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Saturday, January 12, 2008
Check Out This AP Story on Dan Rather's CBS Lawsuit:
It's up at the USA Today site, among other places:
A judge said Wednesday that he was leaning toward allowing Dan Rather's $70 million lawsuit over his being fired by CBS to proceed.
"I concluded there was enough in the complaint (by Rather) to continue with discovery (pretrial research)," state Judicial Hearing Officer Ira Gammerman said at a hearing on CBS' motion to dismiss the case....
Rather, whose last months at CBS were clouded by a disputed story on President Bush's Vietnam-era military service, says his employers made him a "scapegoat" to placate the White House after questions arose about the story....
Rather was removed from his CBS Evening News post in March 2005, six months after he narrated a report that said Bush disobeyed orders and shirked some of his duties during his National Guard service. The report also said a commander felt pressured to sugarcoat Bush's record.
Isn't it kind of important that there wasn't just a "dispute[]" and "questions" about the story, but that there was serious suspicion that the story was based on fabricated documents? It's not every day that a prominent network story is said to be based on forgeries -- you'd think that would be worth mentioning, rather than just talking vaguely about the story being "disputed" and "questions" arising about it. Yet I look in vain through the AP item for any reference to that.
It's conceivable that USA Today may have cut something significant out of the AP version, but it's unlikely, given the lack of space constraints in the Web versions; and my look at other versions (for instance, this MSNBC one) suggests that nothing material was excluded by USA Today.
Thanks to InstaPundit for the pointer.
A New Conspiracy Theory from the Mises Institute Crowd:
Prof. Thomas DiLorenzo at LewRockwell.com argues that the Ron Paul newsletter scandal was the result of a plot by "beltway libertarians" headquartered at the Cato Institute (where, full disclosure, I am an adjunct fellow, and which is co-publishing my next book), and encouraged by the Kansas-based Koch family (major donors to libertarian causes) to discredit Ron Paul. Here's the kicker: "The author [of the New Republic piece detailing the newsletters' outrageous statements] claims to have retrieved the newsletters from the University of Kansas library, the university where Charles Koch, CATO funder, is a major patron. How on earth would a kid just out of college know to go to a library in Kansas, of all places, to dig up such stuff?"
Well, one theory is that Charles Koch and the leaders of the Cato Institute forwarded the newsletters, or at least the information on where to find them, to the New Republic at the precise right moment to discredit Ron Paul. A rather simpler theory is that James Kirchick, author of the TNR piece, simply went to a well-known Internet database called Worldcat, which tells you which libraries hold which books and periodicals. When I type "Ron Paul" into Worldcat's "Title" tab, I find that the University of Kansas is the only library reported to hold Dr. Ron Paul's Special Report (see for yourself) and one of five libraries to hold Ron Paul's Freedom Report. Several other Ron Paul newsletters are held only by the Wisconsin Historical Society. Even "kids just out of college" often know how to use the Internet, I believe.
Lo and behold, James Kirchick, author of the TNR piece, reported that "finding the pre-1999 newsletters was no easy task, but I was able to track many of them down at the libraries of the University of Kansas and the Wisconsin Historical Society."
Funny? Pathetic? Both? Related Posts (on one page): - A New Conspiracy Theory from the Mises Institute Crowd:
- More Ron Paul Fallout:
- Who Wrote Ron Paul's Newsletters?:
When Do Prediction Markets Beat the Common Wisdom?:
Over at the Chicago Faculty Blog, Cass Sunstein has an interesting post on prediction markets. Commenting on the broad coverage of the fact that prediction markets didn't predict that Hillary would win the New Hampshire primary, Cass notes the possibility that skepticism about prediction markets may result from the availability heuristic. That is, when a prediction market predicts a low probability of something and that event occurs, observers may see that as the prediction market not "working" rather than it being an instance in which a low probability event did indeed occur. He concludes: To be sure, we are continuing to obtain information about how prediction markets perform and when they do well and poorly. Perhaps they will turn out to be less reliable than they seem -- and in all likelihood, we will obtain a better understanding of when they work. And of course no one has a crystal ball. But . . . if you want to have a sense of the probabilities, you'd probably do best to consult Intrade. Perhaps that's right. At the same time, I would think prediction markets will tend to beat the common wisdom only when there are people actively participating in the market who have better knowledge than a reasonably informed member of the public. And for the most part that usually won't be the case when the future event is a subject of intense media speculation like an election. The problem with prediction markets in elections is that the media and the public are already obsessed with predicting the outcome of elections. Everyone loves the horse race. Those who have particularly deep insights into who will win elections -- assuming those people exist -- already are eager to share them with the world, and the media is eager to broadcast their views. If the market for experts is competitive, the experts who are the best predictors will end up having the most impact on the common wisdom about the election. In that setting, there's no particular reason to think prediction markets will beat the common wisdom instead of just reflecting it.
Friday, January 11, 2008
Ms. Response:
The Jewish Telegraph Agency reports, apropos the "This is Israel" ad controversy:
Ms. magazine's executive editor, Kathy Spillar, disputes [the AJC's version of the story, which is that the AJC was told the ad “would set off a firestorm” and that “there are very strong opinions” on the subject], telling JTA the ad showed political support for one of Israel's parties and thus violated magazine standards.
"We only take mission-driven ads," Spillar said. "Because two of the women in this ad were from the same political party," that showed favoritism, and the magazine's policy is not to get involved in the domestic politics of another country.
Gordon noted that the magazine in its Fall 2003 issue ran a cover story on Jordan’s Queen Noor, and the Winter 2004 issue contained an article on the Ramallah Film Festival called “Images of Palestine.”
Spillar responded that "ironically" this month's issue, just coming to newsstands now, has a two-page spread profiling Livni.
I'm happy that Ms. is willing to profile Israeli politicians; but the question remains just why they rejected this particular pro-Israel ad -- and my tentative thought is that the Ms. claim is a bit implausible. It just seems pretty odd for an American magazine distributor, which I imagine has few readers outside the U.S., to see this clearly pro-Israel ad as somehow advocacy for the party to which two of the three women belong. But in any event, I'm glad to pass along the magazine's side of the story. Of course, if anyone has facts supporting or rejecting its side of the story (e.g., prior references to this policy), I'd love to hear them.
Constitutional Limits on Government Asking Noncoercive Questions About People?
Say you're a police officer, and you think someone might be up to no good. You don't have probable cause to search or arrest him, so instead you question people who know him. You ask people, for instance, whether he might have abused alcohol or drugs, was mentally or emotionally unstable, or might be short of cash. No-one is legally required to answer, and no-one thinks he's legally required to answer.
Or say you're a manager in some small government department, and you're thinking of hiring someone; but you've heard that he might have some problems, so you ask people who know him the same sorts of questions. Pretty clearly constitutional, I would have thought. There's no Fourth Amendment problem because there's no search for constitutional purposes. (Questioning isn't a search.) There's no Self-Incrimination Clause problem because you aren't compelling anyone to incriminate himself. There's no restraint on anyone's liberty because you aren't forcing anyone to say something.
Yet it looks like, according to the Ninth Circuit's decision today in Nelson v. NASA, your actions might violate the right to "informational privacy" that the Court has read into the Due Process Clause. Nelson involved various challenges to NASA's policy of doing background checks on a very wide range of prospective NASA employees and contractors. Part of the lawsuit involves federal statutory challenges, which I'll set aside for now. But part involved a constitutional challenge under the right to informational privacy — and the Ninth Circuit found that the plaintiffs were likely to succeed on this claim.
Now the right to informational privacy applies not just to federal employers bound by specific federal statutes. It applies to state and local governments as well. It applies to all facets of government, including the government as sovereign (e.g., police departments or intelligence agencies investigating crime or terrorism) as well as the government as employer. And it applies to ad hoc inquiries (such as the ones I described in the first two paragraphs) as well as to officially defined government programs such as background checks.
The right can indeed be trumped by "legitimate government interests," but only if the supposed invasion of privacy is "narrowly tailored" to those interests.
And here the court seemed to take a pretty demanding view of narrow tailoring, and a broad view of the right. As to the right, Form 42 solicits “any adverse information” concerning “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” and “other matters.” These open-ended questions are designed to elicit a wide range of adverse, private information that “is not generally disclosed by individuals to the public”; accordingly, they must be deemed to implicate the right to informational privacy. As to the required government justification, Considering the breadth of Form 42’s questions, it is difficult to see how they could be narrowly tailored to meet any legitimate need, much less the specific interests that Federal Appellees have offered to justify the new requirement. Asking for “any adverse information about this person’s employment, residence, or activities” may solicit some information relevant to “identity,” “national security,” or “protecting federal information systems,” but there are absolutely no safeguards in place to limit the disclosures to information relevant to these interests. Instead, the form invites the recipient to reveal any negative information of which he or she is aware. There is nothing “narrowly tailored” about such a broad inquisition.
The trouble is that effective investigation of a crime suspect, or of a prospective employee, generally involves asking broad questions and seeing what comes out. The investigator might not have a carefully thought-through script, especially given that the questions might change as the person being asked responds. And even if the investigator has a script, it might start out being deliberately general. Asking generally, "have you ever noticed him showing any mental or emotional instability?," before moving on to more specific questions, might help bring out interesting information that the investigator wouldn't have thought of asking about specifically.
Now maybe the Constitution should indeed limit these inquiries, even if no search or seizure takes place, and even if the target isn't being coerced to answer; but I'm skeptical about that. I'm also pretty sure that any such limitation would dramatically change the way many government agencies operate. And it seems to me that the Ninth Circuit opinion didn't fully consider these implications of its decision, which go far beyond organized federal government background checks.
Guidelineism and Guidelinitis:
Neologisms (or are they just nonce words?) spotted in Judge Merritt's dissent in United States v. Sexton. Both refer to excessive judicial deference to the now-advisory federal Sentencing Guidelines. Soon to come: "guidelinocracy."
Thanks to How Appealing for the pointer.
Circuit Split on Victims' Rights:
Check out this Tenth Circuit decision interpreting the expedited review provisions of the Crime Victims' Rights Act.
The Act provides for appellate review that is stunningly quick by the standards of the justice system -- "The court of appeals shall take up and decide such application [for mandamus] forthwith within 72 hours after the petition has been filed." One question this raises is whether the review is the normal appellate review, in which the appellate court reviews the trial court's decision for legal error without any deference to the trial court's legal judgment, or the normal mandamus review, which is considerably more deferential to the trial court. The Second and Ninth Circuit read the statute as mandating the nondeferential "de novo" standard; the Tenth Circuit has just expressly disagreed with those circuits, and went for the deferential standard.
If the Tenth Circuit doesn't rehear the case en banc, this sort of circuit split might well trigger Supreme Court review. The sentencing hearing at which the victims wanted to participate is scheduled for Jan. 14, and if that proceeds on schedule, then it's possible that the victims' challenge might become moot; but my tentative sense is that if need be the hearing can be postponed precisely to avoid such mootness, since speedy trial rights don't apply to the timing of sentencing. I'd love to hear what others think about this procedural question, though, and about the certworthiness of this case more broadly.
Thanks to How Appealing and Prof. Doug Berman (Sentencing Law and Policy) for the pointer.
More Ron Paul Fallout:
Sensible comments, with which I largely agree, from David Boaz of Cato, former VC contributor Jacob Levy, Prof. Steven Horwitz, Prof. Glen Whitman, "Rightwatch", and Tim Sandefur.
The consensus is, basically, that libertarianism needs to more aggressively disassociate itself from right-wing fringe loonies who use libertarianism as a mask to disguise other agendas, or who support libertarianism only because they adhere to some bizarre conspiracy theory or other involving the federal government. Those of us who long ago (as I did) made a decision not to associate with the creepy-paleocons-disguising themselves-as-libertarians in the Lew Rockwell circle--Rockwell being, among other things, the primary suspect as the author of the offensive passages in Ron Paul's newsletters, though he denied it to the New Republic's James Kirchik--need to exert peer pressure on our libertarian friends to follow suit.
Speaking of which, why would otherwise respectable libertarians such as Doug Bandow and Alan Bock write for, and allow themselves to be listed as columnists for, Justin Raimondo's Antiwar.com? Raimondo, one might recall, is best-known for such illuminating commentary as, "If we observe how we were lied into war with Iraq, and by whom, the whole affair looks more like an Israeli covert operation by the day" (and read the whole thing, not to mention his bizarre book, to get the full flavor). Perhaps it's not just elements of the Left that became unhinged by the Iraq War.
UPDATE: The Economist's Democracy in America blog reports:
according to numerous veterans of the libertarian movement, it was an open secret during the late-80s and early-90s who was ghostwriting the portions of Mr Paul's newsletters not penned by the congressman himself: Lew Rockwell, founder of the Ludwig von Mises Institute, and members of his staff, among them Jeffrey Tucker, now editorial vice president of the Institute. Mr Rockwell denied authorship to Jamie Kirchick, the reporter whose New Republic article published earlier this week reignited controversy over the newsletters. But both Mr Rockwell (who attacked the New Republic article on his site) and Mr Tucker refused to discuss the matter with Democracy in America.
The Opportunity Cost of Ron Paul:
One of the main points cited by Ron Paul's libertarian defenders is his fundraising prowess. And it is indeed true that Paul has succeeded in raising far more money than most political observers would have expected. As of October 29, the Paul campaign had raised some 8.3 million dollars, and no doubt it has taken in more since then. However, now that it's clear that his candidacy is both a flop politically and likely to damage the image of libertarianism, this fundraising success turns out to be a double-edged sword. The millions of dollars spent on Paul's candidacy could surely have instead been spent in other ways that do far more to promote libertarian causes. The same goes for the time and effort invested in Paul's campaign by libertarian political activists. To take just two of many examples, imagine what all that money could have accomplished had it been given to the Institute for Justice or to the Milton Friedman Foundation.
To be sure, not all of the money Paul raised was contributed by libertarians. Some no doubt came from the sorts of people who agree more with the antiwar, right-wing populist, nativist, or conspiracy-mongering aspects of his message. But to the extent that many libertarians did contribute time and money to Paul, they would have served their cause better by investing those resources elsewhere.
UPDATE: Paul's campaign claims that it raised almost $20 million in the fourth quarter of 2007 (the figure cited in the original post only covers the period up until October 29). If the claim is accurate, it further reinforces my point by making the opportunity costs of Paul's candidacy even higher than I thought.
UPDATE #2: Instapundit, and some commenters question whether the money given to Ron Paul really would have gone to other libertarian causes had he not run for president. Maybe, Instapundit suggests, it would have gone to "beer and skittles" instead. Perhaps so. But to the extent that some of that $20 million came from committed libertarian activists, it is not implausible to suggest that it might have gone to other libertarian causes instead. In addition, my main point is that libertarian donors should invest their funds in projects with better returns for libertarians than Paul's presidential bid - whether or not those donors are actually inclined to do so. Finally, even more spending on "beer and skittles" might have been better for libertarianism than the damaging debacle that Paul's campaign is rapidly becoming.
Supreme Court Agrees to Hear New Campaign Finance Case:
Prof. Rick Hasen (Election Law) reports:
Breaking News: Supreme Court Agrees to Hear Campaign Finance Case This Term
In a just released order, the Supreme Court has agreed to hear Davis v. FEC, involving a challenge to the constitutionality of the Millionaire's Provision of BCRA. I had predicted that the Court would hear the case. Under the briefing schedule, this is on track for a decision by June, and it could affect Senate and congressional races in the fall.
For more detail on the case, see Rick's post.
Ron Paul, Evolution, and Right-Wing Populism:
Libertarian science writer Ron Bailey points out that Ron Paul has denied the theory of evolution:
In a South Carolina forum, Paul was asked about his views on evolution, to which he replied, "I think it's a theory, the theory of evolution and I don't accept it as a theory." He also said that he thought it was an inappropriate question to be asking presidential candidates.
I don't believe that scientific illiteracy on this issue is an absolute bar for supporting a presidential candidate. However, for reasons that Bailey explains in his article, it's definitely a negative. Worse, Paul's position on evolution is of a piece with other indicators that he's less a libertarian than a far-right populist. It is consistent with his penchant for right-wing conspiracy theories, such as the supposed plan to form a "North American Union," his opposition to free trade agreements on the ground that they undermine "sovereignty," and his nativist (and highly unlibertarian) position on immigration. Unfortunately, it's also consistent with his having published far-right racist, anti-Semitic, and conspiracy-mongering articles in his political newsletters in the late 1980s and early 90s. Even if Paul didn't endorse their content, he clearly was willing to associate with the sorts of people who believe these things and didn't mind letting them take control of the content of his publications.
Ron Paul isn't all bad. However, it is increasingly clear that association with his presidential candidacy does more harm than good to the cause of libertarianism, a point that I tried to make in my very first post about him. Not only is his candidacy turning out to be a flop politically, as I predicted. It also creates the risk of tarring libertarianism by associating it in the public mind with bigotry, conspiracy-mongering, and xenophobic hostility to free trade and immigration (though the latter, unfortunately, is actually quite popular even outside far-right circles).
The Ad Ms. Magazine Refused To Run:
The message, I take it, is pretty clear — "Feminists should like the way women are treated in Israeli life," coupled with the pretty strong implication of "... and look how favorably it compares on this score to Israel's enemies." Yet this is what the American Jewish Congress reports happened when the ad was submitted to Ms. magazine:
When Director of AJCongress’ Commission for Women’s Empowerment Harriet Kurlander tried to place the ad, she was told that publishing the ad “will set off a firestorm” and that “there are very strong opinions” on the subject -− the subject presumably being whether or not one can say anything positive about Israel. Ms. Magazine publisher Eleanor Smeal failed to respond to a signed-for certified letter with a copy of the ad as well as numerous calls by Mr. Gordon over a period of weeks.
A Ms. Magazine representative, Susie Gilligan, whom the Ms. Magazine masthead lists under the publisher’s office, told Ms. Kurlander that the magazine “would love to have an ad from you on women’s empowerment, or reproductive freedom, but not on this.” Ms. Gilligan failed to elaborate what “this” is....
Ms. Magazine has a long record of publishing advertisements rallying readers to support reproductive choice; opposing the Religious Right; highlighting the fragility of the pro-Roe v. Wade majority on the Supreme Court; charging that “Pat Robertson and his Religious Right cohorts don’t like individual freedom;” announcing support for the “struggle for freedom and human rights;” opposing the Bush administration’s campaign to fill federal courts with judges who “will reverse decades of progress on reproductive rights and privacy, civil rights, religious liberty, environmental protection and so much more;” as well as accusing the Bush administration of being “bent on rewarding big corporations and the rich, turning back the clock on women’s rights and civil rights, and promoting a U.S. empire abroad.”
“This flagship publication of the American women’s empowerment movement publishes ads that are controversial in the general culture but not so among its readership,” Ms. Kurlander said. “Obviously, Ms. believes our ad would enflame a significant portion of their readers.”
Mr. Gordon added, “What really amazes me is that just recently, in their Winter 2007 issue, Ms. ran a cover story with a picture of Congresswomen Nancy Pelosi with the heading in big letters: “This is What a Speaker Looks Like.” While Ms. has every reason to be proud of Speaker Pelosi and her accomplishments, as are we, the only discernable difference between Speaker Pelosi and Speaker Itzik apparently is that Speaker Pelosi is not Israeli.”
Mr. Gordon noted that while Israel was apparently too hot to handle, Ms. Magazine did not extend that taboo to Arab and Moslem women. “What is even more amazing is that, while refusing to publish a simple ad praising three very notable women, women who embody the ideal that Ms. Magazine seemingly espouses, Ms. has run a cover article in the Fall 2003 issue on Queen Noor of Jordan, has featured a number of articles on Muslim women, and even ran an article in the Winter 2004 issue entitled, ‘Images of Palestine,’ which discussed the Ramallah Film Festival and gave sympathetic reviews to films concerning ‘the liberation of South Lebanon’ from Israel as well as numerous films which portrayed terrorism as legitimate ‘revolutionary’ activity against Israel and miscast Israel’s activities to counter terrorism as ‘oppressive.’” ...
The AJC item closes with this: “Ms. has the right to turn down our ad. But in exercising that right, it has spoken loudly about itself and its readership, and their lingering hostility to Israel.” If the account in the AJC report is correct — and I have no reason to doubt it, though if you know of contrary facts, please let me know — then the AJC's evaluation seems quite right, too: Ms. is entitled to make its editorial judgment, but it's an editorial judgment that we ought to condemn.
UPDATE: Here's the magazine's response.
Related Posts (on one page): - Ms. Response:
- The Ad Ms. Magazine Refused To Run:
Thursday, January 10, 2008
Why United States v. Di Re Clearly Was Not A Case on the Federal Supervisory Power:
The comment thread in my post on next week's oral argument in Virginia v. Moore led to an interesting exchange about whether the Supreme Court's 1948 decision in United States v. Di Re, 332 U.S. 581 (1948), was a case decided on Fourth Amendment grounds or as an application of the federal supervisory power. Oddly enough, this ends up being an important part of the Moore case. If Di Re was a Fourth Amendment decision, then it largely answers the questions for the Court in Moore; if it wasn't, then Di Re is irrelevant. The comment thread led me to take a closer look at the history and context of Di Re, and that research leads me to conclude with a very high degree of certainty that Di Re was a case on the Fourth Amendment and not about the federal supervisory power. In this post, I want to explain why. First, the facts. In this case, an informant told federal investigators that a person named Buttitta would be selling illegal gasoline coupons to a person named Reed at a particular place and time. The federal investigator convinced a local cop to go with him and arrest the two men. When they went to make the arrest, however, there were three men present, not two: Buttitta and Reed were joined by a third man, Di Re. The cop arrested all three, and a search of Di Re yielded the illegal coupons. Di Re was convicted of possession of the coupons. On appeal before the Second Circuit, the case drew one of these remarkably stellar panels of judges that only the Second Circuit could assemble back in those days: the presiding judge was Learned Hand, and he was joined by two former Deans of Yale Law School, Thomas Swan and Charles Clark. Judge Hand wrote the majority opinion for the Court of Appeals. See United States v. Di Re, 159 F.2d 818 (2d Cir. 1947). Judge Hand's majority opinion states at the outset that the only question in the case is the Fourth Amendment: "The only question necessary to discuss upon this appeal is whether the documents upon which his conviction was based, were obtained in violation of the Fourth Amendment." Specifically, "If the arrest of DiRe was lawful, the search of his person was lawful, and the conviction must be affirmed; if the arrest was not lawful, the search was unlawful, and the conviction cannot stand." The parties agreed that the lawfulness of the arrest was governed by the New York arrest statute, Section 177 of the New York Code, which restated the common law rule for powers of arrest: A peace officer may, without a warrant, arrest a person,
1. For a crime, committed or attempted in his presence;
2. When the person arrested has committed a felony, although not in his presence;
3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it. Judge Hand thus framed the question to be decided as follows: We shall assume, arguendo, that Gross had authority under Sec. 177 of the New York Code of Criminal Procedure to arrest Buttitta and Reed, although the crime was not against the State of New York; We shall similarly assume that the federal law determines whether the crime was a felony within the meaning of Sec. 177, and that because a conspiracy is a felony under federal law, Gross's authority was measured by Sec. 177(2) and gave him power to arrest Buttitta and Reed. By a parity of reasoning his authority to arrest DiRe must rest upon subdivision three of Sec. 177, that is, Gross must have had reasonable ground for thinking that DiRe was a party to the conspiracy of Buttitta and Reed, which was in process of execution before his eyes. Judge Hand then parsed the facts of the case and concluded that there were no reasonable grounds to conclude that Di Re was a co-conspirator of Buttitta or Reed. Di Re was just a guy in a car; there was no reason to think he was in cahoots with the other two even thought it later turned out that he was. Judge Clark dissented. Clark agreed with how Judge Hand had framed the issue: "The issue raised concerns only the lawfulness of the arrest, for, that being established, the search follows as an incident thereto. See authorities cited by Frankfurter, J., in Davis v. United States, 66 S.Ct. 1256, 1269." He also agreed that the question was whether the arrest was lawful under "the general and traditional rule of arrest without a warrant by a peace officer . . . aptly stated in the N.Y. Code of Criminal Procedure, Sec. 177." But Judge Clark argued that Judge Hand misapplied the standard. Hand was requiring too much cause; a common sense view of the facts was that the officers had reasonable grounds to think Di Re was also involved. The Supreme Court granted cert, and the SG's brief made two arguments in favor of a reversal. The main argument essentially repeated Judge Clark's argument that under a common sense view of the facts, an officer had reasonable grounds to think that Di Re was in cahoots with the other two guys in the car. The brief was clear that this was a question of the lawfulness of the arrest under New York Code Section 177, which would make the arrest lawful and thus the search incident to a "lawful" arrest:
Given a lawful arrest, it is undisputed that the body and clothing of the arrested person may be subjected to search; this has been many times held by this Court, nor has the principle been disputed in any of the recent cases dealing with the precise scope of the Fourth Amendment's interdiction of "unreasonable searches and seizures." Weeks v. United States, 232 U. S. 383, 392; Carroll v. United States, 267 U. S. 132, 158; Agnello v. United States, 269 U. S. 20, 30; Harris v. United States, No. 34, Oct. T. 1946, decided May 5, 1947, pp. 5-6 of slip opinion; see People v. Chiagles, 237 N. Y. 193 ( per Cardozo, J.); compare Franfurter, J., dissenting in Davis v. United States, 328 U. S. 582, 609-610; Jackson, J., dissenting in Harris v. United States, supra, p. 2 of slip opinion; Murphy, J., dissenting in Harris v. United States, supra, p. 4 of slip opinion.
The inquiry here, therefore--and the only inquiry--is whether respondent was lawfully arrested. We agree with Judge Clark below that he was. According to the SG's brief, "The fundamental error in the majority opinion below is that it tests the validity of the arrest, not by standards of reasonable deduction, but by standards of substantive guilt." Judge Hand had just set the bar too high. The arresting officer only indeed "reasonable grounds" to satisfy the state statute and make the arrest lawful under state law, and he had it. The SG's brief then made a new argument, although it was made only briefly and reads like an afterthought. The brief noted that under the automobile exception case, Carroll v. United States, 267 U.S. 132 (1925), probable cause to search a car justified a search of the entire car. The SG reasoned that a right to search the car implied a right to search recent occupants of the car; because Di Re had been in the car, the automobile search justified a search of the car. Di Re's brief matched the SG's brief on both points: It argued that the automobile case couldn't be so extended, and that (following Judge Hand's analysis) the arrest had violated the New York statute because no reasonable grounds existed to think Di Re was guilty of a felony. The case was argued in October 1947, with Frederick "Fritz" Wiener arguing the case for the United States. At oral argument, the Justices seemed to agreed that the arrest had violated New York state law. However, the Justices focused on a different part of the New York arrest law. In particular, Justice Frankfurter asked Wiener why the arrest didn't plainly violate New York Code Section 180, which required the arresting officer to state the reason for the arrest and state his authority to make the arrest. There wasn't a record on this and it hadn't come up before, but the several Justices (including Frankfurter) focused on it heavily. Following the oral argument, the SG's Office filed a short supplemental memo in response to Justice Frankfurter's questions. The SG's supplemental memo was divided into two parts. The first part reasoned rather lamely that Section 180 must not be an issue, mostly because it didn't really occur to anyone below. The second part of the supplemental memo threw a 'Hail Mary' pass. Realizing that they were going down in flames with the state law argument, the SG argued that the lawfulness of the arrest should be a question of federal law instead of state law. Specifically, the SG's memo argued that the lawfulness of federal arrests should be a question of federal common law. The memo then argued that there wasn't any federal common law reason to say that the arrest in these federal arrests shouldn't be allowed. Okay, let's finally return to the opinion Justice Jackson wrote for the majority in Di Re. Justice Jackson starts off rejecting the expansion of the Carroll doctrine. Jackson concludes: "We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as incident to the search of a car. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled." Jackson then turns to the search incident to a lawful arrest doctrine: "The other ground on which the Government defended the search of Di Re, and the only one on which it relied at the trial, is that the officers justifiably arrested him and that this conferred a right to search his person. If he was lawfully arrested, it is not questioned that the ensuing search was permissible. Hence we must examine the circumstances and the law of arrest." Jackson states that some of the Justices were persuaded that the arrest was unlawful — and the search therefore unconstitutional — on Section 180 notice grounds alone. But Jackson concludes that it would be too complicated to base the Court's decision on that ground given that it wasn't raised below: Inasmuch as the issue would lead to exploration of the law as to waiver when the defense was not raised in either court below, or indeed by the petition here, and as to applicability of he statute if, as the Government contends, lack of express declaration was unnecessary because circumstances supplied the required information, we do not undertake to determine on this record whether Di Re's arrest satisfied this provision of the New York law. Jackson then had to look at whether the lawfulness of the arrest was to be governed by Section 177, as the parties and lower court judges had assumed, or whether there was a federal common law of arrest that determined "lawfulness" for purposes of the search incident to arrest doctrine, as the SG's supplemental memo had argued. This is the key section of the opinion that some (including Professor LaFave) have incorrectly read as relying on the supervisory power: We believe, however, that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, the principle of which is still retained, the arrest by judicial process for a federal offense must be ‘agreeably to the usual mode of process against offenders in such State.’ There is no reason to believe that state law is not an equally appropriate standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule. Indeed the enactment of a federal rule in some specific cases seems to imply the absence of any general federal law of arrest. It's critical to understand that this passage was a direct response to the SG's supplemental memorandum. That memorandum argued that federal arrests were governed by a federal common law standard precisely because the government realized at oral argument that the Justices were going to rule against the U.S. if they looked to state arrest law to determine the "lawfulness" of a search incident to a "lawful" arrest. Until that supplemental memo was filed, everyone involved in the case — Judges Hand, Swan, and Chase; the parties; and all nine Justices — were of the understanding that the lawfulness of the arrest for the purposes of the "search incident to arrest" doctrine was a question of state law. And the supplemental brief wasn't arguing any point about the federal supervisory power, which after all was only more restrictive than the Fourth Amendment and would have been bizarre for the government to raise. Rather, the SG's office introduced this notion of the federal common law of arrest to try to get around the restrictions of New York state arrest law and to find an easier standard for the government to satisfy. In sum, I think a close look at the history and briefing in the Di Re case leaves no doubt that the court was applying the Fourth Amendment and not the federal supervisory power. You need to dig into the case to see it, but I think once you do that digging you understand exactly what Justice Jackson was doing. Justice Jackson was doing exactly what Learned Hand had done in the Second Circuit — finding and applying the law governing the statutory or common law "lawfulness" of the arrest, as it answered the Fourth Amendment question of whether the following search was incident to a lawful arrest.
"Whose Eyes Are You Going to Believe," And Whose Version of the Fourth Amendment? :
Dan Kahan, Dave Hoffman, and Donald Braman have posted an interesting new article on Scott v. Harris, the high speed car chase case from last Term: Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris. The idea behind the article is great. The goal was to test who really shared Justice Scalia's views about what a reasonable juror would conclude after watching the video in the case. Their conclusion in a nutshell: Justice Scalia was privileging a conservative white male view of the case, substituting a reasonable juror of the Justices' background for a reasonable juror more broadly. I was intensely interested to read this article, both because I worked on the case for Scott and because I focused on similar questions of what videos really show in my posts on the Utah tasering incident. Somewhat uncomfortably, I've concluded the authors made a significant methodological error in their study. Instead of asking survey respondents to apply the Fourth Amendment test the Supreme Court used, the authors devised several tests of their own for what they thought the Fourth Amendment means (or should mean). They ended up asking the survey respondents to apply the standards the authors suggested instead of the test the Supreme Court used. My sense is that this methodological move leads the paper to miss its mark. Although its findings are independently interesting, in the end it doesn't actually say very much about Scott v. Harris's view of reasonable jurors. And ironically, what the findings do suggest seem to hint that Justice Scalia's conclusion about reasonable jurors was very likely correct. I initially raised my concerns with the authors, and after a few e-mail exchanges on these issues I was invited to blog my concerns. So I figured I would. I. The Case
Scott v. Harris involved a high speed car chase with Scott chasing Harris and eventually bumping in into Harris to get him off the road, and Harris being injured in the crash. The Fourth Amendment issue in the case was whether Scott's use of force to bump Harris off the road was "reasonable." According to the Court, the boiled down to how much danger Harris posed to the public. Harris claimed in his complaint that he had posed little danger to the public and had been driving safely, a view that the Eleventh Circuit accepted. In his majority opinion, Justice Scalia concluded as a matter of law that no reasonable juror could look at the videotape and believe this. To Scalia, the videotape established that Harris was driving dangerously. According to the Scalia, that fact established that Scott's use of force was reasonable under the following Fourth Amendment rule: "A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment." (slip op, p.13) Because no reasonable juror could conclude that this case was not a dangerous high-speed car chase that threatened the lives of innocent bystanders, the Court ruled that Scott deserved summary judgment. II. The Study In their new article, Kahan, Hoffman, and Braman (KHB for short) sought to determine if people from different walks of life really agreed with the majority's view of the case. They created a survey in which they gave respondents an overview of the facts of the case, showed them the video, and then asked them to answer the following questions. 1. During the pursuit, Harris drove in a manner that put members of the public at great risk of death.
2. During the pursuit, Harris drove in a manner that put the police at great risk of death.
3. It just wasn’t worth the danger to the public for the police to engage in a high-speed chase of Harris when he refused to pull over for speeding. Instead, they should have tried to find and arrest him later.
4. Please indicate how much you think the parties were at fault for the risk posed to the public by the chase: (1) the police were much more at fault than Harris; (2) the police were slightly more at fault than Harris; (3) the police and Harris were equally at fault; (4) Harris was slightly more at fault than the police; (5) Harris was much more at fault than the police.
5. The danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger. 1,350 people took the survey and answered these questions, together with answers to questions about their race, gender, politics, ideology, and the like. III. The Results There are lots of findings in the paper, but here's a basic summary. First, large majorities of people were inclined to agree that claims (1) and (2) are true. On a scale of 1 to 6, with 1 being "strongly disagree" and 6 being "strongly agree," the claims that Harris's driving posed a "great risk of death" registered an average of 5.06 for great risk of death to the public and 4.67 for great risk of death to the police. There was somewhat of a racial gap on this determination: for example, assessments of whether Harris's driving posed a "great risk of death" for the public ranged form a 4.56 for black respondents and 5.1 for white respondents. But for the most part respondents agreed that Harris caused a "great risk of death." There generally less "agreement with the Court" on the other questions. Most notably, when asked Question 3, whether the chase "wasn't worth it," respondents averaged a 3.12 — generally, only "slighly disagreeing" with that statement. And there the racial gap was greatest: African American respondents averaged a 3.89, "slightly agreeing" with the claim, while caucasian respondents averaged a 3.06, "slightly agreeing." The real kick of the study occurs later in the paper, when KHB use regression analysis to imagine four different people: Ron, a 47-year old rich white male Republican from Arizona; Linda, a black liberal woman of modest means from the northeast; Bernie, a liberal communitarian professor from the northeast; and Pat, an average American. According to the regression analysis, the differences were relatively modest for questions 1 and 2. 92% of right-wing Rons would agree or lean towards agreeing that Harris posed a great risk of death to the public; 88% of Pats would, as well; 73% of the professor Bernies and 69% of liberal Lindas would have the same reaction. These are differences, certainly, but not terribly stark ones. On the other hand, the differences among Ron, Pat, Linda, and Bernie became very dramatic when asked to determine if the chase was worth it and to assign relative fault. When asked if the chase was worth it, 83% of Rons would say "yes"; 73% of Lindas would say "no." 93% of hypothetical Rons would see Harris as clearly more at fault than the Police; in contrast, only 34% of Lindas would have that reaction. Pretty significant differences. IV. KHB's Conclusion The significance of these results, according to KHB: the Justices, who are mostly "Rons", were privileging the "Ron" view of the world over the other views. In a nutshell, the were looking at the case through the cultural lens of rich white conservative men, and they didn't realize how a lot of people from different walks of life would look at the case differently.
V. A Methodological Flaw in the Paper? I think this paper was a brilliant idea. At the same time, I fear it suffers from a significant methodological flaw: The study did not ask respondents to apply the Fourth Amendment test the Court announced — that is, the test that jurors would need to apply if the case had been sent to a jury.. As I read Scott, the only question that matters is whether there was a "dangerous high-speed car chase that threatens the lives of innocent bystanders". If there was, the use of force was reasonable as a matter of law. Thus, when deciding whether to permit the case to go to trial, the only question the jury would have had to decide was whether there was a "dangerous high-speed car chase that threaten[ed] the lives of innocent bystanders." Unfortunately, though, the survey didn't ask the respondents to answer this question. The closest the survey came was in questions 1 and 2. It asked the respondents separately whether they believed Harris posted a "great risk of death" to the public or a "great risk of death" to the police. But these questions are considerably narrower than the one the Court applied: the Court's legal test looked for a "threat" of death collectively rather than "great risk" of death to either group individually. That's problematic, I think, because a person could quite reasonably find that there was no "great risk" to the public nor a "great risk" to the police, but that taken together, there was still a "threat to life" of the police and public together. Even with that difficulty, the answers for 1 and 2 don't appear to me to be inconsistent with Justice Scalia's conclusion. If I'm ready the study correctly, the results indicate a broad agreement with the majority's view across a wide range of respondents. If you consider that questions 1 and 2 were a more extreme version of the test the majority applied, I don't think the findings are inconsistent with Justice Scalia's view of a reasonable juror. More broadly, the questions that led to the real divides — questions about relative culpability and whether the search was worth it — involved questions far removed from the Fourth Amendment test the Court applied. Under the Court's Fourth Amendment rule, jurors would not be asked these questions in a trial, and if they relied on such matters, they would do so only improperly. Given that, the existence of divisions on these questions does not shed any light on whether the Scott Court was right to credit their view of the video tape. Of course, one response could be that perhaps the Court's Fourth Amendment rule is wrong. That is, the criticism could be that the Justices have views of reasonableness that are different from some members of the public, and that they are wrong to try to create a bright line rule for reasonableness that some members of the public may not share. But that would seem to be a broader criticism of constitutional decisionmaking more broadly — it's no doubt true that the Justices often balance interests differently than some members of the public would want — rather than a criticism of relying on the video tape for the facts of Scott rather than sending the case to the jury. This argument certainly could be made, but it's not the target KHB have in mind in their paper. VI. Conclusion I think KHB are on to something with their basic methodology. As you might guess from my posts on the Utah tasering incident, I think videos often can be construed in different ways. It's really important to be aware of that; it's too easy for us to look at a video and see what we want to see. We need to step outside of our preconceptions and be aware of how other people might construe the facts. That's the broad point KHB want to make, and on that we are in complete agreement. On the other hand, to the extent the paper aimed to reveal problems with Scott v. Harris specifically, I think it missed the mark. The study needed either to mirror the legal test in Scott and to criticize Scalia's assessment of the facts, or else it needed to criticize the legal aspects of Scalia's Fourth Amendment rule as separate from the factual question. By not mirroring the Court's Fourth Amendment test, the paper ends up creating some independently interesting results about how different people look at facts. That shouldn't be overlooked. But those results don't directly map on to Scott v. Harris because the survey authors assumed a different Fourth Amendment test than the Court used.
D.C. lawsuit against gun manufacturers is dismissed:
A unanimous 3-judge decision of the District of Columbia Court of Appeals has dismissed a municipal lawsuit brought against firearms manufacturers, District of Columbia v. Beretta et al. The court ruled that the suit was barred by the Protection of Lawful Commerce in Firearms Act, which was passed by Congress in 2005, and which by its terms applies to all pending and future cases.
In the first part of the decision, the court rules that the congressional act applies to lawsuits brought under D.C.'s Strict Liability Act, which imposes absolute liability on manufacturers for certain firearms injuries. The second part of the decision rejects various arguments that it is unconstitutional for a congressional statute to be applied to a lawsuit that has already been filed.
Ouch:
The Wall Street Journal, commenting on Yale Law School's lawsuit on behalf of convicted terrorist Jose Padilla against Yale Law School graduate John Yoo: "Perhaps if Mr. Yoo had decided to pursue a life of terrorism, he too could be represented by his alma mater."
Activist Mothers:
This story, about anti- "Big Food" activist Robyn O'Brien, reminds me of the story of Betty Mekdeci. In 1975, Mekdeci gave birth to a son with limb reduction birth defects; the cause of most such birth defects is unknown. Not satisfied with that answer, she began a quest to determine what caused her child's suffering, and persuaded herself that the culprit was the morning sickness drug Bendectin, which she had ingested during pregnancy. (Similarly, after one of her children suffered a severe food reaction, O'Brien decided that there is a "profit-driven global conspiracy whose collateral damage is an alarming increase in childhood food allergies".)
Mekdeci then hired famed torts lawyer Melvin Belli to represent her and her child in litigation against the manufacturer of Bendectin, Merrell Dow Pharmaceuticals. As I've written in the Michigan Law Review:
In 1977, when Mekdeci brought her lawsuit, fourteen epidemiological studies of varying strength and quality had examined the relationship between Bendectin and birth defects and found no association. While these studies were not powerful enough to rule out some connection between Bendectin and birth defects, they certainly provided no cause for alarm. Bendectin had been on the market since 1956 with no serious doubts raised regarding its safety in the scientific or medical community. Nor did Bendectin contain suspiciously toxic ingredients: one active ingredient of Bendectin was a simple B vitamin, and the other was an ingredient used in a popular over-the-counter sleeping pill.
Meanwhile, Mekdeci's evidence that Bendectin did cause birth defects was "remarkably thin." Many chemicals are known not to be teratogens in humans, so the mere fact that pregnant women ingested a pharmaceutical product such as Bendectin did not mean there was an inherent risk. Beyond the mere fact that she ingested Bendectin during pregnancy and later gave birth to a child with a limb reduction birth defect, Mekdeci's evidence of causation consisted primarily of eighty-six reports to the FDA of other women who had also given birth to children with limb reduction defects after taking Bendectin.
.... [T]he mere fact that dozens or even hundreds of children were reported to have been born with limb reductions after their mothers ingested Bendectin doesn't, by itself, even suggest a risk. Approximately thirty million women took Bendectin, and by chance alone there would be ten thousand limb reduction defects among children born to these women.
Nevertheless, with the help of Belli's publicity machine, the Bendectin litigation eventually drew thousands of plaintiffs and cost Merrell Dow several hundred million dollars in defense costs (though not a penny was ever paid to a claimant, the courts universally overturning the 40% or so of jury verdicts favoring plaintiffs.)
Despite FDA approval, Bendectin, the only drug proved safe and effective in combating nausea and vomiting in pregnancy, remains unavailable in the U.S. (but is available everywhere else), having been taken off the market at the height of the litigation to avoid further lawsuits. Studies have shown that the rate of limb birth defects in the U.S. has not been affected by the removal of Bendectin from the market, but hospitalizations for severe morning sickness have soared.
Meanwhile, the persistence of plaintiffs in pursuing the Bendectin litigation despite mounting evidence of Bendectin's safety and the complete lack of valid contrary evidence, combined with juries nevertheless frequently ruling in favor of the plaintiffs, eventually became the leading cause of a severe backlash in federal courts against "junk science," culminating in Daubert v. Merrell Dow Pharmaceuticals, itself a Bendectin case, and it progeny.
Professors Michael Green and Joseph Sanders have written rather similar books on the Bendectin saga, though Green tends to be more sympathetic to the plaintiffs. My own much briefer recap of the Bendectin litigation can be found in the Michigan article mentioned above.
Would You Feel Threatened by Tupac Shakur? You Must Be a Racist:
Bob Garfield in Advertising Age writes:
1) Even hardened racists feel the impulse to believe they are no such thing.
2) Hence, they are always in the market for someone "acceptably black."
Yes, the market. And, yes, acceptably black. We used that term the other day on "Hardball with Chris Matthews" to talk about Sen. Barack Obama and watched the interviewer visibly flinch. "I'm gonna take some of the edge off of what you just said," he said.
What edge? Acceptably black means being nonthreatening to white people inclined to feeling threatened by black people. It means standard English, clean-cut appearance (or, as Joe Biden fumbled, "clean") and the most Caucasian features possible. These obviously are not objective measures of character or worth; just as obviously, they are measures of what sells to the vast, white audience. Halle Berry and Denzel Washington are acceptably black. Your local news anchors are acceptably black. Tupac was not.
Well, according to Richard Perez-Pena, Wounded Rapper Gets Mixed Verdict In Sex-Abuse Case, Washington Post, Sept. 16, 1996:
Shakur, who was vilified by opponents of "gangsta" rap for his frequently vicious lyrics, his various run-ins with the law and his infamous "thug life" tattoo, certainly wasn't the only rap music figure to repeatedly get into trouble. But he got into more than most. In June he settled a lawsuit with a limousine driver who claimed that Shakur and members of his entourage severely beat him in a Fox TV parking lot after taping an appearance on "In Living Color." A month before that, he pleaded guilty to a felony weapons charge in Los Angeles. And the month before that, he got in trouble for violating probation. And that's just from a three-month period: In 1993 he was charged in the shooting of two off-duty police officers in Atlanta [the charges were later dropped -EV]; Shakur also had various convictions in Michigan and New York on assault and battery charges. He spent 11 months in jail after his highly publicized conviction in December 1994 for sexually abusing a woman in a Manhattan hotel room.
Would Tupac Shakur be "[a]cceptably black," defined as "nonthreatening to white people inclined to feeling threatened by black people"? No. Would he be nonthreatening to white people not inclined to feeling threatened by black people? No, he'd likely be seen as threatening by many of them, too. Would he be nonthreatening to black people? No, he'd likely be seen as threatening by many of them, too.
And would he (if he were still alive) now be seen as nonthreatening by the woman he was convicted of sexually abusing -- a black woman, as it happens? Would Tupac really seem threatening because of his use of nonstandard English, non-Caucasian features, and lack of clean-cut appearance, or perhaps for some other reasons?
Plus, why on earth use Tupac as your example of somehow who is supposedly "[un]acceptably black" in deriding whites' supposed standards of black acceptability -- given that his behavior shouldn't be "acceptable," and would be "[]threatening," to anyone?
Thanks to OpinionJournal for the pointer.
Praise for Our Own Russell Korobkin's New Book:
From the Pure Pedantry blog, written by Jake Young, an MD-PhD (Neuroscience) student at Mount Sinai School of Medicine. "I can summarize my opinion of this book in one sentence: if every policy-maker and politician responsible for stem cell law were forced to read this book the world would be noticeably better." Plus the "book is useful for bench scientists in addition to policy-makers." The review is considerably more detailed than that -- read it, or, better yet, read the book.
Wednesday, January 9, 2008
Filtering For Copyrighted Content and Liability Under the Wiretap Act:
The New York Times "Bits" Blog reports: At a small panel discussion about digital piracy here at NBC’s booth on the Consumer Electronics Show floor, representatives from NBC, Microsoft, several digital filtering companies and telecom giant AT&T said the time was right to start filtering for copyrighted content at the network level.
Such filtering for pirated material already occurs on sites like YouTube and Microsoft’s Soapbox, and on some university networks.
Network-level filtering means your Internet service provider – Comcast, AT&T, EarthLink, or whoever you send that monthly check to – could soon start sniffing your digital packets, looking for material that infringes on someone’s copyright.
“What we are already doing to address piracy hasn’t been working. There’s no secret there,” said James Cicconi, senior vice president, external & legal affairs for AT&T.
Mr. Cicconi said that AT&T has been talking to technology companies, and members of the MPAA and RIAA, for the last six months about implementing digital fingerprinting techniques on the network level.
“We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this,” he said. “We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.” I hope that "open discussion" includes a frank discussion of legal liability under the federal Wiretap Act. The Wiretap Act makes it a federal crime and a civil wrong permitting the recovery of punitive damages and attorney's fees for intercepting the contents of a person's communications over an interstate communications network. Although there are no cases directly on this, network-level scanning of traffic for copyrighted content is likely to be deemed an "intercept" of the contents of communications. And while there are exceptions for interceptions by parties to communications (18 U.S.C. 2511(2)(d)) and for monitoring narrowly tailored to protect the network provider (18 U.S.C. 2511(2)(a)(i)), it's hard to see how those exceptions would apply to network-level monitoring for copyrighted information. To avoid liability, these providers probably would need to amend their Terms of Service so that users would explicitly consent to allowing their ISPs to monitor them for copyright violations. Assuming customers didn't revolt against this, that would permit monitoring under the consent exception, at least when a user who actually signed the contract was being monitored. But even the explicit okay in the Terms of Service wouldn't allow all monitoring. The consent would only cover those who signed the contract and the parties to communications with them, and would not automatically extend to those who used the network but had not consented (such as family members of those who agreed to the ISP contract). And of course the ISPs wouldn't know who was being the keyboard, so they would never know if the monitoring was lawful. I suppose ISPs could then argue that the monitoring was not an "intentional" intercept, as required by the statute, 18 U.S.C. 2511. But that raises a difficult question of how the mens rea requirements of liability interact with the consent exception — in particular, whether an intentional interception that is not intentional as to the lack of consent counts as intentional. I don't know of any cases on this, but off the top of my head it seems like a 50/50 issue. And then there's the issue of liability under state wiretap laws that go beyond the federal wiretap act, and especially those that require all party consent to monitoring. Would ISPs risk massive liability under the Wiretap Act to try to combat copyright infringement? I can't imagine why they would do that, but I suppose that's a question to ask them and their lawyers. Thanks to Instapundit for the link.
Detroit Event on 2008 Election and the Supreme Court:
Tomorrow evening I will be participating in a panel discussion on "The 2008 Election and the Role of the Supreme Court," at Wayne State University. The event is sponsored by the Michigan Lawyers Chapter of the Federalist Society. Here is their description of the event:
There is a strong possibility of near-term vacancies on the United States Supreme Court. In light of this, what is the proper consideration of the role of the United States Supreme Court and the 2008 Presidential election? A panel of legal experts will discuss the importance of the respective roles of the President and Congress in the nomination and confirmation of judges. They will consider: What is the proper role of the courts in American politics? What has been the historic role of judicial selection issues in presidential campaigns? How have the leading presidential candidates discussed their perspectives on judicial philosophy and nominations?
Also slated for the panel is David Leitch, former Deputy White House Counsel. More details here.
Justice Kennedy's Comments and Questions in the Voter ID Case:
The transcript of this morning's argument in the Voter ID case has been released, and is available here. As I read the transcript, Justice Kennedy had no questions for Indiana and only one question for Paul Clement, about whether as-applied challenges could be brought before an election. In contrast, Justice Kennedy had several skeptical questions addressed to Paul Smith, counsel for Crawford. You can read the transcript for the context, but here are Kennedy's significant questions/comments for Smith: JUSTICE KENNEDY: I just think it's hard to confine your rationale if you say that any association could sue. If it says, you know, there are people that if they knew what we were doing, if they knew this problem they would really want us to sue on their behalf, I don't know if I'm going to confine your rationale.
JUSTICE KENNEDY: But clearly you answer all of those questions that you've just posed, that you've just responded with, "no". So then your answer to Justice Alito should be no.
JUSTICE KENNEDY: Although that leads to the next question, is whether or not there are ways in which the -- the central purpose of this law can be preserved but it could be less stringent. But I'd like you to respond to both of those things.
JUSTICE KENNEDY: That wasn't -- that wasn't the problem I had with your answer to that question. You posed a number of questions to Justice Alito, or a number of responses, but to each one of those your own answer in the brief was no, and therefore your question -- the answer to Justice Alito's question should be no, there is no system that you know of that can impose a photo ID.
JUSTICE KENNEDY: And even so is, there anything that prohibits the State from confirming the validity of the registration at the polling place?
JUSTICE KENNEDY: You want us to invalidate a statute on the ground that it's a minor inconvenience to a small percentage of voters? Thanks to Howard for the before-the-SCT-website-even-added-a-link link. (Okay, so the URL is always predictable, but it's still helpful.)
Reluctance to admit voting for someone other than Obama?--
For the Democrats, why did we see major discrepancies between polling and election results in New Hampshire, especially compared to the Iowa caucuses? My colleague, John McGinnis, offered a possible reason: people might have wanted to appear to their neighbors (i.e., in an Iowa caucus) to be more open to an African-American candidate than they were in the privacy of the voting booth. A similar, though less strong effect might influence a respondent's answer to a pollster in New Hampshire: a possible reluctance to admit favoring or voting for Clinton over Obama.
As someone who has voted for Barack Obama several times in the past, I hadn’t thought of that possibility.
San Francisco Handgun Possession Ban Is Preempted by State Law,
says the California Court of Appeal, and so is the provision banning transfers of all firearms and ammunition in San Francisco. The panel vote was 3-0, and it affirmed a 2006 trial court decision that took the same view.
Thanks to Terence Edwards for the pointer, and congratulations to Chuck Michel, Don Kates, Glenn Roberts and Thomas Maciejewski on the victory.
Who Wrote Ron Paul's Newsletters?:
For those interested in such inside-baseball, here is a post by Wirkman saying it was widely known in libertarian circles that the newsletters were ghostwritten, and another by former (and disgruntled) Ron Paul staffer Eric Dondero claiming that Paul wrote half the content, and a prominent friend of Ron's 80% of the rest.
Truth in Textbook Pricing:
A student reports the following textbook for sale in the campus bookstore at the following price:
Monopoly Rents
$950.00
How Will Justice Kennedy Vote in Crawford?:
In the first filed report on this morning's oral argument in Crawford v. Marian County Election Board, aka the voter ID case, Lyle Denniston has this to say about Justice Kennedy's take on the case: Justice Anthony M. Kennedy . . . displayed some skepticism about the challenge to Indiana’s law, somewhat impatiently suggesting at one point that the challengers would oppose any kind of voter ID requirement other than a simple signature match at the polling place. Kennedy seemed ultimately to be looking for ways to assure voters who demonstrably would be significantly burdened by the law they they could challenge it, perhaps even before election day came around. I look forward to reading the transcript to know more about how Justice Kennedy is approaching this case. In the meantime, I wonder if there are some clues in a Fourth/Fifth Amendment decision Justice Kennedy wrote a few years ago, Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004). Granted, the Hiibel case has has absolutely nothing to do with voting rights. But it may contain some clues on the broader question of how Justice Kennedy construes the state and citizen interests in identification requirements. Here are the facts of the Hiibel case, as stated in Justice Kennedy's opinion: The sheriff's department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.
The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had "any identification on [him]," which we understand as a request to produce a driver's license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest. The question in Hiibel was whether the Fourth and Fifth Amendment permitted Hiibel to be arrested based on these facts. Justice Kennedy's opinion for the Court concluded that the answer was "yes." Along the way, Justice Kennedy reasoned that the state interest in identifying Hiibel was strong: Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim. In another part of the opinion, Justice Kennedy suggested that Hiibel's interest in keeping his identity away from the state was relatively weak: As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer's business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.
The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. In every criminal case, it is known and must be known who has been arrested and who is being tried. (citations omitted) Just to be clear, there are lots and lots of reasons why Hiibel is different from Crawford. Just to pick one, the Hiibel court construed the statute as requiring a suspect to state his name, not to provide a government ID. Perhaps that's a critical difference, and Justice Kennedy will see a government ID requirement as raising a very different set of concerns. At the same time, I think Justice Kennedy's Hiibel opinion suggests that Kennedy sees strong government interests in the state knowing who it's dealing with, at least in the criminal law context. I wonder if that will carry over to a vote to uphold the Indiana voter ID law in Crawford. UPDATE: According to the AP, one of Justice Kennedy's questions for Paul Smith at the oral argument was, "You want us to invalidate the statute because of minimal inconvenience?" More soon...
Tuesday, January 8, 2008
Political Futures Markets in the New Hampshire Primary:
Daniel Gross has a short item on this topic at Slate. He concludes that "the price movement tends to respond to conventional wisdom and polling data; it doesn't lead them." Thanks to Matt Bodie for the link.
The Election Implications of the Second Amendment Case:
Michael Dorf -- who takes a collective rights view of the Second Amendment -- writes this (accurate) account of something that came up during the American Association of Law Schools panel on the Second Amendment. (The panel consisted of him, Katherine Darmer, John Eastman, and me, and was moderated by Mark Tushnet.)
On my Second Amendment panel today, there was some discussion about how a decision upholding or rejecting the individual right view would play politically.
We all pretty much agreed that a victory for the District of Columbia could be costly to the Democratic Presidential nominee, because it would activate the strongly Republican leaning gun rights groups. I said that I also thought a victory for Heller (the plaintiff) would help the Republicans, especially if it were 5-4, simply by making the issue salient and by emphasizing how closely divided the Court is, because the gun rights folks care more about this issue than do the gun control folks.
Harvard Law Prof Mark Tushnet (the moderator) and GW Law Prof Bob Cottrol (from the audience) thought that a victory for Heller would be good for Democratic politicians and gun control advocates, who could then claim credibly that the gun control measures they favor are not in fact the first step on a slippery slope to abolition. That's an intriguing idea but I'm not sure. It strikes me that the win-by-losing strategy is always risky and unpredictable. [Paragraph breaks added.]
I would add that a victory for D.C. would also be costly to the Democratic Presidential nominee because it would make the issue more salient for voters generally; polls suggest that the public supports the individual rights view by at least 2 to 1, and my sense is that many swing voters in swing states care about the issue a good deal.
NH Exit Polls:
CNN has fascinating exit polls from New Hampshire.
One example: who would have thought when the election season began that Ron Paul would most appeal to [male, no surprise for a libertarian candidate] liberal independent under-30s who aren't religious, don't go to church, favor civil unions, think abortion should be legal [Paul favored the "Defense of Marriage Act," and has introduced various anti-abortion bills into Congress, including one stating that life begins at conception], and think the economy, not Iraq, is the most important issue (and who, oddly enough, want the next president to be "more conservative")? And that despite New Hampshire's reputation as a haven for crusty old Yankee libertarians, Paul would be eight times more popular among 18-24s than among over-65s?
Among the Democrats, it's amazing how evenly match Clinton and Obama are along just about every margin--in particular, liberals, moderates, and conservatives all basically split their votes--except that (1) women overwhelmingly favored Clinton, men Obama; and (2) Obama crushed Clinton among 18-24s.
A damning indictment of Ron Paul:
I've never thought Ron Paul's presidential candidacy was serious enough to merit much attention. But I have to acknowledge that it has caught fire on the Internet and that he's done surprisingly well in the voting so far. He's raised substantial money and has gotten support from some very serious bloggers and other commentators. Ilya and David have previously pointed out the problematic nature of his campaign in posts, for example, here and here, noting especially his failure to repudiate some of his extremist supporters. It does neither libertarianism nor conservatism any good to be associated with a fringe of hateful conspiracy mongers.
Now Jamie Kirchick, a rising young writer at The New Republic, has connected Paul more directly to a political legacy of conspiracy-mongering, racism, anti-Semitism, and homophobia, which may provide some context for Paul's reluctance to confront these things among some of his supporters. Kirchick's article exposes some nasty stuff published in a newsletter running under Paul's name back in the 1980s and 1990s. The newsletter was variously called Ron Paul's Freedom Report, the Ron Paul Political Report, and The Ron Paul Survival Report. Some of the newsletter material is available here.
Paul's campaign has responded by claiming that Paul wrote some of the material that appeared in the report, that he did not write the more incendiary passages, that he often did not see material published in the newsletter, that he disagrees with at least some of it, and so on. Paul's campaign has issued a perfunctory press release to this effect, adding that the charges against him are "old news." Kirchick concludes that the Paul campaign's excuses don't matter much:
In other words, Paul's campaign wants to depict its candidate as a naïve, absentee overseer, with minimal knowledge of what his underlings were doing on his behalf. This portrayal might be more believable if extremist views had cropped up in the newsletters only sporadically--or if the newsletters had just been published for a short time. But it is difficult to imagine how Paul could allow material consistently saturated in racism, homophobia, anti-Semitism, and conspiracy-mongering to be printed under his name for so long if he did not share these views. In that respect, whether or not Paul personally wrote the most offensive passages is almost beside the point. If he disagreed with what was being written under his name, you would think that at some point--over the course of decades--he would have done something about it.
I agree. It's perfectly acceptable to publish a newsletter containing material you disagree with. But it seems reasonable, under those circumstances, at least to disclaim any endorsement of it. The large volume and context of the material published strongly suggests that it represented Paul's views, at least at the time. Whether Ron Paul actually wrote the material, endorsed but did not write it, or was simply negligent in allowing it to appear in a newsletter bearing his name, he bears heavy responsibility for it. Self-serving disclaimers now, in the middle of a presidential campaign, aren't terribly convincing. Even if he has since changed his views about the material in his newsletters, they seriously call into question his judgment. He was, after all, an adult and had even served in Congress when this material appeared. He has at worst endorsed, and at best coddled, some of the most base impulses in American politics.
Paul has fringe supporters who won't be troubled by what's in the newsletters or who will turn cartwheels to excuse it in some way. But many well-meaning people have endorsed Paul as a refreshing alternative to what they see as stale and mealy-mouthed politicians and to big government run amok — whether in Iraq, in taxes, in spending, or in regulation. The moral challenge for these prominent and responsible Paul supporters now is to repudiate his candidacy.
UPDATE: Andrew Sullivan, perhaps Paul's most prominent supporter in the country, calls the newsletters "ugly" and "repellant" and has shifted his support to McCain.
Related Posts (on one page): - A damning indictment of Ron Paul:
- More Trouble for Ron Paul:
GW Summer IP Program in Munich:
Law student readers who are interested in intellectual property law (or technology law more broadly) might want to know about about GW Law's summer IP program in Munich, Germany. You can find an overview here, a list of courses here, FAQ's here, and bios for the faculty members here. I've taught in the program for the last two summers and will do it again this summer. I find the weissbier, er, intellectual atmosphere, refreshing. For a criticism of European summer programs operated by U.S. law schools, see the comment thread here. While I'm advertising for the home school, I also want to point out that GW Law is looking to fill a position as a Marks IP fellow. Details are available here.
More Trouble for Ron Paul:
Pajamas Media and The New Republic have stories about various racist, anti-Semitic, and generally kooky comments that could be found in some old political and investment newsletters published under Ron Paul's name.
I give Paul the benefit of the doubt on this one [if nothing else, he's a savvy politician--you don't get elected to Congress three times as a non-incumbent if you aren't--and these quotes are obviously bad politics], and assume that some right-wing cranks paid him to use him name on their newsletters, and he didn't actually read the newsletters carefully if at all, much less write them. That shows very poor judgment, but is a lot less damning than if he did read, write, or edit these newsletters.
Regardless, it's disturbing in and of itself that the kind of people who write such things would want to associate themselves with Paul's name, and the kind of people who enjoy reading such things would subscribe to these newsletters because they admire Paul.
Yet, as Kirchik in TNR notes, there are really two disparate groups to whom the limited-government message appeals: philosophical libertarians (which consists of a tiny percentage of Americans, but something like 10% are at least inclined toward a general libertarian perspective), and those who hold a deep grudge against the federal government based on a range of nutty conspiracy theories, ranging from old chestnuts like a freemason conspiracy, a Council on Foreign Relations/Bildeberger conspiracy, or a conspiracy to strip the U.S. of its sovereignty in favor of world government; to variations on old anti-Semitic themes (ranging from domination by Zionist conspirators to domination by Jewish bankers led by the Rothchilds to domination by Jews in Hollywood); to newer racist theories; to novel conspiracy theories about 9/11, the pharmaceutical industry, etc.
Mainstream libertarian groups like Cato and Reason have nothing to do with the latter types, but other self-proclaimed libertarian groups, like the Ludwig Von Mises Institute, play footsie with them. (I recently turned down an invitation to do a book review for an academic journal published by LVMI because I don't want my name associated with the Institute.) Paul himself seems to have made a career of straddling the line between respectable libertarian sentiment and conspiracy-mongering nuttiness, receiving support and accolades from both sides.
But now that he wants to be taken seriously as a presidential candidate, he can't get away with it anymore. Regardless of his future action, Paul deserves strong criticism for consorting and collaborating with various unsavory characters for so many years. But he could also do liberty-lovers a big favor, and perhaps save his respectability as a viable protest candidate, if he would come out with a very strong statement that he's made some errors in his past associations, but wants to make it clear now that he neither solicits nor welcomes support from racists, neo-Confederates, conspiracy-mongers, anti-Semites, and so forth.
The biggest problem with hoping for such a statement is that I'm not completely convinced that Paul in fact finds support from at least some of these groups entirely unwelcome.
Difficulties Getting the VC to Load?:
Anderson asks about it; I thought I would check to see if others are having the same problem.
Did George W. Bush Destroy Reaganism?:
Over at Balkinization, Jack Balkin argues that the George W. Bush presidency "destroyed Reaganism": Bush has . . . overseen the cracking of Ronald Reagan's successful coalition of southern former Democrats, white working class ethnics, defense hawks, free market conservatives, and religious conservatives. Reagan could appeal to all of these elements of the party, but Bush's Presidency has been unable to keep all of them happy. Had Bush's war on terror (including the Iraq war) been successful, he might have kept most of the coalition together even though he simultaneously increased the size of government, downplayed coded racial appeals that brought in the South, supported immigration reform, ran up large deficits, and offered only modest and symbolic achievements to religious conservatives. But his policy failures made this impossible.
Bush's failed presidency has left the Republicans scrambling to reconstitute the Reagan coalition. The wide range of different candidates-- from Giuliani to Romney to McCain to Huckabee to Paul-- offer different solutions. We don't yet know how the coalition will be reassembled, and under whose leadership. However, as of the day of the New Hampshire primary, it looks like putting it back together will be a tall order. And although the eventual nominee will try to assume the mantle of Ronald Reagan-- and, equally important, not the mantle of George W. Bush-- the Republican party will have been changed forever by the events of the last eight years.
Although Ronald Reagan will still be regarded with fondness by the Republicans for generations to come, George W. Bush will have effectively destroyed Reaganism. The Republicans will have to start over with a different mix of concerns, agendas and appeals. This is George W. Bush's single greatest achievement. This is one reason, although not the only reason, why he ranks high (or low) among the country's failed presidents-- not only did his policies fail, but he also took the winning coalition that brought him into office down with him.
And that is why, if, like many Americans, you think that change is coming, and you think that this is a good thing, you should tip your hat to George W. Bush and his eventful presidency. For if Ronald Reagan was the Great Communicator, George W. Bush is the Great Destroyer of Coalitions. I am a law professor, not a political analyst, but I tend to disagree. To be sure, Bush's many unforced errors over the last seven years is hurting the Republican nominees. But Bush's unpopularity hasn't "destroyed Reaganism." To the contrary, it seems to have made the Republican party more committed to Reagan's ideas and coalitions and more suspicious of alternatives. Indeed, all of the Republican candidates are clamoring to be considered the next Ronald Reagan. While some of the candidates struggle to do this, that's a reflection of their personal limitations rather than a lack of interest within the GOP in Reagan's approach and ideas. Time will tell how these things will play out, and anything can happen. At the same time, I tend to doubt that the Bush Presidency will cause a long-term shift in the major coalitions and ideas driving the GOP.
New research on the Second Amendment:
Now online:
Stephen P. Halbrook, "St. George Tucker's Second Amendment: Deconstructing 'The True Palladium of Liberty,'" 3:2 Tennessee Journal of Law and Policy 183 (2007). St. George Tucker was the leading legal commentator of the Early Republic. His edition of Blackstone, which included copious annotations and appendices written by Tucker, was the foundational legal treatise of its era, and the first scholarly analysis of the new U.S. Constitution, and of how American law was diverging from its British ancestor. Halbrook's article shows that Tucker regarded the Second Amendment as an individual right which included a right to own firearms for self-defense and hunting. The article also points out deficiencies in Saul Cornell's treatment of Tucker; Cornell has a tendency to quote Tucker's analysis of militia issues as if the analysis were about the
Second Amendment, and to gloss over what Tucker actually wrote about the Second Amendment.
"What Does 'Bear Arms' Imply?" Working Paper by Clayton Cramer and Joseph Olson. Gun prohibition advocates, including the D.C. government in its brief in D.C. v. Heller, contend that the words "bear arms" in the Second Amendment have an exclusively military connotation, and therefore "the right of the people to keep and bear arms" refers exclusively to bearing arms as part of service in a formal state militia. Cramer and Olson show that "bear arms" never had an exclusively military connotation, either before ratification of the Second Amendment, or in the following decades.
"Pistols, Crime, and Public Safety in Early America" is another Working Paper by Cramer and Olson. The authors show that the governments of Founding Era were familiar with handguns, and never regulated them differently from long guns. The typical pistol of the late 18th century could fire only a single shot; however, multi-shot pistols had already been invented; many handgun owners provided themselves with multi-shot capacity by carrying two or more handguns, which was not difficult, since there were many very compact handguns. Accordingly, the successful commercial development of the multi-shot handgun (the Colt's revolver in the 1830s) was (unlike, for example, radio) an example of technological progress that was well within the contemplation of the Founders.
Judicial Appointments in the Ford Administration:
This story on a planned oral history of the Ninth Circuit has an interesting tidbit about the nomination of Senior U.S. District Judge William Schwarzer during the Ford Administration: Schwarzer, a Ford appointee, said he voted more for Democrats than Republicans. But when a friend in Mill Valley, Calif., ran for the county's board of supervisors in the 1960s, Schwarzer and his wife registered Republican to give him two more votes in a contested primary.
They never changed their registration. So when political operatives did background checks on him, he came back a Republican, making it OK for Ford to appoint him. Hat tip: Howard.
Monday, January 7, 2008
Why the Defendant Should Win in Virginia v. Moore:
Next Monday the Supreme Court will hold oral argument in Virginia v. Moore, a very interesting Fourth Amendment case. The briefs are available here. The issue: If state police officers have probable cause to believe a person has committed a state crime, does the Fourth Amendment allow the officers to arrest the person and then search him incident to arrest if state law does not actually authorize an arrest for that crime? I think the answer is "no" and that the defendant in the case should win. In this post, I want to explain why. The facts of the case are simple. Moore was driving around Virginia with a suspended license when he was stopped by two police detectives. They arrested him for driving on a suspended license, which is a misdemeanor in Virginia that carries a maximum punishment of one year in jail. They then searched him incident to the arrest and found 16g of crack on him. Moore was then charged with possession with intent to distribute, based on the discovery incident to his arrest. But there's a twist: Virginia state law requires officers to issue a summons for driving without a license. It does not authorize the officers to make an arrest. Moore's claim is that the state prohibition on arrests for this crime makes his arrest constitutionally unreasonable, such that the search that led to the crack was (in Fourth Amendment parlance) "fruit of the poisonous tree." This case is particularly interesting because the Fourth Amendment has long had a complicated relationship with state law. In some instances, the Fourth Amendment is keyed to state law: for example, probable cause determinations for state arrests are made in reference to the state definition of the crime, see, e.g., Maryland v. Pringle. But in some instances, the Fourth Amendment ignores state law. For example, if the federal government violates a state law in the course of a search, the state law violation cannot lead to suppression, see Olmstead v. United States. The question is, does Virginia v. Moore raise one of the circumstances in which it matters or one of the circumstances in which it doesn't? In my view, the correct answer is that here state law does matter, and the search incident to arrest in this case should be held to violate the Fourth Amendment. The reason is simple: the "search incident to a lawful arrest" exception only permits searches incident to lawful arrests, not searches incident to unlawful arrests. Going back to English common law, courts have held that a lawful arrest justifies a search of the person pursuant to that lawful arrest. The lawfulness of the arrest has always been a critical part of the reasonableness of the search. Moore concerns an arrest by state police for a state crime. If the state law makes an arrest unlawful, any search incident to arrest is a search incident to an unlawful arrest rather than a search incident to a lawful arrest. It therefore violates the Fourth Amendment. An excellent illustration is Justice Jackson's opinion in United States v. Di Re, 332 U.S. 581 (1948). Di Re is a WWII-era case involving a guy who was arrested in New York for possessing fake gas rations. The rations were found during a search incident to arrest, and the question in the relevant part of the case was whether the arrest was lawful, making the search incident to a lawful arrest. As Justice Jackson put it, "If he was lawfully arrested, it is not questioned that the ensuing search was permissible. Hence we must examine the circumstances and the law of arrest." The question of whether the arrest was lawful was complicated in that case because it was an arrest for a federal crime made by state police officer acting at the request of a federal agent. As a result, it wasn't entirely clear whether the lawfulness of the arrest was to be determined by New York arrest law or federal law. Justice Jackson concluded that, as a general matter, the lawfulness of the arrest for a federal crime was to be determined by state law instead of federal law absent clear guidance from Congress: [I]n absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, the principle of which is still retained, the arrest by judicial process for a federal offense must be 'agreeably to the usual mode of process against offenders in such State.' There is no reason to believe that state law is not an equally appropriate standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule. Indeed the enactment of a federal rule in some specific cases seems to imply the absence of any general federal law of arrest. After looking for a federal law on point and finding none, Justice Jackson turned to New York state law and performed a detailed analysis of the lawfulness of the arrest under New York state law. Jackson concluded that the arrest was not lawful as a matter of state law under the facts of that case, and that therefore the search incident to arrest exception could not apply. Justice Jackson concluded with some sharp words for the government: It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand. In my view, the Di Re precedent pretty much answers Virginia v. Moore. In the Moore case, the arrest is obviously unlawful: state law does not allow for an arrest in such circumstances. Here the proper law to consult is obvious: this was a state arrest for a state law violation made by state officials, so the lawfulness of the arrest should be determined by state law. Because the arrest was unlawful, there could be no search incident to a lawful arrest under United States v. Di Re. That's my view, at least. The merits briefs in the case don't focus much on this argument. In the brief for Moore, his very able team of lawyers (a group including Tom Goldstein, Pam Karlan, and Jeffrey Fisher) take a very different approach. They contend that there should be a balancing test that determines the reasonableness of arrests, weighing the state interests and the person's individual interests, and that the courts should weigh the importance of the state's interests by looking at the state's decision of whether to authorize arrests for that crime. A state that hasn't authorized arrests clearly believes that it has no interests in detention, so arresting someone is unreasonable in that setting given the absence of a state interest. Thus the search is the fruit of a seizure that violates the Fourth Amendment, and the evidence must be suppressed.
The lawyers for Moore have much more Supreme Court litigation experience than I do, but I think this will be a tough argument. First, it is pretty serious tension with the recent Supreme Court case that really frames the Moore case, Atwater v. City of Lago Vista, an opinion allowing arrests for very minor crimes when authorized by state law. The Atwater majority opinion by Justice Souter focused on the history of the arrest power and the need for brightline rules governing the power of arrests, in contrast to the balancing approach offered by Justice O'Connor in dissent. Given that the 5-4 vote in Atwater has probably become a 6-3 with Justice O'Connor retired, I'm not sure there are more than 3 votes for a general balancing approach. Second, a balancing test is just too mushy in this setting. In my view, Justice Souter was quite right in Atwaterthat arrests need bright-line rules. Even if you say that the balancing is only of the interests that go into the rule, separate from the rule itself, it strikes me as just too uncertain an approach. Finally, from a policy perspective, the Justices may actually like the contrary rule. In light of that, I'm not sure it's the best strategy to frame the case with a go-anywhere-you-want balancing approach. Maybe there are five votes for that approach, but I'm not sure. Both Virginia and the United States try to shoo away the Di Re precedent on the theory that Di Re is about the federal supervisory power rather than the Fourth Amendment. They rely heavily on the conclusion of my co-author Wayne LaFave, who says the following about Di Re in his solo-authored Search and Seizure treatise at Section 1.5: [W]hile the issue is not free from doubt, a close inspection of the Di Re decision indicates that the use of state law there was "based on nonconstitutional considerations." . . . Particularly in light of the fact that the Court looked to state law only after finding no applicable federal law, it would appear that the Di Re Court viewed the occurrence as truly a federal (rather than a state) arrest, as indeed it was. True, the arrest was by a city detective, but it was for a federal crime, there is no indication that the detective was pursuing any state interest, and quite obviously he was acting on behalf of the federal investigator who accompanied him but who could not so act on his own behalf because he "had no power of arrest." So interpreted, Di Re is simply an instance of the court utilizing its supervisory power to exclude from a federal prosecution evidence obtained pursuant to an illegal but constitutional federal arrest. With due respect to my co-author Professor LaFave, I strongly disagree. Justice Jackson was interested in the state and federal law of arrest because he needed to determine if the arrest was lawful. And he needed to determine if the arrest was lawful because the Fourth Amendment exception is the "search incident to a lawful arrest" doctrine. As Justice Jackson put it himself, "If he was lawfully arrested, it is not questioned that the ensuing search was permissible. Hence we must examine the circumstances and the law of arrest." This was a straight Fourth Amendment question, clearly and plainly stated. More broadly, I find it unlikely that Justice Jackson would decide a case based on the federal supervisory power without saying so. Justice Jackson was a former Attorney General and an unusually articulate fellow; surely he knew how to state when he was invoking the federal supervisory power and not the Fourth Amendment. Throughout Di Re, Jackson keeps talking about the Constitution and citing constitutional precedents. He states that suppression is necessary because of a decision by "the forefathers [who] designed our Constitution." In contrast, I'm not aware of any mentions of any cases on the supervisory power. This would be a particularly odd oversight so soon after the Court's blockbuster decision on the federal supervisory power, McNabb v. United States, 318 U.S. 332 (1943). Given the absence of any mention of the supervisory power or citations to any cases on it, I don't see any reason to believe that Di Re is a case about the federal supervisory power. Finally, Virginia's brief also argues that even if it was based on the Constitution, Di Re was overruled by Elkins v. United States and California v. Greenwood. Not so. Elkins states on its face that it is a supervisory power case, not a Fourth Amendment case; Greenwood was a reasonable expectation of privacy case, not a case about the search incident to a lawful arrest doctrine. As I see it, Di Re lives, and it should pretty much settle the case of Virginia v. Moore. (Notably, this wouldn't neccessarily mean that the arrest itself violated the Fourth Amendment; the only issue raised is the "lawfulness" of the search incident to that arrest, not whether the arrest itself was constitutional.)
More on Anti-Homosexuality Speech in K-12 Schools:
I'd blogged extensively on the Ninth Circuit's Harper v. Poway decision, which held that the First Amendment didn't protect a high school student's right to wear a T-shirt saying "Be Ashamed, Our School Embraced What God Has Condemned" and "Homosexuality is Shameful" -- even when there was no showing that the T-shirt posed a reasonable risk of disruption in the Tinker v. Des Moines Indep. School Dist. sense (for instance, of fighting and the like).
Now a similar case (Zamecnik v. Indian Priairie School Dist. #204 Bd. of Ed.) is brewing in the Seventh Circuit; at this point, it just led to a district court decision, but that's now being appealed. The district court decision, handed down Dec. 21, holds:
A school district may bar a student from wearing a "Be Happy, Not Gay" T-shirt (as a reaction to a pro-gay-rights event the day before), so long as the T-shirt would undermine the school's "policy of promoting tolerance and prohibiting derogatory comments based on protected categories." As in Harper, there's no need for the school to show that the T-shirt poses a reasonable risk of disruption under Tinker. At the same time, the student has a "constitutional right to display 'Be Happy, Be Straight' on her t-shirt" at school, because "[t]here is no indication that such a message is inconsistent with the school's educational mission as was the 'Not Gay' message." "Since, on the previous day students were permitted to display messages supporting being homosexual, the next day's suppression of a message supporting being heterosexual should be understood as viewpoint discrimination under the facts assumed to be true for purposes of summary judgment."
It will be interesting to see what the Seventh Circuit has to say about item 1. It's not clear to me whether item 2 is going to be before the Seventh Circuit, since I haven't seen any evidence that the school district is appealing item 2 (nor am I sure that it's appealable, given the procedural posture of the case, though I'm happy to be enlightened further on this).
Norman Finkelstein Update:
AP: A vocal American critic of Israel met Monday with a senior official from the militant Hezbollah group and visited villages in southern Lebanon that witnessed heavy fighting in the 2006 war between the guerrillas and the Jewish state.
Norman Finkelstein, who resigned last year as a political science professor at DePaul University in Chicago, met Hezbollah's commander in south Lebanon, Nabil Kaouk, in his office in the coastal city of Tyre.
He visited the border village of Maroun el-Rass where heavy fighting between Hezbollah guerrillas and Israeli troops took place during the two side's 34-day war in the summer 2006, according to the state-run National News Agency and Hezbollah's Al-Manar television.
Finkelstein also toured the border village of Aita al-Shaab, the location from where Hezbollah guerrillas triggered the war after they crossed the border, killing three Israeli soldiers and capturing two others in hopes of trading them for Lebanese prisoners in Israeli jails, according to the report....
"After the horror and after the shame and after the anger there still remain a hope, and I know that I can get in a lot of trouble for what I am about to say, but I think that the Hezbollah represents the hope."
[Insert favorite critique or parody of " resolute atheist" "Progressive" academic toadying to fanatical, violent religious extremists here.]
NYT on Criminal Procedure and Electronic Evidence:
In today's New York Times, Adam Liptak has an interesting column on some of the Fourth and Fifth Amendment issues that have arisen recently in criminal cases involving electronic evidence and computers. He covers several cases I have blogged about here at the VC, including In re Boucher and United States v. Arnold. Worth checking out.
More on the Recession Watch.--
Last Friday, I posted the results of some data analysis on the question whether we are entering a recession. It turns out that others noticed some of the same patterns as I did.
Here is what Bob Willis at Bloomberg wrote (tip to VC commenter Mark Field):
The U.S. economy may be on the verge of — or already in — a recession, based on the increase in 2007's unemployment rate, economists said.
The jobless rate rose to 5 percent in December, the highest in two years. The figure was 0.6 percentage point higher than March's 4.4 percent, which was the lowest reading of the expansion that began at the end of 2001.
"Since 1949 the unemployment rate has never risen by this magnitude without the economy being in recession," John Ryding, chief U.S. economist at Bear Stearns Cos. in New York, said in a note to clients. "We now put ourselves on recession watch."
Before the start of the last contraction in March 2001, the unemployment rate rose just 0.4 percentage point, according to Labor Department figures. The rate barely rose at all ahead of the 1990-91 downturn, one reason why economists consider it a so-called lagging signal.
The National Bureau of Economic Research, which determines when recessions begin and end, defines them as a "significant" decrease in activity over a sustained period of time. The declines would be visible in gross domestic product, payrolls, production, sales and incomes.
The increase in the jobless rate "is disturbing indeed," Victor Zarnowitz, 88, a senior fellow at the New York-based Conference Board and a member of the NBER group that dates contractions, said in an interview. "A lot of people would rule out that a recession is pending. I would not. It's too early to say and it's perhaps not very likely that it will come, but I would not rule it out." . . .
Consumer Spending
Another key area that has yet to issue any alarms is consumer spending, which accounts for more than two thirds of the economy. Spending figures in November were stronger than forecast even as gasoline hovered around $3 a gallon and property values slumped.
That leaves the onus on December retail sales figures, due from the Commerce Department on Jan. 15, to determine whether the American consumer will indeed falter.
"We are spooked by this week's data and very open to a much weaker economic scenario," Stephen Stanley, chief U.S. economist at RBS Greenwich Capital Markets in Greenwich, Connecticut, said in a note. A "collapse" in consumer spending last month would prompt him "to carve up our forecasts for 2008 and start over with much weaker growth" estimates, he said. . . .
"It's not a good situation," said Chris Rupkey, senior financial economist at Bank of Tokyo-Mitsubishi UFJ Ltd. in New York. "It is certainly true that every time the unemployment rate has done what it did today, we are in a recession."
Still, "I don't want to forecast a recession," he said, "I would prefer for the National Bureau of Economic Research to call it a recession."
Note that an unemployment jump is usually a lagging or coincident indicator of a recession. That raises the nontrivial possibility that we entered an economic downturn in December or will enter one in January or February. Related Posts (on one page): - More on the Recession Watch.--
- Has a recession already started?--
Oral Argument in Baze v. Rees:
This morning the Supreme Court held oral argument in Baze v. Rees, the case on the constitutionality of the current method of lethal injection used to carry out executions. A few impressions of the argument: (1) On the whole I thought it went very well for the Respondents, the Commonwealth of Kentucky. The Justices were clearly frustrated with the lack of record supporting the Petitioners' side: they seemed to think that the issue of alternatives to the three-drug protocol hadn't really been raised below, and they thought the claims about the different risks associated with different protocols were speculative. (2) Roy Englert was excellent as counsel for Kentucky. He came off as the reasonable man, avoided any grand claims, conceded arguments he didn't need, and stuck to the record. It seemed to work: even Justice Stevens seemed persuaded that the record in this case showed that Kentucky was actually pretty careful and that there wasn't much of a risk of error. (3) The big question seemed to be what to do if record in this case cannot support an 8th Amendment claim but other records might be different. In this case, the state was pretty careful and there wasn't much of a record on alternatives. But what about other cases in which the state is less careful or a better records exists? Should the Court be more or less open to those other cases? A few Justices (Stevens and Souter, if I recall correctly) suggested remanding so a record could be developed on the viability of alternatives. There was then an interesting debate on how this would play out; Deputy SG Greg Garre pointed out that it was the Petitioner who failed to develop the record, and the Court doesn't normally force a relitigation of the record just so the Justices can address the implication of an issue with other cases in mind. Justice Scalia pointed out that remanding for the development of a factual record could mean a moratorium on the death penalty for years as the trial court heard evidence and the case winded its way back through the system; great for death penalty opponents, he suggested, but a problem otherwise. On the other hand, Justice Souter (I think) expressed the concern that they needed to address these questions once and for all: they couldn't do the constitutionality of protocols piecemeal. This exchange brought up the problem I blogged about in my earlier post on Baze: "it's not like the Supreme Court can order the creation of a commission to study the reliability of different drug cocktails. Given that, a Justice wanting to push states to improve their methods of execution won't have a lot of obvious specific recommendations to make." I gather a few of the Justices wanted to do the next best thing; while they can't order the creation of a commission, they can remand to a trial court with instructions to hold hearings on the reliability of different protocols. (4) Justice Kennedy was generally quiet. He asked an early question of the Petitioners, to establish that their claim was about risk of error. But he was generally pretty quiet. (5) When I've been blogging about Baze, I have often found myself initially writing "three judge cocktail" instead of "three drug cocktail," presumably because federal courts of appeals decide cases with "three judge panels." I was interested to see that at least two Justices had the same instincts: both Justices Stevens and Alito referred to "three judge cocktails" during the argument. C-SPAN2 is currently finishing up a broadcast of the argument, and I believe it will have a permanently-linkable version posted later today.
Clear Statement Rules and Federalism:
Today's Sixth Circuit Court of Appeals decision allowing school districts to disregard a part of the No Child Left Behind act is based on a federalism "clear statement rule," in this case the rule mandating that states receiving federal funding cannot be held to conditions imposed by the Congress unless those conditions are clearly stated in a federal statute that provides the states with advance notice of their obligations.
Especially in the wake of the Supreme Court's near-gutting of substantive limits on federal power in Gonzales v. Raich, some commentators have claimed that clear statement rules are a valuable alternative means of protecting federalism against excessive federal encroachment. I disagree, and stated my reasons in this 2006 article. Here's an excerpt from the abstract:
The Supreme Court's 2005 decision in Gonzales v. Raich severely undermined hopes that the Court might enforce meaningful constitutional limits on congressional power. In the aftermath of Raich, some observers hoped and others feared that judicial limits on federal power might be resuscitated in Gonzales v. Oregon and Rapanos v. United States, the two most significant federalism cases of the 2005-2006 term. Oregon and Gonzales could potentially have constrained the virtually limitless Commerce Clause power that the Supreme Court allowed the federal government to claim in Raich. A less high-profile case, Arlington Central School District v. Murphy, addressed the scope of Congress' power to set conditions on grants to state governments under the Spending Clause. Although the federal government suffered setbacks in all three cases, none of them actually impose significant constitutional limitations on congressional power.
Oregon, Rapanos, and Arlington all involved challenges to assertions of federal regulatory authority that might run afoul of "clear statement rules." These doctrines require Congress to clearly indicate its intent in the text of a statute before courts can interpret it in a way that "raises constitutional problems," impinges on an area of traditional state authority, or imposes conditions on state governments that accept federal funds....
Part III argues that clear statement rules are neither a viable nor an adequate substitute for substantive judicial limits on federal power. Raich poses a serious threat to the longterm viability of federalism clear statement rules. If congressional Commerce Clause authority is virtually unlimited, it is difficult to see how any assertion of that power can trigger a clear statement requirement by raising constitutional problems or by impinging on a policy area reserved to the states.
The last section of Part III shows that clear statement rules are an inadequate substitute for judicial enforcement of substantive limits on federal power. Clear statement rules sometimes protect the interests of state governments, but that is very different from protecting constitutional federalism. Indeed, state governments will often find it in their interest to support the expansion of federal power; courts applying clear statement rules cannot prevent this. In some situations, Judicial enforcement of clear statement rules might even give state governments additional incentives to promote the enlargement of federal authority.
In the short run, this decision and others like it constitute minor setbacks for federal power. In the long run, as I argue in the article, they might actually facilitate its further expansion by reassuring states that they need not fear unpleasant surprises if they support statutes that expand federal regulatory authority.
School Districts Succesfully Challenge No Child Left Behind:
This morning a divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed a district court's dismissal of a school district challenge to the No Child Left Behind Act of 2001. I hope to have more to say on this later today, and I am sure this is not the last we will hear of this case. In the meantime, here's the opening of the majority opinion by Judge Cole (joined by Judge Breen, sitting by designation).
This case requires us to decide a fundamental question of federal versus state funding under the No Child Left Behind Act of 2001 (“NCLB” or “the Act”), 20 U.S.C. §§ 6301–7941. Plaintiffs-Appellants are school districts and education associations that receive federal funding under NCLB in exchange for complying with the Act’s various educational requirements and accountability measures. Based on the so-called “Unfunded Mandates Provision,” which provides that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a), Plaintiffs filed suit in district court against the Secretary of Education seeking, among other relief, a judgment declaring that they need not comply with the Act’s requirements where federal funds do not cover the increased costs of compliance. The district court concluded, however, that Plaintiffs must comply with the Act’s requirements regardless of any federal-funding shortfall and accordingly granted the Secretary’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Because statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes, and because we conclude that NCLB fails to provide clear notice as to who bears the additional costs of compliance, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion.
And here is the conclusion of Judge Cole's opinion.
The No Child Left Behind Act rests on the most laudable of goals: to “ensure that all children
have a fair, equal, and significant opportunity to obtain a high-quality education.” 20 U.S.C. § 6301. Nobody challenges that aim. But a state official deciding to participate in NCLB could reasonably read § 7907(a) to mean that her State need not comply with requirements that are “not paid for under the Act” through federal funds. Thus, Congress has not “spoke[n] so clearly that we can fairly say that the State[s] could make an informed choice” to participate in the Act with the knowledge that they would have to comply with the Act’s requirements regardless of federal funding. See Pennhurst, 451 U.S. at 25. Of course, if that ultimately is what Congress intended, the ball is properly left in its court to make that clear. See Arlington, 126 S. Ct. at 2465 (Ginsburg, J., concurring) (“The ball, I conclude, is properly left in Congress’ court to provide, if it so elects, for consultant fees and testing expenses beyond those IDEA and its implementing regulations already authorize, along with any specifications, conditions, or limitations geared to those fees and expenses Congress may deem appropriate.”)(footnote omitted). Accordingly, we REVERSE the district court’s judgment dismissing Plaintiffs’ complaint and REMAND for further proceedings consistent with this opinion.
Finally, here is a taste of Judge McKeague's dissent:
While the federal government historically has always contributed a relatively small amount to the total funding of local education, increasingly it has become concerned about the decline in the quality of children’s education, particularly with respect to the nation’s most at-risk children. In an attempt to achieve more accountability in local education, Congress passed the NCLB, which revised the earlier Elementary and Secondary Education Act of 1965 (“ESEA”), Pub. L. No. 89-10,
79 Stat. 27 (codified as amended at 20 U.S.C. §§ 6301-7941). Although participation in the NCLB is voluntary, Congress imposed significant educational reforms for those states that elect to participate and receive federal funds. Today the majority holds, in an opinion contrary to the way our nation’s education has been operated and funded for centuries, that Congress could have intended that the federal government now fund the entire cost of various educational reforms for our nation’s children. Because there is no support in the text or context of the NCLB for the proposition that Congress intended such a monumental and unprecedented change in our nation’s education funding, I respectfully dissent.
Related Posts (on one page): - Clear Statement Rules and Federalism:
- School Districts Succesfully Challenge No Child Left Behind:
More on the First Amendment and Knowing Falsehood:
Xavier Alvarez, an elected water district board member in Southern California, was caught on tape falsely claiming that he was awarded the Congressional Medal of Honor. He is being prosecuted for violating 18 U.S.C. § 704(b), which says, in relevant part, Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months [or one year as to the Congressional Medal of Honor or some other medals], or both.
Alvarez, though, is raising a First Amendment defense, arguing that his false statement is constitutionally protected. Part of the argument is that the statute is overbroad because it covers even innocent errors, not just knowing falsehoods; but the government sensibly responds that the statute can and should be read as implicitly referring to knowing falsehoods. (The government also suggests that it may cover negligent falsehoods, but I think that weakens the government's case, since generally negligent falsehoods on matters of public concern are immune from punishment -- though they may sometimes lead to compensatory damages. Here, the allegation is that the statement was knowingly false, and it's reasonable to read this criminal statute as limited to knowing falsehoods, plus perhaps some reckless but not merely negligent falsehoods.)
The tougher constitutional question, it seems to me, is whether the First Amendment exception for knowing falsehoods is really a "libel exception," as it's sometimes described -- justified chiefly by the desire to prevent injury to specific people's reputation -- or a "false statements of fact exception," justified by the low constitutional value of falsehoods whether or not the falsehoods are defamatory. My sense is that the latter reading is more proper, and some lower courts agree; but the Washington Supreme Court recently took the opposite view, and the U.S. Supreme Court has indeed suggested that some knowing falsehoods are protected.
Here's my quick general summary of the law on this: The Court has expressly upheld statutes banning fraud, including fraudulent solicitation of charitable donations (though nonfraudulent solicitation of charitable donations is generally treated as fully protected speech). Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003). The Court has expressly upheld the false light tort, which compensates people for the emotional injury of having false or misleading statements said about them that "would be highly offensive to a reasonable person," even when the statements don’t damage the subject’s reputation. Time, Inc. v. Hill (1967). The Court has suggested, in Brown v. Hartlage, that knowingly or recklessly false statements in election campaigns are generally punishable. The Court struck down the statute involved in that case on the grounds that it didn't have a knowledge/recklessness requirement, but it reasoned that "There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not. Moreover, petitioner retracted the statement promptly after discovering that it might have been false. Under these circumstances, nullifying petitioner's election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment." Lower courts have uncontroversially upheld criminal punishment of perjury and out-of-court lies to government officials (for instance, under 18 U.S.C. § 1001). See, e.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir.1982). Lower courts have generally upheld trade libel law, which imposes liability for (at least) lies about people's and corporations' products, not just about the people themselves. Cf. Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (assuming, without deciding, that trade libel should be treated like normal libel). Only in one situation has the Court strongly suggested that even some recklessly or knowingly false statements are constitutionally protected: New York Times v. Sullivan (1964) and Rosenblatt v. Baer (1966) strongly suggest that the law can't punish even deliberate lies about the government (the traditional definition of "seditious libel"), so long as no particular person is mentioned. It's possible that courts will hold that the same applies even to deliberate lies about broad historical or scientific claims, on the theory that disputes about historical and scientific truth should be carried on without fear of criminal (or even civil) liability; but I know of no cases specifically dealing with this. Finally, the somewhat opaque R.A.V. v. City of St. Paul holds that the government often may not selective punish some false statements but not others; but there are several substantial exceptions to this doctrine — "[w]hen the basis for the content discrimination [within the unprotected category] consists entirely of the very reason the entire class of speech at issue is proscribable," when "the subclass happens to be associated with particular 'secondary effects' of the speech [unconnected to the persuasive or offensive communicative impact of the speech], so that the regulation is ‘justified without reference to the content of the ... speech,'" when "a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech," and when "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."
My sense is that the R.A.V. doctrine doesn't apply here, since it's hard to see an attempt at official suppression of ideas here; and even if there is a narrow exception-to-the-false-statements-of-fact-exception for statements about the government or about scientific or historical claims, it shouldn't apply to a specific statement about one's own past. On the other hand, the legal issue is not as clear as one might at first think, given the Washington Supreme Court's decisions, and the lack of clarity to the Court's false statements of fact doctrine.
Some interesting (or at least fun) data on law professor campaign contributions:
So far, people listing their occupation as "law professor" have donated $18,365 to Republicans, and $149,542 to Democrats. Those who list their occupation as "professor of law" have donated $500 to Republicans, and $34,565 to Democrats.
A caution on extrapolating from those data points: on the one hand, the Democratic candidates in general [that is, from the public at large] have raised much more money than have the Republicans; on the other hand, given the much smaller number of Republican law professors, donating to a campaign is more likely to help get a Republican professor a future political appointment, perhaps giving an extra incentive to some Republicans to donate.
Ninety-seven self-described law professors have donated to Barack Obama, only thirty-five to Hillary Clinton. Fred Thompson is the Republican favorite, with seven donors, compared to Giuliani's five and McCain's four. Mike Huckabee, Ron Paul, and Dennis Kucinich have none.
Note that this is not even close to the complete universe of law professor donations. Many, perhaps most, law professors list their occupation as professor, not law professor. At Harvard, for example, Dershowitz, Elhauge, and Singer call themselves "law professor," but Mack, Stone, Tushnet, Wilkins refer to themselves simply as "professors," Tribe lists his occupation as "attorney," and Ogletree doesn't list an occupation. Even more obscure are Michelman and Parker, who don't use the word "law" in describing either their profession ("professor") or their employer ("Harvard University"). Nevertheless, the list of "law professor" and "professor of law" donations is likely representative of the greater universe of law professor donations.
A few other items I noticed: Drew Days, Bill Clinton's Solicitor General, contributed to Tom Vilsack's [???] campaign, but not to Hillary's. Professors sometimes considered "conservative," at least by legal academy standards, such as former Yale dean Tony Kronman, Harvard's Einer Elhauge, and Cardozo's Marci Hamilton, are Barack Obama contributors. Stanford Dean Larry Kramer has donated to both Clinton and Obama.
Plus, a non-law professor tidbit: Colin Powell is backing McCain. And an inside-baseball libertarian tidbit: Lew Rockwell, former Ron Paul chief of staff and president of the Ludwig von Mises Institute, who is perhaps the most vocal and vehement Ron Paul supporter in the blogosphere and perhaps the world, apparently hasn't given the good doctor at least $200 (the FEC reporting threshold), if anything.
Reader Opinion on State Laws Permitting the Death Penalty for Rape of a Child:
There have now been 1,650 responses to Friday's poll on state laws allowing the imposition of the death penalty for rape of a child. Let's look at the numbers. First, as a matter of policy, a majority of readers oppose such a law. The vote was relatively close, though: 62% oppose the new law and 38% support it. Of course, these numbers are meaningless without a sense of the political views of VC readers. In light of that, here's an earlier poll on the political orientation of VC readers (indicating that VC readers mostly self-identify as moderates on the left or right or as libertarians). Second, as a matter of constitutional law, a majority of readers think such a law is constitutional. Specifically, 54% of readers think such laws are constitutional, 20% thinks they are unconstitutional, and 25% doesn't know. Of course, it's not quite clear what this measures, as I didn't specify if I was asking for views on constitutionality that are normative (what the Justices should do), descriptive (what existing law requires), or predictive (what the Justices will do). Still, given the tendency of people to match their view of the constitution to their policy views, the numbers here are pretty interesting. Along those lines, it's interesting that the great majority of people who would support the law think it is constitutional, whereas only a minority of those who would oppose the law on policy grounds think it is unconstitutional. It's also noteworthy that 75% of readers who took the poll had a view as to whether the law violated the Eighth Amendment. Only one in four readers didn't have views on whether such a law would violate the Eighth Amendment.
Sunday, January 6, 2008
George McGovern Rewrites History:
In today's Washington Post, George McGovern joins the ranks of those calling for the impeachment of President Bush. As we enter the eighth year of the Bush-Cheney administration, I have belatedly and painfully concluded that the only honorable course for me is to urge the impeachment of the president and the vice president.
After the 1972 presidential election, I stood clear of calls to impeach President Richard M. Nixon for his misconduct during the campaign. I thought that my joining the impeachment effort would be seen as an expression of personal vengeance toward the president who had defeated me.
Today I have made a different choice. Setting aside the arguments for and against impeaching President Bush, McGovern is seriously misrepresenting his position on the Nixon impeachment proceedings. According to these news stories, for example, McGovern called for impeaching President Nixon in a speech in Richmond, VA in October 1974 1973 in order "to make America safe for Democracy." A Westlaw search also identifies abstracts to New York Times stories suggesting McGovern urged Nixon's impeachment on other occasions as well. For instance, the abstract to a NYT story from January 21, 1974 reports that McGovern believed there were "ample grounds" for impeaching President Nixon and that he was urging the Democratic Party to take this position.
I suppose McGovern could defend his column by arguing that he did not support Nixon's impeachment in the immediate aftermath of the 1972 Presidential election, and only supported impeachment later on. Yet if this were the case, he should have qualified his claim, perhaps by writing "Immediately after the 1972 presidential election." As written, his article is misleading, if not worse.
It is also worth noting that McGovern is not a new convert to the pro-impeachment position. In this article from last March McGovern is quoted saying that "Bush is much more impeachable than Richard Nixon was. That's been clear for some time."
If George McGovern wants to make the case for impeaching the President, so be it. But he should make his case without misrepresenting the historical record.
[NOTE: Several readers of The Corner contributed information used in this post.]
[NOTE: I've corrected the year of the McGovern speech noted above.]
Today's Parade Insert in the L.A. Times
has a big picture of Benazir Bhutto, with the headline "Is Benazir Bhutto America's best hope against al-Qaeda? 'I Am What the Terrorists Most Fear.' An interview from Pakistan by Gail Sheehy."
I know these things are printed some days before they're distributed -- still, given that she was assassinated 10 days ago, couldn't something have been done? Even an insert noting the situation and explaining the time lag might be better than nothing, though I'd think that even a total reprint would be justified, despite the costs. And, yes, I know it's just Parade, but it's inserted in the Times, and reflects on the Times' brand as well.
Baze on Baze:
Ralph Baze, who is one of the two petitioners in the lethal injection case being argued tomorrow, has this interesting comment about his case in the Louisville Courier-Journal: "The lethal injection (argument) is something one of my attorneys felt necessary to do," Baze said. "It is litigation that's time had come, and I just happened to be one of the people in the position where it could be filed under my name." Thanks to How Appealing for the link.
Baze v. Rees Oral Argument Preview:
Just in case you can't wait until tomorrow morning's argument in Baze v. Rees, C-SPAN has this preview discussion (RealPlayer required) featuring Roy Englert (who will argue the case for Kentucky) and Ty Alper (who authored an amicus brief in the case in favor of the inmates).
Steele on Padilla v. Yoo:
At Legal Ethics Forum, John Steele explores some of the causation and professional responsibility questions at issue in Padilla v. Yoo.
Welcome Back to School:
Just in time for the new semester, here are a few items of interest:
"Hit and Run" Where The "Perp" Didn't Hit Anyone:
From a local crime report: FELONY HIT & RUN, 12/04/07, 300 block S. 12 St. On December 4 around 6:45 am, a pedestrian was crossing S. 12 St near S. Clark St in a crosswalk. A
Dodge Caravan traveling east on S. 12 St yielded to the pedestrian, but a white sedan traveling west did not. The pedestrian fell onto the Dodge Caravan while trying to avoid being struck by the sedan. The suspect vehicle fled the scene. The pedestrian suffered minor injuries and was treated at a local hospital.
If the facts are right, the white sedan driver is clearly guilty of failing to yield to a pedestrian in a crosswalk, but "hit and run?"
Kucinich Challenges ABC News:
On Friday, Rep. Dennis Kucinich filed a petition with the Federal Communications Commission challenging ABCNews' decision to exclude him from last night's presidential debate.
Kucinich argued that ABC is violating equal-time provisions by keeping him out of the debate and noted that ABC's parent Walt Disney Co. had contributed to campaigns involving the four Democrats who were invited.
"ABC should not be the first primary," the Ohio congressman said in papers filed at the Federal Communications Commission.
ABC said the candidates left out of the debates failed to meet benchmarks for their support that were outlined to each campaign prior to the Iowa caucus. Kucinich did not complain about these rules ahead of time, said spokeswoman Cathie Levine, who had no further comment since she hasn't seen the FCC filing.
The petition did not accomplish much, as the debate went ahead without Kucinich. In any event, it is very difficult to argue that pre-set qualification rules, such as those employed by ABCNews, somehow violate equal-time rules.
Sunday Song Lyric:
A few months ago, the McCain campaign was down in the polls, virtually broke, and given up for dead. Now he's back in gear -- this year's comeback kid -- and with a strong showing on Tuesday he could become the Republican front runner. Even many conservatives who were once strongly anti-McCain are giving him a second chance. His experience proves, once again, that in politics there are second acts.
Are pop music fans as forgiving as primary voters? Britney Spears sure hopes so. Hardly a week goes by without some tabloid splash about her latest bizarre or self-destructive behavior. Yet rather than take responsibiloity for her actions and beg forgiveness, she's opted to attack the messengers who report on her woes. The lyrics of her new single, "Piece of Me," make light of her situation and laying the blame for her troubles at the feet of the tabloids and paparrazzi. I'm Miss bad media karma
Another day another drama
Guess I can't see the harm
In working and being a mama
And with a kid on my arm
I'm still an exceptional earner
And you want a piece of me
I'm Mrs. Lifestyles of the rich and famous
(You want a piece of me)
I'm Mrs. Oh my God that Britney's Shameless
(You want a piece of me)
I'm Mrs. Extra! Extra! this just in
(You want a piece of me)
I'm Mrs. she's too big now she's too thin
(You want a piece of me) Britney's anti-media attitude is not particularly new for pop stars or politicians. Attacking the media is as much a tradition in song lyrics as in politics. Artists from Don Henley ( "Dirty Laundry") to Velvet Revolver ( "Big Machine") have attacked the press or complained about media treatment in song. The "Piece of Me" video is somewhat reminiscent of Michael Jackson's anti-tabloid video for " Leave Me Alone." I don't think this worked so well for Jackson, who saw his career continue its slow decline. We'll see if Spears does any better. Any bets?
The Economist on Russian Jews in Germany:
The Economist has an interesting article on Russian Jews in Germany. Since 1991, some 200,000 Russian and other former Soviet Jews have emigrated to Germany. Until recently, Germany was one of the very few advanced nations that gave Russian Jews an automatic right to settle in the country. As a result, Russian Jews now make up over 80% of the total German Jewish population and Germany has Europe's fastest-growing Jewish community.
Much of what the article says is consistent with my own admittedly unscientific observations in Germany when I was a visiting professor there in 2004. At that time, I spoke with a considerable number of Russian immigrants, including some distant relatives of mine who moved there in the mid-1990s. It is true that there are significant tensions between Russian Jews and native-born German Jews, and it is also true that the majority of Russian Jews in Germany (as in the US and Israel) are generally secular and have relatively little interest in religious observance. As in this country, that fact is a source of conflict with the more religious elements among native-born Jews.
However, the article obscures the fact that, for most of the Russian Jews, life in Germany is much better than in the former Soviet Union - not only in terms of economic opportunity, but also because there is much less anti-Semitism in Germany today than in Russia.
The main problem for most Russian Jews in Germany is not the strained relationship with the small native-born Jewish community but the difficulty of finding jobs in the tightly controlled German labor market (where stringent government regulation has led to high unemployment), and of assimilating into a German society that tends to be less accepting of immigrants than is the case in the US. While most Germans today frown on anti-Semitism, many do have a strong sense that immigrants (whether Russian Jewish or not) from other cultures can never be fully German. On the other hand, younger Russian immigrants that I met in Germany seem to be more fully assimilated than the older ones and I am guardedly optimistic about the longterm future of Russian Jews in that country.
Finally, I should note that the Economist article contains two significant factual errors that make me wonder about the accuracy of the rest of their material. First, the article claims that for Russian Jews, "Hitler was the enemy only in a military sense" (unlike for native-born German Jews, many of whom perished in the Holocaust). In reality, several hundred thousand Soviet Jews died in Holocaust, including about a half dozen of my own relatives. In The Destruction of the European Jews, Raul Hillberg estimated that 700,000 Soviet Jews died in the Holocaust, in addition to 200,000 from the Baltic States (which were forcibly annexed by the USSR in 1940). Awareness of this among Russian Jews is very strong, since almost all those whose families lived in the parts of the USSR occupied by the Germans lost relatives in the Holocaust (and the vast majority of Soviet Jews did in fact live in areas occupied by the Germans in 1941-42).
The article also claims that a high percentage of Soviet Jews lacked "documents" proving their Jewish identity. I'm sure this was true in some cases, but highly doubt that the problem was as great as the Economist claims. The article fails to note the fact that Soviet Jews, like everyone else in the USSR, were required to have internal passports that noted their "nationality" (Soviet law regarded Jewishness as a "nationality" analogous to being Russian or Ukrainian). These documents could be and routinely were used to establish Jewish identity for purposes of emigrating to the US, Germany, or Israel.
Both of these facts could easily be discovered through research and the first is pretty widely known even without it. If the Economist nonetheless got them wrong, it's hard not to wonder what other, less obvious, mistakes there might be in the article.
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