09 March 2011

A Round Tuit (59)

A Round Tuit

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.”

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).

Odds n Ends Shop

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.

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