No Whales! Save the Nukes!

I'm just joking, of course. We should probably also save the whales, if we have any time after setting the record straight on nuclear power.

George Wallace gives that record a good straightening this week in Blawg Review #304, hosted at his Declarations and Exclusions blog. He considers the disconnect between the publicly-perceived risks and the actual risks of a nuclear accident:

It is a simple fact: Radiation scares us, and not without reason. And yet, it is worth recalling that although the phrase "Three Mile Island" haunts the policy landscape as a threatening rhetorical spectre, the number of deaths attributable to the actual Three Mile Island radiation release is generally accepted to be . . . none at all. Long-term health impacts from Three Mile Island are generally (albeit not universally) agreed to have been negligible. Even the far more serious 1986 Chernobyl disaster —the 25th anniversary of which will arrive on April 26, 2011—was deemed responsible for fewer than 50 actual deaths by 2005, although its long-term consequences also include at least 4000 diagnosed cases of thyroid cancer (99% of them non-fatal, however, by 2005). Radiation is, in short, nasty stuff and not to be trifled with, but perhaps not nearly so threatening as we may bring ourselves to believe.

The widely-shared fears about the dangers of nuclear energy, due in large part to the very dissimilar incidents at Three Mile Island (the anniversary of which is the occasion for this Blawg Review) and Chernobyl, certainly won't be eased by the events at the Fukushima plant these past couple of weeks. Nonetheless, Wallace puts on his insurance counsel's cap and tackles the realities of risk and the biases which have made nuclear liability uninsurable in the standard market.

Amongst the highlights of this week's review are posts on the personal and policy decisions which leave considerable portions of Japanese losses in the recent earthquake uninsured, on casually-dismissing jury trials as an unnecessary cost, and on the constitutionality of kinetic military actions.

George Wallace is a hard act to follow, and he should know — he'll host next week's Blawg Review #305 at his personal blog, A Fool in the Forest.

TGIS: Thank God It's Schadenfreude! (313)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Monday, March 21; link good at time of posting):

Police say a bride was arrested at her own wedding reception near Phoenix after she kicked a police officer.

....

Officers responding to a call found a large brawl in the backyard of the home and told everyone to stop fighting. But the commotion continued, and police officers pepper-sprayed the crowd. [Police spokesman Hugh] White says people then got angry and aggressive toward the officers and that [bride Angela] Davito charged a partygoer.

He says Davito then kicked an officer and was arrested on charges of assault and obstructing governmental operations.

[Previous TGIS]

It's bad PR this week, but at least Ed. spells their names right.

The anonymous, globe-trotting Editor of Blawg Review is recently returned from the lovely island of Puerto Rico. Those of us who've been fortunate enough to see him at one of recent legal blogging meet-ups have heard much about the PR's beauty.

In this week's Blawg Review #303, however, Ed. tells us about an ugly time in the place's history. He describes the Ponce Massacre:

On March 21, 1937 (Palm Sunday), a march was organized in the southern city of Ponce, Puerto Rico, by the Puerto Rican Nationalist Party. The march, organized to commemorate the ending of slavery in Puerto Rico by the governing Spanish National Assembly in 1873, was also formed to protest the incarceration by the U.S. government of nationalist leader Pedro Albizu Campos, a Harvard educated lawyer, on sedition charges.

....

A large contingent of the Insular Police had been assembled to enforce an order from the Governor forbidding a planned parade by members of the Nationalist Party, a group that, while non-violent, fiercely advocated Puerto Rican independence. At least 14 persons were killed and another 64 injured when the police suddenly opened fire both on the Nationalists who were assembling to parade outside their clubhouse and also upon the many bystanders.

Though the police claimed that they merely defended themselves against armed and violent demonstrators — claims which were accepted in official reports and American press accounts — a subsequent investigation determined that

only the militia were armed; what occurred was in fact a police riot, and that; the “only possible descriptive title” was “massacre.”

With this tragic chapter in American and Puerto Rican history as its backdrop, this week's Blawg Review covers notable recent legal blogging, much of which discussed current troubles in the PR, the United States, the Middle East, and elsewhere. Highlights include authoritarianism and endangered civil rights in today's Puerto Rico, the dim prospects for a Guatemalan claim against the United States, and the recently-released 2004 report on then-President Bush's warrantless wiretap program.

The next couple of weeks of Blawg Review should be a treat. George Wallace will host both editions, with #304 appearing at his insurance law-focused Declarations and Exclusions blog and #305 at his personal blog, A Fool in the Forest.

TGIS: Thank God It's Schadenfreude! (312)

This week's joy in the misfortune of others comes courtesy of Reuters (from Wednesday, March 16; link good at time of posting):

Comedian Gilbert Gottfried apologized on Tuesday for a series of jokes made on Twitter about the Japanese earthquake and tsunami, comments which got him fired as the voice of insurer Aflac.

"I sincerely apologize to anyone who was offended by my attempt at humor regarding the tragedy in Japan. I meant no disrespect, and my thoughts are with the victims and their families," Gottfried said in a statement.

Since 2000, the comedian had been the voice of the quacking duck in Aflac's commercials, shouting "Af-LAC!" at opportune moments.

But the company was quick to dismiss him after a dozen jokes made on his Twitter account last weekend, many of them crude and sexual riffs on the effects of the disaster.

[Previous TGIS]

Hiatus

A Round Tuit will come back eventually (as far as you know).

Image: "Shane" (George Stevens, Director; 1953)

Like Pi, Blawg Review goes on and on without a predictable pattern emerging...

On Pi Day, Dianne Rosky hosts Blawg Review #302 at her PLS CLARIFY blog. Rosky writes on language and legal writing and explained why Pi Day is an appropriate one for Blawg Review to commemorate:

What, you may ask, does pi have to do with law, language, or legal writing? Well, nothing, but also everything. Math — like law, writing, and grammar — is defined by structure, logic, and formulae. Mathematicians talk about the grammar and language of math, and linguists talk (and write books about) the mathematics of language. Deep stuff.

Highlights of this edition of the carnival of legal blogging (and law-related mathematics) include lawyers contemplating the likelihood of their profession's obsolescence in an age of smart software and computing, briefly separating a good introduction from a bad one, and realizing the consequence of rambling past a word limit.

For now at least, mathematically speaking, the host for next week's edition is an unknown quantity. If you've not yet hosted Blawg Review, now's your chance to stand up and be counted.

TGIS: Thank God It's Schadenfreude! (311)

This week's joy in the misfortune of others comes courtesy of CNN (from Tuesday, March 8; link good at time of posting):

This time it was the intruder who called 911.

....

The suspect, Timothy James Chapek, was in the bathroom taking a shower when the homeowner returned to the house Monday night, Portland police said in a statement.

Accompanied by two German shepherds, the homeowner asked Chapek what he was doing in the house.
Chapek locked himself in the bathroom and made an emergency call, police said. He said he had broken into the house, the owner had come home, and that he was concerned the owner might have a gun.

....

Police with dogs took Chapek, 24, into custody "without incident," they said. He was booked for criminal trespass.

They did not say if the homeowner did in fact have a gun.

[Previous TGIS]

A Round Tuit (59)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

This past October (in A Round Tuit (47), if you're keeping score), I said of the then-recently-argued Snyder v. Phelps:

Even hateful religions and speech deserve the protections of the First Amendment. From time to time, our Supreme Court is obliged to reiterate this; it seems that if there is indeed a God, He seems to delight in conceiving ever-more-hateful figures to test that noble proposition we know as the First Amendment.

Phelps and his clan (that's a "clan" with a "c"; it's interesting to note that the "Klan" with a "k" has distanced itself from Phelps so as not to taint their message of hate with his even more hateful message) provided the test and the Supreme Court, by an 8-1 margin (Justice Alito dissenting), passed it. Free speech vindicated; First Amendment protected. Now we can all go take a shower to wash away the result in Snyder v. Phelps. Very understandably, discussion of that decision was the dominant theme of the past week in the legal blogosphere.

Steven Schwinn provided a good capsule summary of the decision itself:

Chief Justice Roberts wrote for the eight-member majority that Phelps's speech was on matters of public import--"the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy," op. at 8--and was therefore entitled to special protection under the First Amendment. Op. at 6. The context--i.e., the funeral--didn't change this, because here Phelps's signs were on public land next to a public street (and not in a private or non-public forum). And the fact that Phelps's speech included both personal attacks (i.e., speech on matters of private concern, subject to lesser First Amendment protection) and speech on public matters did not transform Phelps's public-oriented speech into a contrived shield to protect his otherwise unprotected personal attacks: Phelps had long been picketing with similar signs long before Snyder's funeral, and there was no indication that Phelps was using his statements on public matters to shield his personal attacks.

The Court also held that Phelps's speech was protected against Snyder's intrusion upon seclusion damage award. The Court ruled that Snyder was not a captive audience, and Phelps and his fellow protesters stayed away from the service.

....

Justice Alito in dissent emphasized the private nature of Phelps's attacks on Snyder and argued that Phelps's other, public-oriented statements couldn't shield those private attacks from state tort damage awards based upon the private attacks.

In his first reactions to the Snyder decision, Tom Goldstein noted:

The fact that the protesters appear at a funeral and refer to a particular individual – such as the service member for whom the funeral is being held – does not convert the protest into a discussion of a private matter unprotected by the First Amendment.

The Court clearly felt considerable sympathy for the slain soldier’s family, but concluded that the First Amendment interests at stake were overriding.

....

The Court left undecided two important issues that it concluded were not squarely presented. First, it recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held. The Court did not decide the constitutionality of that statute or other similar federal and state laws.

....

Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website. But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing. The Court was therefore able to limit its decision strictly to the context of funeral protests.

While the reaction to the majority decision in the legal blogosphere was generally approving (albeit with a considerable "ick" factor for the Phelpses personally), there were several who expressed concerns about it. Calvin Massey wondered whether, under the Court's reasoning, other groups could essentially manufacture matters of public concern simply by being outrageous enough to attract cameras:

The Court could have drawn a more nuanced line: Speech of public concern is not protected when it is specifically intended to inflict severe emotional distress upon a private figure, actually does so, and there is no reasonable connection between the public issues raised by the speech and the target of the speech. But the Court did not do so. It reaffirmed its commitment to robust, uninhibited, wide-open, and even vicious public discourse, no matter how much collateral damage occurs. Perhaps that this is the price of free speech. The Westboro people show us how expensive it can be.

Neil Richards noted that the opinion was squarely in line with existing First Amendment precent, though "[s]ome observers thought that Snyder was a chance for the Court to halt the trend". He suggested also that the decision "seems to all but rule out liability for [Intentional Infliction of Emotional Distress claims] when the speech at issue is about a matter of public concern." His co-blogger, Danielle Citron, commented upon this latter point, writing that the Court had struck the wrong balance in Snyder:

[T]he Court seems to be saying that Westboro’s speech did not concern a “purely private matter” because the group had long held hateful views (such as “God Hates Fags”) and because it had no personal relationship or conflict with the Snyders before the attack. Herein lies a concern with the Court’s division of the speech universe between speech on public matters and those involving “purely“ private ones. Some severely emotionally-damaging harassment of individuals stems from a perpetrator’s general hateful beliefs and involves victims who are strangers to the perpetrator.

....

[Such perpetrators] might insist that intentional infliction of emotional distress claims should fail because they had long held discriminatory views, which can be understood as political objections to anti-discrimination laws, and had no previous contact with the individuals that they targeted. They might contend that such attacks constituted protest on a matter of public concern, not a purely private matter deserving less First Amendment protection.

[T]he Court’s finding leaves significant room for perpetrators of hate-motivated harassment to argue that the First Amendment insulates them from IIED liability.

A number of bloggers discussed one aspect of the Snyder ruling in particular — the lone dissent from Justice Alito; most, though not all, were critical of the reasoning in that dissent. In his post linked above, Neil Richards wrote:

Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them. Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment. Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.” But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content. It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle. If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.

Jonathan Turley argued that precedent including New York Times v. Sullivan has rejected the subjective approach Alito described in his dissent; Turley wrote:

It is precisely the type of extreme analysis that led some of us to object to Alito’s confirmation. ...Alito does not show how we will distinguish between types of speech that he finds brutal and acceptable. It is precisely the type of slippery slope of analysis that we sought to avoid. Alito offers little compelling analysis in erasing the bright line protecting free speech. Indeed, his conclusion appears driven more by anger than analysis. His approach comes close to a content-based approach that would deny free speech protection to those who are most in need of it. We do not need the first amendment to protect popular speech. It is there to protect those who speak against the majority — those viewed as brutal and obnoxious by people like Alito.

In describing what speech he believed would be permitted in "Alitopia", Tim Cavanaugh described the Justice's dissent as "surprisingly touchy-feely". Noting Alito's characterization of the Westboro Baptist protestors actions as akin to a physical assault, Cavanaugh wrote:

That seems like a stretch to me. You are free to ignore nasty words in a way that you are not free to ignore physical violence directed at you. The analogy breaks down even further because in this case the offensive speech was not an assault designed to bring attention to the message. It was the message itself. While he believes the majority was wrong in its belief that Westboro's message was general in nature rather than specific to Matthew Snyder (and thus potentially actionable), Alito also seems to be supporting an idea I generally associate with Catherine MacKinnon: that some ideas are in and of themselves capable of causing "great injury" and a form of "brutalization."

Mary Anne Franks wrote that the Church's message is a self-defeating one and that, unlike some other hate groups, these protestors' abhorrent message is not a dangerous one:

The “marketplace of ideas” conception of free speech is deeply flawed, not least because it unjustifiably presumes a level playing field and equal access. It also gives rise to the notion that there is no harm in giving false ideas free run because the truth will win out in the end.

....

However, as the saying goes, even a stopped clock is right twice a day. The naive – often disingenuously so – belief that “the true and sound will survive” while “the false and unsound will be vanquished” is occasionally vindicated, as it is in the case of the Westboro Baptist Church. The Church may have “won” in Snyder v. Phelps, but in a much more important sense, it has lost as spectacularly as any hateful group in recent history. One is hard pressed to find a group more universally hated across the ideological spectrum than the Westboro Baptist Church.

....

What makes the members of the Westboro Baptist Church different from other hate groups is that they are seemingly driven not by the need to hate others, but the need to have others hate them.

....

This is why our society has very little to fear from the Westboro Baptist Church. The most dangerous ideas are seductive ideas – they exploit widely held insecurities, make superficially reasonable claims, and appeal to common prejudices. Westboro makes no attempt to persuade or compel its audience (in fact, if the Church is accomplishing anything, it is discrediting the anti-gay movement by associating it with agendas that even extreme social conservatives cannot stomach). Westboro is committed to a radically unpersuasive, nearly universally repugnant position.

Even for the strongest First Amendment advocates, however, the actions at issue in Snyder were difficult to defend. Marco Randazza wrote that "[t]o understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place." His was a must-read post this week:

Naturally, [the Church's funeral protesting] chaps the ass of the families of the dead soldiers. It chaps my ass too. Were I the benevolent dictator of this country, I might very well have the Westboro followers rounded up, shoved into a wood chipper, and we would all live happily ever after. Of course, once I was done with that, my taste for blood would be unquenchable, and next thing you know, 100 million people would be run through the wood chipper before I got to half the people who piss me off.

Which is why I shouldn’t be the dictator… nor should anyone else… Which is one of the reasons we have a First Amendment. If we have free speech, we have our greatest check on tyranny. It is the cornerstone of American liberty. And, as abhorrent as the Westboro asshats are, it is more abhorrent to take a chip out of that cornerstone.

....

Most average Americans will say, “that just doesn’t seem right.”

But then, there will be a few of us who recognize that without free speech, we are not America. A few of us realize that freedom means having to tolerate opinions that you despise. I hope that a few of my readers are among that group, and that you go out and evangelize the good word that came down today, and you realize that Westboro Baptist Church and its merry band of asshats just did more for the cause of freedom than every man and woman who died in any American military adventure since 1953.

For that reason, the Westboro Baptist Church is the first entity to receive both the First Amendment Bad Ass award and the Asshat award in a single blog post. May their members choke to death on both.

Scott Greenfield wondered whether the disconnect between lawyers (and the Snyder majority) and "most average Americans" was perhaps wider than it needed to be. He wrote that Alito's dissent gave official voice to a much-needed expression of outrage:

To note that rights are protected at their most extreme is obvious, at least to lawyers. It's meaningless to protect the rights of those we like and embrace. The test of our adherence to the Constitution is whether we afford those rights to those we despise.

....

But is there anyone, any lawyer, who doesn't wish that there was some test that would provide an iron-clad rationale that would shut Fred Phelps' mouth, wipe the smirk off his face and shove his insanity down his throat? Let's be honest about it: We all agree that the Supreme Court made the right decision, but we all wish that this one time, just this once, we could rev up the old Ford F-150, close our eyes, and hit the gas.

Sam Alito's dissent did not harm to the First Amendment. At 8 to 1, no one doubts that the Court, even with all the negging that came out of its Citizens United decision, did what it had to do in sufficiently clear terms that the message cannot be denied. The First Amendment protects the free speech of scum. As it should.

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.

Jeff Gamso, who represented the Church in an Ohio challenge to funeral protest restrictions, disagreed with Greenfield and wrote that even as a token expression of outrage, Alito's lone dissent is dangerous:

...Alito's dissent is a problem. Not because he turns what should have been an easy 9-zip decision into a still overwhelming majority 8-1. But because it reminds us that Alito really does think there's an exception to the First Amendment for the odious.

This isn't the first time Alito has been alone in staking out an offensiveness exception to the First Amendment's protection of free speech. He alone believed (see United States v. Stevens) that First Amendment protection could be denied to depictions of animal cruelty.

....

OK, maybe Alito is alone on an otherwise free-speech friendly court. But today's lone dissenter can be tomorrow's majority voice. (See Scalia, Antonin.) And it's never good to have a guy on the Court who just doesn't get it.

Especially when he's not altogether alone.

Jon Katz has also represented the Church; he affirmed that doing so is both a necessary defense of our free speech rights and a rejection of the Church's own views:

My decision to defend the WBC's [Westboro Baptist Church's] First Amendment rights goes to the very core of my conviction that we must assure full First Amendment protection to the most vile speech in order to fully protect speech that we see as legitimate and essential. The First Amendment is not amenable to picking and choosing who benefits from it.

....

With WBC, one day they are picketing soldiers' funerals, the next day places where gay people get together, and the next day synagogues; and often they do multiple pickets in a day. I advocate a robust marketplace of ideas, and insodoing, I strongly reject the WBC’s messages.

Eric Mayer discussed his experiences with both the Church and the military families who find themselves the targets of the Church's protests:

Growing-up near Topeka, Kansas, I was a member of a Boy Scout troop that met at Saint David’s Episcopal Church on Gage Blvd. Across the street was another church, a Lutheran Church whose membership consisted of a few homosexual members. How did I know? The picket signs in front of the church made it loud and clear.

These were the fledgling activities of a group that calls itself the Westboro Baptist Church, led by disbarred lawyer Fred Phelps.... Their antics disgusted me then, and they disgust me even more now.

....

When you read about them, you have a right to be angry, but fight the urge to focus your anger on the First Amendment. Instead, focus it on doing something positive. One way is to support or join the Patriot Guard Riders. These guys and gals fight free speech with free speech. They form cordons to prevent families from enduring the Westboro hate speech. They wave flags, rev motorcycles (most with drag pipes), and sing patriotic and sympathetic songs. Their goal is to replace any dignity that may have been lost by the presence of the Phelps clan. I’ve met a few, and they are good people trying to do good things.

Finally, I want to say something to the families who suffer (have suffered) because of Westboro’s hate. We all owe a debt of gratitude for the sacrifices of your loved-one. They gave their life for something much bigger than themselves, their teammates, their family, or their community. And, their life was not given in vain. The fact that the Westboro Baptist Church can do what they do is proof of that. Just know that there are people out there, many of them downtrodden, who have a voice because of the collective sacrifices of many loved-ones. Every free voice we hear is an honor to them–intended or not.

The pending decision in Federal Communications Commission v. AT&T would've attracted a fair amount of attention on its own merits in a normal era. In the post-Citizens United era, this matter testing the personal privacy rights of corporations received more than its fair share of comment and scrutiny. Recall that Citizens United determined that corporations — artificial persons under the law — enjoyed free speech rights under the First Amendment, confirming that at least to some extent their "personhood" has some meaning beyond just legal formalities.

This week's decision in FCC v. AT&T served to set some limits on that idea. If Citizens United allowed corporations to express some "personality", AT&T reminded us that while artificial persons may have some similarities to us under the law, whatever concern the courts have for personal privacy is reserved for persons of the flesh-and-blood variety.

Nate Anderson provided a good background of the case. As he explained, the matter arose from a Freedom of Information request made by a trade association affiliated with several AT&T rivals; the group sought extensive documents provided by AT&T to the FCC in the course of an investigation. Anderson wrote:

FOIA requests are intended to shine a spotlight on government activities, to let citizens know what their government is doing in their name. Not every document can be gleaned from a FOIA request, however, and one of the key exemptions concerns records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

AT&T insisted that this personal privacy exemption applied even to corporations—after all, corporations are considered legal “persons” in the US. AT&T won this argument at a federal appeals court, convincing judges there that its submissions to the government should remain private.

....

The ruling should make it easier to access corporate records turned over to government investigators, though it is also likely that corporations will make even greater attempts to avoid turning over such information in the first place.

Paul Bond and Frederick Lah touched upon that last point — that this decision might curtail discussions between government regulators and corporations, making document production by corporations more difficult and contentious:

While the Third Circuit Court Appeals ruled in favor of AT&T, the Supreme Court reversed, unanimously holding that “personal” refers only to individual persons, and not legal persons such as corporations. In the opinion written by Chief Justice Roberts, the Court’s analysis focused on statutory construction and was limited to the language of FOIA itself, leaving other common law and constitutional issues to the side. Looking at the plain meaning of the word “personal”, Chief Justice Roberts wrote, “ ‘Personal’ ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities.”

It remains to be seen what type of impact this decision will have on corporations, for example, whether the threat of public disclosure will end up having a chilling effect on a corporation’s willingness to cooperate with law-enforcement investigations. The recognition of constitutional rights for corporations has never fully extended to include all rights traditionally recognized for individual persons (i.e., corporations are not covered under the Privileges and Immunities Clause of the 14th Amendment) but this recent decision adds to the line of cases that have over time continued to define the parameters of constitutional rights for corporations.

Stephen Bainbridge was one of a few who criticized the ruling:

...Chief Justice Roberts could have summed up his opinion far more succinctly: "Because at least 5 of us say so."

....

While I agreed with the [Citzens United] holding, I was disturbed that the Chief Justice's majority opinion for the Supreme Court so obviously lacked a coherent theory of the nature of the corporation and, as such, also lacked a coherent theory of what legal rights the corporation possesses.

The utterly specious word games that drive this opinion simply confirm that Chief Justice Roberts has failed to articulate a plausible analytical framework for this important problem.

Larry Ribstein disagreed, suggesting that the AT&T majority struck the right balance and that there is a method to what Bainbridge felt was madness:

I’m okay with the opinion. As I’ve said about Citizens United and corporate speech rights:

corporations, as artificial entities, cannot speak in the same sense as humans do, and . . . the First Amendment is more properly concerned with the expressive rights of the individuals who speak through corporations than with the rights of artificial entities.

Same goes for “corporate” privacy. And this approach isn’t necessarily bad for business. As I said in the above article about locating speech rights in corporations, “[a]n implication of this move is that the speech gets less protection than non-corporate speech because the right-holder is an artificial entity.”

Speech rights differ from privacy rights because as I argued in my article linked above, “[t]he First Amendment does not guard corporations’ expressive rights, but rather the public’s interest in hearing what corporations have to say.”

Several commented on one line of Chief Justice Roberts' opinion in particular, a bit of wordplay at AT&T's expense. Marc Martin wrote:

The Supreme Court rejected the argument that the word “personal” in FOIA Exemption 7(C) incorporated the statutory definition of the word “person,” which includes corporations and other “artificial” entities. The Court was careful to point out that it was not deciding “the scope of a corporation’s ‘privacy’ interests as a matter of constitutional or common law.” Rather, the question before the Court was solely “whether Congress used the term ‘personal privacy’ to refer to the privacy of artificial persons in FOIA Exemption 7(C).”

And yes, after holding that the phrase “personal privacy” in FOIA Exemption 7(C) does not refer to corporations such as AT&T, the Supreme Court said, “We trust that AT&T will not take it personally.”

Of the "don't take it personally" jibe, Peter Landers wrote:

writes that “personal privacy” is more than just the sum of the two words. “[T]wo words together may assume a more particular meaning than those words in isolation,” he writes. “We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented.”

On the often-fractious court, not a single justice dissented or even offered a concurrence. (Justice Elena Kagan sat out the case.)

By the final paragraph, AT&T might have thought the beating couldn’t get worse. Alas, after stating unequivocally that the personal privacy exemption “does not extend to corporations,” Chief Justice Roberts added: “We trust that AT&T will not take it personally.”

Ouch.

As Dahlia Lithwick noted, the Chief's lighthearted (AT&T might disagree with that characterization) comment was in keeping with the spirited questioning when the case was argued:

As you may recall from oral argument, the chief spent the better part of the hour poking fun at AT&T's claim that the adjective personal means the same thing as the noun person, such that the statute's treatment of corporations as "persons" means that corporations are also somehow capable of getting "personal." As he explained at argument, that claim makes no sense. "I tried to sit down and come up with other examples where the adjective was very different from the root noun," he observed at the time. "It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn't have much to do with craft. Squirrel, squirrely. Right? I mean, pastor—you have a pastor and pastoral. Same root, totally different."

Today's majority opinion continues this same jolly monologue, musing—with copious citations to Webster's that "[t]he noun crab refers variously to a crustacean and a type of apple, while the related adjective crabbed can refer to handwriting that is 'difficult to read,' " and goes on to observe that "corny can mean 'using familiar and stereotyped formulas believed to appeal to the unsophisticated,' which has little to do with corn, ('the seeds of any of the cereal grasses used for food')."

All of this would be more than enough hijinks for even a good day at the court, but upon reading the opinion in its entirety, it turns out that after robbing AT&T of its last vestiges of corporate personhood (at least for FOIA purposes) the chief's rollicking good mood leads him to pen what may be the funniest closing sentences in opinion-writing history: "The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally."

The comedy stylings of Chief Justice Roberts aside, I think that in its Citizens United and AT&T rulings the Court found the right balance in corporate "personhood". Though I'd not thought of it in precisely those terms, Professor Ribstein's take on the theme between the two opinions sums things up nicely. Society protects what society values. We (and our Bill of Rights) value a wealth of viewpoints and free flow of information. Protecting corporations' right to speak and limiting their right to conceal serves those values.

People (in the old-fashioned sense) should have the broadest possible right to speak, whether individually, collectively as an informal group or as an organized corporation, and anonymously. The courts have had a mixed record in protecting speech in all its forms; I think that Citizens United was one of the positives. The result in AT&T is neither inconsistent with or limiting of that ruling, which is as it should be (even if AT&T took this week's result personally).

A couple of noteworthy posts managed to discuss topics covered in both of the above sections.

The nearly-unanimous decision in Snyder was received favorably amongst the mainstream media, whereas the latter was reviled by a significant portion of that same group. In particular, the New York Times and the Washington Post were effusive in praising this week's result, while just as passionate in condemning last year's. Why that seeming disconnect? Paul Sherman considered that question:

The answer is that the Westboro Baptist Church’s speech, while vile, is also totally inconsequential. Nobody is going to be persuaded by their inarticulate grunts of rage. And it is relatively easy to tolerate speech that you do not believe will persuade anyone. What is considerably harder is to stand up for speech that is persuasive, speech that might actually cause people to adopt beliefs or enact policies that you disagree with.

So the New York Times and the Washington Post have it wrong. The beauty of the First Amendment is not that it leads us to tolerate the insignificant antics of the Fred Phelpses of the world. Rather, it is that the First Amendment permits us—and commits us—to resolve even our most consequential disagreements peacefully, with words, not force.

Lyle Denniston discussed the interplay between AT&T and Snyder:

In back-to-back decisions, the Supreme Court has now told the nation that some claims to privacy — to avoid hurt or embarrassment — would not be allowed. Perhaps few will weep over that loss on Tuesday for a giant corporation — AT&T Inc. But, for what is sure to be a long time, many will weep, and perhaps express even stronger sentiments, about the Justices’ turning aside on Wednesday the claim of Albert Snyder that the Constitution should have assured him an hour of peaceful privacy to bury his Marine son, killed in Iraq. The Court’s decision in Snyder v. Phelps (09-751) is exactly the kind of ruling that makes perhaps many people wonder if the Court knows what life is like for real people.

....

The rejection of corporate privacy on Tuesday (Federal Communications Commission v. AT&T, 09-1279) was a declaration that simply followed what the Court deemed to be common sense, as well as supposedly clear guidance from Congress: a corporation may be “a person” in some legal settings, but it has never been thought of as having “personal privacy,” of the kind that human beings have because they have feelings. A corporation is an artificial being, the Court said, and it cannot suffer hurt feelings. This has nothing to do with the Constitution, the Justices said; they were weighing only the meaning of an explicit federal law.

If there is a more general lesson to be drawn from the AT&T decision, it is that claims of privacy have to be weighed in context: what is the harm done if one’s private affairs are exposed to public view, in what arena are private affairs at risk of being exposed, how does society judge harm in that setting, and does society insist on there being a remedy for that harm? That very same calculus — context — is exactly what counted when the Court decided Albert Snyder’s case and a jury’s decision to punish picketers at his son’s funeral in Westminster, Md., five years ago.

....

In emotional terms, the reaction that already is following the ruling might well be compared with the angry response that the Court stirred up when it ruled that burning the American flag, like the Westboro demonstrators’ actions, was free speech under the First Amendment, and when it ruled that a march by a band of Nazis through the streets of Skokie, Ill., where many Jews lived, was, like the Westboro protest, shielded by the First Amendment.

Just as the Chief Justice on Tuesday wrote that the Court trusted that AT&T “would not take personally” its loss of privacy in the setting of that case, the Court, silently perhaps, may now be trusting that America will not take it personally that the Snyder family will get neither legal victory nor money even as woefully inadequate compensation for the loss of privacy in its moment of deepest grief.

Gideon has written compellingly in opposing efforts to limit Habeas Corpus (the so-called "Great Writ"); he was obliged to oppose new efforts made recently in Connecticut in a misguided effort to address budget shortfalls:

That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.

Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.

....

[T]his bill “streamlines” habeas corpus procedures in the State of Connecticut in the same way Mount Everest placed atop the Space Shuttle would streamline it. Which is to say, not at all.

I wouldn’t be surprised, if this bill passed, that the State would have to provide greater resources to the State’s Attorney’s office and the Public Defender’s office to litigate every step of the process. And at the end of that litigation, most of this garbage bill would be struck down as unconstitutional anyway.

Many of the “provisions” of this bill are already law: procedural default, cause and prejudice, motions to dismiss, motions for summary judgment. Moving these restrictions from their proper place – during the pendency of the proceedings – to a newly created space prior to the institution of proceedings is nothing but another way to increase litigation and create backlogs and nightmares where none exist.

Several legal bloggers commented on the Fourth Amendment decision in U.S. v. Foster. Jon Katz wrote that the case affirmed the right of known criminals to look uncomfortable when they're not doing anything obviously illegal:

Yesterday, the Fourth Circuit issued a great opinion reversing a drug conviction on a finding of no reasonable articulable suspicion to stop a suspect, where the stop was mainly based on law enforcement's being familiar with his past criminal history, believing the suspect was acting uncomfortable in seeing people he knew to be law enforcement, and with his shifting around a lot in the car....

The Foster court criticized the prosecution in that case, writing that "the Government attempts to spin these largely mundane acts into a web of deception." Mirriam Seddiq commended the court for taking the prosecution to task in such a forceful manner:

This is strong language from a Circuit that isn't know to be the friendliest to defendant's, nor the most lenient when it comes to issues such as these, but it may seem that for now, there are signs of life for the Fourth Amendment. Let's hope it can stay with us for a good while longer.

Scott Greenfield cautioned that one favorable result doesn't herald a broader change-of-heart for that court or others: "[T]here's no indication it's more than a one-off decision. It happens. They get us all excited, compelling us to indulge in inductive reasoning, which makes the subsequent let down all that much more painful." He continued, discussing the many ways courts and cops have agreed on elaborate rituals to ensure that searches occur even when justification is absent and questionable evidence is admitted when needed by prosecutors:

Ever notice how nobody who ever put a gun under a car seat managed to get it all the way under? There's always some part of the gun sticking out from under the seat so that any cop who looks through the window into the interior can see it in plain view?

Ever notice how a bag of marijuana, triple heat sealed, placed into an air tight container in the trunk of a car, still emits a "poignant" odor when the driver of the vehicle cracks open his window? Nonetheless, the search of the vehicle begins with the glove box and not until 15 minutes later, having found nothing, does the officer get around to opening the trunk?

The unfortunate fact for those criminal defendants found in possession of contraband is that they are alive. Being alive means that their bodies remain reasonably mobile. Arms move. Heads tilt and turn, sometimes in ways that are unpredictable to those observing from outside a vehicle. After all, if someone is having a conversation with another person in a car, they might be inclined to turn their head toward them, maybe even nod in agreement. Some cultures even gesticulate with their hands in order to emphasize a point during a conversation.

From outside the car, one would have no clue why the person of interest is moving about, turning to and fro, bobbing and weaving in a way that could indicate that he is concealing evidence of massive quantities of narcotics. How could they possibly know such a thing? And so suspicion is aroused.

These are the mundane realities that are either utterly inconsequential or transformed into sufficiently suspicious to obviate our right of privacy based upon the rhetorical skill of a cop and prosecutor to articulate suspicion. By merely attaching magic words, like furtive gesture, to the actions, protections magically fly away and, with the blessings of court after court, judge after judge, we are searched. And if we have something nasty, it is seized.

Finally this week, Brian Tannebaum wrote of a recent meeting with an extraordinary person, Melvin Richardson, who refused to just go along with the DNA collection required even of traffic offense defendants like himself:

Melvin was approached and instead of opening wide, turned to his lawyer and asked "do I have to?"

His lawyer didn't think so and when the judge took the bench, he inquired. The judge seemed confused that a traffic court defendant would have to give DNA, but also not wanting to usurp the power of the all mighty court security, ordered Melvin to submit to the DNA swab. He then immediately stayed the order to permit Melvin to appeal.

Melvin would now have to pay a $400 filing fee to appeal the order. Hefty price for a traffic ticket.

But there would be no appeal. Court security changed their policy. They changed their policy because Melvin said no.

And so last night at the annual dinner of the Pensacola criminal defense bar, Melvin received the first ever "Person of the Year" Award.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Eric D. Snider, PhoneDig, and Paris Odds n Ends Thrift Store.

All you do to me is talk talk... well, that and Blawg Review.

Mirriam Seddiq hosts Blawg Review #301 this week at her Not Guilty blog. Prompted by the anniversary of Bell's patent for the telephone, she takes as her theme the idea of changes in communication, from changes in method to changes in meaning to changes in frequency. Topics this week include the "death" of blogging amongst younger folks, the admissibility of deathbed communications, and the criminalization of prank communications.

"Date Available" is scheduled to host Blawg Review #302 next week. Mr. Available will have his work cut out for him if he wants to produce a Blawg Review of the Year. This past year's worthy winner, Blawg Review #278 written by Omar Ha-Redeye, set an exceptionally high standard.

UPDATE: Well, it's an update about a clarification. Dianne Rosky has stepped-up to host the next Blawg Review at her Pls Clarify site. Good luck to her!

TGIS: Thank God It's Schadenfreude! (310)

This week's joy in the misfortune of others comes courtesy of 101 Great Goals (from Thursday, March 3; link good at time of posting):

Last Tuesday a crazy match was witnessed in the Argentinean fifth tier as referee Damien Rubino flashed a ridiculous 36 red cards during the clash between Claypole and Victoriano Arenas.

During the game, which was constantly halted as scuffles between the sides broke out, the match official sent off two players before the second half had even kicked-off. The latter was dismissed for bad behaviour during the half-time break itself.

Then, towards the end of the match, things descended into farce as a mass brawl erupted. Not only players and coaches got involved, but fans also raced onto the pitch to give a helping hand in the dust-up.

Following the match, referee Rubino filled out his match report in which he stated that 36 people, including all the players, the substitutes and coaches, had all been served with red cards for their part in the unruly mess. Reports in Argentina however have now said that the local Football Association are looking to alter the referee’s verdict believeing it sets a dangerous predecent moving forward.

[Previous TGIS]

A Round Tuit (58)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

The announcement this week by Attorney General Holder that the Department of Justice would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) prompted a number of posts concerning the decision's import and legitimacy. What exactly is the Administration's new position on the Act, which permits states to refuse to recognize same-sex marriages performed in other states? Is the announcement, to borrow the words of Vice-President Biden, a big fucking deal? Does this act amount to a dangerous power-grab by the Executive Branch? The answers offered by various legal bloggers varied and didn't divide along the usual political lines.

I share Ted Frank's reservations about Holder's change in position — the result is a worthy one, but the methods set an ominous precedent:

I'm not a fan of the Defense of Marriage Act, but I do have a large problem with the politicization of the role of the Department of Justice. Strip away the gay-rights issue and consider the question: what would Democrats say if, in 2013, President Sarah Palin announced that her Department of Justice would refuse to defend the constitutionality of Obamacare in court?

Initially, Orin Kerr had similar thoughts, which he explained in another post:

In my view, the basic problem with the Obama Administration’s position on the DOMA litigation is the same problem we had in the Bush Administration with its adoption of John Yoo’s theories of Article II. Recall that John Yoo’s theories of Article II power rested on a highly contested set of views about Article II power. By adopting a contested constitutional theory inside the Executive Branch, the Bush Administration could pursue its agenda without the restrictions that Congress had imposed. In effect, the simple act of picking a contested constitutional theory within the Executive branch gave power to the Executive Branch that none of the other branches thought the Exeutive Branch had (and which laws like FISA had been premised on the Administration not having). It was a power grab disguised as academic constitutional interpretation.

Now, I wouldn’t in a million years compare torture and wiretapping with gay rights. Obviously, the subject matter is totally and completely different. But there’s an interesting analytical similarity between the DOJ’s position on DOMA and the Bush Administration’s reliance on its Article II theories.

....

Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

Though he didn't go so far as to endorse the Administration's position, Kerr subsequently wrote that his objections were more moderate, considering that someone is likely to defend the law even if Holder's DOJ will not:

In thinking over my reaction from yesterday, some of the feedback I’ve received has me somewhat less concerned than I was yesterday about the Obama Administration’s approach. In particular, it seems that everyone seems to think that, somehow, someone will be available to defend a law when the Administration declines to to do. It’s not entirely clear to me how this happens when an Administration declines to defend a law in the District Court, as opposed to the Supreme Court: The key problem is how to get the case up to the Supreme Court, which isn’t presented when the Administration defends the law in the lower courts. But if everyone agrees that this will happen somehow, then the Administration’s decision is a lot less significant, and therefore less worrisome from a standpoint of long-term impact, than I had thought.

Kerr's co-blogger, Ilya Somin suggested that the change in position was hardly revolutionary or even as dangerous as others had argued:

I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.

....

The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.

Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.

....

Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.

The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene.

....

Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it.

Dave Hoffman argued that the Administration's decision wouldn't lead to disaster for the health care mandate under a future Republican administration, because it'd be doomed anyhow:

[I]t’s basically impossible to imagine a Republican President elected in 2012 who would be willing to allow his DOJ to defend the mandate in any circumstance. That would be true if Obama had defended DOMA proudly, holding-his-nose, or (as the case may be) not at all.

While the prospects for Obamacare are undeniably bleak if the Democrats lose power, I'm not sure I'd agree that it's "basically impossible" that a Republican administration would defend the law; in recent years they've done so with other laws which angered the rank-and-file or were believed unconstitutional by key advisors. Whether they defended them "proudly" or "holding their noses" I can't say, but defend them they did.

At any rate, considering the case at hand, legal bloggers on both the right and left suggested that the declaration from AG Holder was likely to tilt the balance in the courts. Dale Carpenter noted the President's previous opposition to same-sex marriage and the effect his change of mind will have:

It was hard, even yesterday, to concoct a constitutional defense of traditional marriage in a world where [the] standard justifications (about procreation and child-rearing) had been rejected as unrelated to a ban on same-sex marriage. At most, I think, one might have said yesterday that the DOMA challenges involved federal refusal to recognize actual same-sex marriages while granting full recognition to opposite-sex marriages. But, one might have argued, a federal court decision holding that DOMA was unconstitutional did not necessarily mean states would be constitutionally required to recognize SSMs.

....

The DOJ’s new position withers even that thin reed. The AG’s letter makes several key points clear. First, limiting marriage to one man and one woman discriminates on the basis of sexual orientation, a conclusion many courts have resisted by offering that gay people are still free to marry opposite-sex partners. Second, the DOJ now believes that all discrimination on the basis of sexual orientation should be subject to some heightened scrutiny (specifically, intermediate scrutiny), not simply rational basis review.

Jack Balkin called the same-sex marriage litigation post-announcement "a whole new ballgame":

Under these conditions, it becomes much more likely that DOMA will be struck down by at least one federal Court of Appeals-- possibly the Second Circuit, where the latest cases are being brought--and therefore even more likely that DOMA will be struck down when it finally gets to the Supreme Court.

....

Why is that? Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree.

....

Nothing is certain. But this announcement is very, very important as a symbolic matter. It signals an important change in America's constitutional culture. The Presidency has put itself on the side of constitutional equality for gays and lesbians. This is perhaps even more significant than the Bush Administration putting itself on the side of an individual right to bear arms, a position that was, by 2001, already widely accepted in the general public.

Moreover, the fact that the Administration has now taken the position that discrimination based on sexual orientation is subject to heightened scrutiny means that federal courts will increasingly feel able to hold unconstitutional state laws that limit marriage only to opposite sex couples.

However, Balkin's co-blogger Jason Mazzone wrote that the Administration's change in position was a more modest one than it might at first appear and, moreover, that it's unlikely to be decisive for the courts:

[T]he actual position of the DOJ (which will remain in the case) is that if the courts agree with the government that heightened scrutiny is the appropriate standard, then the plaintiffs should prevail because section 3 of DOMA does not satisfy the heightened scrutiny test.

Whether the district courts (and the Second Circuit) will apply heightened scrutiny is an open question. Following the lead of other courts, they might conclude that rational review applies. If so, the government's position is that section 3 is constitutional under the rational standard.

Dahlia Lithwick explained the basis for the Administration's new "middle way" approach:

As Walter Dellinger, acting solicitor general in the Clinton administration, has explained: "The government has an obligation to comply with the nation's laws, regardless of whether the president agrees with a particular statute. Doing otherwise would also set a precedent justifying similar nullifications by future administrations." The alternative, according to Dellinger, would be to have every president nullify the laws passed by his predecessors by simply declining to appeal adverse rulings.

Dellinger's proposed middle way—in the context of the October court rulings striking down the military's "Don't Ask, Don't Tell" policy—was to have the administration continue to defend the law formally in the courts while suggesting reasons the courts should strike the law down. This has happened before: The Clinton administration both enforced and argued against a discriminatory HIV policy in the military in 1996, and the law was repealed. That's precisely what the administration opted to do with DOMA on Wednesday.

....

The real sea change here is that Obama can finally claim, as his attorney general did today, that the winds of change have shifted since 1996. "The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional," writes Holder today. "Congress has repealed the military's Don't Ask, Don't Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional." Obama can now openly state that his views on gay marriage are "evolving" as Holder admits that "recent evolutions" in gay rights law have influenced this change.

The president seems to have finally acknowledged a truth played out at the Proposition 8 trial in California last summer: Virtually all of the arguments advanced to deny gay couples the right to marry are based on moral animus and junk science, rooted in discredited cases like Bowers v. Hardwick and in unfounded bias that is increasingly hard to defend in open court.

One person's evolving legal position is another's gamble, it seems, and a" gamble" is how Mazzone characterized the DOJ's new stance:

My students are often surprised that after we work our way through the equal protection cases, the Supreme Court's own list of suspect classes is very short. Students sometimes ask if we just didn't cover a whole set of cases. No, I tell them, this is all there is. Students also suggest the Court is simply slower in identifying all of the groups who merit special judicial protection and there are surely more cases to come. My response is that there is in fact very little likelihood that the Court will hold that a classification involving any additional group triggers a heightened form of scrutiny.

Accordingly, I teach my students that in arguing cases (or, of more immediate concern to them, answering an exam question), they are unlikely to prevail if they argue for recognition of a new suspect class in accordance with footnote 4's framework.

....

I think the argument for heightened scrutiny will fail. I do not see five votes at the Supreme Court for deeming all classifications based on sexual orientation to trigger heightened review.

....

Holder's approach therefore represents a real gamble. Conceding that section 3 of DOMA survives rational review, the Administration is counting on the courts (and ultimately the Supreme Court) taking the unlikely step of deeming gays and lesbians a suspect class--and invalidating section 3 on that basis.

This is one of those instances where I'm pleased with the ends but unsettled about the means. I'm no great fan of the current administration or its Justice Department, but I'm glad to see them adopt what I think is the right position on DOMA despite the President's previous opposition to same-sex marriage. Anything which speeds the end of this new "separate but equal" legalization of discrimination counts as a "good" in my estimation. I wonder, however, whether Holder's "gamble" purchases that good at too high a price.

If it provides cover for future administrations to "veto" earlier legislation, this would unsettle our system of laws and tilt the balance of power amongst the three branches (and within the Executive from one administration to another) in ways the Constitution does not intend. On same-sex marriage, I'm confident that we'll soon arrive at a place where all can enjoy equal marriage rights; we just need to watch our step as we cover the short distance remaining between here and there. Future generations will wonder why it took us so long to come to our senses on this important civil rights issue, but they certainly wouldn't thank us for upending the Constitution in an eleventh-hour rush to get on the right side of history.

"Jury nullification" refers to the concept that jurors who believe that the facts in a case support one side can nonetheless choose to vote their consciences when they believe that the law itself is wrong. Generally, though not always, the term is used to refer to a juror's vote to acquit where he or she believes that a criminal law is wrong or that the prosecution should not have been brought. It's one of the more intriguing philosophical debates I recall from my law school years.

On the one hand, broadly speaking, there's something appealing about the idea of jurors collectively or individually acting as a last safeguard against an all-powerful State. On the other, there's a sense that if we are to be a nation of laws rather than men, we can't abide someone playing by an entirely different set of rules in the jury room. There are more (and more nuanced) arguments than these, of course (and, frankly, more passionate advocates on both sides). Notwithstanding, at the Popehat blog recently, Ken wrote that high-minded philosophy probably doesn't figure into the equation for most nullifying jurors; he also cautioned that even if it can be a "last safeguard", nullification can also be a vehicle for juror prejudices:

In my experience, jurors already do exactly what they want to do, and create justifications and rationalizations for doing so. Many jurors form their impression of how the case should come out during opening statements, and then implement their preference during deliberations.

The justifications and rationalizations are not always polished. Any trial lawyer who has ever interviewed jurors after a verdict will tell you that their explanations of their thought processes can range from inexplicable to bizarre to terrifying. And that’s when you’re talking to jurors who found in your favor.

....

So I think that jury nullification advocates are offering people a rationalization for doing something that they are already doing just fine by themselves. Jurors are going to continue to acquit sympathetic defendants facing overwhelming evidence, and convict unsympathetic defendants based on weak evidence.

It’s odd, though, that jury nullification advocates tend to present nullification as a bulwark against government tyranny. Nullification is tyranny-neutral. Ask anyone who has ever tried to convict a cop of using excessive force, or defend someone accused of “resisting arrest” or “assault on a police officer” in the course of being subjected to such excessive force. Nullification can lead to conviction as easily as it can lead to acquittal. Even were that not the case, acquittal is not inherently anti-tyranny. Tyrants, petty and great, can (rather occasionally) be put on trial, and their acquittal can be a blow for tyranny, not against it. Nullification is a mirror of juror prejudices, and plenty of jurors are prejudiced in favor of the state, in favor of “safety.” That’s why defense lawyers are not unanimous fans of nullification.

Though the nullification concept makes for a good debate, particularly amongst over-serious and over-served law students, it only rarely seems to make the news. Is it less common in practice than in political debate? Are prosecutors particularly good at sensing during voir dire which people are sympathetic to nullification arguments and challenging accordingly? Is it simply that jurors who act to nullify don't recognize that they're doing so, believing instead that "their gut" told them that the facts were something other than what the evidence showed? Is nullification actually a widespread occurrence and the sanctity of jurors' deliberations and verdict covers it? Perhaps it's all of the above, perhaps it's none.

Still, whenever jury nullification gets discussed, I always find myself listening. It remains a fascinating concept and I seem to retain just a bit of that drunken, philosophical law student nature, many sober years afterward. Thus it was that I found my attention drawn by a series of posts over the last month concerning Julian Heicklen, an activist with the "Fully Informed Jury Association". Initially, it was Brian Doherty who wrote about Heicklen's activism in New York and the efforts of a Florida court to curb the activities of those like Heicklen who encourage jurors to consider nullification. Doherty revisited both the New York and Florida stories mid-month, when Heicklen was arrested for his leafletting activities, and this past week when the New York Times picked up the story and brought wider attention to both Heicklen's case and to the jury nullification argument more generally:

Since 2009, Mr. Heicklen has stood [outside the federal courthouse in New York City] and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates a law against jury tampering.

....

“I don’t want them to nullify the murder laws,” he said. “I’m a big law-and-order guy when it comes to real crime.”

But, he said, there were other laws he wanted to nullify, like drug and gambling laws.

Setting aside Heicklen's own motivations and preferences (the Times account and others paint him as something of a crank), the arguments made by the federal prosecutors in New York and amongst legal bloggers concerning the anti-nullification efforts there and in Florida are worth reviewing. Ashby Jones pre-gamed the Heicklen prosecution and suggested that prosecutors would have an uphill battle on First Amendment grounds:

So how’s the case likely to unfold?

“This is classic political advocacy,” said Christopher T. Dunn, associate legal director of the New York Civil Liberties Union, to the NYT. “Unless the government can show that he’s singling out jurors to influence a specific verdict, it’s squarely protected by the First Amendment, and they should dismiss the case.”

On the other hand, Daniel C. Richman, a former prosecutor who teaches criminal law at Columbia, said the government does indeed have a compelling interest here — keeping intact the integrity of the jury process. “The government has to walk a fine First Amendment line bringing these charges,” he said, “but lawless jury behavior is certainly of concern to it, too.”

Eugene Volokh offered a more detailed analysis of the First Amendment concerns:

Under Brandenburg v. Ohio (1969), even advocacy of criminal conduct is constitutionally protected unless it’s intended to and likely to cause imminent criminal conduct by the audience (as opposed to criminal conduct at some unspecified time in the future, see Hess v. Indiana (1973)). It follows that advocacy of noncriminal conduct would be at least as protected. And here Heicklen (and others like him) are simply encouraging noncriminal conduct at some unspecified time in the future — when there’s plenty of opportunity for counterspeech by the judge (a much more authoritative figure than Heicklen).

To be sure, the Court has often asserted that even speech that falls outside the First Amendment exceptions — such as the Brandenburg incitement exception — can be restricted by laws that are “narrowly tailored” to a “compelling government interest”....

If speech urging jurors to do supposedly bad things can be restricted, even outside the narrow Brandenburg boundaries, on the grounds that there’s a compelling interest in preventing jury nullification, so speech urging others to do worse things — such as commit crimes — could be restricted on the grounds that there’s a compelling interest in preventing those crimes (and note that there is a clearer opportunity for counterspeech as to pro-jury-nullification speech than there is for much pro-crime speech). And that would mean that Brandenburg would in practice become an illusory protection for speakers.

Jason Mazzone suggested that even without the First Amendment challenges, the Heicklen prosecution is likely to fail. In addition to the ironic possibility that Heicklen's own jury would nullify, Mazzone identified two statutory hurdles for the prosecution:

First, as the statute makes clear, there needs to be an actual juror Heicklen attempted to influence.... [T]he government says that it has somebody who at the time he received one of Heicklen's pamphlets was serving as a juror in the SDNY. We'll have to wait to see who that juror is and the circumstances under which he received Heicklen's pamphlet.

The second hurdle the government faces is that the statute requires that Heicklen have written or sent to the juror a communication relating to a matter before the jury. It's not at all clear that handing out a pamphlet advocating that jurors vote their conscience constitutes sending a juror a communication relating to the matter the juror is deciding. The indictment states only that Heicklen "distributed pamphlets." There is no indication that Heicklen targeted individual jurors or thrust the information into their hands, or that the pamphlets contained anything more than general information about jury service.

Though it will be interesting to see how things play out for Mr. Heicklen, I'm a bit apprehensive that his is the case to test some of these issues (at least for now). News reports indicate that, though counsel has been appointed to "assist" him, Heickel is acting as his own attorney in the matter; in terms of understanding and reacting appropriately to the allegations against him, Heicklen hasn't demonstrated thus far that he's up to the task.

There are worthy arguments to be made for his position, if only he can manage to make them or allow them to be made on his behalf. Any of the posts linked in this section would give his side a fine start. It really would be a shame if after years of advocacy on this issue, Heicklen's case offers an opportunity to advance the ball for this cause and he scores an own goal.

One abiding characteristic of the legal blogosphere is the tendency for even the most innocuous subjects to start an argument. It's noteworthy then when so many of the legal bloggers whom I follow are united in their sentiments about something. I don't know if I'll ever see Jeff Gamso, Scott Greenfield, Dan Hull, Jamison Koehler, and Elie Mystal agree about anything else in the foreseeable future, so I'm not going to let this moment pass without mention.

Thanks to Megan, a student at the University of Miami law school, these legal blogosphere stars aligned this past week. Megan was the spokesperson for, if not the sole originator of, a "Student Bill of Rights" which circulated recently. Though the Founding Fathers managed only ten articles in their Bill of Rights (now known as "that other bill of rights"), Megan and her compatriots came up with eleven; these included such worthies as rights "to take exams that proportionally cover the material discussed in class and presented in the required reading" and "to not have the composition of their grade changed from what appears on the syllabus... [if] the majority of the students do not support the measure". Jeff Gamso focused on a couple of other provisions in comparing-and-contrasting the Student Bill of Rights with that other bill of rights:

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Law Students' first item:

The right of students to be given an unbiased legal education shall not be infringed.

Hmmm.

I sense a difference in gravitas.

And then there's the difference between actual rights and a fantasy of entitlement.

....

Or how about the eighth items.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

OK, sure. We can argue at length about what is and isn't "excessive" or "cruel and unusual" and how you decide. But it's important stuff. Now, put that up against this.

In class, students shall not be expected to know material that was not covered in the assigned reading for that day's class, nor covered in any of the lectures and/or assigned readings prior to that day's class.

That's a good rule since no judge will ever ask a question that wasn't covered in the research that was provided the lawyer prior to the hearing.

Wait? That's not how judges operate? Damn. All these years.

While allowing that the law school experience isn't always a fair one and the academy certainly has its issues, Scott Greenfield wrote that the students demonstrated a poor understanding of both the real world beyond academia and their future position in it as legal professionals:

Despite her year and a half in law school, Megan somebody says that "she's yet to be satisfied with her legal education." I was heartened to hear that, since her satisfaction is important to me and lawyers everywhere. Go Megan somebody!

Unfortunately, her "frustration" wasn't that shared by the legal profession relating to the quality of education and its relevance to the practice of law. Rather, it was the lack of control by law students, left to the "whims" of professors "because the system doesn't provide law students with resources in which to keep professor behavior in check."

Poor Megan somebody isn't going to be happy when she learns that she's not going to be able to keep judge's behavior in check either. To the extent there's any point to a legal education, at least she's learning that frustration at being subject to the whims of others is part of the job.

....

Like Megan, I share concerns about lawprofs' whims, particularly given that their focus on their scholarly interests often does little to prepare students to practice law. There are demands that I would support, like bringing the theoretical back to earth, and expecting applicability of the lesson to the courtroom rather than a lawprof's pie-in-the-sky anticipation of what they think the law ought to be. Students don't attend law school to ponder the majesty of the theoretical, but to learn how to be lawyers.

But as much as I'm troubled by leaving such decisions in the hands of lawprofs, I would much prefer that than putting into the hands of law students, especially students whose primary concern is limiting the scope of their studying to what will get them to happy hour on time.

Jamison Koehler tried to find a way to put the students' misguided effort in a more favorable light, but was at a loss:

Contrarian that I am, I wish I could take this opportunity to leap to the defense of this generation of young Americans – the Generation Yers — who have been the subject of much ridicule in the blawgosphere. I could note how unfair it is to criticize an entire generation of people based on the foibles of a few. I could point out that such labeling is not only personally offensive, it is also entirely unjustified.

Sadly, I am not able to summon my normal level of sanctimony and self-righteousness in this case; the young woman in this video displays the very naivete, self-absorption, laziness and sense of entitlement that people have been complaining about with respect to this generation.

The proposed list of rights combines the trivial with, well, the trivial.

Dan Hull, who is jointly-credited with Scott Greenfield for coining and popularizing the term "Slackoisie" in reference to self-entitled Millenial and Gen Y lawyers and law students, was even more dismissive:

"All about me, 24/7". Would you trust her with a Client for 5 minutes?

Sorry, Sweetie, but you're in training to be a Servant--not a Grand Dame. Can you imagine this young person in a few years with any good clients that stick?

Elie Mystal can usually be relied-upon to at least appreciate the concerns and views of the younger folks entering the profession, even if he's not always sympathetic. Not this time:

Usually I’m happy to stand with law students against the slings and arrows of outrageous law school administration.

But not this time. This time, instead of a noble law student fighting the good fight, I see an annoying whiner who wants law school to be about teddy bears and rainbows.

....

The proposal lists a number of things that “shall not be violated.” Even though I agree with some of these points, codifying them as “rights” makes me flaccid. We’re talking about law school, not summer camp. It’s supposed to be hard. It’s not supposed to be fair.

After a London Magistrate's Court ordered the extradition of Wikileaks founder Julian Assange to Sweden to face criminal charges, Carl Gardner outlined his options for appeal. David Allen Green explained that the court's focus was simply to determine whether a valid European Arrest Warrant (EAW) was issued by Sweden. Still, Assange's legal team didn't help their case:

In [Swedish lawyer Bjorn] Hurtig's "proof" (or prepared) witness statement, he had said "astonishingly [the prosecutor] made no effort to interview [Assange] on the rape charge to get his side of the story" whilst Assange was still in Sweden. This was a highly important statement, but it was completely untrue. Indeed, in the sort of criticism rarely made by an English judge, it was held that Hurtig had deliberately sought to mislead the court on this point. The effect of this was catastrophic for the Assange case: not only did it discredit Hurtig, but the two key legal experts relied upon by Assange had wrongly based their expert evidence that the EAW should not have been issued on Hurtig's false claim.

....

[U]nless the defence prevails at appeal, or some extraneous event occurs, Assange will be extradited to face questioning by the Swedish prosecutor over these undeniably serious allegations. He may then be charged and tried. That should not be prejudged. Assange is entitled to the benefit of due process.

But the simple fact is that Assange is being extradited because a valid EAW was issued and served for serious alleged offences, and that there was nothing in the particular circumstances of this case to prevent the EAW being implemented.

Gardner and Green joined guest Joanne Cash, a human rights lawyer and former Member of Parliament, for the first of Charon QC's "without Prejudice" legal podcasts. Along with the Assange extradition decision, the quartet covered other topics during their lively discussion. It should be noted that this new podcast series is in addition to, not in lieu of, Charon's many other podcasting endeavors. His latest series of twenty podcasts on the legal profession is also underway, with Naked Lawyer author Chrissie Lightfoot as his guest in the initial episode.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., European Court of Human Rights, Zazzle, and Paris Odds n Ends Thrift Store.