The Volokh Conspiracy

Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments

The just-enacted Ariz. Rev. Stat. § 41-1493.04 provides, in relevant part:

B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.

C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.

And “exercise of religion” is defined (in § 41-1493.01) very broadly:

“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

I take it that the new provision doesn’t literally mean that the government shall not deny a person an appointment or position based on the person’s ability to act in a particular way, since everybody is able to do so. It’s also possible that section C will be read not just as not authorizing criminal conduct (a meaning that’s relevant to section A, which I hope to blog about separately), but as also exempting criminal conduct from section B, though that is not section C’s literal meaning. The new law, coupled with the old, would then essentially mean:

Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s … [non-criminal] [action or inaction that is] substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

Even read this way, though, the statute would be quite remarkably broad. Government officeholders and board and commission members are often selected based on their ideological beliefs and certainly on their past actions. People who discriminate based on race or religion or sexual orientation in their companies – whether such discrimination is civilly actionable or not – might not be selected for membership on a human rights commission. Notorious advocates of the use of faith healing instead of traditional medicine might not be selected for a medical regulatory board.

Lawyers who have violated bar rules (for instance, by breaching client confidences, even for powerful moral reasons) might not be selected for membership on bar disciplinary committees. People who live in households that are essentially polygamous (but don’t try to engage in a formal polygamous marriage) might not be appointed as family court judges. [UPDATE: Likewise, people who have publicly stated that they oppose the death penalty under all circumstances might not be appointed to the Board of Executive Clemency.] The list could go on.

Yet, if taken seriously, this law would bar all such selection decisions, if the person’s discriminatory conduct, public support for faith healing, breach of client confidences, [UPDATE: public opposition to the death penalty], or polygamy were religiously motivated. Even if the appointing official is not at all motivated by the prospective appointee’s religiosity, but is focused solely on the appointee’s past conduct, the law bars discrimination even based on that conduct, so long as the appointee engaged in that conduct for religious reasons.

This seems to me to be wrong. There are good arguments for having laws that authorize presumptive exemptions for people who have religious objections (or, I think, secular conscientious objections) to generally applicable laws. But (1) those arguments are much weaker, I think, when we’re not talking about the government acting as sovereign, restricting what we do, but are talking about the government acting as employer of high-level decisionmakers. (Note that “public office” in Arizona refers not to all public employment, but to certain kinds of relatively high-level decisionmaking appointments.) And (2) they make sense only to the extent that they call for a presumptive exemption that can be overcome by a showing of sufficient government need, not a categorical exemption.

Thus, for instance, federal religious accommodation law requires employers (private and governmental) to accommodate employees’ religiously motivated behavior when such accommodation doesn’t impose “undue hardship” on the employer. State Religious Freedom Restoration Acts (including such an act that has been the law in Arizona for some years) could be read as imposing similar protection, or as providing higher protection that can only be overcome by a showing that the government has a “compelling interest” in restricting its employees’ religiously motivated behavior.

But this law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law.

The L.A. CBS station reports:

Pacquiao was scheduled for an interview on Wednesday afternoon with Mario Lopez of TV’s “Extra” at The Grove in Los Angeles, but … Grove VP of corporate affairs Bill Reich … [issued a statement that] read, “Based on news reports of statements made by Mr. Pacquiao we have made it be known that he is not welcome at The Grove and will not be interviewed here now or in the future. The Grove is a gathering place for all Angelenos and not a place for intolerance[.]“

According to the CBS piece, Pacquaio — who is also a congressman in the Philippines — “told the National Conservative Examiner that he believes the Bible is very clear on the issue of homosexuality and that the President’s comments are in direct contradiction to Scripture,” saying “God’s words first”; “Obey God’s law first before considering the laws of man.” Then the writer of the article quoted the Leviticus passage stating, “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.” Pacquaio now denies having quoted Leviticus on this or otherwise “stat[ing] that anyone in the gay community ‘deserved death,’” but it’s possible that the Grove VP believed that Pacquaio had indeed made such a statement.

In any event, it appears that the Grove, as a pretty large open-air shopping mall, is barred by the California Constitution, as interpreted by the California Supreme Court in Robins v. PruneYard Shopping Center (1979) and Fashion Valley Mall v. NLRB (2007), from excluding Pacquaio. The California courts have held that speech is just as protected against content-based restrictions by these large shopping mall owners as it is against content-based restrictions by the government in its role as owner of sidewalks and parks; and this is true even when the content of the speech may undermine the shopping center’s (and its tenants’) business interests (e.g., when it calls for a boycott of some of the tenants). I think that likewise the shopping center can’t restrict speech based on its moral disapproval of the speaker’s political views, or its perception that other patrons might find those views offensive.

To be sure, here the restriction is imposed based on the content and viewpoint of the speaker’s outside speech, and not necessarily the content of the likely speech in the mall. But I think that, one way or the other, the Grove’s restriction would be treated as content-based and violative of the California Constitution (though it seems unlikely that Pacquaio or his prospective interviewer will sue the Grove over this).

I say this just as a description of California law; I don’t think that the California Supreme Court’s decision in Robins was a sound interpretation of the California Constitution, and I’m pleased that only about half a dozen state courts, when I last checked, have taken a similar view of their state constitutions. Thanks to Daniel Watts for the pointer.

Check out today’s Hall et ux. v. United States, a bankruptcy law case in which Justice Sotomayor’s majority opinion is joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, and Justice Breyer’s dissent is joined by Justices Kennedy, Ginsburg, and Kagan. This is also a good opportunity to make sure you know what “et ux.” means; the term is no longer used in most citations, I think, but the Supreme Court and some other courts still use it in captions.

The “crossover sensation” line is borrowed from my coblogger John Elwood.

The Wisconsin State Journal reports:

A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old.

Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church’s literal interpretation of the Bible.

The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom.

Circuit Judge Maryann Sumi found that Caminiti had “a sincerely held religious belief” as a Christian fundamentalist that requires using a rod to discipline children beginning at a young age. But Sumi said Caminiti failed to show the state’s child abuse statute “places a burden on his sincerely held religious belief.”

“Scripture doesn’t specify how and when the rod should be used,” Sumi said, adding that Caminiti also was willing to modify the church’s practices to comply with the law….

If Caminiti had simply preached the propriety of such behavior in the abstract, I think such a conviction would likely be unconstitutional under the Free Speech Clause without regard to any special religious freedom claim, given Brandenburg v. Ohio (1969), even if the hitting of the children would indeed be a crime. (It probably would be; note that, according to the sheriff’s department, “the dowels were described as being 12-18 inches long with a diameter about the size of a quarter.”)

Teaching that it’s proper or even obligatory to commit a crime is generally constitutionally protected unless it’s intended to and likely to yield imminent crime, which is to say crime some time in the immediate future, likely within a few hours or at most days, and not “at some indefinite future time.” That’s why it’s not a crime to teach that it’s proper or even religiously obligatory to use marijuana, or to refuse to register for the draft, or to engage in jihad. And it sounds from news accounts that the minister’s teachings were not intended to yield such imminent conduct, but instead were meant as guidance for “some indefinite future time.”

But if Caminiti had specifically counseled particular parents about what to do with their particular children in particular contexts — “minister, my child did this-as-such; should I beat him tonight for it?” — this might qualify as either incitement of imminent criminal conduct, or as constitutionally unprotected solicitation of crime (see United States v. Williams (2008)). The line between solicitation, which is unprotected even when it calls for action in the indefinite future (e.g., “please send me some child pornography, whenever you happen to have some”) and incitement, which is protected unless it calls for imminent action, is unclear. Urging people that some general course of action is morally obligatory, without reference to a particular proposed action dealing with a particular person or a particular item, would be a classic example of material covered under Brandenburg (general advocacy) rather than Williams (solicitation). But the more specific the advocacy, the more likely it is to be seen as unprotected solicitation (or as unprotected incitement, if it’s advocacy of what the parent is to do right away).

Note that Wisconsin courts have interpreted the Wisconsin Constitution to require, in some situations, religious exemptions from generally applicable laws, under the Sherbert/Yoder regime. But it’s not clear to me that, even so, the best argument for the minister is a religious freedom argument. The protection offered by free speech law in such cases should, I think, be rather greater than the protect offered by religious exemptions law. And if the pastor’s speech is unprotected by the Free Speech Clause, I doubt that courts would find it protected even under the state constitution’s religious freedom guarantee, even using the Sherbert/Yoder test.

If anyone can point me to any reasoned opinions on the judge’s part in this case — or to more facts on the subject — I’d love to see them. All I could find myself online is the docket sheet, which doesn’t have the documents. Note that “Caminiti was not charged with having committed any abuse himself.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The Guardian (UK) reports (see also MSNBC Cartoon Blog and other sources):

Mahmoud Shokraye was put on trial after an Iranian MP, Ahmad Lotfi Ashtiani, took offence to a cartoon he drew of the parliamentarian in Nameye Amir, a city newspaper in Arak, the capital of Iran’s central province of Markazi….

In the cartoon, Ashtiani is depicted in a football stadium, dressed as a footballer, with a congratulatory letter in one hand and his foot resting on the ball. The MP’s forehead has a dark mark, said to be the sign of a pious Shia Muslim, caused (supposedly) by frequent prostration during prayer. The cartoon contains little exaggeration and Ashtiani’s forehead has a prayer mark in reality.

Shokraye drew Ashtiani following widespread criticism in Iranian society towards a number of politicians who have been accused of interfering in the country’s sports….

Speaking to an Iranian journalist, Esmail Kowsari, a member of the parliamentary committee on national security, defended the sentence: “[A cartoonist] should be persecuted if the cartoon is not ordinary and ridicules someone … Any crime has its own punishment, including lashing, imprisonment or being fined.”

Note that “persecuted” might (or might not) be a mistranslation. Thanks to Opher Banarie for the pointer.

A pleasant story of the law being fixed as a result of public criticism — much of it online — just as in Arizona last month:

Last year, the Tennessee Legislature enacted a statute that essentially banned the online posting of images that cause “emotional distress” “without legitimate purpose.” As I blogged on June 6, the law made it a crime to

(4) Communicate[] with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

The law therefore applied not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they were acting “without legitimate purpose,” (2) they caused emotional distress, and (3) they intended to cause emotional distress or knew or reasonably should have known that their action would cause emotional distress to a similarly situated person of reasonable sensibilities. So,

1. If you had posted a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’d likely have been a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
2. Likewise, if you had posted an image intended to distress some religious, political, ethnic, racial, etc. group, you too could have been sent to jail if a government decisionmaker thought thinks your purpose wasn’t “legitimate.” Nothing in the law required that the picture be of the “victim,” only that it be distressing to the “victim.”
3. The same would have been true even if you hadn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would have “cause[d] emotional distress to a similarly situated person of reasonable sensibilities.”
4. And of course the same would have applied if a newspaper or TV station had posted embarrassing pictures or blasphemous images on its site.

After — I can’t say whether because of — the June 6 post, there was a good deal of criticism of the new law, and it looks like the Tennessee Legislature listened. Last week, it passed (unanimously in the Senate, 76-14 in the House) and sent to the Governor a bill that basically limited the statute to threats; if the Governor signs the bill, then the law would be limited to making it a crime to

(4) Communicate[] with another person or transmits or displays an image without legitimate purpose with the intent that that the image is viewed by the victim … [when the communicator]:

(A) Maliciously intends the communication to be a threat of harm to the victim; and

(B) A reasonable person would perceive the communication to be a threat of harm.

This seems to be limited to speech that fits within the “true threats” exception to First Amendment protection (at least if “harm” is reasonably interpreted as a threat of illegal physical harm or vandalism, rather than a threat of, say, boycott or social ostracism, which are generally constitutionally protected).

So it looks like public criticism of speech restrictions, even ones that seem to target supposed “bullying” or “harassment,” has worked in this instance; I’m very glad to see that. For more on the change in the law, see this TN Report article posted yesterday.

An article by Will Tuell (who apparently is or was a local town selectman) in the Downeast Coastal Press reports that State Senator Cynthia Dill — seemingly the leader in the Democratic primary, though not necessarily a strong competitor to Independent candidate and former Governor Angus King — endorses Court-packing:

On the issue of whether the Supreme Court needs to be reformed, Dill, a civil rights lawyer with experience in the federal court system, called for major changes reminiscent of those sought by President Franklin Delano Roosevelt. …

Dill said she approves of President Obama’s picks and would consider expanding the number of justices on the Court if decisions she sees as unfavorable continue to be passed down. “I think there’s promise, but if we continue to get these poor decisions, I’m not opposed to adding justices. The Constitution doesn’t say we have to have nine justices, and if these nine can’t figure it out and keep producing 5-4 decisions that are crippling our country, let’s throw a few more good justices on the Court and straighten things out.”

I should note that I see nothing inherently wrong in the political branches pushing back against the Court, whether through ordinary nominations, through constitutional amendments, or possibly even through proposals to limit the Court’s jurisdiction (though I’m skeptical about the latter). But Court-packing strikes me as a pretty poor idea: It’s nearly certain to lead to partisan tit-for-tat should this be done by one party, and the consequences of such tit-for-tat are likely to hurt the judicial system with little compensating benefit, either for Democrats or Republicans. In any case, I thought I wanted to note that such a proposal was being discussed, though of course I realize that it’s politically very unlikely to succeed.

The full article, reprinted with the editor’s permission, is below:

Continue reading ‘Leading Democratic Primary Candidate for Senator from Maine Calls for Court-Packing’ »

The trouble is that it appears that he does indeed have a criminal record. The complaint, in Richey v. Walker (Ga. Super. Ct. May 3, 2012) is based on these statements on the Georgia Politics Unfiltered blog:

1. “Rashad Richey, the person in charge of making political decisions for Georgia Democratic Party, has a history of making poor personal decisions.”
2. “The money raised from this event will help keep Rashad Richey the Recidivist on the Democratic payroll for a long time.”
3. “We now know what Ali Rashad Richie used all that cash for … Bail money.”
4. “So, a criminal is in charge of directing Democratic politics across Georgia.”
5. “Ali Rashad Richie, political director for Georgia’s Democratic Party is a jail bird. Rashad Richie is a recidivist.”

The complaint seems to be arguing that this is false because “recidivist” means someone who has committed more than one felony, and “Plaintiff is not a convicted Felon.”

But WSB-TV reports that, “Richey had a series of misdemeanor convictions for criminal trespass and simple battery. Channel 2 Action News has now learned Richey also had a felony conviction for aggravated assault in 1998 but was sentenced as a first-time offender. When he completed his sentence, the felony was wiped from his record.” GPB News reports that Richey’s “attorneys confirm that Richey has been arrested for a variety of misdemeanor charges, including driving with a revoked license, battery, obstructing an officer and family violence.” (Note that this is confirmation of the arrest record, and not of a conviction record, but the WSB-TV story states there was a conviction record, and nothing in the GPB News story denies that.) A quick criminal history search of my own revealed Richey’s aggravated assault conviction, and another site posts a 2007 arrest report based on a separate incident. Nor have I seen any indication that WSB-TV is mistaken about the series of misdemeanor convictions.

So Richey’s only argument seems to be that calling someone with several misdemeanor conviction and one felony conviction that was expunged (just because it was a first offense, and not on the grounds that Richey had been exonerated) a “recidivist” is recklessly or knowingly false because “recidivist” is reserved for people with multiple felony convictions. But I don’t think that the term is limited to felonies in ordinary language, and I don’t think reasonable readers of the blog would have so understood the word; rather, a typical lay reader would likely see it as simply accusation of multiple criminal offenses — an accusation that appears to be true.

I should note that if the statement “[w]e now know what Ali Rashad Richie used all that cash for … Bail money” would have reasonably been seen as a charge of embezzlement of funds, that might be libelous. But I didn’t see any reference to that in the Complaint, which suggests that in context it was likely seen just as a dig at his criminal record, rather than a serious accusation of misappropriation of funds.

Oh, and according to WSB-TV, “Richey’s attorneys believe the series of blogs are borderline harassment and constitute a form of cyberbullying.”

From an editorial in the Greene County Republican Committee newsletter:

The ultimate task for the people is to remain vigilant and aware ~ that the government, their government is out of control, and this moment, this opportunity, must not be forsaken, must not escape us, for we shall not have any coarse but armed revolution should we fail with the power of the vote in November ~ This Republic cannot survive for 4 more years underneath this political socialist ideologue.

A truly appalling call for violence, and a truly appalling repudiation of basic American democratic principles. The author seems willing to start a bloody war with his fellow Americans, a war that he’s certain to lose — since by hypothesis he’d be fighting against the majority who reelect the President, coupled with the armed forces who would doubtless follow the lawful orders to suppress any such revolution — and that, if seriously prosecuted, would costs the lives of a vast number of his fellow citizens.

And why? Because, by hypothesis, President Obama has been reelected? If you don’t like who gets elected, persuade your fellow Americans so they elect your party instead of the other (as in fact they have in most elections over the past 35 years). Or persuade them to elect your party to one or both Houses of Congress, to counteract the President’s power (which in fact happened just two years before). That’s the American way.

Yes, I agree that in some circumstances armed revolution can be justified. But the likely costs of such revolution in a country such as the modern U.S. range from the horrific to the catastrophic. Partly because of this, it is very rare for armed revolution to be justifiable — even under circumstances that are much more extreme than the ones we face now — in a democracy where peaceful means (winning elections) are available. And in any event, all that bloodshed can’t be justifiable if it’s likely to be futile, as it certainly would be, and if it’s over policy differences that, important as they might be, cannot warrant bloody civil war.

I realize that this author is just an editor of a county party newsletter. And I quite doubt that more than a few Greene County Republicans really believe this nonsense. (The newsletter says, “Content of newsletter does not reflect the opinion of the Republican Party whole or in part, all contents offered are individual,” and in this instance I’m sure it’s true.) But I’ve heard enough people say variants of something like this that I wanted to speak out publicly about it. And I certainly hope that the Greene County Republican Party Committee does the same, and makes sure that such calls for violence don’t appear in its publications again.

UPDATE: Commenter redheadedbuddha reports that the site now says — apparently referring to the controversy —

~ all this rip roar Media hype….. is all about…..being armed with the voices of We the people…..you must arm yourself with a spoken word to be heard ~ just as the founding fathers spoke out during the revolution……So, Yes, arm yourself with many voices for the people and by the people….as your constitution allows….should the vote fail ….this November or at anytime……

~ Being Armed with Your Voices of We The People is The Only Way if Any Vote Should Fail No Matter Who You Vote for ~

” your voice being heard is the best method “

Yeah, that’s what “armed revolution” means — armed with words, “just as the founding fathers spoke out during the revolution.” Right.

Google commissioned me to write this White Paper (“First Amendment Protection for Search Engine Search Results“), so I thought I’d pass it along. I wrote the paper as an advocate, and not as a disinterested academic, but I hope some of our readers might find it interesting nonetheless. Here is the Introduction, though of course it isn’t intended to be persuasive on its own — the supporting arguments are in the rest of the paper:

Once, the leading sources to which people turned for useful information were newspapers, guidebooks, and encyclopedias. Today, these sources also include search engine results, which people use (along with other sources) to learn about news, local institutions, products, services, and many other matters. Then and now, the First Amendment has protected all these forms of speech from government attempts to regulate what they present or how they present it. And this First Amendment protection has applied even when the regulations were motivated by a concern about what some people see as “fairness.”

Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers. First, they sometimes convey information that the search engine company has itself prepared or compiled (such as information about places appearing in Google Places). Second, they direct users to material created by others, by referencing the titles of Web pages that the search engines judge to be most responsive to the query, coupled with short excerpts from each page. Such reporting about others’ speech is itself constitutionally protected speech.

Third, and most valuably, search engines select and sort the results in a way that is aimed at giving users what the search engine companies see as the most helpful and useful information. (That is how each search engine company tries to keep users coming back to it rather than to its competitors.) This selection and sorting is a mix of science and art: It uses sophisticated computerized algorithms, but those algorithms themselves inherently incorporate the search engine company engineers’ judgments about what material users are most likely to find responsive to their queries.

In this respect, each search engine’s editorial judgment is much like many other familiar editorial judgments:

• newspapers’ daily judgments about which wire service stories to run, and whether they are to go “above the fold”;
• newspapers’ periodic judgments about which op-ed columnists, lifestyle columnists, business columnists, or consumer product columnists are worth carrying regularly, and where their columns are to be placed;
• guidebooks’ judgments about which local attractions, museums, stores, and restaurants to mention, and how prominently to mention them;
• the judgment of sites such as DrudgeReport.com about which stories to link to, and in what order to list them.

All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included? Such editorial judgments may differ in certain ways: For example, a newspaper also includes the materials that its editors have selected and arranged, while the speech of DrudgeReport.com or a search engine consists almost entirely of the selected and arranged links to others’ material. But the judgments are all, at their core, editorial judgments about what users are likely to find interesting and valuable. And all these exercises of editorial judgment are fully protected by the First Amendment.

That is so even when a newspaper simply makes the judgment to cover some particular subject matter: For instance, when many newspapers published TV listings, they were free to choose to do so without regard to whether this choice undermined the market for TV Guide. Likewise, search engines are free to include and highlight their own listings of (for example) local review pages even though Yelp might prefer that the search engines instead rank Yelp’s information higher. And this First Amendment protection is even more clearly present when a speaker, such as Google, makes not just the one include-or-not editorial judgment, but rather many judgments about how to design the algorithms that produce and rank search results that — in Google’s opinion — are likely to be most useful to users.

Of course, search engines produce and deliver their speech through a different technology than that traditionally used for newspapers and books. The information has become much easier for readers to access, much more customized to the user’s interests, and much easier for readers to act on. The speech is thus now even more valuable to customers than it was before. But the freedom to distribute, select, and arrange such speech remains the same.

We will discuss this in detail below, both as to the First Amendment generally (Part III) and as to the intersection of First Amendment law and antitrust law (Part IV). We focus in this submission on Google search results for which no payment has been made to Google, because they have been the subject of recent debates; we do not discuss, for instance, the ads that Google often displays at the top or on the right-hand side of the search results page.

In R. v. Belghar (New South Wales Ct. Crim. App. Apr. 11, 2012), Ismail Belghar is being prosecuted for attempted murder of his sister-in-law (labeled “complainant” in the opinion). The government alleges:

On a day in October 2009, the complainant, her sister Hanife and a female friend went to the beach without the respondent’s knowledge. When Hanife returned home, the respondent demanded to know where she had been and whom she had been with. When she told him, the respondent telephoned the complainant and said, “You slut, I’m going to kill you. I’m going to fuck you up. I’m going to find you and kill you. You fucking slut, how dare you take my wife to the beach.”

[Two months later, Belghar ran into complainant at a shopping mall.] The respondent walked out of the shopping centre and towards the complainant with a key in his right hand. He stood in front of her and put his face against hers and said, “I’m going to kill you. I’m going to fucking kill you.” The respondent slapped the complainant once with an open right hand to the left side of her face. The respondent then bent down, put his arms around the complainant’s legs and waist and picked her up from the railing. He carried her to the railing on the boundary of the car park (“the external railing”) and held her over it to the extent that she could see the roadway below. The complainant was crying uncontrollably and believed she was going to die.

Complainant’s brother interceded and saved her. Belghar was arraigned for trial, and asked for a trial without a jury, but the government insisted on a jury. Under Australia law, when a defendant waives trial by jury and a prosecutor disagrees, “the court may make a trial by judge order if it considers it is in the interests of justice to do so”; and the trial judge reasoned (emphasis added),

[T]he attitude of the [respondent] regarding the sister-in-law victim is based on a religious or cultural basis and in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs in the community, I am of the view that the apprehension by the [respondent] that he may not receive a fair trial is a reasonable apprehension….

The reason for the animosity between the applicant and the victim as suggested by the Crown will be that the victim took the applicant’s wife to the beach where the applicant’s wife displayed her body because she was seen by the applicant to be sunburnt in her certain places on her body and this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife’s family having some authority over her….

In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre….

In this particular case it really relates insofar as the Crown case is concerned as to his state of mind, and the rage created by his either faith (sic) or the culture that he had absolute control over the wife….

I feel that the application should be granted … and I do so on the basis that the Crown has not been able to demonstrate to me any prejudice that the Crown faces or any prejudice that the community faces in relation to the granting of the application.

The appeals court disagreed (emphasis added) (some paragraph breaks added):

Continue reading ‘Australian Juries and Muslim Defendants Accused of Attempted Honor Killings’ »

From In the Matter of Ismailoff, 2007 WL 7670254 (N.Y. Sur. Ct. Feb. 1) (payment required for access), which was just posted on Westlaw in the last day or two:

This is a proceeding commenced by the grantor of an inter vivos trust for a determination that the trust is the product of undue influence.

Esther Ismailoff (grantor) executed an agreement with her four children (trustees) creating an irrevocable inter vivos trust….

Article XXIV of the agreement provides:

In the event that any dispute or question arises with respect to this Declaration of Trust, such dispute or question shall be submitted to arbitration before a panel consisting of three persons of the Orthodox Jewish faith, which will enforce the provisions of this Declaration of Trust and give any party the rights he is entitled to under New York law. This Declaration of Trust shall be construed in order to effectuate the intent of the parties and the parties admit that they have performed all the necessary requirements for this Declaration to be valid under Jewish law. The panel will have the authority to file their decision with the Court under the New York Arbitration Law. The parties have made a Kinyan Siddur with a garment that may be used for that purpose in order to effectuate this Declaration of Trust.

… The grantor argues that the parties intended to empanel a “Beth Din” (rabbinical court). However, the agreement specifically provides for enforcement of the rights of the parties under New York law. In addition, in the absence of any reference in the agreement to a “Beth Din,” the First Amendment to the United States Constitution prohibits the appointment of a religious tribunal ( Sieger v Sieger, 297 AD2d 33 [2d Dept 2002]).

The agreement provides for the selection of “three persons of the Orthodox Jewish faith.” The most common method of selecting a tripartite panel is for each contending party to select one arbitrator and for the two arbitrators to select a third. Written submissions of the parties suggest that the criteria applied to determine whether a proposed arbitrator is “orthodox” would be in dispute. That issue could never be resolved by the court.

The Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice (Presbyterian Church v Hull Church, 393 U.S. 440 [1969]; Kelly v Garuda, _____ AD3d _____ [2d Dept 2007]; 2007 WL [60334]; Sieger v Sieger, 297 AD2d 33 [2d Dept 2002])…. Although the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.

The court then provided for appointment of arbitrators in the normal way that arbitrators are appointed (each side selects one arbitrator and the two arbitrators select a third). This strikes me as quite right, because secular courts are not allowed to examine would-be arbitrators’ supposed religious bona fides, and decide who really is Orthodox enough. On the other hand, if the trust had called for the appointment of arbitrators by some named organization, such as the Beth Din of America, the court likely would have enforced that provision, even if the organization only appointed orthodox Jews — the court then wouldn’t have had to decide who’s Orthodox enough, but could have enforced the terms of the trust without any religious decisions on the court’s own part.

For an earlier case in which a similar issue might have arisen, but didn’t have to be decided, see In re Aramco Servs., where the contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations that apparently call for the arbitrators to be Muslims or Saudi citizens.

Forbes runs this item:

Nine Dangerous Things You Were Taught In School

Be aware of the insidious and unspoken lessons you learned as a child. To thrive in the world outside the classroom, you’re going to have to unlearn them.

Dangerous things you were taught in school:

1. The people in charge have all the answers. That’s why they are so wealthy and happy and healthy and powerful — ask any teacher.

2. Learning ends when you leave the classroom. Your fort building, trail forging, frog catching, friend making, game playing, and drawing won’t earn you any extra credit. Just watch TV.

3. The best and brightest follow the rules. You will be rewarded for your subordination, just not as much as your superiors, who, of course, have their own rules.

4. What the books say is always true. Now go read your creationism chapter. There will be a test.

5. There is a very clear, single path to success. It’s called college. Everyone can join the top 1% if they do well enough in school and ignore the basic math problem inherent in that idea.

6. Behaving yourself is as important as getting good marks. Whistle-blowing, questioning the status quo, and thinking your own thoughts are no-nos. Be quiet and get back on the assembly line.

7. Standardized tests measure your value. By value, I’m talking about future earning potential, not anything else that might have other kinds of value.

8. Days off are always more fun than sitting in the classroom. You are trained from a young age to base your life around dribbles of allocated vacation. Be grateful for them.

9. The purpose of your education is your future career. And so you will be taught to be a good worker. You have to teach yourself how to be something more.

I’ve always been quite skeptical of this sort of generic iconoclasm, for three related reasons: (1) It debunks categorical assertions that the debunkees actually rarely make in that categorical a way, and that in case are obviously wrong if made so categorically. (2) This debunking is rarely useful, because just as “always” assertions are rarely right where practical matters are involved, “not always” assertions are rarely useful. (3) The things being debunked are actually often pretty good rules of thumb for daily life, which are right more often than not; friendly amendments pointing out the exceptions can be helpful (especially if they are specific rather than generic), but categorical attempts at debunking miss the general wisdom in the rules.

For instance, behaving yourself is often more important than getting good marks. Sometimes even knowing when to question the status quo and when to follow it is important, as is knowing when to at least temporarily follow conventional wisdom (especially in an environment where error can cause a lot of damage) instead of coming up with your own approaches. But beyond that, “behaving yourself” in the sense of learning how to operate productively within an organization of two or more people, in a way that maximizes results while minimizing needless friction with your colleagues, superiors, and subordinates, and needless pushback from people who see you as misbehaving is a tremendously important life skill in a vast range of occupations. Even geniuses need it, and ordinary people who will have to work closely with others and will rarely have the “he’s rude and a pain in the neck, but he’s brilliant” excuse need it even more.

As to the purpose of education, schools rarely teach that the only purpose of your education is your future career (especially since many literature and history teachers realize that such an argument will go only so far with their students). But throughout your life you’ll want access to goods and services, and unless you try to force people to give them to you, you’ll need to offer something in return; in our society, many of the things you offer require specialized knowledge, which a good education will help give you. And while college is certainly not a very clear, single path to success, and it won’t get you to “the top 1%,” for many people it’s a pretty important part of the path to careers that are both more financially and intellectually rewarding.

Likewise, the best and brightest follow the rules the great majority of the time, and we take it for granted because it’s “just following the rules.” They follow rules about how to do good science, how to write well, how to craft effective arguments, how to operate within organizations, how to deal with other people’s understandings of what is their property or institutional bailiwick, and so on. Of course, they realize that to succeed in really big and innovative ways they need to do more than follow the rules. “Always follow the rules, and nothing more” would be lousy advice. But “learn the rules well, because they are the repository of important wisdom accumulated through the efforts of many smart people, and then think creatively about how to go beyond the rules or even break some rules” is good advice.

What’s true of the rules is also true of the books and of the messages passed along by people in authority. What the books say isn’t always true, but they have a lot of truth in them, and 99% of what we need to know we learn from the books (especially if we learn how to find the right books). Similarly, the people in charge often have some pretty important answers — again, answers that are so important and foundational that we take them for granted (once we learned them from people in charge).

That’s true of specific knowledge about particular academic subject matters; teachers are hardly perfect, but they know some important information that most students need to learn to succeed. It’s also true of “answers” in the sense of character traits that are conducive to success: Answers to questions such as, “Should I work hard?,” “Should I invest for the future?,” “Should I work well with others?,” and so on; and these answers do tend to make people more “wealthy and happy and healthy and powerful,” though of course they are not perfectly correlated with success.

Finally, while learning doesn’t end when you leave the classroom, standardized tests don’t measure your entire value, and days off aren’t always more fun than sitting in the classroom, few schools seek to try to teach that, and my sense is that few students actually learn this. Rather, classroom learning — if done right — is an important part of your learning, being able to demonstrate your abilities even in the imperfect way that tests capture is important in a society where employers and universities have to sort through thousands of applications, and classroom learning even at a good institution can involve kinds of work that aren’t as fun as what you can do on your own but are still important.

So if the Forbes column is merely saying “remember that the practical rules for life that you’re taught in school are true only most of the time, and always think about whether some occasion is an exception to the rule,” then it’s correct but banal to the point of uselessness. And if it’s trying to say that those rules really are things that you have to outright “unlearn,” to the point of actually rejecting them much of the time, then it seems to me to be generally wrong.

From ACLU v. Alvarez (7th Cir. May 8, 2012) (Judge Sykes joined by Judge Hamilton, with Judge Posner dissenting):

We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here.

The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the re cording is open or surreptitious.

Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.

I’m just beginning to read the opinions, but I wanted to flag the key holding. [UPDATE: Sorry, meant to also say that this decision reaches pretty much the same result as Glik v. Cunliffe (1st Cir. 2011), which I blogged about last year.]

UPDATE: A few follow-up thoughts:

1. The opinion specifically sets aside the question whether state law could (1) ban surreptitious interception even of public communications, and (2) ban surreptitious interception of communications that the parties would reasonably expect to remain private. (“[T]his case has nothing to do with private conversations or surreptitious interceptions.” “We are not suggesting that the First Amendment protects only open recording. The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”). For an example of a state high court decision that affirmed a citizen’s conviction for surreptitiously recording his encounter with the police, see Commonwealth v. Hyde (Mass. 2001), though the court did not discuss the First Amendment.

But I think the Seventh Circuit’s reasoning should apply to a person’s surreptitious recording of his interactions with the police in the course of their jobs, and not just to open recordings. Among other things, even content-neutral restrictions are immune from strict scrutiny only if they are narrowly tailored to an important government interest and leave open adequate alternative channels for speech (or, here, for gathering the information needed to speak). The Seventh Circuit didn’t decide whether this adequate alternative channels requirement was satisfied here (because it found the law to be overinclusive with respect to any privacy interests that might justify a narrower law), and wasn’t certain that the factor applies to information gathering restrictions, though I think it should so apply given that information gathering restrictions may burden the ability to speak much like direct speech restrictions would. Yet it did suggest that bans on recording information don’t leave open adequate alternative channels:

We note, however, that audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.

And this is also true of surreptitious recording, since often surreptitious recording will yield more accurate information about how police officers actually behave in ordinary interactions with citizens (as opposed to how they behave when they know that their statements could be heard that day on the evening news).

2. Here’s the heart of the majority’s argument for why the First Amendment at least presumptively protects audiorecording, though subject to possible content-neutral restrictions that are narrowly tailored to an important government interest (perhaps only if they leave open adequate alternative channels):

The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists. By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.

Continue reading ‘Seventh Circuit: Ban on Audio Recording of Police Officers Likely Unconstitutional’ »

Minnesota law defines “harassment” to include,

repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.

If someone complains about “harassment,” a court can issue an order banning such “harassment,” and violation of the order will then be a crime. Given this, what are you free to say about other people in Minnesota, assuming you want to say it several times, and they’re willing to go to court to stop you?

Say that you have been (accurately) telling your and your ex’s acquaintances that your ex cheated on you, or infected you with a sexually transmitted disease — is that a “repeated incident[] of intrusive or wanted … words … that ha[s] a substantial adverse effect on the [ex's] privacy”? What if you tell people that someone holds some publicly condemned religious or political beliefs that he has tried hard to conceal? The list could go on.

Note that there’s nothing in the statute that purports to limit this to speech that is a tortious disclosure of private facts, though that tort is itself constitutionally questionable, both on overbreadth grounds and vagueness grounds (given the lack of clear definition of the “newsworthiness” exception to the tort, an exception that does not appear in the statute).

From United States v. Huitron-Guizar (10th Cir. May 7, 2012) (thanks to Prof. Doug Berman (Sentencing Law & Policy) for the pointer):

We applied “intermediate” scrutiny in Reese, 627 F.3d at 802, which involved a Second Amendment challenge by a citizen to 18 U.S.C. § 922(g)(8), the provision forbidding firearms to those subject to a domestic-protection order. If we assume that an illegal alien like Mr. Huitron-Guizar, who has been here for decades and nowhere else, is entitled to the lawful exercise of this enumerated right, and if we observe that the law here not only burdens but eliminates the right by placing, on a class of perhaps millions, a total prohibition upon possessing any type of gun for any reason, “intermediate” scrutiny would seem to apply. Id., at 800 (comparing burdens imposed by the various § 922 restrictions). Under this standard a law is sustained if the government shows that it is “substantially related” to an “important” official end. Id. at 802.

The “principal purposes” of the Gun Control Act of 1968 are to “make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, and to assist law enforcement authorities in the States and their subdivisions in combating the increasing prevalence of crime.” S.Rep. No. 90-1501, at 22 (1968). The alien-inpossession ban was incorporated from a predecessor statute by the 1986 Firearm Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449, likewise with purpose of keeping instruments of deadly force away from those deemed irresponsible or dangerous. S.Rep. No. 98-583, at 12 (1986).

Congress may have concluded that illegal aliens, already in probable present violation of the law, simply do not receive the full panoply of constitutional rights enjoyed by law-abiding citizens. Or that such individuals, largely outside the formal system of registration, employment, and identification, are harder to trace and more likely to assume a false identity. Or Congress may have concluded that those who show a willingness to defy our law are candidates for further misfeasance or at least a group that ought not be armed when authorities seek them. It is surely a generalization to suggest, as courts do, see, e.g., United States v. Orellana, 405 F.3d 360, 368 (5th Cir. 2005), that unlawfully present aliens, as a group, pose a greater threat to public safety—but general laws deal in generalities. The class of convicted felons, too, includes non-violent offenders. See McCane, 573 F.3d at 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (suggesting that Heller’s “dictum” should not foreclose challenges to the felon-dispossession law in § 922(g)(1)). The law applies with equal force to those who entered yesterday and those who, like Mr. Huitron-Guizar, were carried across the border as a toddler. The bottom line is that crime control and public safety are indisputably “important” interests.

If the right’s “central component,” as interpreted by Heller, 554 U.S. at 599, is to secure an individual’s ability to defend his home, business, or family (which often includes children who are American citizens), why exactly should all aliens who are not lawfully resident be left to the mercies of burglars and assailants? That must be at least one reason behind the wave of challenges to § 922(g)(5). But courts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order.

Here’s the Tenth Circuit’s reasoning in Reese explaining why intermediate scrutiny was the proper test:

The initial question we must address is whether intermediate scrutiny is also appropriate for the statute challenged by Reese. To be sure, § 922(g)(8) is arguably more restrictive than § 922(k), the statute at issue in Marzzarella, in that it prohibits the possession of all types of firearms. On the other hand, however, § 922(g)(8) is less restrictive than § 922(k) in that it applies only to a narrow class of persons, rather than to the public at large. And, in that regard, § 922(g)(8) is substantially similar to § 922(g)(9), the statute at issue in Skoien. Specifically, both statutes prohibit the possession of firearms by narrow classes of persons who, based on their past behavior, are more likely to engage in domestic violence. Based upon these characteristics, we conclude that § 922(g)(8), like the statutes at issue in Marzzarella and Skoien, is subject to intermediate scrutiny.

Check out this 2009 D.C. law that purports to ban “stalking” (D.C. Code §§ 22-3132, -3133), and that provides, among other things:

“Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling….

“To engage in a course of conduct” means directly or indirectly, or through one or more third persons, in person or by any means, on 2 or more occasions, to:
(A) Follow, monitor, place under surveillance, threaten, or communicate to or about another individual;
(B) Interfere with, damage, take, or unlawfully enter an individual’s real or personal property or threaten or attempt to do so; or
(C) Use another individual’s personal identifying information [defined to include a person's name]….

(a) It is [a crime] for a person to purposefully engage in a course of conduct directed at a specific individual [to intentionally, knowingly, or negligently] cause that individual to … [s]uffer emotional distress….

(b) This section does not apply to constitutionally protected activity.

So if you twice say something about someone, where a reasonable person should have known that this would cause the subject “significant mental suffering or distress,” you’re guilty of a misdemeanor — or a felony if the subject is under 18, and you are four or more years older than the subject — unless the court finds your speech to be “constitutionally protected activity.”

But what is constitutionally protected activity? For instance, is telling some friends about an acquaintance’s medical history or sex life constitutionally protected? The Court has had no occasion to decide this, partly because such private revelation is usually not even tortious under state law (in most states, the “disclosure of private facts” tort only covers speech to the public at large, or under circumstances where it’s likely to reach the public) and thus the matter rarely comes to court. How about marketing T-shirts or video games or comic books that contain a celebrity’s name or likeness? Lower courts are split on that. What about saying something that violates a promise not to say it? That’s constitutionally unprotected against a breach of contract lawsuit, but the Court has never decided it whether it can generally be criminalized.

Or how about residential picketing? Such speech is unprotected against a sufficiently narrow content-neutral residential picketing ban, but protected against content-based bans, and protected against even content-neutral bans that are too broad (e.g., apply to all picketing within 300 feet of a residence, rather than just picketing right in front of a residence). More broadly, the same speech is often protected against some sorts of restrictions but unprotected against others that are sufficiently narrowly tailored to some government interest.

To be sure, some courts have upheld laws that have such supposed “savings clauses,” but others have struck them down. And it seems that the latter view is the correct one; in the words of Long v. State (Tex. Ct. Crim. App. 1996) (paragraph break added):

While the provision would permit the defendant to introduce evidence before the jury regarding the constitutional nature of his conduct, it would relegate the First Amendment issue to a “case-by-case adjudication,” creating another vagueness problem. In essence, (a)(7)(A) [the Texas provision involved in Long -EV], as modified by the affirmative defense, would read something like “it is a crime to intentionally annoy someone unless by that conduct the actor engages in activity protected by the First Amendment.” Application of the affirmative defense to subsection (a)(7)(A) on a case-by-case basis would require people of ordinary intelligence — and law enforcement officials — to be First Amendment scholars. Arguably, people are always “on notice” that constitutionally protected conduct is exempt from prosecution, and law enforcement officials could always look to the First Amendment to determine when a law should not be enforced because it would interfere with constitutionally protected activity. But, the mere existence of the First Amendment has never been held automatically to cure vagueness problems implicating First Amendment freedoms.

Because First Amendment doctrines are often intricate and/or amorphous, people should not be charged with notice of First Amendment jurisprudence, and a First Amendment defense cannot by itself provide adequate guidelines for law enforcement. [Footnote: Charging ordinary citizens and law enforcement officials with knowledge of constitutional law seems especially inappropriate in an area of law, such as stalking, that is relatively new.] Moreover, an attempt to charge people with notice of First Amendment caselaw would undoubtedly serve to chill free expression.

UPDATE: I should note that I think the Texas court’s argument is correct whether or not the “constitutionally protected activity” proviso creates an affirmative defense as to which the defendant must introduce evidence, or creates an element of the crime (the lack of constitutional protection for the activity) that the prosecution must prove. Even if the prosecution must prove that the activity is constitutionally unprotected, the provision remains so unclear that it’s unconstitutional, either under the void-for-vagueness doctrine as such or (as in Reno v. ACLU) because the vagueness of the law leads it to deter even constitutionally protected speech.

Arnzen v. Palmer (N.D. Iowa Apr. 12, 2012) deals with an interesting and unusual questions: To what extent, if any, does the Fourth Amendment restrict searches in civil commitment units for sex offenders?

After sex offenders serve out their prison term, they may be detained — often indefinitely — if a court is satisfied that there’s enough evidence that a “mental abnormality” or “mental disorder” makes them continuing threats to others. This is an extension of the traditional state power to lock people up when they are insane in a way that makes them dangerous to others, even if those people have finished their criminal sentence, or have been found not guilty of a crime by reason of insanity. In principle, the dangerously insane can be locked up even before they commit a crime, or something that would be a crime but for their being insane, but the sexual offender commitment statutes are generally limited to people who have already committed a crime. On the other hand, the sexual offender commitment statutes generally require a lesser showing of mental illness than do the statutes for committing the dangerously insane. In either case, both the committed dangerously insane and the committed post-sentence sex offenders are not being imprisoned as criminals. But they are still being imprisoned.

The question, then, is what Fourth Amendment rights against unreasonable searches apply to such civilly committed people. While a sex offender is in prison, serving out his criminal sentence, his protection against searches is extremely minor, because pretty much any search of convicted criminals that’s at all related to penological purposes is seen as permissible in prison. Should the same apply to the civilly committed who are no longer serving their criminal sentence?

The Magistrate Judge’s Report and Recommendation in Arnzen suggests that some Fourth Amendment restrictions on searches do exist for the civilly committed, at least where video recording of bathrooms is involved. An excerpt:

The plaintiffs are patients at the Civil Commitment Unit for Sex Offenders (“CCUSO”) in Cherokee, Iowa. The defendants are officials at the facility. The defendants have installed video cameras in all of the patients’ restrooms. They took this action after a patient with a serious communicable disease used a restroom to engage in consensual sex with another patient, which violated the rules of the institution….

If the plaintiffs were not in any type of custody, the monitoring of their bathroom activities obviously would violate their privacy rights. On the other hand, the plaintiffs would have no right to privacy if they were being confined in a prison rather than in a civil commitment unit. The rights of the plaintiffs here fall somewhere between these two situations. CCUSO is not a prison, and the plaintiffs are not convicted prisoners. They have been civilly committed to CCUSO because they have been adjudged to be “dangerous persons” under Iowa law. As such, they retain some of their liberty interests, although those interests “are considerably less than those held by members of free society.” …

In Serna v. Goodno, 567 F.3d 944 (8th Cir.2009), the Eighth Circuit Court of Appeals discussed the rights retained by persons involuntarily committed to a state sex offender facility ….. ["][T]he best analogy [for the involuntarily committed] is to pretrial detainees because “confinement in a state institution raise[s] concerns similar to those raised by the housing of pretrial detainees, such as the legitimate institutional interest in the safety and security of guards and other individuals in the facility, order within the facility, and the efficiency of the facility’s operations.["] …

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” The court finds that the plaintiffs have greater privacy rights than those granted to convicted prisoners, and that the defendants’ use of video cameras under the circumstances of this case infringes on those rights. Accordingly, the court finds that the plaintiffs have shown that they are likely to succeed on the merits….

The public interest in ensuring that patients not act out physically and/or sexually weighs against preliminary injunctive relief in this case. However, the court finds that in light of the specific injunctive relief recommended in this order, the public interest will be adequately protected….

CCUSO is appropriately concerned about activities of patients in the bathrooms at the facility, but to its credit, in its policy it has attempted to protect, at least to a certain extent, the privacy rights of its patients. The court believes it can fashion relief that will address the defendants’ concerns while, at the same time, protect the plaintiffs’ interests while the case is processed.

The court recommends that the plaintiffs’ motion for preliminary injunction be granted, and that the defendants be enjoined as follows:

During the pendency of this action, video cameras may be maintained and operated in the restrooms and showers of the facility, but no one is permitted to monitor or view the video or any recordings of the video without first obtaining an order from this court authorizing such viewing. The court will authorize such viewing if the requesting party establishes that there is a reasonable suspicion that evidence of criminal behavior, sexual contact, and/or acts jeopardizing the secure and safe operation of the facility will be found on the video or on a recording of the video. Any motion requesting authorization to view a video or a recording of a video may be filed ex parte and under seal.

Karen Lugo (National Review Online) has the most thorough English-language account that I’ve seen:

While deciding to acquit Lars Hedegaard [on April 20], president of the Danish Free Press Society, of intending to speak hatefully for public dissemination, the [Danish Supreme Court] emphatically affirmed a statute according to which anyone who “publicly or with the intent of public dissemination issues a pronouncement or other communication by which a group of persons are threatened, insulted or denigrated due to their race, skin colour, national or ethnic origin, religion or sexual orientation is liable to a fine or incarceration for up to two years.”

The prosecution of Hedegaard resulted from remarks that he made during an interview and contends were electronically distributed without his permission. Although Hedegaard explained that he did not intend to accuse the majority of Muslim men of abusive behavior, Denmark’s Office of Public Prosecutions deemed his reflections on the incidence of family rape and the commonness of misogyny in Muslim-dominated areas to be criminally insulting.

The trial-court judge did not find that the prosecution met its burden to demonstrate that Hedegaard meant his comments for public distribution. But the Office of Public Prosecutions appealed to the Copenhagen Eastern Superior Court, in which Hedegaard was convicted. This reversal was based upon the elastic legal standard that Hedegaard “ought to have known” of the potential for dissemination of his remarks….

[T]he seven-member supreme court declined to apply the lower court’s “ought to know” standard, but affirmed the statute under which Hedegaard had been prosecuted, with its many ambiguities and invitations to abuse. As Hedegaard has said, the result still logically means that one can be criminally liable for speech deemed racist or offensive if one does not “demand written guarantees that nothing be passed on without express approval.” … [Among other things,] truth is not a defense. In fact, sociological data that would substantiate his observations were not admissible in court. As Hedegaard complained, “the defendant is not allowed to present evidence or call witnesses who might confirm his contention that the Islamic treatment of women is incompatible with the norms of a civilised society.”

[Also], the highly general categories of legal offense do not merely seek to protect races of people — hard enough to define — but now cover beliefs, dogmas, and doctrines. Destructive ideologies that cry out for inspection are thus invited to propagate behind a veil….

I’d be glad to quote more from a straight news account, rather than an opinion piece, but I couldn’t find any. The opinion is here in Danish; if any Danish speakers can translate the key material (from Google Translate, it appears that the Court’s legal analysis is all on just one page, page 3), I’d love to see it. Thanks to Walter Olson (Secular Right) for the pointer.

The Mumbai Mirror reports:

CR 61/2012, Juhu Police Station, has been filed against miracle-buster Sanal Edamaruku, who is also founder-president of the Rationalist International, which has scientists such as Richard Dawkins in it.

The FIR [apparently a First Information Report -EV] has been filed under IPC Sec 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs….

The whole story began on March 5, when during a TV programme in Delhi, Sanal dismissed reports that the “dripping cross” outside Vile Parle’s Velankanni church was a miracle….

Later on March 10, Sanal attributed the water dripping from the Jesus statue to capillary action of underground water near the cross. His photographs, displayed on TV-9, showed seepage on the wall behind the cross and on the ground near its base. “I removed one of the stones covering a canal for dirty water nearby, and found that water had been blocked there. Once water is blocked, it will find an outlet, if not downwards, then upwards. Every student knows that trees get water through capillary action.”

Sanal said that when he reached the spot, a priest was leading a prayer on the road near the cross; water from the cross had been collected in a bucket and was being distributed to those gathered there. He was given a photograph of the statue dripping water with the word ‘miracle’ written on it….

During the subsequent TV discussions in Delhi and Mumbai, Sanal accused the Catholic Church of “miracle mongering.” Interestingly, in Mumbai, Archbishop Agnelo Gracias, who joined the discussion, categorically stated that the Church had not described the event as a miracle and would do so only after conducting investigations. The Archbishop also claimed that the Church was not anti-science and, in fact, it had established the Pontifical Academy of Sciences, of which Galileo had been a member.

At that point, Sanal pointed out that the Church had imprisoned Galileo, and burnt scientist Giordano Bruno at the stake, and Pope John Paul II had even apologised for it. He also asked the Archbishop what he had to say about the Vatican indulging in exorcism, to which the Archbishop replied that though he had not come across any case of “possession,” he could not rule it out.

All through the discussion, the other panelists kept warning Sanal that they would file FIRs against him if he didn’t apologise for his allegations against the Church.

The discussion ended with Sanal declaring that the Church’s intolerance had resulted in the Dark Ages in Europe. “Don’t try to bring the Dark Ages to India,” he said….

The Times of India reports that the complaints were filed by “[t]he Organisation of Concerned Catholics (OCC) and the Catholic Secular Forum (CSF)…. OCC members said they were not upset with Sanal for saying the phenomenon was not a miracle. They were hurt by statements he allegedly made against the Pope and Catholic clergy.”

Prof. Stephen Law has more; see also this opinion piece in The Hindu. Thanks to Walter Olson (Secular Right) for the pointer.

How Appealing — the leading news source on newly decided cases — is one of my (few) daily reads, and if you’re interested in legal news, it should be yours, too.

Cool math puzzles, which I remember from my childhood (though the ones I did were in Russian). The principle is that you must solve a puzzle such as OLD+OLD+OLD = GOOD or COUPLE+COUPLE = QUARTET, where each letter stands for a digit and no two letters standing for the same digit. A fun project for kids who like math, and maybe even for adults. Thanks to my colleague Doug Lichtman for the pointer.

My one disagreement with the Eighth Circuit’s decision in Turkish Coalition of America, Inc. v. Bruininks (8th Cir. May 3, 2012) has to do with the Circuit’s description of Board of Ed. v. Pico:

TCA relies on [Pico], in which secondary school students challenged a school board’s removal of certain books from school libraries. In Pico, the Supreme Court, citing the “right to receive ideas,” id. at 867, ruled that the First Amendment was violated if the school board members “intended by their removal decision to deny [students] access to ideas with which [the school board] disagreed, and if this intent was the decisive factor in [the] decision,” id. at 871.

This, I think, misdescribes Pico, in which a majority of the Court actually didn’t rule on the subject.

1. All nine Justices in Pico seemed to agree that removing books for some reasons would be constitutional, for instance if the books used vulgarities that were reasonably seen as inappropriate for the books’ target age group.
2. Four Justices (Brennan, Marshall, Stevens, and Blackmun) took the view that removing books based on disagreement with the ideas that the books expressed would be unconstitutional; they therefore voted to affirm the appellate court decision, a decision that sent the case back to trial court for factfinding on the motivation for the removals.
3. But the same number of Justices — four (Burger, Powell, Rehnquist, and O’Connor) — took the view that a government’s removal of books from its own library was constitutionally permissible (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans), and thus no further factfinding on the true motives was necessary.
4. That leaves one Justice, Justice White. He did concur in the judgment, voting to affirm the lower court decision that sent the case down for factfinding. But he expressly declined to endorse the constitutional view of either group. Rather, he voted to send the case down to the lower courts for further factfinding, without deciding whether a finding of viewpoint discrimination by the school board would indeed qualify as a First Amendment violation.

Here is Justice White’s reasoning:

The District Court found that the books were removed from the school library because the school board believed them “to be, in essence, vulgar.” Both Court of Appeals judges in the majority concluded, however, that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board’s removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals’ judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented.

I thus prefer the course taken by the Court in Kennedy v. Silas Mason Co., 334 U.S. 249 (1948), a suit involving overtime compensation under the Fair Labor Standards Act. Summary judgment had been granted by the District Court and affirmed by the Court of Appeals. This Court reversed, holding that summary judgment was improvidently granted, and remanded for trial so that a proper record could be made. The Court expressly abjured issuing its advice on the legal issues involved. Writing for the Court, Justice Jackson stated:

“We consider it the part of good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts. While we might be able, on the present record, to reach a conclusion that would decide the case, it might well be found later to be lacking in the thoroughness that should precede judgment of this importance and which it is the purpose of the judicial process to provide.

“Without intimating any conclusion on the merits, we vacate the judgments below and remand the case to the District Court for reconsideration and amplification of the record in the light of this opinion and of present contentions.”

We took a similar course in a unanimous per curiam opinion in Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a summary judgment since it was necessary to resolve a factual dispute about collaboration between one of the respondents and a state legislative committee. We remanded, saying: “In the absence of the factual refinement which can occur only as a result of trial, we need not and, indeed, could not express judgment as to the legal consequences of such collaboration, if it occurred.”

The Silas Mason case turned on issues of statutory construction. It is even more important that we take a similar course in cases like Dombrowski, which involved Speech or Debate Clause immunity, and in this one, which poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here. I therefore concur in the judgment of affirmance.

So Pico doesn’t stand for anything on the First Amendment question: The Justices split 4-4 on that question, and Justice Brennan announced the decision of the Court only because his procedural bottom line (send the case down to the lower court for application of his First Amendment test) was the same as Justice White’s (send the case down to the lower court for further factfinding, and wait to decide the First Amendment issue later). And this agreement on the procedural bottom line doesn’t give Justice Brennan’s four-Justice opinion any more precedential weight than the weight of Chief Justice Burger’s four-Justice opinion.

Note also that the Court’s fractured decision in United States v. American Library Ass’n — where there was also no majority opinion — doesn’t resolve the issue, either. And no other decisions outside the library context dictate, or in my view strongly suggest, a result. If the library were treated as a “designated public forum” that’s generally open for a nearly limitless variety of speech, then the library wouldn’t be able to set up viewpoint-based restrictions on such speech. But library shelving decisions have never been treated as such a forum, because the choice of what books to select in the first place inherently involves some content-based and often some viewpoint-based judgment. There’s no caselaw that squarely tells us whether there are nonetheless constitutional constraints on such judgment, or whether removal decisions are constitutionally different from selection decisions.

I blogged about Turkish Coalition of America, Inc. v. Bruininks (8th Cir. May 3, 2012) when the district court decision came down, and yesterday the Eighth Circuit agreed with the district court’s bottom line (though disagreed with the district court’s decision about standing). I think the District Court and the Eighth Circuit both got it quite right — the defendant university’s labeling the Turkish Coalition’s site “unreliable” and advising students against relying on the site in their research papers doesn’t violate the Coalition’s First Amendment rights, and is also not actionable libel:

TCA alleges that the defendants defamed it by stating that TCA’s website (1) engages in “denial” of the Armenian genocide in Turkey during World War I, (2) is “unreliable,” (3) presents a “strange mix of fact and opinion,” and (4) is an “illegitimate source of information.” …

With regard to the first challenged statement, TCA argues that the Center’s accusation of “denial” is false because the term “denial,” in the context of genocide studies, is a term of art that implies denial of well-documented underlying facts associated with a genocidal event. TCA points out that its website does not deny certain underlying historical facts about the fate of Armenians in Turkey during World War I, such as that “certainly hundreds of thousands of Armenians died during” what it characterizes as “the Armenian revolt.” Under TCA’s interpretation, however, the term “denial” would merely express a subjective evaluation of the credibility of the historical sources for every assertion on the TCA website, many of which TCA admits are “contested.” Such an evaluation of credibility is essentially an opinion, “not capable of being proven true or false,” and thus not actionable in defamation, because different historians might well come to different conclusions. On the other hand, the “denial” statement reasonably can be construed as stating simply that the TCA website denies that the treatment of Armenians within Turkey during World War I meets the definition of the term “genocide.” A statement about the content of the TCA website is capable of being proven true or false. Because the TCA website does, in fact, state that it is “highly unlikely that a genocide charge could be sustained against the Ottoman government or its successor” based on the historical evidence, the Center’s statement under this interpretation is true and, thus, still not actionable….

The remaining three statements can be interpreted reasonably only as subjective opinions, rather than facts.

The Guardian (UK) reports:

When Alex Aan picked up a copy of Karen Armstrong’s Holy War from his local library in west Sumatra in 2005, he had little inkling of his own religious battle to come. But after posting “God doesn’t exist” on Facebook, the soft-spoken civil servant, 30, faces up to 11 years in jail for what is considered blasphemy in Indonesia.

His case has stoked a debate in the world’s most populous Muslim nation, whose 240 million citizens are technically guaranteed freedom of religion but protected by law only if they believe in one of six credos: Islam, Catholicism, Protestantism, Buddhism, Confucianism and Hinduism. Those who question any of those face five years in prison for “insulting a major religion”, plus an additional six years if they use the internet to spread such “blasphemy” to others.

Agence France-Press also reports that, “After writing the Facebook comment, Aan was beaten by a mob of dozens in his hometown in Pulau Punjung in western Sumatra.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.