act of flag burning. Even Justice Scalia, the Court's most vocal conservative, supported the majority in that case, but not Stevens.

Indeed, while a reliable liberal vote on most issues, Stevens's Supreme Court history shows a somewhat surprising bent towards authorizing a firm government hand in national security issues and an intolerance for the extremes of political dissent. He voted with the conservative majority last year in a decision that denied protection to speech, even benign speech, that could be deemed to support terrorist organizations. And in the same speech at the Waldorf this month, Stevens indicated that he would have supported the majority in NASA v. Nelson, a case in which the Court ruled that scientists and engineers should undergo intrusive background checks if their work is done for government contractors.

A First Amendment challenge to the Stolen Valor Act -- the 2005 law that makes it a crime to benefit from falsely claiming military service -- is likely to come before the Court next year and while Stevens history suggests that he would support the Act as constitutionally acceptable, he no longer has a vote nor, on this Court, does any other veteran of military service. Will we miss the perspective offered by such a voice?

SHOULD CHANGING CULTURAL STANDARDS ALSO CHANGE THE WAY THAT WE EXAMINE OBSCENITY AND THE FIRST AMENDMENT?

2011-05-27T15:07:00.004-04:00

By Annamarya Scaccia, 2011 Jennings Fellow

In early April, 42 senators from both Republican & Democratic parties sent a letter to Attorney General Eric Holder calling for amped-up efforts in the federal prosecution of hardcore adult pornography. This comes on the heels of the dissolution of the Obscenity Prosecution Task Force—a second Bush-era group formed to appease conservative cries over sexually-explicit obscenity (in other words: hardcore pornography)—into the Child Exploitation and Obscenity Section.

"The need for consistent and vigorous enforcement is even greater today because both obscene pornography and evidence of its harms have multiplied since then," they wrote. "Simply put, we know more than ever illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families, and communities and the problems are only getting worse."

To back of these assertions, the senators cite studies claiming consenting adult sexual conduct -- or, as they put it, "illegal adult obscenity" -- is a catalyst for violence. But there's fault with these sources: they only show correlation and not causation. As sexuality/ HIV educator and counselor Charlie Glickman wrote in a June 2010 post, it’s difficult to discern from research if frequent pornography consumption increases sexual aggression. "There’s no way to tell from this research what the causal links may be. Porn use could increase aggression, aggression could lead to more porn watching, they could both be the result of another set of factors, or all of the above," Glickman wrote. "Different people have different experiences, so of course, porn has different effects on different people."

What's more problematic is the claim that adult pornography contributes to harm to children. Former obscenity prosecutor and Morality in the Media head, Patrick Trueman

suggested to POLITICO in an April 16 article that the increasing number of child pornography cases is linked to the government’s failure to prosecute adult pornographers. The Justice Department sees it differently, asserting in its formal response to the senators' letter that they’ve charged 150 violations of federal obscenity laws in nearly three years. Additionally, the Justice Department holds child pornography as the bigger priority, writing in the letter that its "limited investigative and prosecutorial resources on the most egregious cases, particularly those that facilitate child exploitation and cases involving the sexual abuse of children."

But there's something deeper to this war on adult pornography than “morality vs. reality.” It's also an issue of constitutionality. Since the late 19th century, adult pornography has fallen under the obscenity standard first established in Rosen v. United States. The 1896 case, which saw Lew Rosen convicted to 13 months hard labor and a $1 fine for allegedly mailing a 12-page paper deemed "obscene, lewd and lascivious," adopted the obscenity standard decreed in the British case, Regina v. Hicklin, which defined obscene material as that which tended "to deprave or corrupt those who minds are open to such immoral influences, and into whose hands a publication of this sort may fall," any of which could be banned under that basis. This definition first changed in 1957 in the landmark combined case Samuel Roth v. United States and David S. Alberts v. California, which challenged that the federal obscenity clause violated the First Amendment's freedom of speech and press clause (Roth) and the obscenity provisions of the California Penal Code violated the 14th Amendment's due process clause (Alberts) (Roth and Alberts both conducted businesses where they sold and sent sexually-explict publications, of which they publicized through circulars and advertisements). The constitutional test -- and both convictions -- were upheld by the Supreme Court, and was redefined to say that, in order to determine obscenity unprotected by the First Amendment, the entirety of the material must lack any "redeeming social value," "must speak to prurient interest in sex" and found by the courts to be "patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters."

While sex is not synonymous with obscenity, pornography often falls under the obscenity clause, although its constitutionality converges between personal in-home possession and distribution/sale. As founded in the 1969 Stanley v. Georgia case, while adult pornography is legal, it's not unconstitutional for the government to prohibit it, while personal in-home possession of pornography may not be prohibited by law as, wrote Justice Thurgood Marshall, "if the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch." Still, its constitutional protection was again asserted in the 1973 case, Marvin Miller v. California. Like Alberts, Miller ran a mail-order business selling sexually-explicit adult material in California, and was convicted of violating the state's obscenity provision. He appealed this decision and the conviction was affirmed.

Nevertheless, the courts again redefined the test of obscenity, and the current standard now used by state courts, known as the Miller test, uses the following benchmarks (this test does not apply to child pornography as it's considered illegal and not protected by the Constitution):

• "‘The average person, applying contemporary community standards’ would find the work, as a whole, appeals to the prurient interest."

• "The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law."

• "The work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

This standard is a point of contention for the adult industry and free speech activists, who, according to the POLITICO article, argue that "material produced by and for consenting adults does no harm."

In the same article, Diane Duke of the Free Speech Coalition asserted that the dissolution of the Obscenity Prosecution Task Force was a "very smart and pragmatic move" and called the rally cry to prosecute adult pornography "a witch hunt against folks in the industry." While such a statement may seem extreme, it's hard not to seriously consider Duke's point. After all, the visibility and accessibility to sex has changed since the 1970s, finding its way television and movies more than ever before, like on ABC's Grey's Anatomy, CW's Gossip Girl, HBO's wildly popular Sex in the City. According to a 2009 paper published in the International Journal of Law and Psychiatry, "sexual erotica has not only widespread personal acceptance and use but general tolerance for its availability to adults," while there is general consensus against sexually-explicit material involving children. Also, the 2008 Self-Perceived Effects of Pornographic Consumption study found that the majority of Danish women and men between 18- and 30-years-old surveyed believed hardcore pornography has positively affected different aspects of their lives, including "sexual knowledge, attitudes toward sex, attitudes toward and perception of the opposite sex, sex life, and general quality of life."

So, when we consider the purpose of the senators' letter and the disbanning of the Obscenity Prosecution Task Force, we should keep in mind the following questions:

Since the visibility and accessibility of sex has changed in the last three decades, should all types of adult pornography still fall under the obscenity clause?

What types of adult pornography should always be considered obscene?

Is the Miller test still relevant? Should it be redefined the reflect modern opinion as expressed in the 2009 paper, and if so, how would it differ from the current standard?

Is the findings in the 2008 paper enough for United States courts to reevluate the benefits or artistic values of adult pornography and afford it protection under the First Amendment?

Should the free speech clause of the First Amendment include sexual expression and empowerment?

NEW GALLUP POLL SHOWS A MAJORITY OF AMERICANS NOW FAVOR LEGALIZING GAY MARRIAGE

2011-05-20T08:40:00.003-04:00

For the first time since it began tracking the issue, the Gallup Poll has found that a majority (53%) of Americans now support same sex marriage. The poll shows a dramatic shift from fifteen years ago, when two-thirds were in opposition. The change, which demonstrated a nine percent gain in support over last year, was, Gallup said, largely attributable to shifts among Democratic and Independent voters. Republican support remained the same as last year.

2011-05-19T08:24:00.004-04:00

"We are presented here with the question of what happens when the political branches fail to act in a manner that is consistent with the Constitution. The Constitution affirms that the People have rights that are enforceable against the government. One such right is to be free from unjustified governmental deprivation of property "including the health care and benefits that our laws guarantee veterans upon completion of their service. Absent constitutionally sufficient procedural protections, the promise we make to veterans becomes worthless. When the government harms its veterans by the deprivations at issue here, they are entitled to turn to the courts for relief. Indeed, our Constitution established an independent Judiciary precisely for situations like this, in which a vulnerable group, that is being denied its rights by an unresponsive government, has nowhere else to turn. No more critical example exists than when the government fails to afford its injured or wounded veterans their constitutional rights. Wars, including wars of choice, have many costs. Affording our veterans their constitutional rights is a primary one.”

Judge Stephen Reinhardt, Ninth Circuit Court of Appeals, writing the majority opinion in Veterans for Common Sense v Shinseki, a case brought to challenge the quality of care being afforded veterans, specifically in the area of mental health. The opinion cited grim statistics showing that eighteen veterans commit suicide each day and one thousand attempt suicide each month due largely to untreated or undertreated Post Traumatic Stress Disorder.

PJP FELLOW RELEASED FROM CUSTODY

2011-05-18T14:50:00.005-04:00

The Daily Beast is reporting this morning that Dorothy Parvaz, the Al Jazeera English reporter and 2009 PJP Fellow who was seized by Syrian authorities 19 days ago, has been released by Iran, where she had been sent by the Syrians after they claimed she was traveling on an expired Iranian passport. Parvaz, who used to report for the Seattle Post Intelligencer and was a Nieman Fellow at Harvard, is an American citizen, who was born in Iran. In addition to an American passport and an Iranian passport, she also carries a Canadian passport, having grown up, partly, in Canada.

2011-05-18T08:18:00.006-04:00

"The Court receives higher confidence ratings in public opinion polls than the president or Congress, and it faces no challenges to its independence. A public that knew more than it does about the Supreme Court might wonder why this group of people is empowered to make decisions that (when they are based, however tenuously, on the Constitution) other branches of government cannot veto. That was the constitutional plan, but it was controversial from the first—and not surprisingly: Congress and the president can plausibly pretend that their actions are in the interest of the nation as a whole, but a judicial decision always has a loser. For this reason, the Supreme Court decisions in cases that engage the public’s attention will often stir a polemical response."

Seventh Circuit Federal Appeals Judge Richard Posner, writing in The New Republic this week in a review of Justices and Journalists: The U.S. Supreme Court and the Media By Richard Davis. You can read the review here.

GRASPING FOR STRAWS: WHY THE RIGHT'S CLAIM THAT “TORTURE GOT US BIN LADEN” IS DISINGENUOUS AND UNDERMINES OUR SECURITY

2011-05-17T11:52:00.007-04:00

by Joe Pace

There is something surreal about the way some conservatives have seized on the death of Osama bin Laden as evidence that “torture works.” The claim rests on the assumption (for which evidence is ambiguous, at best) that, sometime circa 2004, detainees were water-boarded – tortured -- into giving up the nickname of Osama bin Laden’s most trusted courier. Then the nickname, plus innumerable other leads were placed into the intelligence cycle, which churned for some seven years before Osama bin Laden was found and felled.

First, a quick aside on whether water-boarding is indeed torture. It’s only in the last decade that a 500 year-old consensus that water-boarding is torture began to be questioned. When the Spanish Inquisition invented water-boarding, it was not supposed to be a simple “dunk in the water,” as Dick Cheney described the Bush administration’s use of it. It was introduced—indeed, embraced—as a torture technique. Four-hundred some years after the Inquisition, it still considered torture when the United States executed Japanese soldiers for water-boarding U.S. troops during World War II.

Nonetheless, when the torture debate began in the aftermath of 9/11, the pro-torture camp had a special disdain for the moral absolutists who opposed the use of torture in all circumstances. Trotting out the hoary ticking time-bomb scenario, they argued with great effect: “Surely you don’t believe that a terrorist’s right not be tortured outweighs the rights of 8 million New Yorkers not to be incinerated in a nuclear inferno?” The ticking-time bomb hypothetical was tremendously successful in accomplishing its goal: to convince people that we cannot afford moral absolutes in the realm of national security policy, that sound policy is a level-headed balancing of costs and benefits. Whereas, prior to 9/11, there was no “debate” about the ethics of torture (here) is what Ronald Reagan in a “signing statement” said on the topic when the US ratified the UN Convention on Torture in 1984), nearly three-fourths of Americans today think there are circumstances justifying torture.

Two thoughts strike me as surreal about the pro-torture camp’s response to Osama bin Laden’s killing. The first is how far they’ve expanded the justification for torture. A common response to that ticking time-bomb hypothetical was that as soon as you break the taboo against torture, you step onto a dangerous slippery slope and when it comes to torture-proponents that slope has been slippery indeed. At first, torture was only justified when the terrorist knows the identity of a nuclear bomb on the verge of detonation. Then was claimed to be justified to extract knowledge about the location of a car bomb that hasn’t yet been planted. Then it was justified to extract information about the internal workings of an organization that has signaled they might plant an explosive device somewhere. And now torture advocates have given us a new standard: it’s ok to torture someone to extract a single tidbit of information that could potentially, half a decade later, result in the capture or killing of a man who is no longer an imminent threat^[1]. To me, that suggests that the main people vindicated by this episode are those that cautioned against ever modifying the prohibition on torture.

The second thought that strikes me about the pro-torture camp’s response to Osama bin Laden’s killing is the dogmatism and consequences-be-damned fundamentalism with which they have embraced the efficacy of torture. There isn’t an iota of evidence that, but for torture, we wouldn’t have uncovered the name of the courier. In fact, dozens of government officials in the know (and who, having never ordered someone tortured, have no incentive to lie about its utility) have stated that the key intelligence was not derived through torture. We now know that, while being waterboarded, Khalid Sheikh Muhamman (KSM) and Abu Faraj al-Libi either claimed to have never heard the courier’s name or made false and misleading claims about him. Only later, during normal interrogation did KSM divulge any useful information. Point for standard interrogation?

No, the torture apologists persist: Khalid Sheikh Mohammed was tortured, he helped us identify the courier that led to bin Laden, Q.E.D, torture works. They don’t waste time trying to show causality. Theirs is a vindication by coincidence, like a superstitious cancer patient who identifies smoking Lucky Strikes as the cause of his remission instead of the drug cocktail that has a proven 90% success rate.

Indeed, the evidence that standard interrogation works is overwhelming. In a 2006 study by the National Defense Intelligence College, experienced interrogators concluded that traditional, rapport-based interviewing approaches are extremely effective with even the most hardened detainees, whereas coercion consistently builds resistance and resentment.
Using the rapport-building interrogation method, interrogators got the so-called “underwear bomber” to divulge substantial intelligence. The leader of the interrogation team responsible for flipping the al Qaeda operatives who revealed the location of Abu Musab al-Zarqawi, the leader of Al Qaeda in Iraq, has credited this technique with the success of that operation The interrogator responsible for finding Saddam Hussein has likewise stated that rapport-building was responsible for the breakthrough that led to his capture: a former insurgent pointing to the exact location of Saddam’s foxhole on a map. But perhaps the best evidence comes from the interrogation of Abu Zubaydah, a high-value detainee at Guantanamo. According Ali Soufan, the FBI agent who led the interrogation testified that Abu Zubaydah was spilling intelligence under the rapport-building interrogation method. Then the CIA team showed up, stripped him naked, and began threatening him. Abu Zubaydah stopped talking. After a few days without progress, the FBI team was sent back in and, sure enough, Abu Zubaydah started talking again. One could hardly ask for better evidence of the failures of torture. Yet—despite the fact that Soufan’s version has been confirmed by the DOJ’s 2009 Office of Profession Responsibility Report, and the DOJ’s 2008 Department of Justice’s Inspector General Report, former officials like Bush Attorney General Michael Mukasey have manipulated that episode to propagate the myth that torture works.

Then there are the well-documented flaws of torture as an intelligence-gathering tool. The torture victim will say anything to get the pain to stop, which results in garbage intelligence. It’s one thing when the intelligence is about something discrete and verifiable—e.g., the bomb is in locker 324 in Penn Station. But when the lie is unverifiable—e.g., a false name—intelligence agencies can spend years chasing ghosts or, worse, go to war under false pretenses, which is what happened when we tortured Ibn Sheikh al Libi. Under torture, al Libi claimed that Iraq had WMD, a claim that made its way into then-Secretary of State Colin Powell’s speech to the United Nations justifying the invasion. There is also abundant evidence that the use of torture at Guantanamo and Abu Ghraib was one of the single biggest motivators for foreign fighters joining the insurgency.

All of this begs the question: what is the real agenda behind the Right’s relentless pro-torture propaganda? If it doesn’t matter to the Right that torture results in bad intelligence, or provides recruiting fodder to our enemies, or makes it more likely that our soldiers will be tortured if captured and less likely that allies will engage in joint ventures with us, and if it doesn’t matter that (assuming for the sake of argument that torture placed a role in bin Laden’s killing) there were other means of acquiring the intelligence that don’t diminish our international standing and violate our fundamental values, it must be because there is something else in play, some fierce and fundamental commitment that is powerful enough to override reason, conscience, and law. My fear is that that principle is retribution – the primitive human urge for vengeance. Conservative pundits and policy makers have made an eye for an eye calculation and determined that, after 9/11, the United States is entitled – even called upon -- to perpetrate a little savagery. It appears that many torture advocates have prioritized the fulfillment of that bloodthirsty impulse over sound national security policy, thereby imperiling our physical and moral safety.

http://www.securityinfowatch.com/node/1320894 BACK TO POST

OF PHOTOJOURNALISM, BIN LADEN, AND THE "RIGHT TO SEE”

2011-05-16T09:40:00.008-04:00

A few days ago, the journalist Sebastian Junger visited West Point, where I am on the history faculty. He was there to show Restrepo, his documentary film about a U.S. Army combat team deployed on a dangerous assignment in the Korengal Valley of Afghanistan, and then do an on-stage interview with me in front of an audience of cadets and members of the general public. When it was planned many months ago, Junger was to have been joined by Tim Hetherington, a photojournalist who was Junger’s equal partner in the making of this film (they were co-directors), but two weeks before their appointed visit to West Point this month, Hetherington was killed by a mortar while covering the Libyan civil war near the city of Misrata. He was one of two cameramen who died in the attack. The other was Chris Hondros of Getty Images. Junger came to West Point anyway, and among the reasons he cited for not cancelling was the feeling that an audience composed of soldiers and would-be soldiers was precisely the kind of place where he should be as he coped with his grief.

In an essay in The New York Times Magazine this past Sunday, executive editor Bill Keller wrote compellingly about the bravery of Hondros, Hetherington (pictured above) and other combat photographers, referencing the oft-quoted advice that Robert Capa, another great war photographer, gave to his protégés who asked him how they could get better, more vivid pictures: “get closer.” (Capa himself was killed by a landmine while covering the First Indochina War in 1954.) The Junger-Hetherington film Restrepo, which was nominated for an Academy Award, is effective precisely because its directors do get “closer” than ever at capturing the miserable, dangerous, bravado-infected society that is familiar only to soldiers and those who seek to tell their story. As Keller points out, the war photographer’s work does not allow him to avert his eyes. Like soldiers, they see the gruesome and the shocking and hold it within their gaze so that truth can be portrayed to those of us who are not there. That is why so many of them suffer the same post-traumatic-stress disorder that soldiers experience. Once you have seen certain things up close -- maybe too close for the human mind -- it can become impossible to not see them, in your dreams, in your fantasies, in your understanding of the world you inhabit.

No members of the press – no reporters, no cameramen – were invited along when the Navy SEALS of Team Six raided bin Laden’s compound and shot the al Qaeda leader dead, but we know that at least one member of the team arrived with a camera and took pictures showing, we are told, bin Laden’s head blown in half and while the Obama administration made the decision not to release these apparently gruesome photos, they are being shown now to select members of Congress. There was also video; indeed, we know that President Obama followed the raid in real time through a video feed, a scene which suggests a technological equivalent to Abraham Lincoln sitting in the telegraph office at the War Department reading updates from the battlefields of the Civil War as they came rolling in on the machine. Of course, Lincoln read words; Obama watched pictures.

A generation ago, pictures shot by Eddie Adams, Larry Burrows and other great photojournalists helped Americans achieve their most visceral understanding of the war in Vietnam. Through those pictures, as well as film shown on the evening news, Americans witnessed up close, and then even closer, the awful brutality that has forever been the regular fare of war. Gradually they turned against American participation. The nation’s mission may have been based on a misguided notion of the threat posed by communism, particularly in a Third World country like Vietnam, and as we later learned the Pentagon’s prosecution of that war was riddled with lies. Still, there remains in some quarters the bitter feeling that it was the journalism – particularly photojournalism – that brought defeat on America in Vietnam if only because it showed what war was really like and seeing it for the first time, people found what was being done in their name to be utterly repugnant.

Given such context, one has to wonder, what would have been our reaction to the bin Laden death pictures? Would they have satisfied our wish for retribution or made us uncomfortable with our own tribal sense of revenge? Would they have provided us closure or, upon seeing the shots of bin Laden’s body being washed and blessed in a Muslim ritual, would we be further enraged that he was given a peaceful sending off when our own loved ones were at his inspiration pulverized into dust? Among Muslims, would the image of a dead bin Laden, inert and bloodied, have further destroyed the myth of his invincibility – so much of the fascination with him came from his having eluded the grasp of the world’s most powerful nation – or would it have enflamed a new level of wrath? Would the experience of seeing such evidence of the killing, undertaken as an act of war, have corrupted our ability to judge it as just and necessary? And finally, does it matter? Should information be kept from the public because of worries over how that information might be understood? Throughout history, governments have kept hideous information secret because they worried how the public might perceive it.

Long before Justice Louis Brandeis coined the phrase, “sunshine is the best disinfectant” (what a wonderful image, light bringing purity), the framers subscribed to the substance of these words. Through the protection provided to the press by the First Amendment, they wanted to be certain that a “fourth estate” was allowed to hold the other three estates responsible for the truth. Of course, the framers had no cameras and could not imagine a day when still and video images would often convey the truth – or, more accurately, some version and often a competing version of the truth -- more powerfully than words.

TB

PJP PARTICIPANT JEFF GREENFIELD IMAGINES: WHAT IF WE HAD CAPTURED -- NOT KILLED -- OSAMA BIN LADEN AND THEN TRIED HIM IN THE FEDERAL COURTS?

2011-05-11T08:41:00.003-04:00

In a fanciful, but compelling, column for the Washington Post, PJP Participant Jeff Greenfield, a former network news correspondent for CBS and ABC, fantasies over what could have transpired if the Navy SEALS had captured the al Qaeda leader. His discussion touches on a lot of tantalizing topics. For instance, if bin Laden had surrendered to the SEALS, wouldn't the rules of engagement have forced them to take him live? If he was then brought to the US for trial in a federal court, would his prosecution be hampered by the inadmissibility of evidence achieved through so-called "enhanced interrogation techniques"? What if his capture and trial led to a rash of terrorist acts, including the taking of hostages, held on the demand that he be freed? In short, Greenfield seems almost to suggest that the SEALS and the Obama Administration were lucky that bin Laden resisted -- assuming that this detail is true -- and was then killed for the capture and trial could have triggered a disastrous series of events that might have strengthened, not diminished, bin Laden's appeal as a heroic figure among radical Muslims.

SYRIAN GOVERNMENT ADMITS HOLDING PJP FELLOW DOROTHY PARVAZ

2011-05-11T08:34:00.004-04:00

2009 PJP Fellow Dorothoy Parvaz, who has been missing since she arrived in Damascus, Syria, on April 29 is being held by the Syrian government. Parvaz, who works for Al Jazeera English was there to report on the government protests. An update about her situation can be read here and here. For immediate updates on the situation, visit the "Free Dorothy Parvaz" Facebook page.

PJP Board Member David Westin, Former President of ABC News, Speaks to Stanford Law About the Future of the News Media

2011-05-06T09:16:00.004-04:00

David Westin, who is a member of the PJP Board of Advisors and was president of ABC News through 2010, speaks here at the Toni Rembe Rock Center for Corporate Governance at Stanford Law School. Addressing the subject, “Saving the Media from Itself” Westin analyzes the state of the news business as it shifts from traditional media like newspapers and large commercial network news divisions to cable, Internet, and mobile.

THE MAN WHO DESIGNED AND SUPERVISED THE BIN LADEN RAID

2011-05-05T13:44:00.004-04:00

The operation that killed Osama Bin Laden was carried out by an elite unit of the Navy SEALs and it is highly unlikely that we will ever learn the names of those who entered the compound, much less the SEAL who pulled the trigger twice to shoot Bin Laden dead. But we do know quite a bit about the man who designed and supervised the operation, Vice Admiral William H. McRaven.

While the CIA was responsible for tracking Bin Laden to the Abbottabad, Pakistan neighborhood where he had been hiding for years, once President Obama decided to launch the raid, Leon Panetta, the CIA Chief, turned the operation over to McRaven, a formed SEAL himself, who was positioned at Bagram Air Force Base in Afghanistan for the raid.

McRaven has long been something of a star in the Special Operations community, having supervised the raids in Iraq that yielded Abu Musab Al-Zarqawi and Saddam Hussein himself. But the responsibility for Operation Geronimo fell to him because he is presently the commander of JSOC, the highly secret Joint Special Operations Command that I outlined in my last post. It represents part of the restructuring of the service commands that occurred with the passage of the Goldwater-Nichols Act of 1986. While the other operational commands are familiar and public, JSOC is not, and unlike the others, JSOC reports directly to the president and is subject to classified presidential directives revealed to no one but the president, a handful of executive branch officials, and the JSOC commander. Not even the regional combatant commanders are aware of the operations of JSOC, leading sometimes to resentment. Furthermore, most JSOC operations are undertaken in secret and remain secret even after the fact. When JSOC operatives die, for instance, their names are released by the Defense Department but with a cover story referring to a training accident, say, in eastern Afghanistan, or some other explanation.

In addition to the SEALs, JSOC commands the Army’s DELTA force, but this operation belonged exclusively to the SEALs. The SEALs have ten teams, divided into teams 1 through 5 and 7 through 10. Then there is Seal Team 6, the elite of the elite, the team that was chosen for the Bin Laden raid.

McRaven’s first career choice was journalism. At least, that was his major when he graduated from University of Texas, in Austin, in 1977. A San Antonio native, he continued to demonstrate a love for the written word, having authored “Special Ops: Case Studies in Special Operations Warfare,” a book that focuses mostly on episodes from World War II, though he does include an analysis of the famed Israeli hostage rescue in Entebbe, Uganda (1976), and the U.S. Army raid on the Son Tay, Vietnam POW camp (1970). How ironic that an author analyzing some of the most dramatic special operations in history would himself later lead what may be the most dramatic of all. In the book, McRaven cited Son Tay, in which 56 commados raided the North Vietnam camp and rescued 80 prisoners, as "the best modern example of a successful spec op, one that should be considered textbook material for future missions." One wonders what he learned from this that was applied last Sunday.

Still, there are some constitutional questions presented by the raid or, more precisely, by the command structure within which McRaven was operating. Goldwater-Nichols set up an organizational command structure that goes from the President to the Secretary of Defense through the Joint Chiefs of Staff and finally to the combatant commanders. But since JSOC operates differently within this structure, it has been increasingly used as a means of intense civilian control of military operations, particularly since the advent of the so-called Global War on Terror. Starting with the George W. Bush administration, and owing in part to the intelligence-heavy nature of the terror-fighting mission, JSOC became, in the minds of many critics, an opportunity for the president to conduct military operations independent of career military input. While this operation, which combined CIA and Special Ops in a joint undertaking, was clearly known to the Joint Chiefs chairman and the Secretary of Defense as well as the Secretary of State, it was likely that the various regional combatant commanders did not know of it.

For McRaven, the success of Operation Geronimo will no doubt be a career-booster, but in fact he had already been scheduled for a promotion to full Admiral.

TB

PJP FELLOW MISSING IN SYRIA; FEARED TO BE IN GOVERNMENT CUSTODY

2011-05-04T09:29:00.005-04:00

Dorothy Parvaz, a 2009 PJP Fellow, has been reported missing in Syria. Parvaz, who was formerly with the Seattle Post-Intelligencer, was working for Al Jazeera English and an appeal for her release can be seen on its website. Parvaz has Iranian, American and Canadian citizenship. A story in the New York Times can be viewed here.

UPDATE: The Oregonian reports Syrian government has confirmed it has journalist Dorothy Parvaz. Read the most up-to-date news on Parvaz here.

Five Questions to Ask About the Killing of Bin Laden

2011-05-03T09:52:00.003-04:00

1. Why not capture him?

In fact, the administration says the plan was to capture Bin Laden if he did not offer any resistance, though officials considered it unlikely that he would give himself up. Still, the question is tantalizing: if he had not offered resistance and the Seals had taken him alive and brought him into custody, what would be the plan going forward? Like Kahlid Sheik Mohammed, who is the acknowledged mastermind of the September 11 attacks, he would have to be incarcerated somewhere – Guantanamo? The very place that Obama promised to close? – and, again, like Kahlid Sheik Mohammed, put on trial. Only last month, the Obama administration made the decision to cease plans to try Mohammed in civil courts and proceed instead with a trial before a military commission as outlined in the Military Commissions Act of 2006. One of the reasons was that it was impossible to find a suitable venue. New York City, where the attacks were carried out, did not want the trial since it would no doubt have been a challenge to provide security. If there were security challenges for a trial of Mohammed, imagine the security challenges to a trial for Bin Laden.

2. Would a trial have turned to Bin Laden’s advantage?

Put aside for the moment whether Bin Laden would have been tried in a civilian court or a military commission. Under either circumstance, would a trial demonstrate the civilized American system of justice – even the military commissions require evidence and decision by a jury -- or would it have turned into an opportunity for Bin Laden to send his message of hatred directly onto a world stage, one bigger than anything he could have dreamed of? Would it have proved to have been an advertisement for the American system of a deliberative justice or a recruitment tool for a revitalized al Qaeda?

3. Could Bin Laden have faced the death penalty?

When Attorney General Eric Holder announced the decision to move the trial of Khalid Sheik Mohammed to a military commission, he said he was doing so reluctantly. Had the Justice department been able to try Mohammed and five others also at Guantanamo in federal court as planned, it would have sought the death penalty. But, Holder said, is an “open question” as to whether the death penalty can be imposed by a military commission if the defendant pleads guilty. (More on that in a later post)

4. Was there anything special to this operation that made it successful as compared to, say, the failed hostage rescue attempt undertaken by Jimmy Carter’s administration in 1979?

This is one issue that cries out for discussion by the mainstream media. More than thirty years ago, in April 1980, President Jimmy Carter ordered Operation Eagle Claw to rescue Americans being held hostage at the U.S. Embassy in Teheran, Iran. It failed. One of the reasons for the failure was that the various competing branches of the U.S. armed forces could not work together on a coherent plan. Each had its own special forces but there was no overall command and control between them. Coordinating a joint operation required working through the independent leadership within each branch. This was only the latest example of this organizational flaw within the Pentagon. Critics, including Sen. Sam Nunn or Georgia and Sen. Barry Goldwater of Arizona, argued that the prosecution of the Vietnam War was hampered by similar inter-service rivalries.

The result was the 1986 Goldwater-Nichols Act that established the Joint Command structure that operates now. The Combatant Commander of CENTCOM (US Central Command), for instance – GEN James Mattis, of the United States Marine Corps – is responsible for US operations in the Middle East and central Asia, not the individual service chiefs. CENTCOM is based in Tampa, Florida.

Most important to today’s discussion, however is USSSOCOM, or United States Special Operations Command, which was created out of Goldwater-Nichols in 1987 and includes the special operations units of the Army, Air Force, Navy and Marines. It owes its esablishment directly to Operation Eagle Claw (or Desert One, as it is also called, using the name of the base from which the failed mission was launched and then aborted). SOCOM (Special Forces Command) was first employed in the Panama invasion of 1989 under President George H. W. Bush. It was also responsible for the toppling of the Taliban in 2001 and, most recently, Sunday’s operation to kill Osama Bin Laden. Vice Admiral William H. McRaven is commander of JSOC (Joint Special Operations Command) within SOCOM. It is he who was calling the shots on Sunday’s mission More on him, too, in a later post.

5. Should Obama take all the credit for the success of this mission or should it be shared with George W. Bush?

In the discussion over who should be credited for the success of this mission, there is, understandably, considerable controversy. Certainly the search for Bin Laden began under the administration of George W. Bush and Bush is well remembered for his Wild West statement about wanting Bin Laden “dead or alive.” Yet in 2002, Bush backed off of saying that the capture of Bin Laden was Mission One for his administration. “Who knows if he’s hiding in some cave or not? …The idea of focusing on one person really indicates to me people don’t understand the scope of the mission. Terror is bigger than one person.”

During the 2008 campaign, candidate Barack Obama, criticizing the Bush administration’s invasion of Iraq, adopted the familiar Democratic attitude about 9/11: that it was a crime and that those who committed these acts need to be brought to justice, not that it was part of a larger war, a “war on terror” as George Bush had pronounced it. All of this would argue that the capture or killing or Osama Bin Laden should be seen as an act consistent with the Obama campaign statement and the Democratic party’s “crime” approach. The fact that the Navy Seals killed Bin Laden and did not capture him should not dissuade this view any more than a police action to capture a murder suspect and bring him into custody would shift if the suspect resisted his capture by firing on the police and the police in self defense fired back. So far, the reports on the attack on Bin Laden’s compound indicate that there was a forty-minute firefight preceding the killing of the Al Qaeda leader.

Of course, the Seals are not the police and while the administration maintains that its intention was for them to take Bin Laden alive, we may doubt that, especially when you consider the questions posed earlier in this post about what a trial of Bin Laden would have looked like. Furthermore, while President Obama had to have the considerable courage to order this mission despite a tremendous amount of uncertainty and the risk of failure, early indications are that it was planned through a long path of intelligence, some of which no doubt was achieved through the controversial techniques adopted by the Bush administration which were criticized by many as inconsistent with the American tradition of civil liberties.

No doubt more details will make this picture a bit clearer, but lead to even more penetrating questions. Stay tuned.

TB

THE OBAMA ADMINISTRATION’S NEW GUIDELINES ON MIRANDA IN TERRORISM CASES: IS THERE REALLY ANYTHING NEW HERE?

2011-04-07T09:13:00.006-04:00

At this year’s PJP event in March, the moot court considered expanding the “public safety exception” to reading Miranda rights in terrorism cases. I authored the hypothetical for that moot and you can watch the oral argument here. Since then, the Wall Street Journal obtained an FBI memorandum delineating circumstances in which its agents can interrogate terror suspects without advising them of their Miranda rights. There have been three types of reactions to the memo. Many on the Left see it as the gutting of Miranda. “With a swoop of a pen — more than nine years removed from the 9/11 attacks — Barack Obama has done more to erode Miranda than any right-wing politician could have dreamed of achieving,” wrote Glenn Greenwald in Slate. Many on the Right, who think the warnings cause terrorist suspects to clam up and deny interrogators crucial intelligence, see it as a blow for national security. Then there is a third camp that thinks this is much ado about nothing.

After reading over the memo, I confess, I’m solidly in the third camp.

The guidelines allow agents, when interrogating “operational terrorists” to ask questions “reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” Using the language of the memo, an “operational terrorist” is defined as “an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.”

The interrogator is authorized to ask “questions about possible impending or coordinated terrorist attacks; the location, nature, and threat posed by weapons that might post an imminent danger to the public; and the identities, locations, and activities or intentions of accomplices who may be plotting additional imminent attacks.”

Once the agents have asked “all applicable public safety questions” they have two choices: either read the suspect his Miranda rights or, in exceptional cases, they may request permission from headquarters to continue with the unwarned interrogation.

Those who claim the guidelines eviscerate Miranda appear to have slept through the last three decades of judicial assault on the doctrine. These guidelines do little new; rather, they are little more than a reiteration of a 25-year old loophole known as the “public safety exception” that the Supreme Court articulated in Quarles v. New York. In that case, police officers chased a reportedly armed man around a store. After tackling him, they frisked him and noticed an empty gun harness. Without reading him his Miranda warnings, the officer asked him where the gun was, eliciting the response “The gun is over there.” Based on that reply, he was subsequently convicted of criminal possession of a weapon. Quarles appealed his conviction, arguing that his un-Mirandized reply was inadmissible. The Supreme Court disagreed. Locating the loaded gun, the Court concluded, was a matter of public safety: someone could happen upon it or an accomplice might make use of it. Where police officers ask questions “reasonably prompted by a concern for public safety” (look familiar?) — as opposed to a desire to elicit incriminating testimony —Miranda warnings need not be read.

As an aside, I think the reasoning in Quarles is strained to the point of disingenuousness. Quarles had been cuffed. The uncontested evidence showed that the police did not suspect an accomplice was lurking about. In fact, the police felt comfortable enough in their security to put away their guns before questioning him. The arrest took place in the middle of the night, so the store was devoid of customers who could stumble across the gun. And, in any event, the police — who knew the gun was discarded nearby — could have cordoned off the store and searched for it. As noted by the dissent, it is baffling how the Court found a threat to public safety on these facts.

But, alas, Quarles is the law of the land. And the FBI memorandum is a cut-and-paste job (quite literally) of its conclusion.

Many have asserted that the memo embraces a broad reading of Quarles, but that begs the question: by what plausibly narrow view of Quarles is an agent obligated to provide Miranda warnings before asking an “operational terrorist” questions about an “imminent” attack without Miranda warnings? If the weightiness of a public safety concern is a product of magnitude of harm multiplied by probability of occurrence, Quarles sets a low bar: the harm there was minimal and entirely speculative. It’s hard to see how an impending terrorist attack falls short of that bar. One possible distinction is that Quarles involved an on-the-scene, impromptu questioning that consisted of one query, whereas the guidelines contemplate a more extended interrogation in a more traditional custodial setting (i.e., a police station). But that strikes me as a distinction without a difference. So long as the questions are exclusively aimed at neutralizing an imminent threat to public safety (i.e., no stray questions about what the suspect properly filed his taxes) it should not where they are asked or how extensive the interrogation is.

And once questions directed at threats to the public safety are exhausted, officers must Mirandize the suspect before they can use any further statements against him in court. True, FBI agents can request permission from headquarters to continue with an un-Mirandized interrogation, but that is nothing new. Miranda is a rule of admissibility: it has never prohibited officers from asking un-warned questions. It merely prohibits the resulting statements from being admitted as testimony in a subsequent criminal case. The guidelines have no effect on that rule.

The exercised response to the guidelines — from both Left and Right — is largely based on a series of misconceptions about the doctrinal operation of Miranda. Miranda warnings are essentially a mini-tutorial of your constitutional rights under the Fifth and Sixth Amendments. Eliminating Miranda warnings does not mean you suspend the rights that those warnings enumerate. Even in a ticking time-bomb scenario, a suspected terrorist has the right to remain silent and the right to an attorney. And if an officer violates one of those underlying rights—say, by coercing him into speaking when he’s signaled his intent to stay silent—the resulting statements will be inadmissible, no matter how severe the threat to the public safety.

The significance of this is two-fold. First, since a majority of people have been essentially pre-Mirandized by re-runs of the television show “Law and Order,” the practical impact will be relatively small. According to one study, 95% know they have a right to a lawyer; 81% know they have a right to remain silent. (Other studies show that Miranda is like a Latin liturgy to Catholic laity: while many have it memorized, large percentages don’t really understand what it means. But that’s a story for another day). Of course, officers might get lucky and capture a terrorist suspect among the 19% who don’t know they have a right to remain silent. But if someone is sophisticated enough to plan a terrorist operation, it stands to reason they are familiar with the most famous totem of American law enforcement. (The Al-Qaeda training manual, for example, is full of suggestions on how to outflank interrogators).

Second, it means that even under the guidelines interrogators cannot subject terrorist suspects to the third-degree. Even in cases where police officers are excused from reading suspects their Miranda rights, there is a separate constitutional barrier that prohibits officers from using coercion during the interrogation. Examples of coercion that render statements inadmissible include: sleep deprivation, violence, threats of violence, round-the-clock interrogation sessions, and even vague offers of leniency in exchange for a confession.

Another misconception in the press is that the memo prolongs the period that FBI agents can hold terror suspects. This is flat wrong. The memo explicitly provides that presentment before a judge “may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.” (This was not an act of Executive benevolence: the Supreme Court recently affirmed in Corley v. United States that confessions are inadmissible if given after an unreasonable delay in bring the suspect before a judge). That’s good news for civil libertarians. Less so for national security buffs who want to milk suspects for actionable intelligence. Effective interrogation, after all, takes time—e.g., to check the suspect’s story and confront him with inaccuracies, to build rapport, etc.

In short, it’s hard to identify much that’s new in this memorandum. At most, it may increase the frequency with which FBI agents take advantage of the public safety exception. But my guess is that agents are already well schooled in Quarles. The real damage was done by the Court decades ago—the recent memo is just a refresher.

WHAT HAPPENS WHEN A JURY GETS IT WRONG? EXAMINING THE SIXTH AMENDMENT RIGHT TO A FAIR TRIAL

2011-04-04T10:30:00.007-04:00

by Erin Moriarty, 2010 Jennings Fellow

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The Sixth Amendment to the Constitution “… a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants,''

Duncan v. Louisiana (1968).

The promise of a fair trial is not uniquely American – like much of American judicial procedure, it was inherited from the English – but Americans have embraced it as their essential right. The Sixth Amendment guarantees jury trials in federal cases; through the Fourteenth Amendment the right has been applied to trials of serious crimes brought in state court. Yet what happens when mistakes are made at a criminal trial, when a defendant is wrongfully convicted? As a reporter and lawyer who regularly encounters such cases, I have begun to wonder if our system is really being faithful to the principles of the Sixth Amendment when there is no timely and effective way to correct mistakes and to free the innocent in prison. Case in point: the alarming story of Ryan Ferguson (pictured left).

Something went terribly wrong in 2005 at Ferguson’s trial in Columbia, Missouri. I thought that when I covered the trial for the CBS News show “48 Hours Mystery” that year and today that feeling is stronger than ever. Yet, even as evidence supporting Ferguson’s innocence continues to mount, the 26-year-old man remains in a maximum-security facility with no guarantee that his appeals will even lead to a new trial, much less freedom.

To call the facts of this case “bizarre” understates them. None of the physical evidence, and there is plenty of it, ties Ferguson to the crime. The only credible evidence against him comes from two witnesses, both of whom have since recanted and admitted that they lied at trial.

The case is more than a decade old. In the early morning hours of November 1, 2001, the sports editor at The Columbia Tribune, 48-year-old Kent Heitholt, was brutally murdered as he left his office. Two janitors reported seeing two young white men in the parking lot, leading police to search for two young male killers. The case went nowhere until early 2004. That is when Columbia police got wind of a young man, Chuck Erickson, who was telling friends that he was having weird dreams and thought he might have been involved in the Halloween night murder. Police brought him in and videotaped his interrogation. These videos are the most important and telling evidence in the case. They show a young man who knew few, if any, details of the crime. The videos also show police questioners giving Erickson the details he lacked. They tell him the weapon used to kill Heitholt. They even have to show him where the murder occurred.

Because the Columbia police still believed that two young men had committed the murder, they pressured Erickson to name the person he was with on the night of the murder. It was Ryan Ferguson. Police brought Ferguson in for questioning as well. Although Ferguson consistently denied any involvement, both he and Chuck Erickson were charged with Kent Heitholt’s murder. None of the fingerprints found on the victim’s car, the hair found in the victim’s hands or the blood and bloody footprints found at the scene matched either man.

Later, when Erickson was told – wrongly -- that Ferguson had confessed and was ready to testify against him, he took a deal: in return for his testimony, he was allowed to plead to second-degree murder. With good behavior, he would likely spend less than ten years in prison while Ferguson -- on trial for first-degree murder -- faced a life sentence.

At trial, a year later, Chuck Erickson was transformed from that confused young man on the police interrogation tapes who knew nothing about the crime to a composed, convincing witness on the stand. There was also the testimony of Jerry Trump, a janitor who worked the night of the murder. Although Trump, a convicted sex offender, had told numerous people right after the murder that he couldn’t identify the young men he saw that night, at trial, there he was, dramatically pointing to Ferguson as one of the men at the crime scene.

The jurors saw the original police videotapes. They knew that none of the physical evidence matched Ferguson, but later they told me they just couldn’t believe Erickson would lie about a crime that would send him to prison. Believing his story, they convicted Ferguson, sentencing him to prison for forty years.

Today, we know that both Chuck Erickson and Jerry Trump have said in sworn statements that they indeed lied at trial. What’s more, we know that the prosecution should have been reluctant to rely nearly its entire case on Erickson’s memory. Erickson had been abusing alcohol and drugs since he was 14. In 2001, the same year as the murder, Erickson’s parents, concerned about his behavior and his dropping grades, took him for a psychological exam at the University of Missouri. The assessment indicated that the years of drug abuse had damaged Erickson’s memory. And on the night of the murder, Halloween night, Erickson admits that he was particularly impaired, having snorted a line of cocaine, used some prescription drugs and ingested as many as eight alcoholic beverages. Erickson says he had his first of many blackouts and that he has no memory at all of the night. He says he only implicated Ryan Ferguson because he didn’t want to be alone on “the chopping block.”

It’s true that witnesses recant all the time and that alone is not a reason for a new trial. But in Ryan Ferguson’s case, a new trial seems to be the only way to clear up serious questions as to his guilt. So far, that hasn’t happened.

Ryan Ferguson has already lost several appeals, most recently, in the Missouri Court of Appeals for the Western District. The three-member appeals court, in an opinion written by Judge Gary Witt, denied Ferguson’s appeal primarily on a procedural basis. Under Missouri state criminal procedure, a defendant is only allowed one chance to show that the trial court had made errors unless it can be shown that “the findings and the conclusions of the motion court [that heard his first motion for post-conviction relief] are…clearly erroneous.” The Court’s standard for appeals is particularly high, explains Sean O’Brien, a professor at the University of Missouri Law School in Kansas City, for historical reasons. He references a former state Supreme Court Chief Judge who felt that if you allowed appeals too easily, it might undercut the ability of the state to perform swift executions. (Indeed, even today Missouri is the fifth highest state in the country for executions even though the murder rate is much lower than that figure would suggest.)

Today, we do know – thanks to DNA tests – that some individuals do confess to crimes they didn’t commit. They are often young and unsophisticated or, as in the case of Chuck Erickson, suffer from a mental deficiency or impairment. Still, that idea remains so difficult to understand and accept that some jurors won’t even consider it. At the same time, says Professor O’Brien, judges remain reluctant to overturn jury verdicts, fearing that it “erodes the public confidence in the judicial system.”

"That is not to say the issues of this case do not give us pause," concluded Judge Witt of the Ferguson case as he denied a new trial, noting that that the only evidence against Ferguson is the testimony of Erickson, and the courtroom identification by janitor Jerry Trump. But he then suggested that Ferguson file a petition for a writ of Habeas or request a pardon from the governor, all of which will add to the time Ferguson is incarcerated.

The truth is, the system is stacked against the convicted. Courts are reluctant to reverse cases and add to caseload. Appeals based on new evidence have to be raised early, even though, as in the case of Ryan, it often takes years for new evidence to surface. What’s more, every time a verdict is upheld on appeal, higher courts become even more reluctant to reopen the case. The notion of a jury of one’s peers is really the most important idea expressed in the 6th Amendment and if you believe in that system, what would be served by making it too easy to overturns such verdicts? But the argument that by allowing defendants to appeal we undercut the public’s trust in the system makes little sense to me. I think the public would have even more faith in a system that can correct itself. Time is running out for Ryan Ferguson. Where is his right to a fair trial?

WATCH THE DEBATE: THE OBAMA ADMINISTRATION MOVES TO ALLOW FOR LATITUDE IN PRE-MIRANDA INTERROGATIONS, BUT IS THIS MOVE CONSTITUTIONAL?

2011-03-29T17:00:00.001-04:00

Here, in the 2011 Peter Jennings Project moot court, two eminent Supreme Court attorneys argue whether Miranda doctrine should be changed to allow terror suspects to be interrogated without first being informed of their rights Last week, the Obama Administration announced a dramatic switch on the procedures law enforcement personnel should follow when interrogating "operational terrorists" on issues that involved an "immediate" threat. The new rules, which ere outlined in a FBI memo, expanded the previous "public safety" exception to Miranda rights -- the requirement that suspects first be informed that anything they say may be used in a court of law against them, that they have a right to an attorney and to remain silent. Heretofore, there had to be an "imminent threat" -- a stricter standard than "immediate" -- for pre-Miranda statements to be admissible in court. But the Obama justice department declared that the "magnitude and complexity" of the terrorism issue required a "significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.” Is the administration acting outside the constitutional guarantee of due process? On March 5 of this year, in a public program crafted by the NCC-sponsored Peter Jennings Project for Journalists and the Constitution, two well-establshed Supreme Court litigators -- Carter Phillips and Kanan Shanmugam -- argued this very issue before a panel of distinguished federal judges. You can watch the moot court here.

THE ADVENT OF "MATERNITY TOURISM":

2011-03-29T09:01:00.009-04:00

OFFICIALS CLOSE A CALIFORNIA HOME THAT BIRTHED "AMERICAN CITIZENS" TO ASIAN WOMEN VISITING THE US; AN ISOLATED INSTANCE OR A NEW TREND?

Today's New York Times features a story about a makeshift maternity home in San Gabriel, CA, twenty miles from Los Angeles. For fees ranging into thousands of dollars, the home offered well-to-do women from China the opportunity to give birth to their children in the United States. By being born here, the children are automatically American citizens under the "birthright citizenship" clause of the 14th amendment. The Times article described other businesses advertising similar services to women in China, Mexico, and Korea.

The birthright citizenship issue, which was the focus of a program mounted by PJP at its 2011 main event, has been at the heart of the debate over illegal immigration, usually from Latin American countries. But this is different, Mark Krikorian, the executive director of the Center for Immigration Studies, tells the Times. "If anything, it is worse than illegal immigrants having a baby here. Those kids are socialized as Americans. This phenomenon of coming to the U.S. and then leaving with people who have unlimited access to come back is just ridiculous."

FINALLY, REASON PREVAILS: MY STATE REJECTS FIVE IMMIGRATION BILLS THAT WOULD HAVE BEEN RULED UNCONSTITUTIONAL ANYWAY

2011-03-19T05:30:00.004-04:00

By Andrew Hedlund, 2011 Collegiate Fellow

Thankfully, the Arizona state Senate rejected five major immigration bills this week. This was a victory for Constitution-lovers everywhere because several provisions of these bills stood in direct conflict with the 14th Amendment to the federal constitution and with precedent-setting Supreme Court decisions.

Senate Bills 1308 and 1309 would have re-interpreted the birthright citizenship guarantee of the 14th amendment. The amendment declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." It is the phrase “subject to the jurisdiction thereof” in the 14th Amendment that is claimed to be open to interpretation. Those who maintain that the amendment is being read too broadly believe that it should not apply to the children of those who are here illegally because they are not “subject to the jurisdiction” of the United States. But I go with those who argue that the reason this wording was included in the amendment was simply to exclude the children of diplomats and ambassadors.

Arizona Senate Bill 1407 would have required school districts to collect data on the number of undocumented immigrants enrolled in their district. This bill goes against a precedent set in the 1982 Supreme Court case Plyler v. Doe. In this case, the Court ruled that a Texas state law that denied funding for the education of the children of illegal immigrants was unconstitutional. This bill would have made it harder for illegal immigrants to attend school and would not have been constitutional by the standards set by the Plyler case.

Senate Bill 1405 would have required hospital workers to check the status of immigrants and alert authorities if someone was here illegally. The last bill to get rejected was Senate Bill 1611. This banned illegal immigrants from doing a large number of things. These include receiving public benefits, attending a state university or community college and getting a driver’s license.

Arizona has been through a lot these past few months as it has become the focus of the nation’s immigration debate. Perhaps the defeat of these bills will put some of these arguments to rest.

Andrew Hedlund is a senior at Arizona State University and a 2011 Peter Jennings Project Collegiate Fellow.

RELIGIOUS FREE EXPRESSION VERSUS NON-DISCRIMINATION: MY FIRST-HAND EXPERIENCE WITH A SUBJECT THAT LANDED IN THE HIGH COURT

2011-03-18T08:35:00.005-04:00

by Erin Moriarty, 2010 Jennings Fellow

By the time that a case arrives for oral argument before the United States Supreme Court the passions that propelled the case to the High Court in the first place can feel remote, or even forgotten. I was reminded of that as I listened to some of this year’s Peter Jennings Project Fellows dispassionately dissect and analyze the decision in Christian Legal Society v. Martinez. I know firsthand how divisive the underlying issues were in this case and the damage caused to several public university law schools. One of those schools was the one I attended. It was no surprise to me when the Justices agreed to hear the case in 2009. This is a difficult issue.

Four years earlier, in early 2005, I received a call from Nancy Rogers, the dean of my law school, The Moritz College of Law at Ohio State University. She had an unusual favor to ask, she said, because she had encountered an unusual problem. For nearly twenty years, OSU had maintained a policy of non-discrimination on the basis of sexual orientation. All student organizations, to be officially registered and recognized, had to adhere to that policy. In 2003, however, the local chapter of Christian Legal Society or CLS, a national religious law student organization (the same one involved in the Martinez case), challenged the policy by changing its by-laws to prohibit gay students and those who engaged in premarital sex from becoming officers or full voting members. To be exact, the new by-laws stated that “officers must abstain from ‘acts of the sinful nature’, including fornication, adultery and homosexual conduct.”

In a very large law school that action might have gone unnoticed, but the college at OSU is a close-knit group of students. Another student organization known as the Outlaws filed a complaint with Dean Rogers, and soon the issue became a full-blown conflict, dividing not only the students, but faculty members as well. The Outlaws argued that if the school continued to recognize CLS and provide it with activity fees then it was indirectly participating in discrimination against gay students, in direct violation of the school’s own policy of non-discrimination policy. Members of the CLS argued that that if the school denied them recognition and fees then it would be in violation of the First Amendment’s protection of the free exercise of religion.

Things only got worse in the fall of 2004, when the University, in response to a federal lawsuit filed by the CLS, settled the suit, (some said it “caved”), by giving groups an exemption to the non-discrimination policy if they were formed to promote “sincerely held religious beliefs.”

By the time Dean Rogers called me, in January of 2005, the issue had done great damage to the morale of the school. She asked that I try to find a way to engage law students in something that seemed impossible: a reasoned discussion of the issues. On April 7, 2005, that’s exactly what we did. In an attempt to include as many students possible, we conducted the discussion in a large television studio and aired the conversation on WOSU television. We included students, faculty members, religious leaders and community lawyers. The conflict over the issues didn’t end that day, but some of the heat and irrationality dissipated.

I wondered at the time if the Supreme Court would some day weigh in on this issue. Although Ohio State University shied away from litigation, the CLS had challenged policies at several public university law schools, including Hastings. I hoped that one case would wind its way up to the nation’s top court. And last summer, the Hastings case did. After my experience at Ohio State, it didn’t surprise me that the Justices were divided five to four on the issue. It is a tough one. Still, I think the decision in favor of the universities’ non-discrimination policies was wise. In a community the size of Ohio State, with such a variety of ethnic backgrounds and religious beliefs, treating every organization in the same manner seems essential. This policy doesn’t prevent members of groups like the CLS from practicing their religion or from associating with those with similar beliefs; they simply can’t rely on university support.

I am relieved the High Court has finally put this issue to rest, but I am also glad that the law school administration didn’t sit back and wait for it. In this case, “mediation” was a good, stop-gap measure that kept the conflict from causing long term, perhaps, irreparable damage to an educational community.

2010 FELLOW ERIN MORIARTY OF CBS NEWS REFLECTS ON A "DROP IN" AT THE 2011 PJP EVENT

2011-03-17T16:35:00.003-04:00

I wasn’t at the National Constitution Center in Philadelphia on Saturday morning March 5th more than five minutes when I heard my name called. As I saw a tall man with a smiling, familiar face striding towards me, my first reaction was “What’s Matt Lait doing here?” Matt Lait is half of a well-known and respected investigative team from the Los Angeles Times. But then, I thought, “Of course!” Lait is the ideal Fellow for the Peter Jennings Project: an experienced and knowledgeable journalist who often encounters complex legal issues in the process of his reporting. He was there for the same reason I had attended as a Fellow a year earlier: the Project is one of the few places where mid-career journalists can focus on our craft, examining what part constitutional issues play in the stories we tackle everyday. Where else can you hear de Tocqueville quoted regularly?

It also offers the unusual opportunity to hear and converse with national figures on an intimate, off –the-record basis. Former Secretary of Homeland Security Michael Chertoff. Judge Judith Kaye. Jeff Greenfield. I met Matt Lait a year earlier when I was working on the case of Bruce Lisker, a man who was convicted of killing his mother in 1983. Lait and his colleague Scott Glover, who investigated the case for years, raised serious questions about how the lead LAPD detective did the original investigation and the evidence he presented in trial, and later, at a parole hearing. Their series of reports in the newspaper helped lead to Lisker’s release from prison in the fall of 2009. He now, like all of us, will have to dissect and analyze issues that were highlighted during this year’s conference: the rights of suspected terrorists and local laws dealing with nation issues like immigration.

Americans live in an ever increasingly complex world where law and legal principles play a vital part. You need to understand them and be conversant in the terms of art to report accurately and effectively.

The Islam hearings: What would James Madison do?

2011-03-16T15:36:00.004-04:00

By Dr. Steve Frank

There are many reasons you can think of James Madison as the Jiminy Cricket of the Founding Fathers:

- diminutive size
- preference for black coats
- voracious student with an encyclopedia in his brain
- belief that conscience should be your guide.

Madison was born 260 years ago today. As we wish him a happy birthday, there is a great deal about his life and work for which to be thankful. But it’s our belief in freedom of conscience, which Madison did so much to establish, that commands particular attention today. Read full article at Constitution Daily.

CIVIL IMMUNITY FOR REPORTING SUSPECTED TERRORISM?

2011-03-09T11:00:00.006-05:00

New Senate Legislation Aims to Protect those Who Report Suspicious Activity

Back in 2006, six Muslim imams boarding a plane in Minneapolis were reported by other passengers as suspicious when they prayed in their seats, switched seats, and asked for extensions to their seat belts. It was reported that three of the imams had checked no luggage and had only one-way tickets. Police boarded the plane and removed the imams, one of whom later asked, is it a "crime in America...to practice your faith?"

The imams sued US Airways, the Minneapolis airport and several of the passengers who had complained about them.But there was also some concern that the imams had behaved provocatively on purpose, as a way of challenging ethnic profiling. In 2009, federal district Judge Ann Montgomery allowed the suit to continue, saying "The right not to be arrested in the absence of probable cause is clearly established and, based on the allegations...no reasonable officer could have believed that the arrest of the Plaintiffs was proper." US Airways and the airport settled out with the imams and they subsequently dropped their suit against the passengers.

Now comes new senate legislation aimed at ensuring immunity to those who report suspicious activity and to the police who respond to them. “An alert citizenry can be our first line of defense against terrorist attacks," said Sen. Susan Collins (R-ME). "...[The passengers in Minneapolis] were acting in good faith to report suspicious activity and ended up in tangled litigation. Our laws must do more to protect individuals like these, encouraging them to report suspicious activity when they see it and promote a sense of civic duty.”

What do you think?

TB

A Message from the Director of the Peter Jennings Project to all of this year’s fellows:

2011-03-07T15:06:00.004-05:00

First, thank you again for your commitment and enthusiasm. What a great weekend we all had!

In preparation for your follow-on, I would like to emphasize some of the points that Vic Walczak made in his remarks to the group at yesterday’s concluding lunch: the Constitution is out there everywhere, if you just take the time to look.

One general piece of advice: give a call to the local law school and take a professor out to lunch. Do not wait for there to be an article where you need the professor for a quote or as a source. Work proactively: find out what issues he or she sees as central to the constitutional dialogue in your community,

Now, some territory to consider:

1) The basic rule of thumb is to always ask, is the government involved here? The Constitution is fundamentally a document that limits government power. If there is no government action present, then there is no constitutional issue. Government, however, is a broad term. A public school teacher is “the government” as much as a policeman is the government. If the acting authority is paid with tax money, it is a government action that he or she is undertaking.

2) Technology – issues involving privacy of home computers (particularly for students), cell phones, and harmful postings (remember the example he gave of the teacher whose picture at a rowdy party was posted by someone else, yet led to her firing).

3) First Amendment issue – speech includes all forms of “expression,” not only the literal act of speaking. Religion occupies a tow-way street with the First Amendment: there can be no forced religious practice but there must also be space for free exercise.

4) Fourth amendment search and seizure issues involve information -- medical records, library records, cell phone contents (including pictures) and computer contents – as well as bodily integrity, which includes, of course, abortion but also DNA, and body-imaging.

5) Equal protection: LGBT and Immigrants are hot issues but discrimination of African-Americans and gender discrimination are still widespread.

6) Due process: Difficult concept - government taking something important away or denying something important to criminal procedure.

Examine these issues in your local community to search for stories that will include constitutional content.

Contribute to our blog, twitter, and Facebook page.

Get started on the three major stories you will produce over the next year!

Stay in touch!

"SUBJECT TO JURISDICTION THEREOF"?

2011-03-04T05:59:00.004-05:00

IN OPPOSING OP-EDS TWO IMMIGRATION ACTIVISTS SET THE PLATFORM FOR A CLASH THIS SATURDAY AT THE FIFTH ANNUAL PETER JENNINGS PROJECT EVENT

Like so many constitutional questions, this one comes down to language. The 14th amendment declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." But what does it mean to be "subject to the jurisdiction thereof"? ACLU lawyer Cecillia Wang, in an Op-ed for the Philadelphia Inquirer this week, says that the phrase was merely meant to exclude the children of diplomats and soldiers of hostile armies; Pennsylvania State Representative Daryl Metcalfe (R-PA/12), in an opposing Op-ed on the same page, says that it is beyond dispute that the original intent of the phrase was to separate out those with "allegiance to any foreign sovereignty," which he reads as excluding the children of illegal aliens. Like many who favor a more robust policy towards illegal immigration, Metcalfe sees these "anchor babies" as one of the three main incentives -- jobs and public benefits being the others -- drawing illegal immigrants to the United States. You can read Wang's piece here and Metcalfe's here. Both Wang and Metcalfe will be on stage before a sold out crowd in the F.M. Kirby Auditorium at the National Constitution Center this Saturday, March 5 at 5:30 p.m., as part of a Peter Jennings Project for Journalists and the Constitution panel exploring the 14th amendment's birthright citizenship clause.

A KING UNDER THE TITLE OF PRESIDENT?

2011-03-02T08:25:00.006-05:00

"After the Constitution was ratified, foreigners and even monarchs from other nations believed the president was a king under the title of president. The president had many of the powers monarchs had — he was commander-in-chief, had the power to make treaties and judicial appointments, and could grant pardons. The U.S. Electoral College recalled the systems used to elect the Polish and Papal monarchies. Even Samuel Johnson’s dictionary, published in 1755, included “president” as a synonym for 'monarch.'"

Sai Prakash, in a lecture marking his appointment as the David Lurton Massee, Jr. Professor of Law at the University of Virginia Law School. Prakash's lecture, which can be read and/or watched here was titled, "No More Kings?"

JUDGES AND POLITICS: OUR DISTORTED VIEW

2011-02-22T05:30:00.002-05:00

In a recent Op-ed piece in the New York Times, Harvard law professor Noah Feldman bemoaned what he saw as the overreaction to the recent stories about Justice Antonin Scalia addressing a group of conservatives headed by Minnesota representative Michele Bachmann and about Justice Clarence Thomas's wife, Ginny, working for a Tea Party lobby. “The core of the criticisms against Justices Thomas and Scalia has nothing to do with judicial ethics,” asserted Feldman. “The attack is driven by the imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.”

Citing the examples of John Marshall, Charles Evans Hughes, and William O. Douglas, Feldman demonstrated that politics and the Court have always mingled. Indeed, Hughes, pictured here, was the Republican nominee for president in 1916, only resigning from the Court after the party’s convention had started and the nomination was in the bag. He lost that election to Woodrow Wilson; then, fourteen years later was appointed by Republican president Herbert Hoover as Chief Justice. Of course, the man he succeeded as Chief Justice, William Howard Taft, had actual served as president, from 1913 to 1917.

Now comes another take on politics and the courts, by former PJP faculty member Susan Estrich. In an insightful essay published by creators.com. Estrich argues that a disproportionate concern over mixing politics and the courts is holding up too many federal judicial appointments, overburdening an under-populated federal judiciary. “One out of every nice seats on the federal bench is vacant,” writes Estrich. “Half of the vacancies are in districts with multiple vacancies that have literally declared ‘judicial emergencies’ because they have more cases (many of them criminal and thus subject to speedy trial requirements) than they can handle.”

The irony, argues Estrich, is that while most of a federal judge’s work is outside the realm of politics, the reason that so many judicial appointments have been held up is to serve political ends. “There is a myth that seems to animate Senate review of judges: that every day on the federal bench you decide Roe v. Wade, that every day you decide whether gay marriage is lawful, whether Arizona's immigration law is unconstitutional or whether the president's health care bill gets thrown out. It ain't so. Most judges don't decide a single such case in a lifetime.”

WAS REAGAN A BETTER PRESIDENT THAN LINCOLN? KENNEDY BETTER THAN WASHINGTON? OBAMA BETTER THAN TEDDY ROOSEVELT?

2011-02-21T05:30:00.005-05:00

GALLUP'S ANNUAL PRESIDENTS DAY POLL IS OUT

Ever since it began polling in the 1930s, the Gallup organization has asked Americans "who is the nation's greatest president?" This year, Ronald Reagan came out on top. Those polled tended to value recent presidents over those who served long ago. Lincoln did come in second, but Bill Clinton, Barack Obama, John Kennedy, and George W. Buch all made the top ten. Jimmy Carter came in 12th. Not surprisingly, Republicans chose Reagan at a 38 percent clip (with George Washington coming in a distant second) while Democrats favored Bill Clinton at 22 percent (John Kennedy was second with 18).

Featured Guest Blogger Witold J. Walczak

2011-02-18T15:11:00.013-05:00

CELL PHONE CAMERAS EXPOSED POLICE MISCONDUCT IN CAIRO; BUT HERE’S A SURPRISE: IF YOU SHOT THE SAME PICTURES IN THE US, YOU’D BE SUBJECT TO ARREST

A PLEA FOR A BROADER INTERPRETATION OF THE FIRST AMENDMENT

By Witold Walczak

Are cell-phone cameras an indispensable tool in the fight for freedom, or an instrument of crime? The answer, which may surprise you, depends on who you ask and where you record. For instance, in the United States police regularly prosecute and harass amateur photographers, especially when they are recording police misconduct, and courts have been reluctant to declare such photography to be a constitutional right. But the recording of government officials performing their duties, especially in public places or where they have no expectation of privacy, is too important in promoting human and civil rights to be left without legal protection.

Millions of people around the world were transfixed recently by images of government-sponsored thugs inciting and beating protesters in Cairo’s Tahrir Square. Despite former President Hosni Mubarak’s ill-fated effort to incapacitate reporters through harassment and detention, the images continued unabated, thanks largely to cell-phone-camera recordings posted on YouTube, Facebook and other Internet platforms. A similar scenario is playing out in Bahrain, Yemen, Algeria and elsewhere in the Middle East, where amateur photographers are managing to maintain international attention and promote diplomatic pressure by publicizing police violence against peaceful protesters.

What few people realize is that this photojournalism, which we view as heroic and essential to promoting freedom on the world stage, is often illegal and punished criminally in the United States. People doing exactly the same thing as Egyptian demonstrators – documenting police misconduct with cell phone cameras – routinely face prosecution, harassment, or the confiscation of their equipment by police.

For instance, in a widely publicized 2010 case, motorcyclist Anthony Graber was pulled over for speeding by a Maryland state trooper, who issued him a citation. Several weeks later, after Graber had posted on YouTube footage shot by his helmet cam showing the trooper cutting Graber off and pulling a gun on him, the officer arrested Graber for violating Maryland’s wiretapping law. Graber spent 26 hours in jail and faced felony charges that could have brought 16 years in prison. Graber is a staff sergeant with the Maryland Air National guard and has a family with two young children – hardly the profile of a hardened criminal. A judge dismissed the charges against Graber in September. Graber’s experience is not, however, unusual. Similar stories abound from Pennsylvania, Illinois, Massachusetts, Florida, Texas and elsewhere.

Reporters understand the importance of recording events, perhaps better than anyone. “A picture is worth a thousand words” is more than just a cliche. Images have had a powerful influence on human rights and civil rights struggles. Film of Bull Connor’s police attacking peaceful African-American demonstrators in Birmingham with fire hoses and snarling police dogs may have been a more important catalyst for the 1964 Civil Rights laws than any speech given by Martin Luther King, Jr.

Attracting attention to unjust policies and brutal treatment is indispensable to the strategy of non-violent civil disobedience movements, pioneered most famously by Mahatma Gandhi in early 20th century South Africa and later India. Shining the spotlight on injustice and human rights violations galvanizes public opinion, and a visual depiction does so like no other medium. It is timely, real and not subject to interpretation or refutation in the same way as written accounts. Such images are often irrefutable proof of what transpired, giving the poor and powerless an elevated and equal status to rebut the lies and propaganda of corrupt officials.

Consider the now-famous video shot by a Los Angeles plumber in 1991 of police savagely beating an unarmed, helpless man named Rodney King. Without that video the story told by the dozen police officers would have been different – just another black criminal resisting arrest, requiring the police to use necessary force to subdue him. Who are you going to believe? A dozen law enforcement officers or a two-bit criminal? But that videotape altered the usual balance of power, giving the little guy the means to speak truth to power in a way that nothing else could. Police themselves recognize the importance of such video documentation, having for two decades clamored for installing video-recording capability in their cruisers.

Now, thanks to the advent of digital photography, the proliferation of cell phone cameras and the technological ease of posting images on Internet platforms like YouTube, Flickr and Facebook, the ability to document current events in realtime has become ubiquitous. More than half the people in this country have cell phone cameras, and that number is growing.

Any one of these people may now be the lucky photojournalist on the scene when “news” happens, be that a crime, accident, natural disaster or important event. Just ask the unhappy objects of such candid recordings, like President Obama and his comments at a San Francisco fund-raising event about Pennsylvanians being “bitter” and “clinging” to their “guns and religion,” or Senator George Allen and his “Macaca” snafu.

On a more profound level, there can be little question about the important role cell phone cameras have played in promoting international human rights in Egypt, Burma and Iran. A bystander’s video capturing the last horrifying moments before Neda Agha-Soltan’s death in Iran became not only the most-watched video of a person dying, but a rallying cry for protesters contesting President Ahmadinejad’s election. While the Iranian protests didn’t elicit the same revolutionary change as in Egypt, few would dispute that the world-wide publicity surrounding the administration’s repression prevented greater bloodshed.

Yet despite the demonstrable importance of such amateur photography to promoting democracy and governmental accountability, police and other government officials in this country use a variety of techniques to routinely prevent citizens from documenting misconduct and corruption.
Wiretapping violations, like those brought against Anthony Graber, are a police favorite. Most states and the federal government have one-party-consent laws, which means that anyone can pretty much record anyone else. But a dozen or so states still maintain “dual-consent” wiretapping statutes. Originally passed to protect people from surreptitious electronic eavesdropping, these laws require both parties to a conversation to consent to the recording. Absent a warrant, no one can surreptitiously eavesdrop, and vice-versa. So in states such as Pennsylvania, Illinois, Massachusetts and Maryland, police regularly charge people with a wiretapping violation – a felony – for recording the police performing their duties. In most of these states the courts have said that the ban does not apply to recording government officials in situations where they have no expectation of privacy, but often police charge and district attorneys prosecute anyway. Illinois courts do not recognize the no-expectation-of-privacy exception, something currently being challenged on constitutional grounds by the ACLU of Illinois.

Police also regularly use more general criminal charges to discourage and punish people for daring to record them. Disorderly conduct and some variation of interference with official conduct are two common charges. In other situations, the police simply tell people that it’s illegal to record the police, and then threaten to arrest them or confiscate their equipment unless they stop, which usually accomplishes the desired result. Since September 11, 2001, people have routinely been told by police that they cannot photograph courthouses and other government buildings, or transportation nodes and petro-chemical plants, but in fact no laws prohibiting such photography exist.

Unfortunately, the court decisions on whether a person has a “right” to record government officials, including police, are inconsistent. Courts in most states, even those with dual-party consent requirements (except Illinois), have recognized exceptions for recording official acts of government agents occurring in public or where they have no expectation of privacy, like when effecting an arrest in your car, home or office. Consequently, victims of these charges can sue for false arrest – which is an important deterrent – but does not help the person who is dissuaded from recording just by the threat of official sanction or a less severe retaliatory act.

The First Amendment to the Constitution protects the freedoms of speech, assembly, petition and religion. This should include providing videographers with safe haven. The Court decisions are mixed, however, with some saying First Amendment protection applies, a few saying it doesn’t, and the rest saying the law is unsettled. Courts have employed various arguments to refuse constitutional protection, including specious claims that the recordings invade the official’s privacy or expose her to embarrassment or ridicule. Privacy defenses don’t apply when the conduct occurs in public, or where the official has no expectation of privacy, like when the official is in the act of arresting someone in the suspects home or is rummaging around in his or her car trunk. Defamation-type defenses do not insulate a person from having their stupid, embarrassing, illegal or criminal acts recorded. But two strands of constitutional doctrine pose more serious obstacles to First Amendment protection for recordings of public acts.

The Supreme Court ruled more than forty years ago that there is no constitutional right to gather information. Typically, this prevents the news media from being able to access information or proceedings that are not also open to the public. In other words, even the First Amendment’s press clause doesn’t give reporters any “special right” of access, like interviewing prisoners or covering private presidential events. Another line of constitutional argument is that the act of recording is pure conduct with contains no expressive component, and thus absent any communicative intent or effect there is no First Amendment protection. While both arguments have some vitality, they can, should and must be rejected.

The no-special-right-to-gather-information argument is relatively simple to refute. Cell-phone recorders are not seeking any special privilege or access. The recordings are made from public places, like Tahrir Square or the streets of South Central Los Angeles. Or they are in one’s car, home or business, where the person has a right to be and where the police have no legitimate expectation of privacy. This is not about any special right of access but simply about being allowed to document events from locations where you have a right to be.

The argument that the act of recording is pure conduct, with no expressive component, and thus not entitled to First Amendment protection, also misses the mark. The acts of painting, writing and composing music are constitutionally protected, not just the publication of the end product, be it art, a book or a song. No court would tolerate a law, or a public official telling someone, that this conduct is illegal. Just as the act of creating art or some other form of communication or expression is itself protected, so too should be the recording of images that presage broadcast. Support for this view comes from what some may consider an unlikely source, Justice Antonin Scalia.

Writing in a dissent from the first campaign-finance-reform case in 2003, McConnell v. Federal Election Commission, Justice Scalia, less surprisingly, invoked a market analogy to argue for protecting the entire communication-production process:

In any economy operated on even the most rudimentary principles of division of
labor, effective public communication requires the speaker to make use of the
services of others. An author may write a novel, but he will seldom publish and
distribute it himself. A freelance reporter may write a story, but he will
rarely edit, print, and deliver it to subscribers. To a government bent on
suppressing speech, this mode of organization presents opportunities: Control
any cog in the machine, and you can halt the whole apparatus. License printers,
and it matters little whether authors are still free to write. Restrict the sale
of books, and it matters little who prints them. Predictably, repressive regimes
have exploited these principles by attacking all levels of the production and
dissemination of ideas.

Justice Scalia’s dissent became prevailing law last year in Citizens United v. Federal Election Commission. In striking down the McCain-Feingold law’s restrictions on corporate financing of campaign speech, the Supreme Court recognized that the First Amendment does not allow the government to “repress speech by silencing certain voices at any of the various points in the speech process.” Corporate financiers are no more indispensable to campaign ads than the videographers are to the clips of police brutality from Egypt that appear on YouTube. If courts do not protect the entire production process, the culmination of that process – be it song, poem, pamphlet, commercial, video, picture, news account or some other unquestionably protected form of expression or communication – becomes vulnerable and ceases to be a right.

Freedom and respect for human rights are indisputably advanced by cell-phone recordings documenting abusive government officials. The Supreme Court in Citizens United implicitly recognized the importance to these causes of protecting the essential links in the communication chain when it wrote that, “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” The urgency in protecting these cell-phone recorders applies not just in those democracy-aspiring countries. As media companies in this country continue to shrink coverage, the amateur videographer will become even more important in exposing illegal corruption, civil rights and civil liberties violations, and helping to hold accountable those who abuse power.

When Constitutions Fail: Egypt’s Continuing Conundrum

2011-02-14T13:21:00.004-05:00

As Egypt struggled through a truly stunning transition of power this past week, discussion increasingly focused on the nation's Constitution. Yet when a constitution has been effectively suspended under Emergency Law for forty years, like Egypt’s has been, what power does it retain? The answer, we learned, is very, very little. The Constitution did not aid in transferring power (in fact, it was an impediment), it did not protect the Tahrir Square protesters (had there been fewer of them, they would have been rounded up and jailed, just as they had been in previous years), it did not prevent the military from finally unconstitutionally seizing control (it appears that this was the best of all outcomes, but the Constitution did not provide for it) and now that Hosni Mubarak is gone it has been cast aside, suspended by the Supreme Council of the Armed Forces which, lacking any authority but that provided by the barrel of a gun, dissolved the parliament and took full control of the process to consider amendments to the Constitution. Indeed, when the history of last week’s revolution is written – and this is what it was, a revolution, though a curiously non-partisan, leaderless one – the Constitution will be portrayed as at best a bystander; at worst, an agent of further tyranny.

Ironically, much of the 1971 Egyptian Constitution reads like an emblem to liberal democracy. Many of the freedoms demanded by the protesters are “guaranteed” to them in the document. The Egyptian Constitution protects freedom of speech, of the press and of assembly and association. It protects the independence of the judiciary and divides power between parliament, the president, and the courts. But almost from the day that it was ratified, its words have read like hollow promises since they were violated by the state for so long, with impunity.

The situation reminds me of my time in Czechoslovakia in 1989 where I was one of the lucky reporters with close access to Vaclav Havel, the dissident writer who would later become the president of a new Czech state. “Our Constitution would be a great document,” he said, “if all you did was read the words, but a constitution is only as great as the respect its realizes from those in power.” Havel knew all too well. In a country that ostensibly provided constitutional guarantees to freedom of speech and association, he had spent years under house arrest and in jail for daring to challenge the brutal Czech communist regime.

There are, actually, two critical flaws to the Egyptian constitutional story and they are worth observing as they are fatal flaws. The first is the exaggerated willingness to subvert constitutional principles to the exigencies of an “emergency”; and the second could be described as “executive creep” or the gradual expansion of executive power at the expense of democracy.

The word “emergency” appears only one time in the document, in Article 48, when it reads, “in a state of emergency or in time of war a limited censorship may be imposed on the newspapers, publications and mass media in matters related to public safety for purposes of national security.” Many countries have such emergency provisions so as to maintain order in times of crisis (while not referencing an “emergency,” per se, the American Constitution allows for the suspension of habeas corpus during “rebellion” or “invasion”). But in fact, Egypt’s Emergency Law, which was written in 1958, and was first used during the Arab-Israeli Six Day War of 1967, has been essentially in effect for forty-three years. The order was lifted only once, for eighteen months, by Mubarak’s predecessor, Anwar Sadat, and was then reinstated after Sadat was assassinated in 1981.

The lifting of the state of emergency was one of the demands that the protesters, and President Obama, made throughout Egypt’s crisis. It has still not been met and it is unclear when it will be met, one of a series of difficult questions that face the new Egypt. Under what process will the new military high command rule the country? Will the people accept the military as legitimate rulers during this period of transition? Finally, just how involved should the military command be in creating a new civilian government?

In the end, there may not have been a choice for the ruling military council. For all his breaching of the law, Mubarak couched arguments for his continued leadership around constitutional fidelity. Yet through constitutional reforms he himself had pushed through, Mubarak had accumulated so much power around himself and his party, the Constitution did not allow for the delegation of authority to a vice president and it had no provision for the introduction of constitutional reforms or the dissolution of parliament unless such reforms were initiated by the president himself. Ironically, then, with his forced departure and the seizing of control by the military, the only way that the country could have continued to be run faithful to the old Constitution would have been if new elections immediately installed a new parliament and a new president who could initiate those reforms. And yet, if that had been allowed to happen, those elections would have to have been conducted on terms once again highly favorable to the dominant National Democratic Party that Mubarak led. A vicious circle, to say the least.

The situation that Egypt finds itself in now is this: to maintain stability and the rule of law, the Constitution needs to be restored as soon as possible. Yet it must first go through a reform process that will not be easy to administer since there is no agreed upon method for doing it. The process of reform may throw Egypt into a period of gross instability and debate, not necessarily a bad thing for a country that needs to find itself, but as Thomas Friedman pointed out this past weekend, it could well turn the revolution’s strength into its weakness. No one party or political philosophy led the charge in Tahrir Square. This was truly a revolution of equals. Yet now that it has toppled a dictator it has no leader to turn to, and no consensus on how to proceed.

With Mubarak in Sharm-el-Sheikh and a sympathetic military in control, you can almost hear Egypt’s sigh of relief. But big challenges await.

TB

JUSTICE SOUTER MAY HAVE RETIRED FROM THE SUPREME COURT, BUT HE IS STILL HEARING CASES

2011-02-10T13:56:00.003-05:00

Justice David Souter retired from the Supreme Court in 2009 -- Justice Sonia Sotomayor took his seat -- but that doesn't mean that he has stopped being a judge. At oral argument in the First Circuit Court of Appeals yesterday, Souter -- "riding circuit," as it used to be called -- sat as a member of a three-judge panel hearing a case about the placement of a cell tower in Alton, NH. (Souter is not the only retired justice still wearing robes: Justice Sandra Day O'Connor has also spent some time on the appellate bench even though she left the High Court in 2007).

Yesterday's argument gave Souter the opportunity to demonstrate some unusual judicial spunk. Here are the details of the case: The town of Alton originally deemed the cell tower too high to comply with a local ordinance. Alton residents David and Marilyn Slade also objected as they saw it disturbing their view of the White Mountains and a nearby lake. In response, the telecommunications companies then sued the town of Alton and the Slades entered as an "intervenor" in the suit, joining the side of the town to defend against the companies. (An intervenor, by legal definition, is someone who is not party to a lawsuit but who joins it to, in this case, resist the plaintiff's claims.)

When the town then entered into a settlement with the companies, allowing the tower to be built, the Slades took issue with the settlement, preferring to continue the suit on their own. The question at hand yesterday, then, was whether an "intervenor" in a lawsuit can keep a suit alive once the original parties have come to a settlement.

The Slades's lawyer argued that by preventing his clients from continuing the lawsuit the Court would be effectively denying them their constitutional right to due process. Souter, seeming to side with the Slades, said that the lawyer didn't even need to get to a due process claim. "All you have to argue is that a party of a case cannot be thrown out without [agreeing to a] settlement or [a] judgment [removing the party]," he said.

That set up a heated exchange with the telecommunications company lawyer: "I agree that [the Slads] can't stop the settlement between your client and the town, but [they’re] claiming the right to litigate by [themselves] to protect [their] own interests," Souter said. The lawyer responded by asking Souter how there could be a federal remedy to a case where there is no controversy since there is already a settlement. "It means that your settlement agreement is not worth a nickel," Souter shot back at him. "You settled with one party but haven't settled with another party."

TB

SUSAN NIELSEN, 2007 JENNINGS FELLOW, ON A NEW PROVOCATIVE GUN BILL

2011-02-08T12:04:00.013-05:00

Unhealthy power: Individual mandate should unnerve liberals, too

A provocative new bill in South Dakota would require all adults 21 or older to buy a gun for self-defense. Most any kind of firearm will do. But get one within six months, please, or you'll be in violation of state law.

A Republican dreamed up this bill on a hunting trip, and supporters intend it as a half-serious slam against health care reform. Yet the idea raises a serious constitutional question for any Democrat who defends the individual mandate tucked inside President Barack Obama's signature legislative achievement:

Are you sure the federal government should have the permanent authority to force people to buy stuff from private companies?

Full article at OregonLive.com.

LARA SETRAKIAN, 2007 JENNINGS FELLOW, TWEETS FROM TAHIR SQUARE

2011-02-07T16:00:00.002-05:00

This is a clear and brutal siege on what had been a peaceful protest. Sirens in the background, helicopters overhead. More gunfire, and watching streams of men trying to break up the human chain protecting Tahrir Square from one direction. People linking arms, in rows 3-4 thick, have secured all but one of the entrances to Tahrir Square. They're getting charged by thugs. Women and children are still in the center of Tahrir Square. More gunshots. We are watching petrol bombs thrown from a building above, onto the crowd below.

News broken on twitter via @LaraABCNews, February 2, 2011

The Constitution in "Quotes"

2011-02-04T15:23:00.013-05:00

“What they’re asking cannot be done,” one senior Egyptian official said, citing clauses in the Egyptian Constitution that bar the vice president from assuming power. Under the Constitution, the speaker of Parliament would succeed the president. “That’s my technical answer,” the official added. “My political answer is they should mind their own business.”

The New York Times, February 3, 2011, on reports that the Obama administration is pushing Egyptian president Hosni Mubarak (left) to relinquish the presidency to Vice President Omar Suleiman (right).

PJP FACULTY MEMBER LISA BLATT ON LESSONS SHE HAS LEARNED FROM HER CAREER OF ADVOCACY BEFORE THE SUPREME COURT

2011-01-29T12:07:00.006-05:00

PJP Faculty member and Arnold and Porter partner Lisa Blatt, who has now gave a talk at the Chattaqua Institution in New York state last year on what she had learned in her years of advocacy before the Supreme Court. Her remarks, recently published in the popular law journal "Green Bag" . Below are some excerpts from her essay. A link to the complete text can be found here.

1) I learned that the Court will continue to change the meaning of the Constitution. Although all of the Justices have expressed the importance of judicial restraint, the Court inevitably makes new law every time it interprets the Constitution...

2) The Supreme Court is not the impetus for constitutional change – we are. In thinking about the Supreme Court, the public typically focuses on one decision that announces a new right, such as Roe v. Wade, or the one particular Justice that authored that opinion, such as Justice Blackmun’s opinion in Roe parsing the right to abortion according to the trimester of a woman’s pregnancy.

But the Supreme Court does not make sweeping changes in constitutional law by accident, or by its own design. Rather, the Court is limited to deciding the cases that the parties ask the Court to decide...

3) Facts matter. The Justices are human beings, not wooden scholars who are myopically focused on the legal principle being advanced by the parties. The Justices are acutely aware of the facts in every case, and they know that their decision not only sets the law of the Nation, but also that their decision immediately resolves the present dispute between the two parties...

4) Timing is everything. Change does not happen overnight but does so over many years or decades, with precedent building on precedent. Choosing when to bring a case to the Court requires a special skill in predicting how far the Court is willing to go, in either expanding or retreating from prior precedent...

5) The Supreme Court Wants to Hear from the Peanut Gallery. ...The Latin phrase amicus curiae means “friend of the Court.” The former Chief Justice Rehnquist explained that an amicus is “someone who is not a party to the litigation, but who believes that the court’s decision may affect its interest.” These amici routinely include governments, public interest organizations, academia, Congressmen, former government officials, professional organizations, trade associations, businesses, and private individuals. In recent years, amici briefs have taken on increased prominence when a party petitions for the Court to review a lower court decision...

PJP FACULTY IN THE NEWS

2011-01-20T18:02:00.004-05:00

Two members of the 2011 Peter Jennings Project faculty made news this past week.

Carter Phillips, who will argue the PJP moot court on March 5, was noted in The New York Times for his argument before the Supreme Court in two cases, General Dynamics v United States and Boeing Company v United States, which have been consolidated into one. The cases involve the "states secrets" privilege of the federal government, which was at the heart of a dispute over the scratched building of the Navy stealth aircraft the A-12 Avenger.

Lisa Blatt, who appeared at the 2010 PJP and will be a fulltime faculty member in 2011, also argued before the High Court. Her case involved the pharmaceutical company Astra USA which is fighting a claim by Santa Clara County, California that it was unfairly charged when Astra exceeded negotiated Medicaid price limits.

New Congress to Require All Bills to Cite Constitution

2011-01-14T05:30:00.005-05:00

By Dr. Steve Frank

I heard from Publius 2.0 recently. He’s feeling bullish about 2011, expecting sales of The Federalist Papers to soar on Capitol Hill.

That’s because the incoming Republican House leadership – Speaker John Boehner, Majority Leader Eric Cantor, Rules Committee Chairman David Dreier, and Transition Team Chairman Greg Walden – have issued a Memorandum recommending that classic text to members of the 112th Congress and their staffs.

Read the full article here.

The Last Time Filibusters Threatened A Constitutional Meltdown

2011-01-13T13:34:00.004-05:00

By Lyle Denniston

The Republicans’ frustration with Democratic filibusters of Bush nominees to appeals courts reached a new level in May 2005. The Republican Senate leaders announced that, if the filibusters continued, they would attempt a drastic procedure – one that soon would be called the “nuclear option” for its capacity to destroy the capacity of the Senate to work together at all.

Read the full article here.

Class-Action Foes Have Trifecta Before Supreme Court

2010-12-21T20:19:00.006-05:00

PJP fellow Daniel Fisher discusses three pending cases that could end class-action litigation.

Three cases that may determine the future of class-action litigation are before the Supreme Court. If business advocates get their way on all three, plaintiff lawyers could have a much harder time convincing courts to certify lawsuits on behalf of large groups of consumers and employees.

And the typical 5-4 split between conservative and liberal justices may not rule the day: Justice Ruth Bader Ginsburg, a former civil procedure professor, is a class-action skeptic who has previously voted to rein in cases on behalf of asbestos claimants and insurance customers.

Full article at Forbes

THE TWENTIETH AMENDMENT WAS SUPPOSED TO DO AWAY WITH THE "LAME DUCK" CONGRESS: SO WHY HAVE WE SPENT THE LAST DAYS OF 2010 WATCHING ONE?

2010-12-20T13:20:00.003-05:00

"A very undesirable legislative condition." That is how the Senate Committee on the Judiciary, gathering in 1932, referred to the period after a bi-annual election and before the swearing in of the new Congress. The committee was describing reasons why the nation should adopt what turned out to be the twentieth amendment to the Constitution. This is the amendment which moved the beginning of the elected terms of federal offices to January from the original March date following the year of election. As the committee explained, the March date had been established in the 18th century when legislators needed a few months to close their home town affairs and move by horse-drawn coach to Washington. Such a long-drawn out period had no purpose in a faster world. But there was another reason for changing it: as Sen. George Norris, of Nebraska (pictured left), later one of those whom Sen. John F. Kennedy featured in his "Profiles in Courage," claimed, the lame duck session encouraged a kind of political fraud in which the Congress which had just been repudiated came back to meet, now absent any political mandate.

An end to lame duck sessions had long been a Progressive era goal. But when it finally passed, it needed a compromise: Congress would close not on the day after the election but on January 3, meaning that a lame duck session could still meet, albeit with seven weeks to do its work instead of the seventeen that the original Constitution's March date had offered. The thought was that real emergencies could make a lame duck session crucial to the business of the country and, in fact, during the succeeding decades, war was the primary motivator for a sitting Congress to return even though elections had chosen a new one.

Then, starting in 1994, when Newt Gingrich and the "Contract for America" gave President Clinton and the Democrats a bruising, lame duck sessions became the norm. The lame duck passed a new GATT (General Agreement on Tariffs and Trade) treaty that year, creating the World Trade Organization. Another impeached President Clinton in 1998. A third created the Department of Homeland Security in 2002. So, naturally, few complained this year when the lame duck 111th Congress passed tax relief, an end to "Don't Ask, Don't Tell," and now considers a new START treaty. But are these really "emergencies" or attempts to work out agreements before a new Congress, more hostile to Democrats, takes office in January?

TB

Publish and Perish? The Legal Times Article at the Heart of a Confirmation Battle

2010-12-17T11:30:00.006-05:00

Ever since Robert Bork's nomination to the Supreme Court was defeated in 1987, there has been considerable worry over how a judicial nominee's written "track record" can work against them. The more someone writes, the more chances there are that what they write will offend a critical constituency (as it did with Bork) and lead to their defeat. The worry, of course, is that we are diminishing the chances of getting the best nominees for the courts if we make confirmation risky for anyone who has published significantly and, by being forthcoming, made important contributions to the law.

Now, in an interesting situation before the Congress, this tendency has been extended to include a nominee to become deputy Attorney General. James Cole, a partner at Bryan Cave, received the backing of the Judiciary Committee last summer but confirmation by the full senate has been held up because of an article he wrote in 2002 for Legal Times. The critical idea Cole expressed there was his belief, hardly novel, that terrorism cases should more appropriately be tried in the civilian courts.

In the article, Cole makes an interesting historical analogy that gets at the root question in the argument over whether the "War on Terror" is a "real" war like those we have known through history or a metaphorical war like the "War on Drugs" or the "War on Poverty." Even though our "real" wars have involved state on state belligerence and the "War on Terror" is against non-state actors with loose affiliations with any group at all, much less a state with an army, the fact that such terrorism is intended to undermine the state through violence and is supported in part by hostile foreign governments has made it at least a little bit easier to equate the fight against them with a traditional war. But in the article, Cole asked us to look at the story of Manuel Noriega, the Panamanian leader who was arrested during the Bush 41 administration under the policies of the "War on Drugs" and brought to a civilian trial in Florida. Here was a "war" where few questioned the appropriateness of the civil courts for the prosecution. Noriega was tried in the federal system, and, like any other criminally accused party, had access to counsel, a trial by jury, and the right to cross-examine his accusers. Why, Cole asked, should the "War on Terror" be any different?

Interesting as Cole's argument may have been back then, eight years later it has put his nomination as deputy AG in jeopardy. Two critical opposition voices are those of Sen. Jeff Sessions (R-AL) and Sen. John Cornyn (R-TX). Both have used Cole's article to center discussion around the civilian courts versus military tribunals argument and while Cole has entered some nuance into his position, adopting the Obama administration's approach that sees Article III courts as appropriate for some cases and military tribunals for others, his opponents aren't buying it. Session has been forthright. "You capture enemies, you arrest criminals," he told Cole. "It's clear to me that anyone associated with Al Qaeda that's captured can be treated as a prisoner of war and we don't provide lawyers or trials to prisoners of war." Meanwhile, Cornyn focused his questioning last summent on an aspect of this argument that will be debated in the Peter Jennings Project moot court this coming March: the appropriateness of using Miranda rights in terrorism cases.

Majority leader Harry Reid has pledged to get Cole's nomination to a full vote before the end of this lame duck session of Congress, knowing that if it is delayed until the arrival of the next Congress in January, he will have an ever harder time pushing it through. Meanwhile, Cole may be ruing the day back in 2002 when he penned his thoughts for a legal journal.

The Constitution in "Quotes"

2010-12-09T05:30:00.001-05:00

“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation...It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”

Jameel Jaffer, a lawyer for the American Civil Liberties Union, on the decision this week by federal judge John D. Bates allowing the Obama administration to pursue the death of Anwar-al-Awlaki (in picture at left), an American citizen and Muslim cleric who is believed to have been involved with violent Al Qaeda activities in Yemen. Awlaki is now in hiding. While acknowledging that the thought of the president ordering the assassination of a U.S. citizen "without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization” raised "stark" and "perplexing" questions, Bates saw the decision to target Awlaki for killing as a "political" question. Only the executive branch, he concluded, has the tools to determine whether someone in hiding "presents such a threat to national security that the United States may authorize the use of lethal force against him."

Distinguishing “Wikileaks” from the Pentagon Papers: One PJP Fellow’s Insight

2010-12-07T05:30:00.002-05:00

Ever since Wikileaks burst onto the scene a few months ago, comparisons have been made linking the story of Julian Assange, the Wikileaks founder, with Daniel Ellsberg, the defense analyst who in 1971 exposed the Pentagon's secret history of the Vietnam War, revealing gross misrepresentations on the part of the government. Ellsberg's leak, which led to the publication of the Papers by the New York Times, resulted in a constitutional challenge and one of the most dramatic decisions in Supreme Court history, extending the reach of First Amendment protections and a reassertion of the doctrine of prior restraint. Ellsberg, now 79, has even spoken out in support of Assange and of PFC Bradley Manning, who leaked defense documents on the wars in Iraq and Afghanistan, to Assange. But can the two stories -- the Pentagon Papers and Wikileaks -- really be equated? PJP Fellow Trudy Rubin says no.

"...this dump of secret documents has nothing in common with the Pentagon Papers, despite Daniel Ellsberg’s mistaken praise of WikiLeaks. Ellsberg’s act aimed to reveal government dissembling in the launch of the Vietnam War, as laid out in particular documents. These recent leaks reveal no plots or scandals...Instead, by dumping large amounts of unfiltered data without concern for the contents, Assange has endangered lives. The documents expose U.S. informants who could be arrested. Human-rights organizations fear the leaks will endanger activists and journalists whose names are in U.S. cables. Newspapers that received the leaks have carefully redacted any such names, but as Assange puts secret cables online, he might not be so discreet...
And although journalists have extracted some good stories from the material — on Pakistan, Iran, China and North Korea — there is little that has not been written about before."

Trudy Rubin, Philadelphia Inquirer

Does Our Primary System of Popular Election Threaten to Install Extremists into Positions of Power?

2010-12-06T05:30:00.003-05:00

Former PJP Participant Bruce Ackerman Fears It Will

It was the Democratic convention of 1968 in Chicago that began a trend toward presidential primaries as the proving ground for major party nominations. Vice President Hubert Humphrey received the Democratic nomination for president that year despite having entered the campaign late and despite a strong showing by other candidates, notably Minnesota senator Eugene McCarthy. The convention, which was marred by violence from youth groups protesting the Vietnam War and questioning the legitimacy of American traditions and practices, gave impetus to those arguing for a popular national primary or, failing that, state practices that relied more on binding delegates to the results of statewide primaries.

But as former PJP participant Bruce Ackerman, of Yale Law School, argues in an interesting interview done for Harper’s this month, the forty or so years since then have demonstrated primaries as a dangerous seedbed for “charismatic idealism.”

Ackerman says that under the previous system, “somebody like Sarah Palin could never have gained the support of party leaders who dominated the traditional party conventions. But today’s primary system—dominant only since 1972—permits right- or left-extremists to win a major party nomination. Palin’s a leading contender today only because her hard-right base will flock to the primaries, and may outvote Republican moderates.”

In a wide-ranging interview timed to the release of Ackerman’s new book, “The Decline and Fall of the American Republic,” Ackerman doesn’t say that the primary system is inherently bad. He notes, for instance, that “we’ve already had presidents who would never have made it under the pre-1972 Convention system—Carter, Clinton, and Obama would never have been picked by the party establishment. But we’ve been lucky so far—all three turned out to be moderates. As Palin suggests, our luck may be running out. And even if she loses, maybe the next threat will come from the hard-left, not the hard-right. My book isn’t about particular candidates, but long-term institutional trends. If and when a charismatic extremist makes it to the White House, she will not only have a massive staff of superloyalists at her disposal. She will also be in charge of a powerful media operation constantly projecting her ‘vision’ through scientifically tested sound-bites and imagery. This too is a novelty…Such a systematic deployment of a presidential ‘politics of unreason’ is just the thing our Enlightenment Founders sought to avoid.”

One to Watch in the New Congress: Utah Senator-Elect Mike Lee

2010-12-05T05:30:00.000-05:00

Members of the new, Republican-infused Congress that will take office in January, 2011, will be carrying with them well-read copies of the Constitution, though some of them have strong views on how to change it, both in language and doctrine. Writing in the New York Times, former PJP faculty member Jeffrey Rosen cited Utah senator-elect Mike Lee as having the best legal credentials of the new class: Lee's father was a Solicitor General under President Ronald Reagan ("Mike acquired his love for the Constitution early on while discussing everything from the Due Process Clause to the Second Amendment around the dinner table [with his father]," reads the senator-elect's campaign website) and the junior Lee served as a clerk to Judge Sam Alito when he was on the Third Circuit Court of Appeals and again after Judge Alito became Justice Alito of the United States Supreme Court. In-between, he joined the well-respected Washington firm, Sidley & Austin.

Andrew Mangino, PJP Collegiate Fellow 2009, Named Marshall Scholar

2010-12-04T05:30:00.000-05:00

Andrew Mangino, who was a collegiate fellow for PJP 2009 while an undergraduate at Yale, has been awarded a Marshall Scholarship. The award is named for General George Marshall, who was secretary of state, secretary of defense and chief of staff of the Army as well as the author of the Marshall Plan. The Marshall Scholarship is provided to approximately 40 American graduate students to study in the United Kingdom. Mangino, who was editor of the Yale Daily News, graduated in 2009 and has been working as a deputy speechwriter to Attorney General Eric Holder.

Could the Obama Health Care Reforms Be Stopped Before They Start? This Man Will Decide

2010-12-03T05:30:00.003-05:00

Judge Henry E. Hudson may be the most powerful man you have never heard of. As a federal district court judge in Richmond, VA, he will decide -- before year's end, he now asserts -- on a challenge to the recently passed federal health care law. The suit, brought by Virginia's attorney general, Kenneth T. Cuccinelli II, asserts that the provision of the law requiring people to buy health insurance is unconstitutional. While the Supreme Court has ruled that the Commerce Clause of the Constitution allows that body to regulate "activities that substantially affect interstate commerce," the question that Hudson must decide is: does the failure to do something -- in this case, the act of buying insurance -- constitute an "activity," albeit a passive one, that can be lawfully regulated by Congress?

If he says no, and he is expected to say no, then the suit will no doubt be appealed all the way to the Supreme Court, but the really awkward question is, this one: if Hudson rules against the federal government on this narrow issue, will he, at the same time enjoin the entire law, blocking its enforcement and creating havoc in the health care industry?

Cuccinelli wants him to do just that. Along with officials in at least 20 other states with similar law suits, he had underscored that Congress failed to write “severability” language into the law that would shield other parts if this one requirement were struck down.

Hudson may not be well known, but he is no stranger to the spotlight: in 2007, it was he sentenced NFL quarterback Michael Vick to prison for the football player’s involvement in a dog fighting venture.

The Constitution in "Quotes": 2007 PJP Participant Kathleen Sullivan's Nuanced View of Citizen's United

2010-12-02T10:38:00.000-05:00

"Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands. The libertarian strand from which the majority draws support emphasizes that freedom of speech is a negative command that protects a system of speech, not individual speakers, and thus invalidates government interference with the background system of expression no matter whether a speaker is individual or collective, for-profit or nonprofit, powerful or marginal. The egalitarian strand on which the dissent relies, in contrast, views speech rights as belonging to individual speakers and speech restrictions as subject to a one-way ratchet: impermissible when they create or entrench the subordination of political or cultural minorities, but permissible when aimed at redistributing speaking power to reduce some speakers’ disproportionate influence."

Stanford Law School Professor Kathleen Sullivan, on Citizen's United, the Supreme Court decision announced earlier this year barring Congress, under the First Amendment, from limiting corporate contributions to independent political broadcasts. Sullivan's comments appeared in the Harvard Law Review.

Of Prisons and Safety, Courts and Legislatures, and the Meaning of “Cruel and Inhuman”

2010-11-29T10:04:00.009-05:00

This Tuesday, the Supreme Court will hold a hearing on a case that will be watched closely by state legislatures and prison officials across the country. It involves a decision by a three-judge federal panel in California to force that state to release thousands of inmates in state prisons in an effort to relieve overcrowding (they are now operating at twice the facilities’ design capabilities) as well as the prisons’ inability to address health issues in a timely and humane manner. In issuing its ruling, the three-judge panel, unusual in that it included two district court judges and a circuit court judge, declared that “a significant number of inmates have died as a result of the state's failure to provide constitutionally adequate medical care. As of mid-2005, a California inmate was dying needlessly every six or seven days.”

The court’s remedy was to order California to reduce prison population to 167 percent of design capacity within six months, 155 percent by one year, and 137.5 percent within two years. But California has appealed, concerned that the early release of thousands of prisoners will put local communities in danger. While the reduction of the prison population will save the state money, there is no assurance in a time of tight budget woes that local communities will want to use that money for security services and methods aimed at easing inmates back into society.

The Supreme Court hearing is unusual in that the state did an end-run around the Ninth Circuit court, to which district court decisions are usually appealed, and the attorneys for the prisoners, in what is a class action suit, intend to raise that jurisdictional issue when they appear before the justices.

But for the state of California, which is being represented by Carter Phillips, a DC appellate attorney who will argue the annual moot court at the 2011 Peter Jennings Project, there is an issue more fundamental than either of the above and it is one in need of immediate attention: can a federal court order a remedy so draconian as this one without in effect acting like a legislature itself?

That issue has history. Back in 1996, concerned about the flood of lawsuits brought by inmates, Congress passed the Prison Litigation Reform Act. A major concern was that courts were getting down into the weeds over the day-to-day operations of prisons, issuing broad rulings intended to remedy harsh conditions without, many argued, realistic understandings of how those rulings could be effectively enforced. The result was legislation that among other things, prevented courts from issuing prospective relief unless the relief is “narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right.” California officials believe they can handle the problems in their courts without resorting to the remedy the court demands. They believe they can release some non-violent offenders, send some prisoners out of state to other facilities and otherwise manage the problem without having to meet the percentage requirements that the court demanded. In other words, they believe that the court, in issuing its ruling, did not heed the strict standards legislated by the Prison Litigation Reform Act.

Whatever the Supreme Court does, there will be a lot of eyes watching. With the nation’s prison population now well over two million, California is not the only state facing the critical dilemma now being addressed by the justices: in a system bursting at the seams, what method is there to humanely house prisoners? And which branch of government gets to decide what that method is?

TB

Featured Guest Blogger Witold J. Walczak

2010-11-19T09:00:00.010-05:00

Two Cases Before the Third Circuit Raise the Question: Just How Far Can Public Schools go in Policing “off-campus” Speech?

As we react to the (merciful) end to one of the nastiest campaign seasons in memory, no one is suggesting that we should resort to censorship of political candidates. People are rightfully debating whether allowing corporate money is a good thing – a door opened by the Supreme Court in the Citizens United v. F.C.C. case last year – and whether disclosure requirements for donors should be imposed as a check on undue influence, but no one is suggesting that the government pass laws to limit candidates’ speech in order to promote civility and truthfulness, both of which seem in short supply.

Yet in a different context, what public-school students say outside of school, the debate over censorship is robust. At issue is what authority, if any, do public-school officials (the Constitution restrains only government actors so it doesn’t apply to private schools) have to punish students for saying mean and nasty things about teachers and principals when the kids are away from school. Speech on the Internet, especially social networking sites like MySpace and Facebook, are front and center, which means school officials regulating what kids post from home is included in the debate. The issue is growing in importance, as more kids gain access to computers. How the courts eventually answer the question will require balancing the nation’s constitutional commitment to free speech, the role of the Internet, children’s speech rights, parents’ rights to raise their children, and school officials’ need for power to administer safe and effective schools.

Two Pennsylvania cases pending before the United States Court of Appeals for the Third Circuit (the federal appellate court that hears cases from Delaware, New Jersey, Pennsylvania and the Virgin Islands) offer a contrast in approaches and an opportunity to clarify the law in this area. The facts in the two cases are substantially the same.

In Layshock v. Hermitage School District, student Justin Layshock used his grandmother’s computer to post a mock profile of his principal on MySpace, using the principal’s name and picture to pretend it was the principal. The profile said things like the principal was “too drunk to remember” his birthday, was a “big steroid freak” who belonged to “Steroids International,” had smoked a “big blunt” and took “pills,” doesn’t have a “big dick,” is a “big fag” and is “transgender.” Justin’s principal was, naturally, displeased and so after tracking Justin down suspended him for ten days, kicked him out of all interscholastic activities (where he was a reigning champ in foreign languages), removed him from AP classes and stuck him in a class with low-performing and delinquent students. The harshness of Justin’s punishment may reflect the fact that other students put up far more vicious parody websites of the same principal, but he wasn’t able to identify those budding scriveners, so Justin took the full brunt of his anger. The ACLU sued and quickly got Justin back into classes. The case continued for damages and to analyze the important legal issues, with the district court eventually ruling that the school violated Justin’s First Amendment free-speech rights. The school district appealed.

In the other case, J.S. v. Blue Mountain School District, eighth-grade student J.S. used her parents’ computer to post a mock profile of her principal on MySpace, not using his name but including his picture and referring to him as a principal in Alabama. The profile said the principal was a “tight ass” and a “wonderful, hairy expressionless, sex addict, fagass put on this world with a small dick” who spent time with his child who “looks like a gorilla”; who likes “hitting on students and their parents,” and loves “sex of any kind,” being a “dick head,” and his “darling wife who looks like a man.” J.S.’s principal wasn’t any more fond of this profile than was Justin’s principal, so he suspended J.S. for ten days. The trial court upheld the principal’s discipline and the student and her parents appealed.

The cases are quite similar. Both involve mock profiles of principals that are sophomoric, crude and vulgar, were created from a home computer without school resources, and were never physically brought into the school. Both schools claimed that the MySpace postings were “disruptive,” but the court records showed that disruption was minimal, and the lower courts agreed that whatever disruption occurred was not enough to justify punishment by the school. When notified about their respective children’s shenanigans, both sets of parents took stern disciplinary action and both students personally apologized. Despite the similar facts, the results in the appeals courts were starkly different.

On February 4, 2010, two different three-judge panels of the same Court of Appeals reached opposite results. The court in Layshock ruled that the school violated Justin’s First Amendment free-speech rights. The court observed that, “It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities,” and allowing the school to punish Justin “would create just such a precedent.” Conversely, the court in J.S., by a 2-1 vote, upheld the student’s punishment. The majority reasoned that just because the student’s speech “originates from a computer located off campus,” school officials should not be “left powerless to discipline the student.” Ultimately, the Court ruled that school officials have the same power, in and out of school, to regulate student speech “challenging” a school official’s “fitness to hold his position by means of baseless, lewd, vulgar and offensive language.” Petitions filed by the losing parties in the cases prompted the entire Court of Appeals to vacate and reconsider both decisions. Oral argument was held in June and we await the Court’s verdict.

The important and unresolved legal issue in the cases is what legal standard applies to determine when school officials can punish students for off-campus speech. Not surprisingly, the schools claim broad authority to regulate students’ off-campus speech, similar to the power they have over students while they are in school. School officials claim that because the Internet can spread speech so easily, quickly and widely they must be able to control it, especially when it is speech about school officials or it concerns the schools.

Clearly, the law gives school officials broad authority to regulate students’ speech inside the school and during school activities, like interscholastic competitions and field trips. More than forty years ago, the United States Supreme Court upheld the right of students to wear black armbands to school in protest of the Vietnam War. The Court famously proclaimed in Tinker v. Des Moines Independent Community School District that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Despite the lofty student-rights rhetoric, the Court in Tinker nonetheless acknowledged that students’ rights could be curtailed in order to “facilitate education and maintain order” inside the school if school officials could demonstrate that the forbidden expression has or likely will “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school...”

The Supreme Court has in three subsequent cases further whittled away at students’ in-school-speech rights. In Bethel School District. v. Fraser, the Court upheld the school’s punishment of a student who, during an assembly, gave a speech supporting his friend for class officer that was full of sexual innuendo:

I know a man who is firm--he's firm in his pants, he's firm in his shirt, his character is firm--but most ... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts--he drives hard, pushing and pushing until finally--he succeeds. Jeff is a man who will go to the very end--even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president--he’ll never come between you and the best our high school can be.

The Court, after calling the boy “confused,” ruled that the “undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.” The Court decided that schools could prohibit lewd, vulgar and sexually offensive speech in a “high school assembly or classroom.”

The Court continued the refrain of expanding school officials’ authority over students’ in-school expression two years later when it upheld a principal’s censorship of articles about abortion and children of divorced parents that were written for a school-sponsored student newspaper. The Court in Hazelwood School District v. Kuhlmeier ruled that “the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.”

Finally, the 2007 decision in Morse v. Frederick was the Supreme Court’s fourth and last examination of students’ speech rights. The decision upheld an Alaska school superintendent’s punishment of a boy who unfurled a banner while students were watched the Olympic torch parade that read, “Bong Hits 4 Jesus.” The Court carved out a special drug exception for student speech, ruling that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”

In sum, the lines regulating school officials’ authority over students’ in-school speech are clear. Schools can forbid rude and vulgar expression, along with pro-drug messages. They exercise vast control over any speech that is, or can be perceived as, school-sponsored expression. Otherwise, schools can restrict expression that threatens a “material and substantial disruption” of the school.

But the Court has never squarely addressed the rights of students after they exit the schoolhouse gates, when they are no longer students but minors. All four of the Supreme Court’s forays into student speech rights rested on the premise that the “special characteristics of the school environment” justify a diminution in student speech rights inside the schoolhouse gates. Not only do the special circumstances justifying censorship disappear once kids leave school, but a new player enters the legal calculus – the parents or guardians.

An important part of the argument by the students and parents is that once the child leaves the school the parents regain primary responsibility to direct and control their children’s upbringing, a fundamental constitutional right recognized by the Supreme Court as far back as the 1920's. A pre-Internet-age case from New York involving underground student newspapers (remember those?) summarizes the argument: “the First Amendment forbids public school administrators and teachers from regulating the material to which a child is exposed after he leaves school each afternoon. Parents still have their role to play in bringing up their children, and school officials, in such instances, are not empowered to assume the character of parens patriae.” Giving school officials the authority to punish students for off-campus conduct would, the court reasoned, give school officials “discretion to suspend a student who purchases an issue of National Lampoon … and lends it to a school friend” or to “consign a student to a segregated study hall because he and a classmate watched an X-rated film on his living room cable television.” While school officials may find such behavior distasteful or offensive, it is no longer their call; parents have that right.

The Internet does not and should not change the basic legal calculus. In a 1997 case, Reno v. ACLU, the Supreme Court rejected the argument that government officials should receive greater power to regulate speech on the Internet because it is such an effective communication medium. To the contrary, because the Internet is so effective – it enable anyone to publish widely, not just the wealthy person who can buy a newspaper and printing press – it deserves maximal First Amendment protection. Second, because speech posted on the Internet is accessible anywhere to a person with a computer and modem, school officials would have dominion over their students at all times, even when they are on vacation in Honolulu, Harare, Helsinki or Hilton Head. This would, in the words of the trial judge in Layshock, effectively make principals “censors of the worldwide web.” Lastly, the danger of unsuitable speech reaching students in school is greatly diminished because technology exists to block websites, including MySpace and Facebook, and most schools now deploy such filters.

Allowing school officials the power to regulate students’ off-campus expression impacts not just lewd and crude speech, but, more importantly, empowers schools to impose a political (or religious) orthodoxy. Complaints arrive regularly at the ACLU about school officials who, depending on their personal views, punish or discourage speech that promotes a “gay agenda” or, on the other hand, reflects religiously-motivated homophobic comments. Other expression targeted for censorship includes displays of the Confederate flag, music groups considered too edgy or unpopular at the time, commentary critical of school policies or staff members, support for students who are perceived as wrongly suspended, and anything deemed “controversial.” The latest censorship fad making the rounds in schools involves the “I ♥ boobies” bracelets and T-shirts, which are a popular campaign to promote breast cancer awareness. While restricting such comments in school may be necessary and appropriate to promote an environment conducive to learning by all students – not unlike similar restrictions allowed in the workplace – extending the power outside of schools raises obvious concerns. Schools can model behavior and suggest socially appropriate views, but they cannot enforce political and religious viewpoints or coerce anyone into believing them, and especially not after they’ve exited through the schoolhouse gates.

Yet, the schools in J.S. and Layshock, joined by the Pennsylvania School Boards Association, seemingly seek to assume precisely such powers. The PSBA’s friend-of-the-court brief claims the need for such far-reaching authority to “impart upon students lessons of civilized behavior” and “prepare students for life after graduation,” including in military and law-enforcement service. But the future that PSBA seeks to prepare students for is one in which they unquestioningly accept government censorship and restrictions on their constitutional rights. Instead of recognizing school districts’ obligation to teach students the importance of exercising their free-speech rights, they focus on schools’ need to prepare students to submit to restrictive environments, such as the military and police. While preparing students for life after graduation is certainly within school districts’ authority, giving school officials power to limit students’ rights consonant with military service, and especially to do so outside the schoolhouse, is inimical to the traditions of a free society.

Finally, schools claim that without censorial power over students off campus they cannot maintain discipline. They simply must be able to punish speech that is rude or, in their view, offensive and inappropriate, lest other students lose all respect for them and all hell will break loose. The best rejoinder is from a federal judge who rejected the suspension of a student who was sitting in a car and gave his principal the middle finger: “The Court cannot do these sixty-two mature and responsible professionals (the teachers) the disservice of believing that collectively their professional integrity, personal mental resolve, and individual character are going to dissolve, willy-nilly, in the face of the digital posturing of this splenetic, bad-mannered little boy. ”

The answer to dealing with students’ ill-tempered or controversial speech while they are off campus is found in Layshock and J.S. Once principals identified the offending students they notified the parents, who took corrective action consistent with their view on how best to raise their children. Both children apologized to the objects of their “affection.” That should have been the end of it. Nothing in the Constitution prevents principals from discussing with the students how hurtful the offensive speech was to them personally and to their families, from letting mom and dad know what their children are writing on the Internet, or in more serious cases involving death threats and bomb scares from notifying child-protection agencies and police. In 99% of the cases those remedies will be both a teaching moment result in changed behavior. But allowing principals to go further and use their authority as school officials to punish students for how they express themselves at home and in the community usurps the parents’ rightful role, invades students’ free-speech rights, and gives government officials the power to impose political or religious orthodoxy. When the next generation decides to enter elective office and make commercials, they won’t know how to think for themselves, and who knows whether truthfulness and civility will be the orthodoxy then.