The Volokh Conspiracy

from Dahlia Lithwick in Slate (hat tip: InstaPundit).

I've blogged about this before, but what's striking is precisely how routine such cases are in Michigan. Here's an excerpt from the latest, Kik v. Kik, 2008 WL 376404 (Mich. App. Feb. 12):

As to raising Emma [age 2.5 at the time], the trial court found that this sub-factor favored plaintiff based on the testimony that plaintiff had a stronger religious background and was more actively involved in bringing the minor child to church than was defendant. Because this finding was based on the record evidence, no error occurred with regard to this factor.

Let's set aside the broader First Amendment questions on when a court may treat a parent worse because that parent's speech (religious or otherwise) to the child seems likely to harm the child. Here, there was no finding remotely like this.

Rather, the court was simply interpreting Michigan's best-interests statute — which requires the consideration of "[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any" — as giving a preference to the more religiously active parent.

This seems to be an even clearer case of religious coercion than in Lee v. Weisman, the graduation prayer case: Under the Michigan rule, which Michigan courts often apply (see the Appendix to this article), Michigan parents know that, to maximize their chances of keeping custody of their children, they need to go to church more often. A solid violation of the Establishment Clause, I think, plus of the Michigan Constitution's religious freedom provision:

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend ... any place of religious worship .... The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.

(probably). Tom Bell has it for you.

"[Barack Obama] said some scholars argue the Second Amendment to the Constitution guarantees gun ownerships only to militias, but he believes it grants individual gun rights." "'I think there is an individual right to bear arms, but it's subject to commonsense regulation' like background checks, he said during a news conference."

On the other hand,

Although Obama supports gun control, while campaigning in gun-friendly Idaho earlier this month, he said he does not intend to take away people's guns.

At his news conference, [Prof. Obama] voiced support for the District of Columbia's ban on handguns, which is scheduled to be heard by the Supreme Court next month.

Sounds like it's a pretty thin form of "individual rights" he supports — and he doesn't intend to take away people's guns, except if they're the very sort of gun that people are most likely to want to keep for self-defense purposes. (Though, to be fair, the Bush Administration's Justice Department seems to have taken a view that may amount to the same thing.) Or maybe he as President wouldn't campaign to take away people's guns, but thinks it's OK if "local jurisdictions," including federal ones, ban people from owning handguns. Hard to tell for sure.

Hat tip: How Appealing.

"the dating relationship would be no contact -- no hand-holding or kissing" -- good (or that's what I'd think!).

She tells you she "[doesn't] belong in [your] home any longer because she ha[s] to fight demons every day and she belong[s] with her daddy, [the boyfriend's father]" -- not so good.

She comes to "believe[] certain objects including her teddy bears [are] possessed by demons" -- not so good, either.

The parents encourage her to leave your allegedly demon-ridden home and move in with them -- a class B misdemeanor.

right there on p. 6 of today's U.S. v. Villanueva-Sotelo. Not sure this adds much, especially given that -- according to the court -- "[i]n the end, this grammatical observation is beside the point given that the parties, as well as relevant case law ..., are best understood as using the word 'modify' more loosely" than how it is understood "from a grammatical point of view." Still, this struck me as noteworthy. Plus the case creates a circuit split, so maybe sentence diagramming may come to the Supreme Court.

Hat tip: How Appealing.

John Weidner (Random Jottings) (hat tip: InstaPundit) soundly critiques Earl Ofari Hutchinson's "What Will Obama Do When There's No Hillary Firewall?". "Dirty stuff," to Hutchinson, seems to consist of, well, factually accurate criticisms of policy positions. Thus, Hutchinson writes,

There was an early hint of the dirty stuff that will come his way. The instant that Obama announced his campaign last February, National Rifle Association executive vice-president Wayne LaPierre wasted no words when asked about Obama's strong support for a ban on semi-automatic assault weapons, and severe limits on handgun purchases during his tenure in the Illinois Senate.

He called Obama's pro-gun control stance "bad politics." LaPierre's admonition was an ominous warning that the powerful gun-lobby group would oppose Obama, and so would millions of other passionate gun owners that take their cue from the NRA.

And that is "dirty stuff" because ...?

The Public Library of Law just launched, and it reports that it provides free access to all Supreme Court cases, federal appellate cases from 1950 on, and state cases from 1997 on. You can also search through all these jurisdictions at once.

I still expect I'll use FindLaw quite a bit, because FindLaw lets one link to cases from posts, and have readers be able to follow the links without registering. But PLoL's coverage and search ability seems to be in many ways better than FindLaw's, so I think I'll be using PLoL quite a bit -- and of course those who don't have free Westlaw and Lexis will find PLoL more useful still.

The Ninth Circuit "I plead the Fifth" opinion reminded me that people should plead other amendments more often.

When someone wants to stay at your house when he's visiting town, and you'd rather he didn't, you should plead the Third. (Special bonus if he's a government employee.)

When someone wants you to give him something for free, you should plead another clause of the Fifth.

When you're being told you shouldn't drink, and you want to, you should plead the Twenty-First.

In Russian, "a reference in a footnote" and "internal exile" (often as a form of criminal punishment) are the same word, ссылка (ssylka). Odd but true.

Or maybe not so odd, given the root "send"; the footnote sends you to another source, the exile to another city. So remember: Footnotes are the Siberia of your article (and endnotes, I suppose, the Kamchatka).

John Mellencamp asked the McCain campaign to stop playing Mellencamp's "Our Country" at McCain events; the campaign agreed. Tom Scholz of Boston asked that the Huckabee campaign stop playing Boston's "More Than a Feeling" (sometimes with former Boston guitarist Barry Goudreau). "Any chance we could see a post regarding any legal or ethical issues here?," asks reader Jeff Johnson.

1. Copyright Law: Generally speaking, the owner of the copyright in a "composition" -- the music and words of the song -- has the exclusive right to control the public playing (whether live or from a recording) of the song. The owner of the copyright in the "sound recording" (a recording of a particular performance of the song) generally does not have such an exclusive right. So if Mellencamp or Scholz own the copyright in the songs, they could have a legal claim against such public performances.

2. License: However, precisely because of this many venues -- stadiums, convention centers, and the like -- have so-called "blanket licenses" via ASCAP and BMI that license the performance of all the works in ASCAP's and BMI's very large catalogs. It's been a long time since I've looked at a sample license, but I doubt there's any exclusion for political events. The performance of the song might thus have been authorized by the copyright owners (even if on reflection they might be annoyed by this particular use). I take it that the campaign could get such a license itself as well, to allow the song to be played in places that don't have their own blanket licenses (though I can't be sure, since that's a matter of ASCAP and BMI contractual licensing practices, not of formal copyright law).

3. Fair Use: Even if the performance isn't authorized, for instance because the song somehow isn't in the ASCAP/BMI catalog (unlikely for famous songs) or because no license has been gotten to cover the use, the performers could argue fair use. My sense is that if an ASCAP/BMI license is available but the campaign just didn't get it, the use wouldn't be fair -- though noncommercial, it would involve using an entire expressive work, in a nontransformative way, without paying the customary price. But oddly enough if the use was blocked precisely because of the user's politics (i.e., the copyright owner said "I don't license the song for political events," or "I don't license the song for your political events") the case for fair use would be stronger, though not open-and-shut: Precisely because the copyright owner deliberately chose not to make money off such uses, the "effect on market" fair use factor would no longer cut in the copyright owner's favor.

4. Trademark: The use of the band's or singer's name -- for instance, when the Huckabee campaign announces that it's being played by a former Boston guitarist -- likely won't infringe the band's rights regardless of whether a license has been gotten. There's just no material likelihood of confusing the public into thinking that the band endorses the campaign (the statement is just that this particular former band member endorses it, and musicians, like professors, are known to speak for themselves in political matters and not for their colleagues). Likewise, there's no material likelihood that such announcements will dilute the trademark, and in any event the trademark dilution claim probably won't apply to noncommercial uses such as this one.

5. Practical Politics: But whatever the campaign's legal rights might be here, it strikes me as very bad politics to use a song when its author -- whether or not he owns the copyright -- objects. McCain presumably wants to attract Mellencamp fans, not alienate them. Why would he want to give the liberal Mellencamp a public opportunity (with lots of likely media attention) to condemn the McCain campaign, and to explain why Mellencamp feels wronged (whether or not the wrong is a legally actionable wrong) by the campaign? So once the author of the song (or perhaps even others associated with the song) complains, it's generally speaking much better politics just to stop using it.

6. Ethics: All this having been said, I don't think there's an ethical problem with the campaign's using an objecting author's song, if the use isn't infringing. Nor is there an ethical problem with the author's asking that they not use the song, even if the use isn't infringing. The main question (once the legal issues are set aside) is purely political, not ethical.

The House Committee on Energy and Commerce is investigating alleged withholding of clinical trial data in a pharmaceutical trial. Anonymous posts on the CafePharma.com site suggest that posters knew about the trial results months before they were publicly released, so the House Committee on Energy and Commerce asked CafePharma for "all records relating to any posting on CafePharma.com related to the ENHANCE study, including but not limited to ... e-mail and internet protocal addresses of anyone creating such a post." (This was indeed just a letter requesting this, not a subpoena, but I take it that there was an implicit threat of a possible subpoena, and the letter speaks of the possibility that the Committee would "require" more information.)

CafePharma responds:

[W]e do not collect any user information with anonymous posts (including IP addresses). Therefore, we do not believe we will have any information to provide regarding these posts.

California version of Megan's Law orders the California Department of Justice to put on the Web information about sex offenders; but Cal. Penal Code § 290.46(j) says that:

A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.

Gerald Moerler, a teamster, is a registered sex offender (having been convicted of "lewd and lascivious acts with child under 14 years"). He claims that various fellow union members and Vons members "posted and mailed fliers in the City of Covina for the purpose of harassing Moerler," and he therefore sued for damages. (The statute provides, that "Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) ... shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney's fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).")

The California Justice Department's Megan's Law FAQ seems to be on Moerler's side, plausibly interpreting the statute as barring people from telling others about what they learned from the Web site, as a form of "use" of the information:

[Q:] I want to share with others the information I found on the Attorney General's Megan's Law Website. Does the law prohibit me in any way from sharing this information?

[A:] A person may use the information disclosed on the Attorney General's Web site only to protect a person at risk. It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony. Unless the information is used to protect a person at risk, it is also prohibited to use any information that is disclosed pursuant to this Internet Web site for a purpose relating to health insurance, insurance, loans, credit, employment, education, scholarships, fellowships, housing, accommodations, or benefits, privileges, or services provided by any business. Misuse of the information may make the user liable for money damages or an injunction against the misuse. Before using the information disclosed on this Web site, you may want to consult with an attorney or merely suggest to others that they view the Web site for themselves.

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one's purpose is "only to protect a person at risk." If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people — not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person, or for that matter to provide background on a litigant for a blog post — one risks damages liability or, under another provision of the statute, an injunction.

This has long seemed to me like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it's unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I'd think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record.

And though the California legislature apparently thinks it indeed may restrict speech this way, I'm pleased to report that a California trial court judge has just thrown out Moerler's case on First Amendment grounds. Unfortunately, such trial court decisions don't set a binding precedent, and may not even set a persuasive precedent given that they usually aren't published anywhere, even in Westlaw or Lexis. But if this is appealed, I expect that the California Court of Appeal will affirm, and rightly so.

By the way, to my knowledge this case hasn't been covered in the mainstream media, even though it involves the first First Amendment challenge I know of to the Megan's Law provision.

I blogged below about the details of the case — a court concludes that an employee can sue someone for repeatedly circulating in the workplace e-mail with anti-Islam/anti-Muslim/anti-Arab statements — and I've written elsewhere about why such liability is unconstitutional. But I want to focus a bit on the court's First Amendment analysis, because it's even more dangerous to free speech than some other pro-harassment-law analyses have been.

Here's how the court reasons:

Tefft contends that his emails were protected speech under the First Amendment. Specifically, he argues that the emails were a form of political speech and that he cannot be held liable for their content under Section 1981 or its state analogs. However, any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes’ objective of remedying racial discrimination. As the Supreme Court has noted, “[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R.A.V. v. St. Paul, 505 U.S. 377, 389 (1992).

That's wrong because hostile environment harassment law applies to speech in these cases precisely because of its expressive content: It is the content and the viewpoint of the e-mail that creates the offensive environment. (You could imagine a hostile environment created by the nonexpressive content of someone's conduct, for instance because the conduct is unwanted touching, but that's not so here.) As I argue at length in my Cornell article, a law that applies to speech precisely because of what the speech communicates — and the harms that might flow from such communication — can't just be dismissed as "incidental" regulation.

But even setting aside the doctrine, consider the implications of what the court is saying. Just as discrimination based on religion and other criteria is barred in employment, it's also banned in education and in public accommodations. That's the reason for the spate of campus speech codes written in "hostile educational environment" terms, lawsuits based on alleged "hostile educational environments" and lawsuits based on alleged "hostile public accommodations environments" — for instance, when a bar, library, club, or other business engages in (or simply allows) speech that offends some patrons based on religion, sex, race, and the like. And the court's First Amendment analysis would apply to those things precisely the same way, because all these doctrines are structurally identical, and "any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes’ objective of remedying racial discrimination."

There would thus be no First Amendment problem with imposing liability on a university that tolerates anti-Islam/anti-Muslim/anti-Arab speech (or for that matter anti-Christian speech, anti-Mormon speech, and the like). There would be no First Amendment problem with imposing liability on a library that doesn't properly filter access to material that might offend Muslim patrons, or on a bar that posts supposedly blasphemous material on its walls, or on a restaurant that doesn't censor patrons' anti-Muslim statements when fellow patrons object to such statements.

Finally, the court goes on to say:

The Supreme Court has found that sufficiently severe or pervasive harassment on the basis of a prohibited category, including religion, race, or national origin, constitutes “employment discrimination” and is therefore actionable under federal law. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (“[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends [the] broad rule of workplace equality.”). Accordingly, the First Amendment does not preclude Plaintiff’s discrimination claims.

Well, such speech also constitutes "educational discrimination" and "public accommodation discrimination" (on the theory that tolerance of an offensive environment based on a criterion equals discrimination based on that criterion) when it happens at universities and at places of public accommodation. But that the speech violates a statutory rule is only the start of the inquiry — the question is whether the First Amendment trumps that statutory rule in some situations.

And the Court has never answered that question. Meritor and Harris didn't consider the First Amendment arguments; Meritor didn't involve speech, and though Harris did involve speech (speech that quite likely could be punished), no First Amendment arguments were raised at trial or before the court of appeals — the First Amendment was raised only in the Supreme Court brief, and therefore rightly ignored by the Court. "It is [the Supreme Court's] practice to decline to review those issues neither pressed nor passed upon below," and it's clearly settled that "cases cannot be read as foreclosing an argument that they never dealt with." As to R.A.V., see here for why it doesn't resolve the constitutionality of harassment law as applied to otherwise protected speech (i.e., speech that doesn't fit within exceptions such as fighting words or threats).

Bruce Tefft is a counter-terrorism adviser hired by the NYPD, and he had a habit of sending department-wide e-mails harshly critical of Muslims, Islam, and apparently Arabs:

These email briefings stated that Muslims and Arab Americans were untrustworthy and could not reliably serve in law enforcement positions or handle sensitive data. For example, Tefft sent emails stating that “a good Muslim ... can’t be a good American”; “[w]ithout Islam, there wouldn’t be any Islamic Terror”; and, “[b]urning the hate-filled Koran should be viewed as a public service at the least.” Tefft also attached his own comments to articles he forwarded. Attached to an article entitled “Al-Qaeda Wants to Repeat 9/11 in Israel,” he commented: “Makes one wonder how many Muslim pilots the US National Guard, Reserves, and/or US Air Force have flying around US Cities.” In another article entitled “Has U.S. Threatened to Vaporize Mecca?” he added, “Excellent idea, if true.” ...

In addition to the emails, Tefft directly stated to Plaintiff’s colleagues that they should not trust Plaintiff or any other Muslim in law enforcement because “Muslims have no place in law enforcement.”

So plaintiff — a NYPD Intelligence Division police officer — sued the city and Tefft personally for tolerating and creating a hostile work environment. ("Plaintiff, an Arab-American, alleges that he was forced to read almost daily emails sent by Tefft, a counterterrorism adviser hired by the New York City Police Department ..., that contained racially and religiously discriminatory content targeted at Arabs and Muslims.") Plaintiff also alleged that other city employees made anti-Arab and anti-Muslim statements, though it's not clear whether they were to plaintiff specifically or to coworkers generally. But he didn't just sue the city for the aggregate of all this speech; he sued Tefft personally based on Tefft's own e-mails. Such personal liability generally isn't allowed under Title VII, but is allowed under 42 U.S.C. § 1981 and seems to be allowed under New York law.

Last week, the federal district judge in this case (Doe v. City of New York & Bruce Tefft) held that plaintiff's case may go forward — that, if the facts are as the plaintiff alleges them to be, Tefft can be financially liable based on the anti-Islam/anti-Muslim/anti-Arab speech. Such speech could be, under the relevant legal standard, be "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" based on religion and ethnicity for the plaintiff and for a reasonable person. And the damages in such cases could easily go into the hundreds of thousands of dollars or more.

This, I think, well illustrates what I've been arguing for 15 years: In many (though certainly not all) contexts, hostile environment harassment law violates the First Amendment. Here a court is saying that speech can lead to massive liability because of the viewpoint that it expresses, and the offensive environment that the viewpoint causes. The speech doesn't fit within any exception to First Amendment protection — for instance, it's not "fighting words" (a narrow exception that's limited to one-to-one speech likely to cause a fight, and that generally excludes political advocacy conveyed to a broad group of listeners), nor is it incitement to lawless action. The government isn't just acting as employer to restrict speech by its employees (an area in which it has a freer hand); the court is enforcing a law created by the government acting as sovereign, a law that equally applies to private employers.

What's more, the effect of the law is to pressure all employers — on fear of government-imposed liability — to suppress such viewpoints, and to pressure employees not to express such viewpoints. Employers are now on notice that tolerating viewpoints harshly critical of Islam, Muslims, and Arabs can lead to liability. True, individual statements won't lead to such liability (usually), but an employer can't just tell employees: "Say what you please, so long as your speech, aggregated with the speech of others (speech that you might not even know about), is not severe or pervasive enough to create an offensive work environment based on race, religion, and the like." The employer has to restrict each individual statement, in order to prevent liability based on the aggregate of statements.

And, as I said, the law doesn't just apply to police departments. It applies to any employer: private security companies, think tanks, universities, newspapers, law firms, and any other place where people discuss these issues, whether the issues are closely related to work or are just talked about by employees who talk politics at work. And I stress again that this is the government as sovereign imposing such a viewpoint-based restriction (both on employees directly, and on employers, hoping that it will lead employers to suppress employee speech). Private employers, like private newspapers, colleges, churches, commercial landlords, service providers, and others, are free to restrict speech on their property. But the First Amendment should stop the government from coercively pressuring these private entities into suppressing such speech.

Finally, note that employers and speakers can get no reassurance from the fact that the speech here was unusually frequent ("almost daily emails"). "Severe or pervasive" is a vague term, but it's clear that even statements that happen once every month or two can qualify. Consider, for instance, Schwapp v. Town of Avon, a Second Circuit case holding that "ten racially-hostile incidents of which [plaintiff] allegedly was aware during his 20-month tenure" — of which only four occurred in his presence — were enough to create a potential harassment case.

For more on how much speech harassment law can punish or coercively deter, see here. For more on the First Amendment doctrinal issues raised here, see here.

A reader writes (semi-jocularly), "is it true that dildos have meaningful constitutional protection but that guns [do not] (notwithstanding their textual protection)?" Well, remember that this is the Fifth Circuit, which held in U.S. v. Emerson that the Second Amendment does secure an individual right -- so both dildoes and guns are protected there.