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Editorial: Political speech or corruption?

 Free Speech  Comments Off on Editorial: Political speech or corruption?
Apr 062015
 

By Editorial Board April 5 at 6:53 PM

IN THE Supreme Courts landmark 2010 case Citizens United v. Federal Election Commission , the court declared that corporate independent political expenditures are protected free speech under the First Amendment and cannot be constrained. The court wrestled with the possibility that unlimited spending might have a corrupting influence on politics, but in the end it decided that free speech was the overriding goal and that as long as the expenditures were independent of candidates, and transparent, they would not increase corruption. The campaign cycles since then have been increasingly awash in this spending, much of it going to super PACs.

Now comes a disturbing set of facts that call into question the courts logic and conclusions about corruption. The April 1 indictment of Sen. Robert Menendez (D-N.J.) on bribery charges alleges a chronology that should worry everyone who cares about integrity in national politics. According to the indictment, a wealthy Florida ophthalmologist, Salomon Melgen, who was seeking Mr. Menendezs support on matters before the U.S. government, wrote two checks for $300,000 each in 2012 to the Senate Majority PAC, a super PAC devoted to supporting the election of Senate Democrats.

The donations were earmarked for use in the senators state of New Jersey. The senator was the only Democrat running for the Senate then in New Jersey. The doctor handed over one of the checks to a close friend of Mr. Menendez at the senators annual fundraiser. Is this what the court envisioned as independent?

The super PAC has said it acted within the law. It will be up to a jury to decide whether the doctor and the senator engaged in corruption. But the facts asserted in the indictment are sufficient to call into question the courts underlying thinking in Citizens United. The court declared that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. The court added that there is only scant evidence that independent expenditures even ingratiate.

In this case, the money may have earned the doctor more than just gratitude. The indictment describes a flurry of e-mails, calls and requests for meetings by the senator on behalf of the Florida doctor. The senator aimed his efforts at cabinet members, regulators and fellow senators. There is no evidence of a direct quid pro quo, but the timing is suspicious. For example, on June 1, 2012, the doctor issued a $300,000 check, through his company, to the super PAC, earmarked for New Jersey politicking. On June 7, the senator met with the acting administrator of the U.S. Centers for Medicare and Medicaid Services to advocate for a resolution of a Medicare billing dispute involving the doctor to the tune of nearly $9 million. Just coincidence?

Whats at stake here is more than just one case. The Supreme Court has created an environment pregnant with possibility for corruption. The principles of independent expenditure are being routinely subverted. The reality of corrupt politics money for favors is growing more evident by the day.

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Editorial: Political speech or corruption?

Free Speech Outside the Abortion Clinic

 Free Speech  Comments Off on Free Speech Outside the Abortion Clinic
Mar 222015
 

The Supreme Court has given pro-life advocates free rein, even if it distresses patients. But getting people to listen is more complicated.

When Kelsey McLain, then a 25-year-old in the midst of the first trimester of her pregnancy, arrived at the abortion clinic closest to her home, her car couldnt get past the entrance of the parking lot. Protestors loomed toward the front of her vehicle. The group of 12 wielded signs covered in photos of aborted fetuses with the word murder printed across them in big block letters. McLains mother was behind the wheel, and with her foot on the brake, she gave the road blockers a choice of moving or getting run over.

The encounter didnt end after the protesters moved off to the side. As McLain got out of the car, louder shouts greeted her, accusing her of turning her back, of not wanting to know the truth. She felt growing anger but resisted the urge to lash out. She dashed inside the clinic, her mother close behind. It wasnt what I needed to deal with that day, McLain recalls.

In the clinics waiting room, McLain noticed that many of the patients seemed rattled. At that point, all they knew was that there were people outside and they were screaming at them. They didnt know their motivations or if they were good or bad people. As a woman with a self-proclaimed interest in reproductive rights, McLain had thought she was prepared for what she was going to face when she arrived at the clinic. But she, too, felt jarred. Protesters are always going to be a scary thing, no matter how much knowledge you have about them, she says.

Today, McLain witnesses pro-life activism on a weekly basis, when she volunteers as a clinic escort. Her role is to offer patients moral and physical support as they make their way past protestors, some of them quietly praying, others approaching the women with an intensity that that borders on harassment. She says protesters are quick to remind escorts and clinic staff that theyre legally entitled to be there. They comment to us that they have great lawyers, and they know their rights, and if we ever violate their right to free speech, theyll sue us, she says.

In June 2014, the Supreme Court unanimously struck down a Massachusetts law forbidding protesters from standing within 35 feet of the entrance to a reproductive health care facility. After that decision came down, the demand for escorts like McLain sharply increased, says Marty Walz, the recently retired CEO of the Planned Parenthood League of Massachusetts. The protesters definitely have greater access to our patients, right up to the front door, Walz says. And they take advantage of it. When the buffer zone was in place, the Boston clinic used escorts only on Friday and Saturdayits busiest days. Now, every day, a swarm of people descends on the building. Along with the patients, the protesterswho now number anywhere from 20 to 80 each day and the pedestrians, there are 20 to 30 additional escorts at the Boston clinic.

This growing horde of people has made the atmosphere outside the clinic tenser, more chaotic, and in general, a lot less comfortable for the patients, says Sarah Cyr-Mutty, the community relations coordinator at the Boston clinic and a regular clinic escort. No one wants to drive up to their doctors office and see over 100 people standing outside.

The activists are now able to walk right up to patientspraying, pleading, and handing out flyers. They can follow women up to the clinics doors, which means that once the patients are in the waiting room, they can still hear the chants from outside. As such, Cyr-Mutty says that the patients she escorts through the clinics doors now are often in need of more consoling than they were before the Courts decision. Whether theyre just a presence outside, or theyre really trying to interact with them, its always really upsetting to the patient.

But apart from the commotion, its not clear how much has changed since the Supreme Courts ruling in McCullen v. Coakley nine months ago. Theres no evidence that activists are succeeding in changing womens minds. What is succeeding is the one thing the Supreme Court intended: People who believe abortion is murder are able to share that message with those who least want to hear it.

It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas, wrote Chief Justice John Roberts in the Courts opinion. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks.

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Free Speech Outside the Abortion Clinic

Synopsis | Money And Free Speech: Campaign Finance Reform And The Courts – Video

 Free Speech  Comments Off on Synopsis | Money And Free Speech: Campaign Finance Reform And The Courts – Video
Feb 052015
 



Synopsis | Money And Free Speech: Campaign Finance Reform And The Courts
THE SYNOPSIS OF YOUR FAVORITE BOOK =— Where to buy this book? ISBN: 9780700614035 Book Synopsis of Money and Free Speech: Campaign Finance Reform and the Courts by Melvin I.

By: Heavy truck

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Synopsis | Money And Free Speech: Campaign Finance Reform And The Courts – Video

Argument analysis: What exactly is a routine traffic stop, and should a suspicionless dog sniff be part of it?

 Fourth Amendment  Comments Off on Argument analysis: What exactly is a routine traffic stop, and should a suspicionless dog sniff be part of it?
Jan 232015
 

License, registration, and dog sniff, please? After a somewhat frustrating argument Wednesday morning, Justice Elena Kagan finally expressed concern about the possibility that the federal governments position in Rodriguez v. United States would lead to . . . 40 minutes of free time for police officers to investigate any crimes that they want. Assistant to the Solicitor General Ginger Anders responded that I dont think thats how we envision things, but she then suggested that only the duration of a routine traffic stop under the circumstances defines the Fourth Amendments reasonable limit. This did not answer the question that Justice Anthony Kennedy asked early on: how do you define the traffic stop? But even if the government loses, the Justices expressed a fair amount of indecision over exactly what the rule should be, and they appeared less than satisfied with the arguments offered by Rodriguezs attorney, Shannon OConnor the First Assistant Federal Public Defender for the District of Nebraska.

The facts, the question, and a few points of clarity

As previewed yesterday, the issue before the Court involves a valid traffic stop for swerving over the highway shoulder line, in which the officer prolonged the stop for seven to eight minutes after he had completed writing a warning, in order to conduct a dog sniff of Rodriguezs car after a back-up officer arrived. The entire traffic stop lasted about thirty minutes, at which point the dog alerted and provided probable cause for further search (which revealed methamphetamine). The Eighth Circuit did not question the lower courts finding that there was no reasonable suspicion for the dog-sniff detention, but it ruled that a de minimis delay to conduct a dog sniff is okay. Since the Courts 2005 ruling in Caballes that a dog sniff conducted simultaneously with a traffic stop did not violate the Fourth Amendment, lower state and federal courts have divided on the appropriate constitutional standards as well as their application when a sniff (or other investigation) extends the time of a stop.

A few things seemed clear from Wednesdays argument. First, a dog sniff of a car stopped for a traffic violation is extraneous to the purpose of that is, not an ordinary incident of a traffic violation stop. Justice Samuel Alito questioned this and accurately noted that the Court has previously held that questions which seem unrelated to the mission of the traffic stop have been routinely upheld, starting with the standard opening license and registration, please and extending, as in Rodriguezs case, to questions about where the driver and the passenger were going and why. Thus, he repeatedly asked, why are those questions part of the mission and the dog sniff is not? But Anders wisely conceded that she was not arguing that a dog sniff should be considered an ordinary incident of most traffic stops. Although no one mentioned Indianapolis v. Edmond, the Courts 2000 decision ruling that routine drug checkpoints employing dog sniffs without suspicion violates the Fourth Amendment, the Justices did not seem ready to accept the routine addition of dog sniffs to valid traffic stops.

(Incidentally, repeated points of some humor were moments in which Justices referred to having been stopped themselves by the police. Chief Justice John Roberts began this thread by commenting during OConnors argument(to laughter) that people have told me what happens when youre stopped. Justice Sonia Sotomayor later began Anders argument by saying and Chief, Ive been stopped, to which Anders quickly responded, so have I. The underlying point being that perhaps one of the most shared experiences in our national culture is being stopped by the police while driving. Or as Justice Stephen Breyer put it, our experience on stops comes from, unfortunately, being the stoppee.)

A second point that appears clear from yesterdays argument is that the Court will not use this case to reconsider Caballes and examine whether a dog sniff should count as a Fourth Amendment search. Justice Sotomayor appeared to raise this fundamental question briefly is that really what the Fourth Amendment should permit? but then quickly suggested that the Court should cabin it to Caballess simultaneous with writing the ticket holding. Thus while the Caballes holding appears to be in some tension with the constitutional theory of search that Justice Antonin Scalia, among others, has recently advanced, this case will not be used as an occasion to discuss it in the text of the opinion, although it may surface in footnotes or separate opinions.

The basic question: Is suspicionless detention for a dog sniff allowed?

Various Justices the Chief Justice and Justices Scalia Kagan in particular appeared to keep driving the case to its basic question: may the police continue to detain someone, without at least reasonable suspicion, when the Fourth Amendment justification for the stop (that is, the traffic violation) has ended? Toward the end of the argument, Justice Kagan bluntly stated that if the government is arguing that Caballes gives you extra leeway to detain people . I think thats just not right. Chief Justice Roberts appeared to agree, rhetorically asking a bit earlier (generating laughter) whether [i]ts only a violation of the Fourth Amendment for two minutes, right? And Justice Scalia later interjected, apparently along the same rhetorical line, it can prolong it a little bit.

At one point, Justice Breyer began a question for Anders with the announcement that I have a great idea. Reading this, I initially imagined everyone was groaning but then Justice Breyers idea appeared to catch on with the rest of the Court (perhaps for want of any other more specific guidance). Justice Breyer appeared to suggest that the Court simply stick to what it has said in past cases: that a stop cannot last longer than is necessary to effectuate the purpose of the stop, or that a stop cannot be unnecessarily prolonged. He explained that these were not new ideas what an original idea I had, he noted with irony and that after we cite these two cases , [we] reverse. QED, goodbye. And then, as Justice Ruth Bader Ginsburg repeatedly noted, the issue whether there actually may have been reasonable suspicion about narcotics on the facts of this case, a point not addressed by the court of appeals, would be open on remand. Although OConnor urged the Court to decide that question itself for judicial economy, no Justice seemed likely to agree.

One final point, about Terry v. Ohio

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Argument analysis: What exactly is a routine traffic stop, and should a suspicionless dog sniff be part of it?

Volokh Conspiracy: Libertarianism, conservatism, and judicial review

 Misc  Comments Off on Volokh Conspiracy: Libertarianism, conservatism, and judicial review
Dec 262014
 

In a thoughtful recent post, conservative political theorist Peter Lawler comments on my review of Damon Roots new book on the conservative-libertarian debate over judicial review. Lawler argues that libertarians overemphasize the role of judicial review protecting individual rights against state infringement, that the Founders assigned a much lesser role to judicial review, and that many of the rights libertarians (and liberals) seek to protect through judicial review cannot be squared with originalism. There are some problems with his analysis on all three issues.

I. The role of Judicial Review in Protecting Individual Rights

On the question of the effectiveness of judicial review, few serious libertarian commentators imagine that the judicial intervention alone is enough to protect the individual rights. Rather, they recognize that the road to victory for constitutional reform movements usually involves a combination of litigation and conventional political action. That has been a successful winning formula for the civil rights movement, womens rights advocates, gun rights supporters, and most recently same-sex marriage advocates. It has also underpinned the recent progress made by property rights advocates. The Institute for Justices efforts to revive public use constraints on eminent domain has involved just such a combination. While it has not so far achieved anything like complete victory, it has managed to secure important gains.

As evidence against the utility of judicial intervention, Lawler claims that the Courts record on race has generally been terrible and cites this as proof that it is ridiculous to rely all that much on the Court to protect our rights. The Courts record on racial discrimination has indeed often been poor relative to the ideal outcome. But the more relevant question is how good its record has been relative to the political branches of government. The case for strong judicial review is not that the courts are particularly good, but that, in protecting some types of important rights, they routinely do better than the available alternatives. By that standard, the Courts record on racial issues since the enactment of the Reconstruction Amendments is actually far better than many imagine. During the Jim Crow era, for example, the Court issued a number of important decisions striking down forms of racial discrimination that had prevailed in the political process. For example, it invalidated peonage laws and laws mandating residential segregation. Although its record was far from perfect, it was much better than that of Congress, the president, and many state legislatures. More recently, courts have been more willing than legislators to curtail racial preferences in government contracting and college admissions. Supporters of affirmative action understandably view these decisions as a negative, but conservative opponents including Lawler surely do not.

II. Originalism, the Founders, and the Role of the Judiciary.

Lawler doubts that judicial review was ever meant to be much more than an auxiliary precaution that would be rarely used, citing the Federalist Papers in support. While the Founders probably did not intend judicial review to be the primary method for protecting individual rights, they did emphasize its importance as a tool for enforcing constitutional limitations on government power. As Alexander Hamilton put it in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

[emphasis added].

In addition judicial review may have a greater role to play in protecting rights today, than might have been supposed in the 1780s. In a world where the size and scope of government is vastly greater than it was 225 years ago, it is far more difficult for voters with limited knowledge and attention spans to police all the many different possible ways in which government threatens liberty.

On the issue of originalism, Lawler laments that decisions such as Lawrence v. Texas, Roe v. Wade, and United States v. Windsor cannot be squared with originalism because [n]one of the Framers would have recognized a constitutional right to an abortion or to same-sex marriage. But most modern originalists including conservatives such as Steve Calabresi and the late Robert Bork do not base originalism on original intent the specific intentions and expectations of the framers. The dominant version of originalism is now original public meaning: the idea that the words of the Constitution should be interpreted in accordance with the public understanding of the words at the time of enactment. Often, the original meaning of a constitutional provision is a broad general principle that courts and others must apply to changing social conditions and increasing knowledge of relevant facts. For example, most originalists agree that the Fourth Amendment restricts wiretapping and that the First Amendment protects speech on the internet, even though the Founding Fathers probably could not have imagined either situation. The combination of fixed principles, changing social conditions, and new scientific knowledge yields decisions protecting old rights in new ways that are nonetheless consistent with originalism.

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Volokh Conspiracy: Libertarianism, conservatism, and judicial review

Volokh Conspiracy: Second Amendment and people who had been committed to a mental institution 28 years ago

 Second Amendment  Comments Off on Volokh Conspiracy: Second Amendment and people who had been committed to a mental institution 28 years ago
Dec 192014
 

Under federal law, people who have been involuntarily committed to a mental institution however long ago are barred from possessing guns. Congress agreed that people with long-past mental problems might now be sane, and thus not especially dangerous, and provided for a means to apply for restoration of gun rights. But then in 1992 Congress ordered ATF not to spend any money applying the restoration program. And while it provided, in 2007, that people could get their rights restored by applying to a state that has a qualifying program for evaluating applicants mental fitness, many states have no such program.

This case was brought by a resident of one such state that lacks a relief-from-disabilities program, Michigan. From the courts opinion, Tyler v. Hillsdale County Sheriffs Dept (6th Cir. Dec. 18, 2014):

This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person who has been committed to a mental institution, 18 U.S.C. 922(g)(4), violates the Second Amendment. Twenty-eight years ago, Clifford Charles Tyler was involuntarily committed for less than one month after allegedly undergoing an emotionally devastating divorce. Consequently, he can never possess a firearm. Tyler filed suit in federal court, seeking a declaratory judgment that 922(g)(4) is unconstitutional as applied to him. The district court dismissed Tylers suit for failure to state a claim. Because Tylers complaint validly states a violation of the Second Amendment, we reverse and remand.

Tyler is a seventy-three-year-old resident of Hillsdale County, Michigan. On January 2, 1986, a state probate court committed Tyler to a mental institution. Tyler alleges that he underwent an emotionally devastating divorce in 1985 and that he was involuntarily committed because of a risk that he might be suicidal.

Tyler submitted a 2012 substance-abuse evaluation containing additional information about his 1985 depression. In 1985, when Tyler was forty-five years old, Tylers wife of twenty-three years served him divorce papers. Prior to filing for divorce, Tylers ex-wife allegedly ran away with another man and depleted Tylers finances. Tyler felt overwhelmed and sat in the middle of the floor at home pounding his head. According to a mental-health evaluation submitted by Tyler, Tyler was crying non-stop, not sleeping, depressed, and suicidal at this time. Tylers daughters became scared and contacted the police. [Tyler was then involuntarily committed. -EV]

In 2012, Tyler underwent a psychological evaluation. Tyler informed the psychologist that he had never experienced a depressive episode other than his 1985 incident. The psychologists report indicated that Tyler has no criminal history. The psychologist contacted Tylers physician who also reported that she had not detected evidence of mental illness in Tyler. The psychologist determined that Tylers prior involuntary commitment appeared to be a brief reactive depressive episode in response to his wife divorcing him. The psychologist determined that there was no evidence of mental illness.

The court concluded quite rightly, I think that Hellers endorsement of restrictions on gun ownership by the mentally ill doesnt dispose of the case:

The Courts assurance that Heller does not cast doubt on prohibitions on the possession of firearms by the mentally ill does not resolve this case. For 922(g)(4) prohibits firearm possession not just by the mentally ill but by anyone who has been committed to a mental institution. Hellers assurance that the state may prohibit the mentally ill from possessing firearms may provide solid constitutional ground for 922(g)(4)s restriction as to an individual adjudicated as a mental defective, but it is insufficient by itself to support the restriction as to individuals who have been involuntarily committed at some time in the past.

The court then concluded that strict scrutiny (not intermediate scrutiny) was generally the proper test to apply to gun restrictions, outside those categories excluded from Second Amendment scrutiny by Heller. The court, however, predict[ed] that the application of strict scrutiny over intermediate scrutiny will not generally affect how circuits decide various challenges to federal firearm regulations; this might seem surprising, but the courts explanation of this prediction on pp. 26-27 strikes me as quite plausible. And the court then applied strict scrutiny here are some excerpts from the analysis, which focuses largely on the fact that Congress (1) chose to create a system for people with past mental commitments to regain their Second Amendment rights, but (2) then defunded the federal system and decided to rely on state choices whether to set up their own state systems:

At issue here is only 922(g)(4)s prohibition on possession by persons previously committed to a mental institution. Not all previously institutionalized persons are mentally ill at a later time, so the law is, at least somewhat, overbroad. But is it impermissibly so? Congress, in its efforts to keep firearms away from the mentally ill, may cast a wider net than is necessary to perfectly remove the harm. A prophylactic approach thus obviate[s] the necessity for large numbers of individualized determinations. But is 922(g)(4)s net too wide? Are previously institutionalized persons sufficiently dangerous, as a class, that it is permissible to deprive permanently all such persons of the Second Amendment right to bear arms?

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Volokh Conspiracy: Second Amendment and people who had been committed to a mental institution 28 years ago

Opinion analysis: Reasonable mistakes of law by police do not violate the Fourth Amendment

 Fourth Amendment  Comments Off on Opinion analysis: Reasonable mistakes of law by police do not violate the Fourth Amendment
Dec 162014
 

The exercise of police discretion to stop people on the street is front and center in todays headlines. In this case, a North Carolina policeman stopped Heiens car because it had a brake light that did not work. During the stop, Heien consented to a search of the car, which yielded cocaine in a duffle bag and Heiens ultimate conviction for attempted drug trafficking. On appeal, the North Carolina appellate courts surprisingly ruled that the outdated state vehicle code required only one working brake light (a stop lamp, in the words of the statute); therefore, there had been no violation of law that would permit the stop. The officer made no error about the facts; but he had been mistaken about the meaning of the law. However, the North Carolina Supreme Court ruled, the officers mistake about this law was reasonable, and for that reason the Fourth Amendment right to be secure from unreasonable seizures was not violated. This mornings opinion in Heien v. North Carolina affirms that holding.

Chief Justice Roberts announcing the opinion. (Art Lien)

The constitutional law of reasonableness The vague word unreasonable in the Fourth Amendment is a lawyers playground, and questions about what sort of circumstances constitutionally permit law enforcement seizures have thus plagued the federal courts since the Fourth Amendment was adopted. In 1813, Chief Justice John Marshall wrote that the constitutional standard is circumstances which warrant suspicion a relatively unspecific and therefore unhelpful standard. But its unhelpfulness flows from the generality of the amendment itself. It is not judge-made policy; it is constitutional text.

Over the years the Court has honed its thinking about what constitutes probable cause to stop or search (for example, Illinois v. Gates in 1983), and in Terry v. Ohio in 1968 the Court famously ruled that even brief stops on the street require at least specific and articulable reasonable suspicion, not just hunches. The Court has subsequently made clear that even when police are mistaken about facts, their stops do not violate the Constitution if their mistakes are reasonable.

Todays opinion

Today, in an opinion by Chief Justice John Roberts, a majority of eight Justices affirmed that there is no reason why this same result should not apply when reached by way of a similarly reasonable mistake of law. The Court conceded and Justice Sonia Sotomayor, the lone dissenter, agreed that no precedent of the Court has expressly answered this reasonable mistake of law question (scarcely a peep). The Court noted, however, that as early as 1809, the Supreme Court ruled that a reasonable mistake of law about probable cause permitted a customs seizure under a federal statute. By 1860, this general principle had been adopted in numerous [lower court] cases. While acknowledging that the statutory customs cases were not directly on point for the constitutional question, the Court also explained that no decision of this Court in the two centuries since has undermined that understanding that reasonable mistakes of law can excuse governmental action. In fact, the Court explained that in more recent cases, such as Michigan v. DeFillippo, it had found no Fourth Amendment violation even when governmental searches were based on state statutes later declared unconstitutional. (Justice Sotomayor strongly disagreed with this reading.)

Arguing for Heien, attorney Jeffrey Fisher had struggle[d] to limit the Courts ruling solely [to] the exclusionary rule that is, the remedy in lieu of a more general ruling about the right (that is, whether the officers stop was an unreasonable violation of the amendment). This was likely an attempt to preserve some relief for Heien on remand, because North Carolina purportedly has not adopted a good faith exception to the exclusionary rule. But there will be no remand for further proceedings under todays ruling, which flatly affirmed the state courts ruling. The Court said that DeFillippo was plainly a decision about the meaning of probable cause, and thus its holding regarding a reasonable mistake of law cannot be transform[ed] into an exclusionary rule decision. So in this case, because the officers mistake about the meaning of North Carolinas vehicle code was reasonable, there was no violation of the Fourth Amendment in the first place.

(By contrast, the Court also noted that an individual officers mistaken view, no matter how reasonable, that he has complied with the Fourth Amendment, does not undermine a reviewing courts ultimate conclusion that governmental actions have violated the Fourth Amendment even though it might affect the remedy. This significant reservation regarding the scope of the Courts ruling is emphasized in footnote 1 of Justice Elena Kagans concurring opinion, and should not be overlooked.)

The majoritys limitations, and two separate opinions

Importantly, particularly in light of recent controversies, the Court observed that the standard of reasonableness for mistakes of law is not as forgiving as some might have it. An officers legal error must be objectively reasonable, and not based on a particular officers subjective understanding or on a sloppy study of the laws he is duty-bound to enforce. Thus, the Court suggested, an officer must learn[] the law, and I would expect that the familiar standard of a reasonably well-trained officer will be rigorously applied by lower courts when confronted with Heien errors in the future.

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Opinion analysis: Reasonable mistakes of law by police do not violate the Fourth Amendment

Volokh Conspiracy: Review of Damon Roots Overruled: The Long War for Control of the Supreme Court

 Misc  Comments Off on Volokh Conspiracy: Review of Damon Roots Overruled: The Long War for Control of the Supreme Court
Dec 162014
 

Damon Roots new book Overruled: The Long War for Control of the U.S. Supreme Court is an impressive account of the conflict over judicial review between conservatives and libertarians. Most books about the recent history of judicial review and constitutional theory focus on the opposition between conservatives and liberals, Democrats and Republicans. By contrast, Root focuses primarily on the increasingly important faultline between libertarians and conservatives.

Libertarians and conservatives have cooperated on issues related to federalism, gun rights, and property rights. But they have also sharply disagreed on the role of judicial review in protecting the rights of gays and lesbians, limiting wartime executive power, and constraining police and prosecutors. As the leading writer on legal issues for Reason, the prominent libertarian publication, Root has covered many of these issues for years.

Root effectively traces libertarian-conservative disagreements over judicial review to their origins in the late nineteenth and early twentieth centuries, when Progressives attacked nineteenth century natural rights-based jurisprudence for what they regarded as unjustified judicial activism in protecting both economic liberties and noneconomic ones. As he notes, many early Progressives opposed not only the Courts enforcement of economic freedoms in cases like Lochner v. New York, but also judicial efforts to protect free speech and enforce other noneconomic freedoms. For example, leading Progressive Justice Louis Brandeis praised the Courts notorious decision to uphold mandatory sterilization of the mentally ill in Buck v. Bell as an example of cases where judges should give state governments free reign to meet..modern conditions by regulations (though he gradually came to support judicial protection of some other civil liberties).

Beginning in the 1920s and 1930s, political liberals gradually shifted towards supporting strong judicial intervention to protect noneconomic rights, even as they repudiated similar protection for economic freedoms and property rights. But, ironically, the original Progressive defense of judicial nonintervention was taken up by post-New Deal conservatives, including such notable legal theorists as Judge Robert H. Bork.

Root explains how the persistence of this tradition of judicial restraint on the conservative right has led to clashes between conservatives and libertarians in recent years. Even in some cases where the two groups agree on the outcome, there are important divergences over preferred rationales. For example, libertarians and conservatives worked together to expand judicial protection for Second Amendment rights in District of Columbia v> Heller (2008) and McDonald v. City of Chicago (2010). But, in the latter case, many conservatives opposed the libertarians efforts to revive judicial enforcement of the Privileges or Immunities Clause of the Fourteenth Amendment, fearing that this step would open the door to a new wave of judicial activism.

Roots book is probably the most thorough account of the libertarian-conservative debate over judicial review so far. The clash between the two may rise in importance, as libertarianism becomes a more important part of the political landscape. Younger Republicans are, on average, significantly more libertarian than their elders. The same is likely true of younger right of center elite lawyers and legal scholars. At the same time, it is unlikely that social conservatives will give up without a fight. Even as they fight over their differences, the two groups will also have to find some way to continue cooperating on the issues that unite them, especially since the legal left remains powerful and influential.

I do have two reservations about his otherwise excellent analysis. First, for some reason Root largely ignores the issue of same-sex marriage, which is one of the most important constitutional questions where libertarians and conservatives have differed in recent years. Though there are some exceptions in both camps, libertarian lawyers and legal scholars (including many here at the Volokh Conspiracy) have generally supported striking down laws banning same-sex marriage, while conservatives have forcefully opposed it. The issue is both important in and of itself, and an important indicator of the differences between the two camps.

Second, I think Root is too quick to characterize modern judicial conservatism as focused on judicial restraint. It is true that, since the 1960s and 70s, conservatives have devoted a great deal of time and effort to denouncing liberal judicial activism. But conservative judges such as William Rehnquist and Sandra Day OConnor have also long advocated stronger judicial enforcement of property rights and constitutional limits on federal power.

Root describes famed conservative legal theorist Robert Bork as a principled advocate of judicial minimalism. This was indeed an important element of Borks philosophy. But Bork was also a strong advocate of constitutional originalism, which sometimes requires aggressive judicial invalidation of legislation that goes against the original meaning of the Constitution. In his 1989 book The Tempting of America, Bork advocated judicial restraint, but also described New Deal-era decisions expanding congressional authority over the economy as judicial activism because they gave the federal government more power than it was entitled to under the original meaning.

Bork never seriously confronted the tension between his advocacy of originalism on the one hand, and his support for judicial deference to the democratic process on the other. For a long time, the same was true of many other judicial conservatives. Like Bork, they simultaneously advocated both originalism and judicial deference without giving much thought to possible contradictions between these commitments. The rise of libertarianism is one of several factors that have forced conservatives to devote greater thought to the issue in recent years.

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Volokh Conspiracy: Review of Damon Roots Overruled: The Long War for Control of the Supreme Court

As Congress mulls reining in NSA phone records collection, attention turns to court challenges

 NSA  Comments Off on As Congress mulls reining in NSA phone records collection, attention turns to court challenges
Oct 282014
 

FILE – In this file image made from video released by WikiLeaks on Oct. 11, 2013, former National Security Agency systems analyst Edward Snowden speaks in Moscow. Faced with congressional inaction to curtail the NSA?s bulk collection of Americans? telephone records, civil liberties groups are looking to cases already in the courts as a quicker way to clarify just what surveillance powers the government should have. Three appeals courts are hearing challenges to the National Security Agency phone records program, creating the potential for an eventual Supreme Court review. Judges in lower courts are grappling with the admissibility of evidence gained through the NSA?s warrantless surveillance. The flurry of activity follows revelations last year by former contractor Edward Snowden of once-secret intelligence collection programs. (AP Photo, File)(The Associated Press)

WASHINGTON While Congress mulls how to curtail the NSA’s collection of Americans’ telephone records, impatient civil liberties groups are looking to legal challenges already underway in the courts to limit government surveillance powers.

Three appeals courts are hearing lawsuits against the bulk phone records program, creating the potential for an eventual Supreme Court review. Judges in lower courts, meanwhile, are grappling with the admissibility of evidence gained through the NSA’s warrantless surveillance.

Advocates say the flurry of activity, which follows revelations last year by former NSA contractor Edward Snowden of once-secret intelligence programs, show how a post-9/11 surveillance debate once primarily hashed out among lawmakers in secret is being increasingly aired in open court not only in New York and Washington but in places like Idaho and Colorado.

“The thing that is different about the debate right now is that the courts are much more of a factor in it,” said Jameel Jaffer, deputy legal director at the American Civil Liberties Union. Before the Snowden disclosures, he said, courts were generally relegated to the sidelines of the discussion. Now, judges are poised to make major decisions on at least some of the matters in coming months.

Though it’s unclear whether the Supreme Court will weigh in, the cases are proceeding at a time when the justices appear increasingly comfortable with digital privacy matters including GPS tracking of cars and police searches of cellphones.

The cases “come at a critical turning point for the Supreme Court when it comes to expectations of privacy and digital information,” said American University law professor Stephen Vladeck.

Revelations that the government was collecting phone records of millions of Americans who were not suspected of crimes forced a rethinking of the practice, and President Barack Obama has called for it to end.

Since then, the House has passed legislation that civil libertarians say did not go far enough. In the Senate, Vermont Democrat Patrick Leahy, the Judiciary Committee chairman, is seeking a vote on a stricter measure to ban bulk collection, and it has bipartisan backing and support from the White House.

As Congress considers the matter, the federal judiciary has produced divided opinions.

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As Congress mulls reining in NSA phone records collection, attention turns to court challenges

NSA surveillance challenges moving through courts

 NSA  Comments Off on NSA surveillance challenges moving through courts
Oct 282014
 

AP

This June 6, 213 file photo shows the sign outside the National Security Agency (NSA) campus in Fort Meade, Md.

WASHINGTON While Congress mulls how to curtail the NSA’s collection of Americans’ telephone records, impatient civil liberties groups are looking to legal challenges already underway in the courts to limit government surveillance powers.

Three appeals courts are hearing lawsuits against the bulk phone records program, creating the potential for an eventual Supreme Court review. Judges in lower courts, meanwhile, are grappling with the admissibility of evidence gained through the NSA’s warrantless surveillance.

Advocates say the flurry of activity, which follows revelations last year by former NSA contractor Edward Snowden of once-secret intelligence programs, show how a post-9/11 surveillance debate once primarily hashed out among lawmakers in secret is being increasingly aired in open court not only in New York and Washington but in places like Idaho and Colorado.

“The thing that is different about the debate right now is that the courts are much more of a factor in it,” said Jameel Jaffer, deputy legal director at the American Civil Liberties Union. Before the Snowden disclosures, he said, courts were generally relegated to the sidelines of the discussion. Now, judges are poised to make major decisions on at least some of the matters in coming months.

Though it’s unclear whether the Supreme Court will weigh in, the cases are proceeding at a time when the justices appear increasingly comfortable with digital privacy matters including GPS tracking of cars and police searches of cellphones.

The cases “come at a critical turning point for the Supreme Court when it comes to expectations of privacy and digital information,” said American University law professor Stephen Vladeck.

Revelations that the government was collecting phone records of millions of Americans who were not suspected of crimes forced a rethinking of the practice, and President Barack Obama has called for it to end.

Since then, the House has passed legislation that civil libertarians say did not go far enough. In the Senate, Vermont Democrat Patrick Leahy, the Judiciary Committee chairman, is seeking a vote on a stricter measure to ban bulk collection, and it has bipartisan backing and support from the White House.

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NSA surveillance challenges moving through courts

Leahy: Constitutional amendment needed on campaign financing

 Misc  Comments Off on Leahy: Constitutional amendment needed on campaign financing
May 262014
 

MONTPELIER — Vermont and the U.S. Senates most senior member are initiating efforts to reverse the U.S. Supreme Courts recent campaign finance rulings but taking different tacks.

The Vermont Legislature became the first in the country last month to pass a resolution that calls for a constitutional convention to reverse the high courts rulings that critics say trend toward looser limits on campaign contributions to the unfair advantage of wealthy donors and big business.

Sen. Patrick Leahy has called a June 3 hearing of the Senate Judiciary Committee, which he chairs, to address the rulings. But he said Thursday hed rather see Congress craft an amendment, rather than have a constitutional convention that could be open to any topic. He said either route faces long odds, but it was a good idea to “start the conversation.”

“Ive always worried about a constitutional convention that could be opened up to all kinds of things — a constitutional amendment that would do away with most of our environmental laws or … might dramatically change whos allowed to vote,” he said.

The Democrat from Vermont, who will mark 40 years in the Senate in January, said in an interview with The Associated Press that hes interested in a tightly drawn constitutional amendment to reverse the effects of the courts decisions in the Citizens United and McCutcheon cases.

The rulings favor arguments that most campaign money caps are impermissible limitations on free speech.

Three versions of a campaign finance amendment have been offered in the Senate and 11 in the House. All the proposals seek to reverse the effects of the Citizens United decision of 2010 and the McCutcheon decision this year.

In the earlier ruling, the court said government restrictions on corporate independent expenditures on elections were unconstitutional in violation of the First Amendment. The McCutcheon decision held that aggregate limits on campaign contributions to multiple candidates and political action committees also are unconstitutional.

A constitutional convention as requested by the Vermont Legislature would be the first since the framers met in Philadelphia in 1787. All 27 amendments have been proposed by Congress. Two-thirds of the states — 34 — would have to call for a convention and three-quarters — 38 — would be needed to ratify an amendment by convention.

By the congressional route, two-thirds of both the House and Senate would have to support an amendment to reverse court decisions that most Republicans have cheered — an unlikely prospect in the near term.

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Leahy: Constitutional amendment needed on campaign financing

Scalias free speech hypocrisy: What a new study proves about his bias

 Free Speech  Comments Off on Scalias free speech hypocrisy: What a new study proves about his bias
May 162014
 

According to a recent article in the New York Times, the Supreme Court like nearly every other major institution of American governance is in serious trouble.

After a string of high-profile decisions that split cleanly along partisan lines, the courts reputation for honesty, integrity and a high-minded remove from the ugly world of partisan politics is eroding, with consequences that could extend far beyond its hallowed walls. Politically, ours isan increasingly polarizedera,and as the court has shown itself to be far from immune to the ideological pressures that have brought so much of the federal government to a grinding halt, some worry that Americans belief in and respect for the rule of law could be the ultimate victim.

Its because of this context that a recent study from political science and law professor Lee Epstein (along with two colleagues) that examined Supreme Court justices rulings on free speech cases has earned so much attention. Epstein and her fellow researchers examined more than 50 years worth of Supreme Court rulings on free speech and reached a conclusion that is at once unsurprising anddeeply troubling: Justices tend to be far more sympathetic to free speech when the speech in question aligns with their ideological beliefs.

Hoping to better understand the study as well as learn the identities of the worst free speech hypocrites on the current court Salon spoke this week with Epstein. The interview can be found below, and has been slightly edited for clarity and length.

How did you conduct this study, and what are its chief findings?

We looked at all First Amendment cases involving expression And what we did was we coded the outcome of the case, whether the courts then favored the First Amendment or not, and then we looked at the speaker the nature of the speech and looked at whether it was a liberal speaker or conservative speaker. Then we controlled for a whole bunch of other variables that could detect outcomes in First Amendment cases, but we were really interested in the ideology of the speaker.

The essential finding is that liberal justices tend to vote in favor of expression when its a liberal speaker and conservative justices tend to vote in favor of expression when its a conservative speaker.

Was the effect of the ideological preference equal on both sides or was one side more susceptible that than the other?

It was actually pretty equivalent Liberals, on the whole, are more supportive of expression. Thats true. But in terms of the bias, its significant for both the liberals and the conservatives. Now, if you look at the current court its clear that the conservatives are more extreme [in their bias] than the liberals.

Was there any member of the current court whose bias was more pronounced than was the case for the other eight?

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Scalias free speech hypocrisy: What a new study proves about his bias

Liberal Supreme Court Justice Comes To The Defense Of Scalia

 Fourth Amendment  Comments Off on Liberal Supreme Court Justice Comes To The Defense Of Scalia
May 022014
 

Larry Downing/Reuters

When asked about polarization between justices, Ginsburg said that liberals who criticize the conservative Scalia forget that he “is one of the most pro-Fourth Amendment judges on the court.” The Fourth Amendment protects U.S. citizens from unreasonable searches and seizures. Here is an excerpt from that interview:

WSJ: How deeply polarized is the court?

GINSBURG: [Justice Antonin] Scalia is often criticized by people who would not be labeled conservative. Liberals dont count his Fourth Amendment cases or the confrontation clause cases. He is one of the most pro-Fourth Amendment judges on the court.

WSJ: Not more pro-Fourth Amendment than you.

GINSBURG: No. But weve been together in all the confrontation cases and many of the Fourth Amendment cases. For example, that wonderful, wonderful one with the GPS, and the dog sniff cases.

The “GPS case” was United States v. Jones, in which both justices sided with the courts 2012 ruling that police violated the Fourth Amendment when they attached a GPS device to track a vehicle. In the Florida v. Jardines case, Ginsburg and Scalia both sided with the courts 2013 ruling that police officers use of a drug-sniffing dog at a persons front porch constituted a search under the Fourth Amendment.

In both of those cases, it was Scalia who delivered the Supreme Courts opinion.

There are other recent examples where Scalia has demonstrated pro-Fourth Amendment opinions, as the Los Angeles Times has reported. That includes Scalias opposition to the Supreme Courts majority opinion that permits police to use anonymous tips to stop cars on highways. And in 2013, he fiercely dissented to the Courts ruling that police can routinely swab for DNA from arrested people.

Recently, the Supreme Court has considered whether police can search the digital contents of cellphones without warrants. In reporting on this case, a number of news outlets noted that Scalia has become a champion of the Fourth Amendment.

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Liberal Supreme Court Justice Comes To The Defense Of Scalia

Thomas again calls for overruling of Buckley v. Valeo

 Misc  Comments Off on Thomas again calls for overruling of Buckley v. Valeo
Apr 072014
 

Monday, April 7, 2014

A sharply divided U.S. Supreme Court recently invalidated another campaign-finance restriction on First Amendment grounds in McCutcheon v. FEC.

Eight of the nine justices evaluated the case under the Courts seminal decision, Buckley v. Valeo (1976). Justice Clarence Thomas, however, once again reiterated his strongly held views that Buckley was wrongly decided.

For the sixth time, Thomas wrote an opinion calling into question the viability of the Buckley decision, which drew a distinction between political contributions and political spending. Thomas views Buckley as unnecessarily restricting the right of the people and others to make political contributions.

In his concurring opinion in McCutcheon, Thomas pulls no punches, writing that the Buckley decision denigrates core First Amendment speech and should be overruled. He believes that the late Chief Justice Warren Burger was correct years ago in his separate opinion in Buckley when he reasoned that political contributions and expenditures were two sides of the same First Amendment coin.

Thomas fervently asserts that when an individual or corporation contributes money to a political candidate or campaign, that individual or entity is saying, I support this political candidate. The contributing of money is core political speech, which should receive the highest protection in First Amendment jurisprudence.

Others may criticize Thomas view for ignoring what they see as the corrupting influence of big money in political campaigns. But give Thomas credit for consistency. He has remained constant in his constitutional vision.

It is not unusual for Thomas to advocate the overruling of precedents that he believes are inconsistent with the Constitution. He has argued for the overruling of the Courts leading student-speech case, Tinker v. Des Moines Independent Community School District (1969); the Courts leading commercial-speech test in Central Hudson Gas & Elec. v. Public Service Commn (1980); the Courts prisoner-rights standard in Turner v. Safley (1987) and the incorporation of the establishment clause way back in Everson v. Bd. of Education (1947).

This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment, Thomas writes. Until we undertake that reexamination we remain in a halfway house of our own design.

Clearly, Justice Clarence Thomas continues to advocate his own constitutional design.

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Thomas again calls for overruling of Buckley v. Valeo

The Right Stuff: Freeing the First Amendment, one shackle at a time

 Misc  Comments Off on The Right Stuff: Freeing the First Amendment, one shackle at a time
Apr 062014
 

Tom Jacksons conservative opinion column is published each Sunday. The Right Stuff blog is updated throughout the week at tbo.com/tomjackson/

Politics, rude, rollicking and messy by nature, is likely to get even more so in the aftermath of the U.S. Supreme Courts decision this week that eliminates caps on the aggregate amount of money individuals can donate to candidates and political parties. I know, hell, hand basket, etc. Easy there.

The ruling also left in place (over Justice Clarence Thomas energetic dissent) perfectly arbitrary limits on how much candidates for federal office can accept from each donor, $2,600 per race; $5,200 per year. One shackle at a time. Rescuing the First Amendment from imprisonment by a jealous political class egged on by a mass-media monopoly is, like defusing an intricately wired bomb or performing neurosurgery, a delicate task.

Still, the eventual outcome a full unraveling of Washingtons decades-long attack on political speech seems inevitable.

Because one is required to support dissemination of the other, the court long ago equated money with speech. That being the case, it was perfectly logical, as well as philosophically appropriate, for the five justices forming the majority in McCutcheon v. Federal Election Commission to rule as they did.

Many legal scholars see McCutcheon as a natural extension of the courts 2010 ruling in the Citizens United case, which scuttled a prohibition against corporations spending money on campaigns after an FEC statute blocked distribution of a documentary about Hillary Clinton. Those who thought Citizens United was properly decided also approve of the McCutcheon verdict, and those who didnt like the first really, really dont like the latter.

The way forward for those horrified by McCutcheon is clear: Draft an amendment to the Constitution. Until thats done and ratified, the glorious, re-emerging original stands with its unequivocal command: Congress shall make no law that compromises the peoples rights to publish, speak, assemble and petition. And within those rights, they should be able to bring whatever qualities, talents, know-how or material well-being they have to the task.

The First Amendment safeguards an individuals right to participate in the public debate through political expression and political association, Chief Justice John Roberts wrote for the majority. When an individual contributes money to a candidate, he exercises both of those rights. A Wall Street Journal editorial elucidates: Restricting how many candidates an individual can support infringes on those rights. Obviously.

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The Right Stuff: Freeing the First Amendment, one shackle at a time

Symposium: The First Amendments protection of political speech extends to both donations and spending

 Misc  Comments Off on Symposium: The First Amendments protection of political speech extends to both donations and spending
Apr 032014
 

What kind of bizarro world do we live in where a near majority of Justices of the United States Supreme Court criticizes a First Amendment ruling for being overly concerned with the individuals right to engage in political speech? Where these same jurists instead elevate the publics interest in preserving a democratic order in which collective speech matters? Are these four reactionary horsemen who wont countenance anti-war protestors, marches against oppressive laws, and other anti-establishment speech-acts? Or perhaps theyre censorious troglodytes inveighing against flag-burning, nude dancing, and other emotion-riling forms of expression?

It turns out no, that this statist-majoritarian cant is the highest explication of so-called liberal dissent. Weve always been at war with Eurasia (at least until those in charge decree that our eternal enemy is Eastasia), etc.

Rubbish. Just as the government cant limit the number of hours that Oprah broadcasts or issues that The New York Times publishes lest they unduly influence our political system it cant restrict the money that someone wants to spend on campaign donations lest he skew the marketplace of ideas. Heck, Ive been part of enough SCOTUSblog symposia that Im sure glad theres no federal limit on how much analysis someone can provide on a website thats read by all the key opinion-making eyeballs!

Despite the alarming five-to-four split among the Justices, McCutcheon is an easy case if you apply well-settled law (let alone the political-speech-protective first principles upon which this nation was founded): (1) Preventing quid pro quo corruption (or the appearance thereof) is the only valid basis for regulating the finance of political campaigns; (2) restrictions on the total amount an individual may donate to candidates and party committees dont serve that bribery-prevention interest and thus violate the First Amendment; (3) thats it; case closed.

The only surprise here is that the ruling wasnt a unanimous rejection of the governments incredible claim that, somehow, someone who maxes out to nine congressional candidates corrupts the system by giving more than $1,800 to any others. (Or maybe its those nine candidates who are corrupted by the jealous knowledge that theyre no longer unique snowflakes, that their benefactor has Benjamins for literally anyone who agrees with his political positions?I could never fully grasp the logic.)

In any event, Chief Justice Roberts provided the nut of this oh-so-easy-to-crack-case when he called the contribution limits a tax wrote for the majority (which is indeed a majority because Justice Thomas concurred on broader grounds): Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi paradesdespite the profound offense such spectacles causeit surely protects political campaign speech despite popular opposition.

With Justice Thomas, however, I would go beyond that simple point and overrule Buckley v. Valeo altogether because [c]ontributions and expenditures are simply two sides of the same First Amendment coin and the Courts efforts to distinguish the two have produced mere word games rather than any cognizable principle of constitutional law (quoting Chief Justice Burgers partial dissent in Buckley). Justice Thomas would abandon Buckleys framework and replace it with a strict scrutiny test for limits on both contributions and expenditures. Quite so.

Buckley transmogrified the speech-restrictive post-Watergate Federal Election Campaign Act into something no Congress wouldve passed, also inventing legal standards such that one type of political speech has greater First Amendment protection than another.

Nearly twenty years later, the Supreme Court in McConnell v. FEC again rewrote a congressional attempt to reform the rules by which people run for office the Bipartisan Campaign Reform Act, also colloquially known as McCain-Feingold shying away from striking down Buckley and producing a convoluted mish-mash. (The Chief Justice delivered the opinion of the Court with respect to miscellaneous BCRA Title III and IV provisions. . . . Justice Breyer delivered the Courts opinion with respect to BCRA Title V504 . . . . Stevens and OConnor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. . . . [and on and on and on, such that this part of the syllabus explaining who agrees with what jot and tittle is longer than the average Oliver Wendell Holmes opinion].)

Enough! The drip-drip of campaign-finance rulings over the last decade has shown that existing campaign-finance law is as unworkable as it is unconstitutional, serving nobodys interest but the election lawyers who regularly get to bill hours explaining to their clients exactly what type of speech will now get them thrown in jail and how to structure their next political move so as not to provoke Justice Breyer into attaching yet another appendix onto his next dissent.

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Symposium: The First Amendments protection of political speech extends to both donations and spending

Second Amendment On Trial – Video

 Second Amendment  Comments Off on Second Amendment On Trial – Video
Mar 242014
 



Second Amendment On Trial
D.C. vs. Heller was not the final word on the 2nd Amendment. Tonight we look at the 5 cases making their way through the courts that could impact the future …

By: yazchat

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Second Amendment On Trial – Video

Internet Freedom Day: This Year We Go to War for Net Neutrality

 Freedom  Comments Off on Internet Freedom Day: This Year We Go to War for Net Neutrality
Jan 192014
 

The loss of net neutrality this week was even bigger than expected.

This time of year is always the worst of times and best of times for internet freedom. Internet activistAaron Swartzcommitted suicide on January 4 of last year. Two years ago today, millions took part in the successful 2012 SOPA/PIPA Blackout protest, followed last year by an event many of us celebrated for the first time as Internet Freedom Day. (You can read all about Internet Freedom Day here, but basically, we should have at least one special day designated for celebratingone of the most revolutionary technologies the world has ever known.)

And this week, on January 14, the FCCs network neutrality rule wasgutted. So now, the internet freedom issue we need to focus on is network neutrality.

Because with the recent ruling, cable and phone companies like Verizon and AT&T now have the legal right to block any website, webpage, blog, video, web technology, app, cloud sync technology, or anything else running online through their pipes. Put another way, Comcast or Time Warner Cable can now block Netflix, BitTorrent, or even this article. They can choose to provide better service to some entities and not others, letting some websites load very, very slowly and others load instantly (for a fee!).

Even though we predicted this decision here in WIRED, it turns out that the real problem isnt the courts decision but the FCCs response to it.

Rather than taking the difficult (political) journey to protect internet freedom, the FCC is issuing deluded statements that no journey is necessary. Itd be like Frodo saying hes going to save Middle Earth except without carrying the ring to Mount Doom, the only place it can be destroyed.

In this case, FCC Chairman Tom Wheeler is Frodo and Mount Doom is a legal move called reclassification, which is the only way to win net neutrality in the courts.

Heres the insider background, one I personally lived. In 2007, when I was a lawyer for the public interest groupFree Press, I helped draft the complaint to the FCC against Comcast for secretly blocking BitTorrent and other technologies. My theory was simple: the FCC had issued a set of Open Internet principles in 2005 and by blocking legal technologies like BitTorrent, Comcast was violating those principles.

Now, the Open Internet principles were not legal rules adopted by the FCC; they were effectively a press statement posted on the FCC website. But we filed that complaint because the FCCs leadership had publiclyand repeatedly promised that if anyone violated the principles, the FCC would have the power and will to stop it. We took the FCC at its word and filed a complaint based on their stated Open Internet principles.

And the FCC ruled in our favor, against Comcast, in 2008. It found that Comcast violated the FCCs principles and that a certain part of the Communications Act, the first part known as Title I, gave the FCC the jurisdiction to act. Then the case went to court, and in January 2010 three years ago this week actually I argued the case, alongside the FCCs top lawyer, before the appellate court. But the three judges there made it clear they didnt buy a single one of our arguments. It was a bloodletting.

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Internet Freedom Day: This Year We Go to War for Net Neutrality

Facebook likes Constitute Free Speech Says Courts – Video

 Free Speech  Comments Off on Facebook likes Constitute Free Speech Says Courts – Video
Sep 252013
 



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Free speech outside Supreme Court: Ban on protests in plaza struck down

 Free Speech  Comments Off on Free speech outside Supreme Court: Ban on protests in plaza struck down
Jun 152013
 

In a case that brings free speech protections literally to the very steps of the US Supreme Court, a federal judge in Washington has struck down as unconstitutional a statute that allowed police to arrest anyone attempting to deliver a message of protest on the wide marble plaza outside the high courts elegant front entrance.

US District Judge Beryl Howell declared the 60-year-old law in violation of free speech protections and thus void as applied to the courts plaza.

The absolute prohibition on expressive activity in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment, Judge Howell wrote in a 68-page opinion released Tuesday.

RECOMMENDED: How much do you know about the US Constitution? A quiz.

The decision puts in doubt a long tradition at the high court of police forcing demonstrators to confine their picketing, chanting, and sign waving to the relatively narrow public sidewalk in front of the court.

The police have consistently enforced the ban against protests on the plaza. During all of the courts highest profile and most controversial cases involving abortion, civil rights, affirmative action, the Affordable Care Act, and others throngs of supporters and opponents routinely jammed the sidewalk on First Street NE in front of the court.

As the crowd swelled, the sea of earnest humanity would spill onto Maryland Avenue to the north and down the sidewalk toward the Library of Congress. But through it all, the protests have never surged forward past the line of police officers to occupy the white-marble plaza with its fountains, benches, and flag pole.

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Now, that may change.

The decision comes in the case of a Maryland man, Harold Hodge, who was arrested in January 2011 for standing silently on the marble plaza while wearing a 3-by-2-foot sign around his neck.

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Free speech outside Supreme Court: Ban on protests in plaza struck down




Pierre Teilhard De Chardin | Designer Children | Prometheism | Euvolution | Transhumanism