The Volokh Conspiracy

I didn’t hear about this when the decision was handed down in 2003, and when it was apparently enforced in 2009 and 2010, but I just noticed it and thought it would be a good addition to our Blasphemy category and our Freedom of Speech Restricted by Fear of Thugs category.

From Prof. Sherry Colb, about the 2003 decision; other press accounts echo this (if any of you can point me to an English text of the opinions, please do):

Earlier this month [April 2003], the Israeli Supreme Court, in a 5-4 decision, refused to permit women to pray out loud at the Western Wall (“the Wall”) in Jerusalem. Known in Hebrew as the “Kotel Ha’Maaravi,” the Wall is all that remains of the second Jewish Temple destroyed by the Romans almost 2000 years ago. It is one of the holiest sites in existence for Jews around the world.

The plaintiffs in the case called themselves the “Women of the Wall.” They asked the Israeli Court to recognize their right to pray out loud at the Kotel, after they had repeatedly encountered physical and verbal abuse from the Ultra-Orthodox each time they tried to do so on their own.

The women had hoped and expected the Court to agree that they, as a matter of equality, should be able to assemble and pray just like men have done for as long as the Wall has stood. Besides formalizing the legal equality of women, such a ruling could help fortify the resolve of police who must invariably come to the women’s aid and repel acts of aggression.

On April 6, the women’s hopes were dashed. The Israeli High Court concluded that because of the violence that plaintiffs’ religious practice provokes on the part of Ultra-Orthodox spectators, the Women of the Wall would have to conduct their services elsewhere [at another portion of the Wall]. In the estimation of the Court, female assembly and vocal prayer at the Wall could endanger public order and lead to rioting by Ultra-Orthodox Jews.

And in 2009 and 2010, two women were indeed arrested for praying at a portion of the Wall covered by the 2003 decision: “Nofrat Frenkel was pushed into a police van and detained for the ‘crime’ of reading from a Torah scroll and wearing a tallit, and Anat Hoffman, a founder of Women of the Wall, was arrested, interrogated and fingerprinted for a similar ‘crime.’”

So holds yesterday’s Herron v. Fannie Mae (D.D.C. Apr. 30, 2012), citing (among other cases) United States v. Beszborn (5th Cir. 1994):

When FHFA [the Federal Housing Finance Agency] steps in as conservator or receiver it immediately succeeds to all rights and powers of the stockholders, officers, and directors of the regulated entity placed into such conservatorship or receivership. In like manner, on September 6, 2008, FHFA placed Fannie Mae into conservatorship. As conservator, FHFA took over the assets and operations of Fannie Mae with all the powers of the shareholders, officers, and directors to conduct all of Fannie Mae’s business, in order to preserve and conserve the assets and property of Fannie Mae….

In such circumstances, the federal agency in its guise as a conservator or receiver of a private corporation is not a government actor. For example, in United States v. Beszborn, 21 F.3d 62, 67–68 (5th Cir.1994), the Fifth Circuit held that the Resolution Trust Corporation (“RTC”) as receiver of a failed bank was not a government actor. The RTC had sued the former officers and directors of the failed bank in a civil case and obtained a judgment including punitive damages. The government subsequently brought criminal charges against the officers and directors based on the same conduct. The officers and directors asserted Double Jeopardy as a defense. The Fifth Circuit found that the RTC as receiver stood in the shoes of the insolvent bank, i.e., that the RTC was a private entity and not the government for purposes of the Double Jeopardy clause. Similarly, Fannie Mae was not converted into a government entity when it was placed into conservatorship; instead, FHFA stepped into the shoes of Fannie Mae. FHFA as conservator for Fannie Mae is not a government actor.

[Footnote: Ms. Herron unsuccessfully attempts to distinguish Beszborn, asserting that the RTC in that case operated to benefit the creditors and stockholders and asserting that FHFA operates Fannie Mae to benefit the federal government. This reflects an incorrect understanding of the facts. Treasury's interest in Fannie Mae is as a shareholder of Senior Preferred Stock. FHFA operates Fannie Mae to benefit of creditors and shareholders, in the same way that RTC operated the failed financial institution in Beszborn.]

Ms. Herron avers that Fannie Mae is a federal actor for the purpose of her First Amendment claim because: (1) the conservatorship is of indefinite duration; (2) FHFA presently controls Fannie Mae; and (3) Treasury provides financial support to Fannie Mae in exchange for non-voting Senior Preferred Stock. Ms. Herron draws the wrong conclusion from these three uncontested facts. Fannie Mae would be a federal actor if the FHFA conservatorship retained for the government permanent authority to appoint a majority of the corporation’s directors. Lebron, 513 U.S. at 400. To the contrary, the appointment of FHFA as conservator did not establish permanent government authority to control Fannie Mae….

First, Ms. Herron insistes that there is no date certain when the conservatorship of Fannie Mae will end,FN11 and, therefore, she erroneously concludes that FHFA control over Fannie Mae must be permanent. In order to be a government actor under the Lebron framework, permanent government control is required. Lebron itself distinguishes permanent from temporary control. The Supreme Court contrasted Amtrak, which was a federal actor in the permanent control of the government, from “a private corporation whose stock comes into federal ownership,” which is in the temporary control of the government. Lebron, 513 U.S. at 398. Although the duration of the conservatorship is indefinite, FHFA’s control over Fannie Mae is temporary. Fannie Mae was not a federal actor at the relevant time.

Second, Ms. Herron asserts that FHFA’s complete control over Fannie Mae makes Fannie Mae a federal actor. Congress empowered FHFA to act as conservator of Fannie Mae for the purpose of reorganizing, rehabilitating, or winding up its affairs. Thus, the enabling statute expressly allows FHFA temporary but complete control over Fannie Mae, not permanent control. The complete control exercised by FHFA is authorized by statute; it is how conservatorship is accomplished. Because conservatorship is by nature temporary, the government has not acceded to permanent control over the entity and Fannie Mae remains a private corporation.

Finally, Ms. Herron also argues that Fannie Mae was transformed into a federal entity via (1) Treasury’s appointment of Fannie Mae as administrator of the Home Affordable Modification Program through the Financial Agency Agreement and (2) Treasury’s entry into the Stock Agreement with Fannie Mae. With regard to the Financial Agency Agreement, it states that Fannie Mae is distinct from the government and must maintain a fiduciary duty of loyalty to the federal government. The Financial Agency Agreement also expressly provides that contractors to Fannie Mae (such as Ms. Herron) do not become subcontractors of the government. These provisions make it clear that the Financial Agency Agreement did not transform Fannie Mae into a government entity.

As a result, Herron’s allegation that Fannie Mae violated the First Amendment by terminating Herron’s contract based on Herron’s speech cannot go forward: Because Fannie Mae, even while it’s run by the federal government, is treated as a private actor, it is not bound by the First Amendment.

I’m not sure this is right. The government is in some measure bound by the First Amendment (and other Bill of Rights provisions) even when it’s running entities that could be run privately, such as housing projects, universities, utilities, railroads, and so on; nor do I see a difference between temporary control by the government and permanent control. But that’s what the court held, and the Fifth Circuit case that it cited (Beszborn) did the same. (The Supreme Court in Lebron v. National Railroad Passenger Corp. (1995) left open the possibility that the temporary vs. permanent control distinction was constitutionally relevant, but it didn’t decide the question.)

So holds today’s Lewis v. Rapp (N.C. Ct. App. May 1, 2012). An excerpt:

In April 2010, plaintiff was the serving Senior Resident Judge of Judicial District 13B in North Carolina and was engaged in a campaign to retain her seat in the November 2010 election. She was also a vocal supporter of William Rabon who was running for the North Carolina State Senate. Defendant, a citizen of North Carolina, was a known supporter of Rabon’s opponent, Bettie Fennell. Defendant also volunteered to serve as Fennell’s “Media Strategist” without receiving compensation.

On 9 April 2010, defendant posted a blog entry on Facebook titled “Dirty Politics by the good ol boys.” The blog entry was also posted on Carolina Talk Network. In this post, defendant criticized Rabon and further stated: “When sitting judges campaign for a candidate, in clear violation of the seventh canon of the NC Code of Judicial conduct[,] [w]e are clearly into dirty politics” (hereinafter referred to as “the 9 April publication”). That same day, plaintiff’s attorney emailed defendant and informed him that plaintiff was a candidate for office and that Canon 7B(2) of the Code of Judicial Conduct allows a candidate to endorse any other candidate seeking election to any office. Plaintiff’s attorney also cited a memorandum issued by Chief Judge John Martin on 26 February 2010 in which he reiterated to members of the judiciary what conduct was permissible and what conduct was prohibited by the Code of Judicial Conduct during the 2010 election cycle. The memorandum specifically cited to Canon 7B(2) and stated that a judge was permitted to endorse any candidate seeking office so long as the judge is also a judicial candidate.

On 12 April 2010, defendant posted another blog entry on Facebook and Carolina Talk Network titled: “Apologies, Corrections, Explanations and Amplifications on my Blogs.” Defendant stated in pertinent part:

I have spent this past weekend in prayer, mediation [sic], and contemplation…. First, let me apologize for my comment about the sitting judge being in violation [of] The North Carolina Code of Judicial Conduct. I was wrong. This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and will let the proper authorities make that determination, if and when, it is brought before them. I have read, top to bottom, The North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind…. It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.

Defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry; however, he did not include Canon 7B(2).

The court concluded that there was no evidence that defendant’s April 9 statement was said with so-called “actual malice,” which is to say that defendant knew it was false or consciously entertained serious doubts about its truth; plaintiff’s case was therefore thrown out as to the statement. But the court concluded that there was sufficient evidence of such “actual malice” as to the April 12 statement:

Although defendant expressly stated that it was his opinion that plaintiff had violated the Code of Judicial Conduct, an individual “cannot preface an otherwise defamatory statement with ‘in my opinion’ and claim immunity from liability[.]” Daniels, 179 N.C. App. at 539, 634 S.E.2d at 590. Defendant claimed in the 12 April publication that he had read the Code of Judicial Conduct from “top to bottom” and it was his “opinion” that “probable cause” existed for the “proper authorities” to take “action.” Defendant was aware at that point that plaintiff was a candidate for judicial office. Having read the Code of Judicial Conduct from “top to bottom,” he was also aware that as a candidate for office, plaintiff was permitted to campaign on behalf of another candidate pursuant to Canon 7B(2). Defendant had been told by plaintiff’s attorney that Chief Judge Martin had issued a memorandum in which he stated that a sitting judge seeking reelection was permitted to campaign for any other candidate. Whether plaintiff was, in fact, in violation of the Code of Judicial Conduct could be easily investigated and proven false. Defendant ignored the proof that plaintiff was not in violation of the Code of Judicial Conduct and chose to assert a provable false accusation against plaintiff.

Moreover, defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry so that his readers could “make up [their] own mind[s]”; however, he did not include Canon 7B(2), which exonerates plaintiff of any wrongdoing. Defendant did, however, include Canon 7B(1), which, if read in isolation, would indicate that a judge may not endorse a political candidate. The inclusion of Canon 7B(1), coupled with the exclusion of Canon 7B(2), can only be perceived as a deliberate attempt by defendant to substantiate the false accusation contained in the publication….

[Footnote:] We note that defendant did express an opinion when he stated: “It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.” This statement, unlike the accusation that plaintiff was in violation of the Code of Judicial Conduct, cannot be proven true or false. Defendant is entitled to his opinion that it is “wrong,” or even unethical, for an office holder to campaign for a candidate. An opinion that a judge has acted unethically is quite different from an accusation that a judge has committed an act that could potentially lead to official disciplinary action.

The opinion is Pfau v. Mortenson (D. Mont. Apr. 30, 2012). I’m swamped right now, but I thought I’d pass along the opinion — which I should note heavily focuses on questions of whether the fraud was pled with enough particularity, something that’s required in fraud cases under the Federal Rules of Civil Procedure — and an excerpt from this Time report:

As of yesterday, Three Cups of Tea author Greg Mortenson is — at least legally — in the clear. The writer and philanthropist’s best-selling memoir (and its follow-up, Stones into Schools) has been tainted for almost exactly a year by accusations of falsehood: Last April, a 60 Minutes report and an investigation by journalist Jon Krakauer both alleged that Mortenson had fabricated portions of his book, a tale of how he took on the mission of building schools in Central Asia, and that he had improperly used funds from his charity, the Central Asia Institute, to promote the book. In the ensuing months, several readers who felt bilked by having bought the book filed lawsuits, but an Illinois suit against the Institute and Mortenson was dropped in July, and now a federal judge in Montana has dismissed the remaining charges of fraud and racketeering.

A very interesting analysis by Dr. Jogchum Vrielink (Institute for Constitutional Law at Leuven University in Belgium) of a recent Belgian court decision (though note that I haven’t read the decision myself):

“Tintin,” the brainchild of the late Belgian cartoonist Georges Remi (better known as Hergé) is experiencing new and exciting adventures these days. Not just in the cinema, but in Belgian courts as well. A Brussels court has rejected the suit of a Congolese student and a minority organization to obtain a ban on the comic book ‘Tintin in the Congo.’ The main conclusions about the case: One, despite this outcome, the reasoning of the court jeopardizes free speech. And two, as regards the applicants: offensive as the comic may be, their recourse to the law is both misdirected and counterproductive.

The basic outline: Bienvenu Mbuto Mondondo, a Congolese national studying in Brussels, filed suit to obtain an injunction against the continued publication, distribution and sale of the comic book ‘Tintin in the Congo’ (Tintin au Congo), as well as seeking to have the book withdrawn from bookshops and libraries in Belgium. Mondondo did so on the basis of alleged violations of the Belgian anti-racism legislation. In subsidiary order he demanded that a disclaimer be printed on the comic’s cover, warning of its offensive nature, along with the inclusion of an introduction of a similar nature. Mondondo was supported in his claims by an organization representing minorities, Conseil représentatif des associations noires (also known by its acronym, Cran).

On 10 February 2012, the Brussels Court of First Instance rejected all the applicants’ claims….

So holds Bland v. Roberts (E.D. Va. Apr. 24, 2012). Plaintiffs were fired from the Hampton, Virginia Sheriff’s Office, and they claim that this was because they backed the Sheriff’s opponent in an election, Jim Adams. In particular, two of the plaintiffs, Carter and McCoy, claim that they were fired for “liking” Adams’ page on Facebook.

Firing a government employee based on his speech on matters of public concern is generally unconstitutional. There are exceptions, for instance for speech by a high-level employee whose political affiliation is relevant to the job (such as the Sheriff’s top lieutenant), for speech that’s part of one’s job duties, or for speech that sufficiently disrupts the functioning of the office. But while the judge suggested that some of these exceptions might apply, he did not primarily rely on those exceptions.

Rather, the judge’s primary basis for his decision was that the firings couldn’t violate the First Amendment, because Facebook “likes” just didn’t qualify as potentially expressive for First Amendment purposes:

[Past First Amendment precedents] differ markedly from the case at hand in one crucial way: Both [precedents] involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

That’s not right: A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression — though it takes just one mouse-click, it publishes to the world text that says that you like something. But even if it’s just treated as symbolic expression, it is still constitutionally protected, as cases such as Texas v. Johnson (1989) (the flag-burning case) show.

To be sure, the message isn’t highly detailed; it doesn’t explain why one is supporting the “liked” person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous. “[T]he First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even ‘[m]arching, walking or parading’ in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection ….”

Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected. If the plaintiffs appeal, I expect the Fourth Circuit will reverse the district court on this point. (Thanks to James Ayden and Venkat Balasubramani and Eric Goldman (Ars Technica) for the pointer.)

This happened last month, but I just learned of the case because the trial court decision was just posted on Westlaw; Cline is appealing the removal. The decision is here; a newspaper article on the subject is here; the statute authorizing the removal, N.C. Gen. Stats. § 7A-66(6), provides that a D.A. may be removed by a court for “[c]onduct prejudicial to the administration of justice which brings the office into disrepute.” Here are some passages from the decision:

22. The statements of Tracey E. Cline, verbal and written, as set forth in this Order in the findings of fact paragraph numbers 19: “misconduct … involving moral turpitude, dishonesty and corruption,” paragraph 24: “kidnapping the rights of victims and their families,” paragraph 28: “intentional malicious conduct,” paragraph 39: “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct,” and paragraph 40: “the root of this contempt to be conceived in the womb of justice. a judge, … acknowledge that your hands are covered with the blood of justice, and be ashamed” are not protected by any guarantees of free speech under the First Amendment, nor did Tracey E Cline possess a qualified immunity to make those untruthful statements with reckless disregard for the truth. This false, malicious, direct attack on Judge Orlando F. Hudson, Jr., to which Judge Hudson, under the Code of Judicial Conduct, cannot respond publically, goes far beyond any protected speech under the First Amendment and cannot be and is not supported by any facts in the record or which can be reasonably inferred from the record. These specific statements were made with actual malice and with reckless disregard for the truth.

23. The statements of Tracey E. Cline, verbal and written, as set forth in the findings of fact paragraphs 19, 24, 28, 39 and 40 in this Order were made with actual malice, for which she has no qualified immunity and which are not protected speech under the First Amendment, constitute conduct by her that is prejudicial to the administration of justice which brings the office of the Durham County District Attorney into disrepute as set forth in N.C. Gen. Stat. § 7A-66(6).

24. Tracey E. Cline has lost the confidence of the attorneys and the public necessary to continue as an effective District Attorney for Durham County. Her statements in findings of fact paragraphs 19, 24, 28, 39 and 40 of this Order, when viewed with objective reasonableness, confirm a lack of sound judgment on her part, and a total failure on her part to give the Judicial Standards Commission time to consider her complaints. As a licensed attorney, she knew that she could seek remedies in the Judicial Standards Commission and the appellate courts. In fact, she has a complaint pending before the Judicial Standards Commission and a case on appeal with respect to the rulings by Judge Hudson. By recklessly making blatantly false allegations against Judge Hudson in the public record, totally lacking in factual support, attacking his morality, honesty and asserting that he is corrupt, Tracey E. Cline has crossed the line of protected speech under the First Amendment.

25. Both Cline and Judge Hudson are public employees. Both are elected by the citizens of Durham County to constitutional offices. The speech involved in this case was on a matter of public concern, notwithstanding the testimony of Durham attorney Bill Cotter that it sounded like a spat or dispute between two people that might be best settled by the North Carolina State Bar. The content, form, and context of Ms. Cline’s speech related to her analysis of the job performance of Judge Hudson. Since this is a matter of public concern, the Court must apply a balancing test as set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) as quoted in Corum v. UNC Board of Governors, 330 NC 761, 775 (1992). A government employee’s right to free speech is limited by the government’s need to preserve efficient governmental functions. A significant factor to consider is whether the speech impairs and impedes the speaker’s performance of her duties and interferes with the regular operation of the office of the District Attorney in the Superior Courts of Durham County. Unquestionably, the statements of Tracey Cline in findings of facts paragraphs 19, 24, 28, 39 and 40 of this Order has impeded the efficient flow of work in the Superior Courts of Durham County. The falsity of the statements and the reckless manner in which they were made without regard to their truth afford no constitutional free speech protection to Tracey Cline for their utterance.

26. Based on the Findings of Fact established by clear, cogent and convincing evidence in paragraphs 19, 24, 28, 39 and 40 and the Conclusions of law in this Order, grounds exist for removal of Tracey Cline from the office of Durham County District Attorney pursuant to N.C. Gen. Stat. § 7A-66(6).

I can’t speak to the merits of the case, but I thought it was worth noting, partly because it comes on the heels of the ouster of D.A. Nifong — Cline was the first D.A. elected following Nifong’s ouster, and had worked for Nifong — and partly because it’s pretty unusual for elected officials to be removed from office by judges for criticism of other judges. I’d love to hear from people who know more about this case.

UPDATE: Prof K.C. Johnson (Durham-in-Wonderland) has been following this matter closely, and has many posts on the subject.

A sad question, which is the subject of today’s Doe v. Sex Offender Registry Board (Mass. App. Ct. Apr. 27, 2012) [UPDATE: link fixed]:

The plaintiff, who was at the moment of interest a ten-year-old boy, appeals from a Superior Court judgment affirming his classification as a level two sex offender. That publicly available classification required the youngster to register annually with the Sex Offender Registry Board (SORB) and with the police department in the city or town where he lived. The classification also required him to appear each year at a police station so that police could update his photograph and fingerprints….

On this record, there is no question that the plaintiff is a troubled youngster deeply in need of the services he is receiving and from which one hopes that he will benefit. But the classification decision rested on unreliable hearsay and the application without explanation of predictive criteria that do not on their face take account of sexual activity between prepubescent children….

803 Code Mass. Regs. § 1.40(9)(c)(2) provides that, in determining a sex offender’s likelihood of recidivism — which in turn bears on what sort of registration requirements apply to the sex offender — one factor should be whether the offender is a “male offender who commits a sex offense, as defined in M.G.L. c. 6, § 178C, against a male victim. This demonstrates the degree of sexual deviance associated with this offender (Hanson & Bussiere, 1998; Hanson & Bussiere, 1996; Freund & Watson, 1991).” Doe v. Sex Offender Registry Board (Mass. 2008) upheld this against an Equal Protection Clause challenge (paragraph break added):

In determining the plaintiff’s likelihood of recidivism and degree of dangerousness, the hearing examiner also considered the fact that the plaintiff’s victim was a male. Title 803 Code Mass. Regs. § 1.40(9)(c)(2) advises that among the elements to consider in assessing the nature of a particular sex offense is whether the offense was committed by a male offender on a male victim. The plaintiff claims that the hearing examiner’s application of this regulation to his case penalized him for being homosexual in violation of his equal protection rights. This claim has no merit.

The equal protection analysis under both the State and Federal Constitutions is the rational basis test. The challenged regulation was drawn from findings of sex offender experts (as cited in the regulation) in order to assist the board in determining more accurately a sex offender’s risk to reoffend and level of dangerousness. Prefatory language to the regulation explains: “Much can be learned about an offender by studying the nature of the offenses he has committed…. Based on its review of the research, the [b]oard found the presence of deviant sexual interests dramatically increases the risk of reoffending and that the strongest deviant sexual interests have empirically been found to be more prevalent among those offenders who victimize strangers, prepubescent children, non-consenting males, [or] vulnerable persons…. The [b]oard otherwise, or unless indicated in this [subsection], does not consider sexual gender orientation of either the offender or the victim in determining the risk to reoffend [or] degree of dangerousness posed.”

We have no difficulty concluding that the regulation serves a legitimate State interest and does not seek to punish, or impose an adverse classification on, the sexual behavior of consenting male adults. It follows that cases relied on by the plaintiff, see Lawrence v. Texas, 539 U.S. 558, 563 (2003), and State v. Limon, 280 Kan. 275, 284 (2005), do not support his equal protection claim.

Is this right? In particular, should this be viewed as discrimination based on sexual orientation, or discrimination based on the offender’s sex, which is subject to a rather demanding form of “intermediate scrutiny” under the U.S. Constitution and “strict scrutiny” under the Massachusetts Constitution? And even if heightened scrutiny is required — whether because this is a sex classification, or because you think that sexual orientation classifications should be subject to heightened scrutiny — should that scrutiny be satisfied if there is indeed sufficient evidence that male offenders against male victims are especially likely to repeat their crimes?

From a Quinnipiac poll, conducted April 11 to April 17:

47. As you may know, in 2010 the state of Arizona passed a law that requires police to verify the legal status of someone they have already stopped or arrested if they suspect that the person is in the country illegally. Do you approve or disapprove of Arizona’s immigration law?

The answers by race/ethnicity: Whites approve 66%-28%, blacks approve 55%-37%, and Hispanics disapprove 49%-47%. I thought the near even division among Hispanics was noteworthy, and indicative of just how broad anti-illegal-immigration sentiment is, including among the group whose citizen and legal resident members are most likely to suffer the side effects of such enforcement (e.g., extended detention if there’s some mistake, or possibly a stop that is motivated partly by a concern about the person’s possibly being an illegal immigrant).

On the other hand, that a May 7-12, 2010 AP-Univision Poll poll, which asked, “Do you think that local police forces should have the power to enforce immigration laws, or do you think the job of enforcing immigration laws should be reserved only for the federal government?,” reported that 16% of Hispanics said local police should have such power, and 81% said it should be reserved for the federal government. (There was similar hostility to the Arizona law in particular, but without details on what the Arizona law does.) I’m not sure how to reconcile these results with the Quinnipiac results, though obviously the text of the question must make something of a difference.

Incidentally, the 2010 AP-Univision poll concluded, among other things, 52% of Hispanics said the U.S. government “should do more to keep illegal immigrants from entering and staying in the U.S.” (42% disagreed), even though 74% of Hispanics said that on balance “illegal immigrants mostly make a contribution to American society [rather than being] mostly a drain on American society” (21% said they were mostly a drain). The sense that the laws need to be enforced — setting aside the question of who should enforce them — is, I think, pretty powerful, even among those who seem to be skeptical of the merits of the laws.

Thanks to Mickey Kaus for the pointer.

AllahPundit (Hot Air), Andrew Sullivan, and Dan Murphy (Christian Science Monitor) question whether a bill allowing people to have sex with their dead spouses (for up to six hours after the death) was indeed proposed in the Egyptian Parliament. The story apparently began in the Al Ahram newspaper, and was then taken up by the Al Arabiya newspaper [UPDATE: just to make it clear for those who don't read the blog, this is the story I blogged about yesterday]; AllahPundit suggests they are not to be trusted:

Al-Ahram is controlled by the Egyptian government, which I assume means it’s heavily influenced by the ruling military junta. And the junta, of course, is invested in discrediting the Islamists in order to defend its prerogatives against parliament’s growing power. (It’s worth noting too that Al-Arabiya, which picked up the story from Al-Ahram, is a Saudi outfit and the Saudis are mighty anxious about the idea of Islamist populists seizing power from sclerotic tyrannical regimes.)

AllahPundit counsels skepticism, but is not sure:

[N]one of this is to say the story isn’t true — the part about the marriage age being lowered is all too plausible — but it’s not hard to see why Mubarak allies might want to make something up or inflate something one of the fringier parliamentarians said in order to galvanize international opinion against the Muslim Brotherhood and Salafists. It is, however, hard to see why the MB would allow parliament to entertain a law like this at a moment when they’re busy gladhanding westerners to reassure them that the Brotherhood are “modern” Islamists who are worthy of foreign aid and trade deals. If this really is being kicked around by MPs, I’d bet it’s the Salafists who are pushing it. But we’ll see.

Sullivan and the Monitor seem to go further. I don’t know who’s right and who’s wrong, but thought I’d note the possibility that Al Ahram and Al Arabiya may not be accurate on this.

UPDATE: The Daily Mail reports:

[S]ources inside the Egyptian Embassy in London have said the claims were ‘completely false’, ‘forbidden in Islam’ and ‘could never imagine it happening’.

The source said the proposal, if it even existed, had not reached the parliament — although it was also admitted it could be the work of an extremist politician.

They denied that the Moon was Stilton; they denied she was even Dutch;
They denied that Wishes were Horses; they denied that a Pig had Wings;
So we worshipped the Gods of the Market Who promised these beautiful things.

InstaPundit has often cited Rudyard Kipling’s Gods of the Copybook Headings, which led me to reread it and appreciate it yet again. As with many poems, different people can bring different interpretations to it; just who the Gods of the Copybook Headings are and who the Gods of the Market Place are is up to you to decide. As with many poems that are more than a stanza or two long, it also has stronger parts and weaker parts. But in any event I thought it would be worth posting:

As I pass through my incarnations in every age and race,
I make my proper prostrations to the Gods of the Market Place.
Peering through reverent fingers I watch them flourish and fall,
And the Gods of the Copybook Headings, I notice, outlast them all.

We were living in trees when they met us. They showed us each in turn
That Water would certainly wet us, as Fire would certainly burn:
But we found them lacking in Uplift, Vision and Breadth of Mind,
So we left them to teach the Gorillas while we followed the March of Mankind.

We moved as the Spirit listed. They never altered their pace,
Being neither cloud nor wind-borne like the Gods of the Market Place,
But they always caught up with our progress, and presently word would come
That a tribe had been wiped off its icefield, or the lights had gone out in Rome.

With the Hopes that our World is built on they were utterly out of touch,
They denied that the Moon was Stilton; they enied she was even Dutch;
They denied that Wishes were Horses; they denied that a Pig had Wings;
So we worshipped the Gods of the Market Who promised these beautiful things.

When the Cambrian measures were forming, They promised perpetual peace.
They swore, if we gave them our weapons, that the wars of the tribes would cease.
But when we disarmed They sold us and delivered us bound to our foe,
And the Gods of the Copybook Headings said: “Stick to the Devil you know.”

On the first Feminian Sandstones we were promised the Fuller Life
(Which started by loving our neighbour and ended by loving his wife)
Till our women had no more children and the men lost reason and faith,
And the Gods of the Copybook Headings said: “The Wages of Sin is Death.”

In the Carboniferous Epoch we were promised abundance for all,
By robbing selected Peter to pay for collective Paul;
But, though we had plenty of money, there was nothing our money could buy,
And the Gods of the Copybook Headings said: “If you don’t work you die.”

Then the Gods of the Market tumbled, and their smooth-tongued wizards withdrew
And the hearts of the meanest were humbled and began to believe it was true
That All is not Gold that Glitters, and Two and Two make Four
And the Gods of the Copybook Headings limped up to explain it once more.

As it will be in the future, it was at the birth of Man
There are only four things certain since Social Progress began.
That the Dog returns to his Vomit and the Sow returns to her Mire,
And the burnt Fool’s bandaged finger goes wabbling back to the Fire;

And that after this is accomplished, and the brave new world begins
When all men are paid for existing and no man must pay for his sins,
As surely as Water will wet us, as surely as Fire will burn,
The Gods of the Copybook Headings with terror and slaughter return!

I blogged last week about the People’s Rights Amendment, which has been introduced by Congressman Jim McGovern. Among other things, I argued, the Amendment would mean that Congress and state and local legislatures would be free to restrict what’s printed by newspapers that are organized as corporations. The National Review Online took the same view. Now the backers of the Amendment are arguing that the National Review say that’s a “false claim[]” (thanks to Opher Banarie for the pointer):

Your editorial also makes false claims that the People’s Rights Amendment would adversely impact freedom of the press. These claims are clearly contradicted by section 3 of the amendment, which reads:

Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

Well, let’s look at the whole text of the suggested Amendment:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulations as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

So under section 1, all constitutional rights, including the First Amendment, are limited to “natural persons.” Under section 2, that doesn’t include corporations. And section 3 preserves the “people‘s rights of freedom of speech, freedom of the press, [and] free exercise of religion” (emphasis added), which — given section 2 — excludes the rights of newspapers (and similar organizations) organized as corporations. So if the People’s Rights Amendment were enacted, Congress would have an entirely free hand to censor what is published in newspapers organized as corporations, what is published by book publishers organized as corporations, what is created by movie studios that are organized as corporations, what is distributed by music companies that are organized as corporations, and so on.

Now this would have two effects.

First, any media organization that wants to be free would thus have to give up the benefits of the corporate form, and will have to organized as a partnership. This will make it much harder for those media organizations to raise operating capital, dealing with changes in ownership as partners die or leave, and the like.

Second, those media organizations that choose to organize as a corporation would have huge practical competitive benefits over organizations that choose to organize as partnerships. As a result, the normal competitive process will drive most non-corporate-owned large media organizations out of business (or at least will make them much smaller and less effective at producing the sort of speech that requires a good deal of money), and will give corporate-owned large media organizations the overwhelming majority of the market share. And then Congress and state and local legislatures would have a free hand to censor those organizations as much as they can (at least up to the point where the economic cost of the censorship would be large enough to outweigh the economic benefit of the corporate form).

Would that “adversely impact freedom of the press”? Or was that just a “false claim[]” on the National Review Online’s part (and on my part)?

[UPDATE: Some commentators have expressed skepticism about whether such a proposal actually exists, and argue that the original Al Ahram and Al Arabiya reports on this may be incorrect; I have more on that in this post.]

Al Arabiya reports:

Egypt’s National Council for Women (NCW) has appealed to the Islamist-dominated parliament not to approve two controversial laws on [legalizing the marriage of girls starting from the age of 14] and allowing a husband to have sex with his dead wife within six hours of her death according to a report in an Egyptian newspaper….

The controversy about a husband having sex with his dead wife came about after a Moroccan cleric spoke about the issue in May 2011.

Zamzami Abdul Bari said that marriage remains valid even after death adding that a woman also too had the same right to engage in sex with her dead husband….

I should say that the lowering of the age of marriage to 14, and the apparent proposal to limit women’s rights to get a divorce (“Many members of the newly-elected, and majority Islamist parliament … wish to cancel … [the Khula] law that allows a wife to obtain a divorce without obstructions from her partner”; “Prior to the implementation of the Khula over a decade ago, it could take 10 to 15 years for a woman to be granted a divorce by the courts”) are much more likely than the “Farewell Intercourse” law to be actually harmful to women. Thanks to Dan Gifford for the pointer.

That’s what Kentucky statutes provide, and today the Kentucky Supreme Court applied this rule in Mitchell v. University of Kentucky (Ky. Apr. 26, 2012). There was something of a complication because the defendant was a university, and state law provides universities with generally broad authority to restrict weapons on their property. But the court concluded that the statutory provisions allowing employees to lawfully store guns in their cars is an exception from that broad university power. Michael Mitchell’s wrongful firing lawsuit against the university can therefore go forward.

The relevant Kentucky statutory provisions, by the way, are these:

§ 527.020(4) … No person or organization, public or private, shall prohibit a person licensed to carry a concealed deadly weapon from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in compliance with the provisions of KRS 237.110 and 237.115. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction….

§ 527.020(8) … No person or organization, public or private, shall prohibit a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in accordance with the provisions of this subsection. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction….

§ 237.115(1) Except as provided in KRS 527.020, nothing contained in KRS 237.110 [the general concealed carry licensing provision -EV] shall be construed to limit, restrict, or prohibit in any manner the right of a college, university, or any postsecondary education facility, including technical schools and community colleges, to control the possession of deadly weapons on any property owned or controlled by them or the right of a unit of state, city, county, urban-county, or charter county government to prohibit the carrying of concealed deadly weapons by licensees in that portion of a building actually owned, leased, or occupied by that unit of government.

The court concluded that the “[e]xcept as provided in KRS 527.020″ did limit the university’s to fire employees for possessing guns in their cars; for more on this, please see the opinion.

UPDATE: My colleague Prof. Stephen Bainbridge speaks out against the Kentucky statute, and nearly all other laws that restrict employees’ and employers’ ability to sever their relationships at will.

An interesting Virginia Supreme Court decision, Wyatt v. McDermott (Va. Apr. 20, 2012), recognizes this right. An excerpt (paragraph breaks added):

John M. Wyatt, III, is seeking monetary damages for the [alleged] unauthorized adoption of his baby, herein referred to as E.Z. E.Z. is the biological daughter of Wyatt and Colleen Fahland, who are unmarried residents of Virginia. [Wyatt claims the following happened:] Prior to E.Z.’s birth, Wyatt accompanied Fahland to doctors’ appointments and made plans with Fahland to raise their child together. Without Wyatt’s knowledge, Fahland’s parents retained attorney Mark McDermott to arrange for an adoption. While Fahland informed Wyatt of her parents’ desire that she see an adoption attorney, she assured Wyatt that they would raise the baby as a family. During a January 30, 2009 meeting with McDermott, Fahland signed a form identifying Wyatt as the birth father and indicating that he wanted to keep the baby.

Fahland offered to provide Wyatt’s address, but McDermott told her to falsely indicate on the form that the address was unknown to her, which she did. She also signed an agreement in which she requested that the adoptive parents discuss adoption plans with the birth father. Wyatt was “purposely kept in the dark” about this meeting, and Fahland continued to make false statements to Wyatt at the urging of McDermott, indicating that she planned to raise the baby with Wyatt, with the purpose that he would not take steps to secure his parental rights and prevent the adoption.

To facilitate an adoption, McDermott contacted “A Act of Love” (Act of Love), a Utah adoption agency, and Utah attorney Larry Jenkins with Wood Jenkins LLP, a Utah law firm representing Act of Love.

Approximately one week prior to E.Z.’s birth, Fahland and her father met again with McDermott. At McDermott’s urging, Fahland spoke to Wyatt briefly on the phone and then sent him a text message informing him that she was receiving information about a potential adoption. Later that day and throughout the week prior to E.Z.’s birth, Fahland continued to assure Wyatt that she still planned to raise the baby with him.

Fahland concealed the fact that she was in labor during conversations with Wyatt, at the direction of McDermott and on behalf of the other defendants. E.Z. was born two weeks early, on February 10, 2009, in Virginia, and Wyatt was not informed of the birth. The next day, Fahland signed an affidavit stating that she had informed Wyatt she was working with a Utah adoption agency and an affidavit of paternity identifying Wyatt as the father. Despite her full knowledge of his address, she placed question marks as to his contact information on the notarized documents at the urging of McDermott. Thomas and Chandra Zarembinski, Utah residents who retained Act of Love to assist them in adopting a child and planned to adopt E.Z., signed an agreement stating that they were aware that E.Z.’s custody status might be unclear. On February 12, Fahland signed an affidavit of relinquishment and transferred custody to the Zarembinskis, who had travelled to Virginia to pick up the child. Wyatt claims all defendants induced Fahland to waive her parental rights knowing that Fahland did not want to relinquish rights to the baby and that Wyatt believed he would have parental rights….

The Court is now left to determine what elements are essential to the tort as it exists today, consistent with the original writ, but in line with equal protection and modern law. Kessel [a West Virginia case] succinctly lays out the elements of this cause of action, consistent with Virginia law:

(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and (4) damages resulted from such interference.

Continue reading ‘Intentional Tortious Interference with Parental Rights’ »

The National reported, in February:

JT, a Briton who works in the parks and recreation section at Abu Dhabi Municipality, … was reported to police by colleagues after he lost his temper during a meeting over delays to a project he was working on designing mosque gardens.

“When will we finish with the damn mosques?” he was reported as saying.

Yesterday’s Al Arabiya reports that the case is on appeal, and the decision is scheduled to be announced April 30. Thanks to Louis Offen for the pointer.

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds.

The Arizona cyber-harassment bill, which I blogged about March 31, has now been narrowed in the Arizona Legislature. The original proposal — which had been passed in nearly identical forms by both houses of the Arizona Legislature — read,

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

This, as I argued, would have posed serious First Amendment problems. Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

So, under the proposal, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would have been a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would have been unconstitutional as well.)

The same would have been true if someone posted something lewd in one of these places in order to annoy or offend someone, for instance if he posted a comment on a police-run public discussion page that says something like “the chief of police can suck my dick,” to borrow subject matter from a prior Arizona telephone harassment case. And, given that case, the speech need not even have been about one of the recipients, so long as it had been intended to annoy or offend one of the recipients.

Fortunately, the Arizona Legislature’s House-Senate conference committee has dramatically narrowed the proposed statute. The new version — which I expect will become law — reads,

A. It is unlawful for any person, with intent to terrify, intimidate, threaten or harass a specific person or persons, to do any of the following:

1. Direct any obscene, lewd or profane language or suggest any lewd or lascivious act to the person in an electronic communication.

2. Threaten to inflict physical harm to any person or property in any electronic communication.

3. Otherwise disturb by repeated anonymous, unwanted or unsolicited electronic communications the peace, quiet or right of privacy of the person at the place where the communications were received….

C. This section does not apply to constitutionally protected speech or activity or to any other activity authorized by law….

This is much more likely to be read as limited to one-to-one messages, such as unwanted targeted e-mails, instant messages, text messages, and the like. The language is not completely airtight on that score, but I think it’s much more likely to be so interpreted. And though there are problems with the proposal even as to unwanted one-to-one messages — for instance, “harass” is not defined in the statute, and the word “harassment” is defined three different ways in three other Arizona statutes, which reflects its ambiguity — I think the new version is much better than the original draft.

Many thanks to Alan Solot for pointing me to the original version of the bill in the first place, to Charles Brownstein of the Comic Book Legal Defense Fund for writing the March 30 post that Mr. Solot had passed along to me, and to Media Coalition for its earlier criticisms (see here and here).

UPDATE: Thanks also to author Neil Gaiman; Alan Solot tells me that he learned of the bill through a Twitter message by Mr. Gaiman, which pointed to the Comic Book Legal Defense Fund post.

From President Obama’s remarks today at the University of North Carolina:

One Republican congresswoman said just recently — I’m going to quote this because I know you guys will think I’m making it up — (laughter).

AUDIENCE MEMBER: We trust you. (Laughter.)

THE PRESIDENT: No, no, no. She said she had “very little tolerance for people who tell me they graduate with debt because there’s no reason for that.”

AUDIENCE: Booo –

THE PRESIDENT: I’m just quoting here. I’m just quoting. She said, students who rack up student loan debt are just sitting on their butts, having opportunity “dumped in your lap.”

AUDIENCE: Booo –

THE PRESIDENT: I mean, I’m reading it here, so I didn’t make this up. Now, can you imagine saying something like that?

The “we trust you” turns out to have been a mistake. Here’s what Congresswoman Virginia Fox actually said:

I have very little tolerance for people who tell me that they graduate with $200,000 of debt or even $80,000 of debt because there’s no reason for that.

That strikes me as quite different from “very little tolerance for people who tell me that they graduate with debt because there’s no reason for that,” without the “$200,000 or even $80,000″ qualifier. Indeed, as of 2007-08, the 90th percentile for total undergraduate student loans was $44,500, so $80,000 would be a very high student loan amount indeed, at least for undergraduates (likely the people whom both the President and Congresswoman Fox was targeting). Today, the amounts would likely be a bit higher — the 2007-08 data gives the median 4-year student debt at $20,000, and President Obama said in his speech it was $25,000 — but not by enough to make $80,000 a normal student debt.

So Congresswoman Fox was expressing a lack of sympathy for students who take on unusually large — perhaps 95th or higher percentile — levels of debt. President Obama, though, quoted her as if she was expressing a lack of sympathy for students who take on any debt at all.

One can certainly disagree with the Congresswoman’s views. But if one wants to disagree with those views, one should at least quote them correctly.

See also this post from yesterday, which is the first misquote to which my title “another misquote” refers.

I just noticed this word for the first time today; it means “the act of obtaining.” A sign of its rarity is that “obtainment” is a much more common synonym — and “obtainment” isn’t exactly super popular. Google Ngrams tells us that “the obtaining of” is much more common than either “the obtainment of” or “the obtention of” (especially British English, but also in American English). Westlaw likewise reports that “obtention” has only been used 7 times since 1/1/2010.

From today’s King v. State (Md. Ct. App. Apr. 24, 2012) (some paragraph breaks added):

We consider here facial and as-applied constitutional challenges to that portion of the Maryland DNA Collection Act (the “Act”) that purports to authorize State and local law enforcement authorities to collect DNA FN1 samples from individuals who are arrested for a crime of violence,FN2 an attempted crime of violence, a burglary, or an attempted burglary. Appellant, Alonzo Jay King Jr., was arrested in 2009 on first- and second-degree assault charges. Pursuant to § 2–504(3) of the Act, King’s DNA was collected, analyzed, and entered into Maryland’s DNA database. King was convicted ultimately on the second-degree assault charge but, pending his trial on that charge, his DNA profile generated a match to a DNA sample collected from a sexual assault forensic examination conducted on the victim of an unsolved 2003 rape. This “hit” provided the sole probable cause for a subsequent grand jury indictment of King for the rape. A later-obtained search warrant ordered collection from King of an additional reference DNA sample, which, after processing and analysis, matched also the DNA profile from the 2003 rape. King was convicted of first-degree rape and sentenced to life in prison.

Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 Md. 19 (2004), the present case presents an extension of the statute, not present in Raines. Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable searches and seizures. Under the totality of the circumstances balancing test, see Knights v. United States, 534 U.S. 112 (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time.

The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges.

We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately.

Al Arabiya reports (see also BBC and Agence France Press):

A Cairo court upholds a three-month jail sentence for Egyptian film star and the Arab world’s most famous comedian, Adel Imam, on charges of insulting Islam, Al Arabiya TV reported on Monday….

The 71-year-old celebrity said that among the works criticized are the 1994 production “al-Irhabi” (The Terrorist), in which he portrays an Islamic fundamentalist and the play “al-Zaeem” (The Leader), a comedy in which Imam pokes fun at the region’s autocratic leaders.

Another prominent Egyptian, Christian businessman and politician Naguib Sawiris, “is facing similar charges of defaming Islam after he posted pictures of Mickey and Minnie Mouse dressed in Muslim attire on Twitter” — the picture appears to be this one:

Thanks to Opher Banarie for the pointer.

Commenter gekgek points out the literal meaning of the bill I blogged about below:

This Act may be cited as the ‘Violence Against Women Reauthorization Act of 2011.’

Shades of Domestic Violence Month, as well as Sexual Harassment Training.

This is happening in § 1003 of the Violence Against Women Reauthorization Act of 2011, which is apparently being debated tomorrow. Here’s the deal: 47 U.S.C. § 223(a) currently criminalizes

(C) mak[ing] a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications; [or] …

(E) mak[ing] repeated telephone calls or repeatedly initiat[ing] communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication.

This law already has some problems, I think, given the vagueness of terms such as “annoy” and “harass,” and it’s been held unconstitutional as applied in a case in which a man was prosecuted for leaving racist voice-mail for then-U.S. Attorney and now-Attorney General Eric Holder; it might therefore be unconstitutionally overbroad. But it has generally been upheld in most cases, and such a result may be defensible precisely because the statute deals with calls or messages to the person who is being harassed. Restricting such unwanted one-to-one speech (with a properly crafted and narrowed statute) should be permissible, because it leaves people free to communicate with willing listeners. See generally Rowan v. United States Post Office Dep’t (1970).

But now the Senate is considering replacing “harass any person at the called number or who receives the communication” with “harass any specific person.” This appears to be a deliberate attempt to remove the language that could be read as limiting the current statute to one-to-one communications. (The proposal would also remove “annoy” from item (C), but it would keep “harass.”)

So say that someone started to post anonymous (or pseudonymous) blog posts — or Twitter messages or online newspaper articles — criticizing Attorney General Holder, a local official, a police officer, a businessperson, a religious leader, or anyone else. The posts aren’t threatening or false, just harshly critical. And say a prosecutor decided that the speaker was partly motivated by a desire to “badger, disturb or pester” the target of his messages. The speaker could then be prosecuted, on the theory that he was

utiliz[ing] a telecommunications device … without disclosing his identity and with intent to … harass any specific person [added text italicized].

And this is so even though the speaker is talking to the public at large, not just to the target: As I said, the proposal would expressly delete the statutory language that could now be used to try to limit the statute to one-one unwanted messages.

The intent to harass would not have to be the sole intention. Subsection (E) specifically limits itself to situations where the speaker has the sole intention to harass, and while that’s problematic enough on its own terms (since it’s so hard to tell what’s a speaker’s “sole” intention), it makes clear that subsection (C), which lacks such limiting language, applies even to cases where the intent to harass is one of the speaker’s intention.

Say a speaker thinks Congressman Joe Schmoe (or Officer Joe Schmoe or Reverend Joe Schmoe) has done bad things and therefore (1) intends to communicate to the public why he thinks Joe Schmoe should be reviled, and (2) wants Joe Schmoe to feel reviled and embattled. Harsh and, especially, repeated anonymous criticism of Schmoe would then reasonably be seen as having an “intent to harass” as well as an intent to communicate to the public. Note also that the word “harass” is not defined in the statute, but the definition I gave above, which is to “badger, disturb or pester,” is taken from a case interpreting another criminal prohibition on things done with “intent to harass,” and reflects that court of appeals’ judgment of the dictionary meaning of the word. I have no reason to think that “harass” would be interpreted any more narrowly (or more clearly) than “badger, disturb or pester.”

And of course there’s every reason to think that the revised statute could be used not just to go after criticism of private individuals — though I think it would be unconstitutional even then — but also government officials. As you can see in these posts, these sorts of broad “harassment” statutes have recently been used to silence, prosecute, or try to unmask critics of prominent religious leaders, city commissioners, police officers, and candidates for elective office. Why is the Senate considering broadening federal speech restrictions to make such prosecutions easier?

Note also that the bill would also remove the limiting language from the provision (§ 223(E)) that covers even nonanonymous speech that’s said “solely to harass.” Under the bill, a signed blog post, online newspaper article, or Twitter message could lead to a prosecution if the prosecutor thinks the purpose of the message is “solely to harass” the person being criticized in the article. I would argue that statements to the public always have the intention to inform, persuade, entertain, or something else, even if they also have the intention to harass. But the bill is deliberately expanding the subsection to cover not just speech said to a person, but also speech said to the public about the person. And given the human tendency to assume the worst motivations in those whose views one disagrees with, it’s quite plausible that prosecutors, judges, and jurors might find someone guilty of publicly speaking “solely to harass” the person whom he is harshly criticizing, even when the speaker also has the purpose of informing or persuading the public.