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Supreme Court

All articles with the "Supreme Court" tag.

Published: Sat, 24 Jun 2017 00:00:00 -0400

Last Build Date: Sat, 24 Jun 2017 01:07:49 -0400


Supreme Court Deals Blow to Property Rights

Fri, 23 Jun 2017 14:45:00 -0400

When governments issue regulations that undermine the value of property, bureaucrats don't necessarily have to compensate property holders, the Supreme Court ruled Friday. The court voted 5-3, in Murr V. Wisconsin, a closely watched Fifth Amendment property rights case. The case arose from a dispute over two tiny parcels of land along the St. Croix River in western Wisconsin and morphed into a major property rights case that drew several western states into the debate before the court. Chief Justice John Roberts, in a scathing dissent, wrote that ruling was a significant blow for property rights and would give greater power to government bureaucrats to pass rules that diminish the value of property without having to compensate property owners under the Firth Amendment's Takings Clause. "Put simply, today's decision knocks the definition of 'private property' loose from its foundation on stable state law rules," Roberts wrote. The ruling "compromises the Takings Clause as a barrier between individuals and the press of the public interest." Donna Murr, in a statement provided by the Pacific Legal Foundation, the libertarian law firm that represented the family in the case, said her family was disappointed by the result. "It is our hope that property owners across the country will learn from our experience and not take their property rights for granted," Murr said. "Although the outcome was not what we had hoped for, we believe our case will demonstrate the importance of taking a stand and protecting property rights through the court system when necessary." In 2004, Murr and her siblings sought to sell one of two parcels of land that had been in the family for decades. Murr's parents bought the land in the 1960s, built a cabin on one parcel, and left the other parcel undeveloped as a long-term investment. The family attempted to sell the vacant parcel to pay for renovations to the cabin, but were prevented from doing so by regulations restricting the use of land along rivers like the St. Croix approved by the state in the 1980s, long after the purchase of both lots. Those regulations effectively gutted the value of the Murrs' property. The property was appraised at $400,000 before the Murrs tried to sell it. When the family came to the county, now the only eligible buyer, the county offered $40,000. The Murrs filed a lawsuit against the state and county, arguing that they should be compensated for the lost value of the property, arguing the Fifth Amendment of the U.S. Constitution guarantees governments must compensate property owners when land is seized or otherwise made un-useful for public purposes. To avoid liability in the case, the state and county told the Murrs they could combine the two parcels of land for regulatory purposes. This meant that even though the two pieces of land were separate and the Murr family paid taxes on them separately, the family would be unable to make a takings claim for one of the two parcels. In short, they could sell both lots together, but not one or the other. Lower courts agreed with the government interpretation and the Supreme Court on Friday upheld the court rulings. "Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here," Justice Anthony Kennedy wrote in the majority opinion. "They have not been deprived of all economically beneficial use of their property." Justices Stephen Breyer, Elena Kagan, Ruth Bader Ginsberg, and Sonia Sotomayor joined Kennedy in the majority opinion, while conservative justices Clarence Thomas and Samuel Alito joined Chief Justice John Roberts' dissent. The Supreme Court's newest member, Justice Neil Gorsuch, did not participate in the case. The ruling could have implications that go well beyond the 2.5 acres of land in Wisconsin. Several western states filed amicus briefs in the case on behalf of the Murr family (as did the Reason Foundation, which publishes this blog). Though states like Nevada and Arizona did not have a direct interest i[...]

SCOTUS Says You Can't Lose Your Citizenship for Lying About Your Weight

Fri, 23 Jun 2017 09:15:00 -0400

Can a naturalized American lose his citizenship because he misrepresented his weight on his application form, neglected to mention that he once belonged to a Barry Manilow fan club, or failed to acknowledge the various occasions on which he exceeded the speed limit without being caught? The Justice Department, under Barack Obama as well as Donald Trump, said yes. Yesterday the Supreme Court unanimously disagreed. The issue in Maslenjak v. United States was the meaning of 18 USC 1425, which makes it a felony to "procure" citizenship "contrary to law." In addition to a prison term of up to 25 years, a conviction under that statute triggers automatic loss of citizenship. That is what happened to Divna Maslenjak, an ethnic Serb from Bosnia who became a citizen in 2007. Malenjak was convicted of violating 18 USC 1425 because she lied about her husband's military service while seeking refugee status in 1998 and did not acknowledge the lie when she applied for citizenship. Instead she swore under oath that she had never provided false information while seeking an immigration benefit or entry to the United States. That denial violated another law making it a crime for a naturalization applicant to knowingly make a false statement under oath. Whether Maslenjak's lie helped her obtain citizenship is a matter of dispute. But during her trial, the prosecution argued that it did not matter, and the judge agreed, telling the jurors they could convict Maslenjak of illegally procuring citizenship "even if you find that a false statement did not influence the decision to approve the defendant's naturalization." Last year the U.S. Court of Appeals for the 6th Circuit approved that interpretation of the law, opening the door to fishing expeditions that could strip people of their citizenship based on trivial misstatements made years ago. According to the Supreme Court, the interpretation approved by the 6th Circuit relies on an unnatural reading of the words Congress used. "The most natural understanding is that the illegal act must have somehow contributed to the obtaining of citizenship," writes Justice Elena Kagan in the majority opinion. "To get citizenship unlawfully, we understand, is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition." She elucidates the point with an example: Suppose that an applicant for citizenship fills out the necessary paperwork in a government office with a knife tucked away in her handbag (but never mentioned or used). She has violated the law—specifically, a statute criminalizing the possession of a weapon in a federal building....And she has surely done so "in the course of " procuring citizenship. But would you say, using English as you ordinarily would, that she has "procure[d]" her citizenship "contrary to law" (or, as you would really speak, "illegally")? Once again, no. That is because the violation of law and the acquisition of citizenship are in that example merely coincidental: The one has no causal relation to the other. Kagan notes that the government's counterintuitive reading of the law leads to some strange results. People could lose their citizenship, for example, by lying about facts that would not have prevented their naturalization to begin with. "Lies told out of 'embarrassment, fear, or a desire for privacy' (rather than 'for the purpose of obtaining [immigration] benefits') are not generally disqualifying under the statutory requirement of 'good moral character,'" she writes. But those same lies, according to the government, are enough to revoke citizenship after it has been granted. The upshot, Kagan says, is that the government could "take away on one day what it was required to give the day before." Kagan also calls attention, as several justices did during oral argument, to the sweeping impact of the government's position. "Suppose, for reasons of embarrassment or what-have-you, a person concealed her membership in an online support group or failed to disclose a prior speeding violation[...]

Sen. Feinstein: Protecting College Free Speech from Violent Protests Is Too Much of a Burden

Thu, 22 Jun 2017 13:30:00 -0400

Gosh, protecting controversial free speech from violent protests is expensive. Wouldn't it be easier for colleges to just not let any of that stuff happen? Who wants another Kent State? That is, with no exaggeration, the attitude expressed by Sen. Dianne Feinstein (D-Calif.) at a Senate hearing this week on free speech on college campuses. The hearing came just a day after the Supreme Court ruled unanimously that the First Amendment is so important to American culture that the federal government cannot simply reject trademarks on the basis of offensiveness. Feinstein, by contrast, expressed bafflement at the argument that universities shouldn't succumb to the heckler's veto and to the idea that publicly funded colleges should have to host invited speakers "no matter how radical, offensive, biased, prejudiced, fascist the program is." There's a reason Feinstein appears on Reason's list of "enemies of freedom." Ultimately, Feinstein's objection to protecting controversial speech is that of the bureaucrat disguised as the concerned nanny. When people intent on violence show up at protests, other people can get hurt. But colleges have limited resources, she argues—so why should campus police be expected to be able handle protests if they get seriously out of hand? "You don't think we learned a lesson from Kent State way back when?" she asked at one point, a fascinating reply that illustrates so much about her mind-set. Feinstein's argument seems to be that the killing of four college students by members of the National Guard would have been prevented if the government hadn't allowed the protests in the first place. Fortunately, lovers of liberty were well-represented on the panel by UCLA law professor Eugene Volokh, who patiently explained that, yes, publicly funded colleges are expected to make sure the civil liberties of the students on their campus are protected appropriately by law enforcement. "One important job of the government is to prevent violence, and to prevent violence without suppressing free speech," he said in response. There is an odd mind-set out there—one not confined to any particular ideology—that thinks it's some sort of distraction for law enforcement officials to spend their time protecting protesters from violence or standing along parade routes to make sure people come to no harm. These people have their priorities backwards. Protecting people who are expressing their First Amendment rights is what the police are for. The distractions are arresting people for drugs and citing people for not wearing seatbelts. Similarly, people like Feinstein complain about the costs of protecting liberty as though colleges haven't been undergoing a dramatic increase in administrative bloat. The answer isn't more money from the government. The answer is better spending priorities. Over at Hot Air, John Sexton says he's surprised to see Feinstein support submission to the heckler's veto. He shouldn't be. Feinstein is actively pro-censorship toward anything she perceives as potentially contributing to violence, including imaginary guns in video games. Ken "Popehat" White, who recently wrote an excellent explainer for the Los Angeles Times detailing how and why "hate speech" is protected speech, took note of the Supreme Court decisions this week and the overall trend of judicial decisions that bolster the First Amendment. But he also worries what it means for the future if we culturally abandon free speech values: The Supreme Court is upholding the black letter of liberty, but are Americans upholding its spirit? When college students, encouraged by professors and administrators, believe that they have a right to be free of offense, no. When Americans hunger to "open up" libel laws or jail flag burners, no. When our attitude towards the hecker's veto becomes "let's do it to them because they did it to us," no. Not only is speech practically impaired, but in the long term the cultural norms necessary to sustain good Supreme Court precedent are eroded. After g[...]

Clarence Thomas Attacks Civil Asset Forfeiture, Lower Court Follows His Lead

Wed, 21 Jun 2017 13:10:00 -0400

In March the U.S. Supreme Court declined to hear a case filed by a Texas woman fighting for the return of over $200,000 in cash that the police seized from her family. Although neither Lisa Olivia Leonard nor any of her relatives were ever charged with any underlying crime connected to the cash, the state's sweeping asset forfeiture laws allowed the authorities to take the money. The Supreme Court offered no explanation when it refused to hear Leonard v. Texas. But one member of the Court did speak up in protest. In a statement respecting the denial of certiorari, Justice Clarence Thomas made it clear that in his view modern asset forfeiture law is fundamentally incompatible with the U.S. Constitution. Yesterday, one of the most influential federal appellate courts in the country—the U.S. Court of Appeals for the District of Columbia Circuit—signaled its agreement with Thomas' assessment in a notable decision in favor of an innocent couple fighting for the return of $17,900 in cash seized by the police. As Thomas explained in Leonard v. Texas, "this system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses." For one thing, "because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture." For another, this sort of police abuse disproportionately harms disadvantaged groups. "These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings," he observed. "Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home." To make matters worse, Thomas continued, the Supreme Court's previous rulings in this area do not line up with the text of the Constitution, which "presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation." Those other doctrines, Thomas noted, impose significant checks on the government, such as heightened standards of proof, various procedural protections, and the right to a trial by jury. Civil asset forfeiture proceedings, by contrast, offer no such constitutional safeguards. In short, Justice Thomas offered a searing indictment of modern civil asset forfeiture and called on the judiciary to start reconsidering its flawed approach. The D.C. Circuit got the message. In its opinion yesterday in United States v. Seventeen Thousand Nine Hundred Dollars in United States Currency, the D.C. Circuit repeatedly cited Thomas' Leonard v. Texas statement while ruling in favor of a New York City couple that went to court seeking the return of $17,900 in cash seized by law enforcement officials. Once again, the police took the money despite the fact that no underlying criminal charges were ever filed. But after Angela Rodriguez and Joyce Copeland submitted a claim requesting the return of their seized money, a federal district judge ruled that they lacked standing, thus ending their case and leaving the government in possession of their cash. Describing the legal process that led to this result as "onerous, unfair, and unrealistic," the D.C. Circuit reversed the district court. "The pair has a right to contest whether the money is subject to forfeiture," the D.C. Circuit held. "Despite the government's best efforts, this will remain an adversary proceeding." Now that their standing to bring suit has been recognized, Rodriguez and Copeland will continue their legal battle to get their money back. Critics of civil asset forfeiture should be heartened by this ruling. Not only did it v[...]

Politicians Choosing Their Voters vs. Voters Choosing Their Politicians

Tue, 20 Jun 2017 15:45:00 -0400

The U.S. Supreme Court has agreed to hear Gill v. Whitford, a case where the issue is whether the Republican-dominated Wisconsin legislature drew the state's voting district boundaries in such a way as to give their candidates an overwhelming advantage. Republican candidates garnered just 48 percent of the vote statewide in 2012, but took 60 of 99 seats in the state legislature. Earlier this year, a federal appeals court ruled that the Wisconsin's legislature's latest redistricting plan "constituted an unconstitutional partisan gerrymander." The court ordered the legislature to devise and submit a fairer redistricting plan by November 1, 2017. The practice of drawing district boundaries to establish an advantage for a particular party is called gerrymandering. The name comes from Massachusetts Gov. Elbridge Gerry, who in 1812 signed an egregious redistricting bill. One of the voting districts it created resembled the shape of a salamander; thus, "gerrymander." Gerrymandering is generally achieved by either "packing" or "cracking." Packing concentrates the opposing party's voters in one district to reduce their voting power elsewhere. Cracking dilutes the voting power of the opposing party's supporters by spreading them across many districts. With the exception of scrutinizing districts clearly designed dilute the power of black voters, federal courts have been reluctant to involve themselves in redistricting fights. This reluctance stems from courts' difficulty identifying any simple and objective way to determine the extent of gerrymandering. But mathematicians and statisticians have recently turned their attention to the issue, and they may be able to provide some guidance to the courts. In Gill V. Whitford, the federal appeals court that ruled against the state cited a measure called the efficiency gap. Devised by Nicholas Stephanopoulos, a law professor at the University of Chicago, and Eric McGhee, a political scientist at the Public Policy Institute of California, the efficiency gap scheme measures a state's "wasted" votes. (Basically, votes are "wasted" if they are cast for a defeated candidate or cast in excess of those needed to elect a winning candidate.) In Stephanoupoulos' calculation, the efficiency gap is "the difference between the parties' respective wasted votes in an election, divided by the total number of votes cast." If a party is simultaneously getting an unusually high number of landslide victories and an unusually high number of crushing losses, that would be a sign of gerrymandering. "Based on their calculations of the efficiency gaps in all redistricting plans over the past 40 years, Stephanopoulos and McGhee suggest setting thresholds above which redistricting plans would be presumptively unconstitutional; if the efficiency gap is 8 percent or more, or if it is enough to change at least two congressional seats, that would be enough to justify a constitutional challenge. In North Carolina's 2012 congressional election, for example, the efficiency gap was 21 percent,, which resulted in the Democratic candidates winning only 4 out of 13 seats. " Meanwhile, the Duke mathematicians David Mattingly and Christy Graves have devised a program that draws voting district boundaries based on contiguity, geographical compactness, and a difference in population of no more than 0.1 percent. Although Democrats won 50.3 percent of the vote in 2012 in North Carolina, they captured only four of the state's 13 seats in the House of Representatives. In three of the districts drawn by the Republican-dominated legislature, voters were more than three-quarters Democrat. This is a classic example of packing. The program devised by Mattingly and Graves creates thousands of randomly drawn district maps. Of those maps, they find that on average 7.6 seats would go to Democrats, compared with the four they actually won. Other researchers are trying to devise fair and objective ways to set voting district boundaries.[...]

Michael Lewis: The Supreme Court Has Harmed the Culture of Free Speech by Deciding Too Much Stuff

Mon, 19 Jun 2017 17:50:00 -0400

As mentioned here Saturday and Sunday, Commentary magazine recently published a big symposium on the question "Is Free Speech Under Threat in the United States?" I contributed a brief essay, as did a whole bunch of people who have written for Reason over the years. Here are links to their archives around these parts, in addition to some choice quotes from their Commentary commentaries: Jonathan Rauch ("Free speech is always under threat, because it is not only the single most successful social idea in all of human history, it is also the single most counterintuitive"), Harvey Silverglate ("today's most potent attacks on speech are coming, ironically, from liberal-arts colleges"), Laura Kipnis ("Here I am, a left-wing feminist professor invited onto the pages of Commentary"), John Stossel ("On campus, the worst is over"), Richard A. Epstein, Cathy Young, Christina Hoff Sommers ("Silencing speech and forbidding debate is not an unfortunate by-product of intersectionality—it is a primary goal"), Jonah Goldberg ("God may have endowed us with a right to liberty, but he didn't give us all a taste for it"), and John McWhorter. Additionally, many of these and other contributors to the symposium have been subject to Reason interviews, including Epstein, Silverglate, Stossel, Sommers, Goldberg, Ayaan Hirsi Ali, Kipnis, and Rauch, the latter two of which are embedded at the bottom of this post. The symposium repeats many of the same themes, as the campus-centric excerpts above indicate. Many contributors noted the paradox between our widening legal speech freedoms (unanimously reinforced by the Supreme Court twice just today) and the shrinking intellectual support for the stuff. I for one was predictably inspired by Jonathan Rauch ("Every new generation of free-speech advocates will need to get up every morning and re-explain the case for free speech and open inquiry—today, tomorrow, and forever. That is our lot in life, and we just need to be cheerful about it"), and repulsed by Islam critic Pamela Geller ("The real question isn't whether free speech is under threat in the United States, but rather, whether it's irretrievably lost. Can we get it back? Not without war, I suspect"). But the biggest surprise argument I don't recall encountering before came from mega-bestselling author Michael J. Lewis, who argued that even a pro–First Amendment Supreme Court unwittingly harms the culture of free speech by taking too many issues out of the scrum of consequential public debate. Excerpt: If free speech today is in headlong retreat—everywhere threatened by regulation, organized harassment, and even violence—it is in part because our political culture allowed the practice of persuasive oratory to atrophy. The process began in 1973, an unforeseen side effect of Roe v. Wade. Legislators were delighted to learn that by relegating this divisive matter of public policy to the Supreme Court and adopting a merely symbolic position, they could sit all the more safely in their safe seats. Since then, one crucial question of public policy after another has been punted out of the realm of politics and into the judicial. Issues that might have been debated with all the rhetorical agility of a Lincoln and a Douglas, and then subjected to a process of negotiation, compromise, and voting, have instead been settled by decree: e.g., Chevron, Kelo, Obergefell. The consequences for speech have been pernicious....[A] legislature that relegates its authority to judges and regulators will awaken to discover its oratorical culture has been stunted. When politicians, rather than seeking to convince and win over, prefer to project a studied and pleasant vagueness, debate withers into tedious defensive performance. I suspect Lewis is exaggerating here, but his argument is intriguing. After the jump, some relevant Reason interviews on free speech: Laura Kipnis, from May 2017: src="[...]

SCOTUS Unanimously Rejects Law Banning Sex Offenders From Social Media

Mon, 19 Jun 2017 12:00:00 -0400

Today the Supreme Court unanimously overturned a North Carolina law that bans registered sex offenders from any "commercial social networking Web site" that is open to minors. With the exception of Neil Gorsuch, who did not participate in the case because he was not on the Court when it was argued, every justice agreed that the law's broad scope cannot be reconciled with the First Amendment. The case was brought by Lester Packingham, who at the age of 21 had sex with a 13-year-old girl and was convicted of taking indecent liberties with a minor. Eight years later, Packingham beat a traffic ticket and expressed his pleasure on Facebook: "Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!" That burst of online exultation violated North Carolina's ban on social media use, which covers all registered sex offenders, regardless of whether their crimes involved minors or the internet. Packingham argued that his conviction violated the First Amendment, and a state appeals court agreed. The North Carolina Supreme Court did not. Siding with Packingham today, the U.S. Supreme Court concludes that the law "burden[s] substantially more speech than is necessary to further the government's legitimate interests." Writing for the majority, Justice Anthony Kennedy emphasizes the internet's vital importance to freedom of speech. "This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet," he says. "As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium." Kennedy says North Carolina's law "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens," applying indiscriminately to many kinds of online activity, even when it has nothing to do with contacting minors. "By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge," he writes. "These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard....To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights." In a concurring opinion joined by John Roberts and Clarence Thomas, Samuel Alito notes that the law's broad definition of "commercial social networking Web site" covers not only widely used social media platforms like Facebook and Twitter but also shopping sites such as Amazon and news sites such as The Washington Post. Alito says the law's "staggering reach...makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children." The Court's decision in Packingham v. North Carolina not only vindicates the First Amendment but provides a welcome dose of skepticism about sweeping, indiscriminate laws that are supposedly justified by the need to protect children from sexual predators. In this case, as in many others, the law went far beyond that goal, criminalizing a wide range of innocent actions by people classified as sex offenders, most of whom pose no real threat to children.[...]

In Major Free Speech Victory, SCOTUS Rules for 'The Slants' and Strikes Down Federal Trademark Restriction

Mon, 19 Jun 2017 11:18:00 -0400

Today the U.S. Supreme Court ruled 8-0 in favor of the Asian-American dance-rock band The Slants, holding that the First Amendment protects the rights of the band's members to register a trademark in their band's "offensive" name.

At issue in Matal v. Tam was a federal law prohibiting the registration of any trademark that may "disparage...or bring...into contemp[t] or disrepute" any "persons, living or dead." The Patent and Trademark Office cited this provision in 2011 when it refused to register a trademark in the name of The Slants, thereby denying the band the same protections that federal law extends to countless other musical acts. Justice Samuel Alito led the Court in striking down the censorious rule. "We now hold that this provision violates the Free Speech Clause of the First Amendment," Alito wrote. "It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."

Justice Alito demonstrated little patience for the federal government's position. The government's arguments, Alito observed, boiled down to this: "The Government has an interest in preventing speech expressing ideas that offend." As Alito noted in response, "that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'"

In this case, there was nothing hateful about the band name. As Slants bassist Simon Tam told's Meredith Bragg, the whole point of the band's provocative name was to challenge anti-Asian stereotypes. "For me, this whole fight has not been just about the band name and our right to access the trademark registration," Tam said. "When I found out what the government was doing and how they were doing it, how they were using it to suppress speech and how they were trying to take rights away from my own community, I decided that was not right. So all of a sudden it became about principle. When I believe they are violating the values of our country and violating my own values, I decided that had to be stopped, no matter the cost."

Today Tam prevailed in his fight for principle. Thanks to his efforts, the First Amendment stands on stronger footing.

Watch's interview with Slants' bassist Simon Tam below.

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5 Clichés Used to Attack Free Speech

Fri, 16 Jun 2017 09:50:00 -0400

We live in perilous times when it comes to free speech, and the threats are coming from both the left and right. The president has threatened legal action against the media, and progressive activists have used violence to shut down campus speakers they don't like.

In The Los Angeles Times, former federal prosecutor Ken White has some sharp insights on how to fight back against the would-be censors by shredding the most-popular clichés used by people trying to make the rest of us shut the hell up.

If today's calls for suppressing speech teaches us anything, it's that we can never take the First Amendment for granted. Even if the Supreme Court is on our side, free expression will only continue to exists if we're brave enough to make it ourselves.

Produced by Todd Krainin. Camera by Jim Epstein.

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'A Firm Hand of Repression': The Espionage Act Turns 100

Thu, 15 Jun 2017 09:15:00 -0400

One hundred years ago today, the U.S. government declared war on the First Amendment. It all started with President Woodrow Wilson. In April 1917, Wilson urged the nation into battle against Germany in order to "make the world safe for democracy." But he also set his sights on certain enemies located closer to home. "Millions of men and women of German birth and native among us," Wilson observed. "If there should be disloyalty, it will be dealt with with a firm hand of repression." That firm hand of repression came in the form of the Espionage Act, which Congress passed on this day in 1917 and Wilson eagerly signed into law. Among other things, the Espionage Act made it illegal to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." That sweeping language effectively criminalized most forms of antiwar speech. With the Espionage Act in place, Wilson's threats of repression soon became reality. In August, the government arrested and imprisoned Charles Schenck, the general secretary of the Socialist Party. His crime? Printing and distributing antiwar leaflets. Schenck maintained that the First Amendment clearly protected his right to speak out in that manner, but his arguments fell on deaf ears. On March 3, 1919, the U.S. Supreme Court upheld his conviction. "When a nation is at war," declared Justice Oliver Wendell Holmes Jr. in Schenck v. United States, "many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight." What about freedom of speech? Justice Holmes waved it off. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," he wrote. Advocates of government censorship have been invoking that particular sentence ever since. One week later, Justice Holmes dismissed the First Amendment yet again, this time upholding the Espionage Act conviction of Socialist leader Eugene Debs, who had been arrested in 1917 after giving a mildly antiwar speech at an afternoon picnic. "This man is the palpitating pulse of the sedition crusade," federal prosecutor F.B. Kavanaugh declared during Debs' trial. Citing his recent opinion in Schenck, Justice Holmes readily affirmed the case against Debs. "One purpose of [Debs'] speech, whether incidental or not does not matter," Holmes wrote in Debs v. United States, "was to oppose not only war in general but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting." So much for "Congress shall make no law...abridging the freedom of speech." Debs would languish in prison until 1921, when he was finally pardoned by President Warren G. Harding. These old cases still have important lessons to teach us today. For starters, they demonstrate why the exercise of fundamental rights should never be subject to majority approval. The Espionage Act was passed by a democratically elected legislature and enforced by a democratically elected president, and it was probably in tune with the will of the majority. But of course the whole point of the First Amendment is to place certain rights beyond the reach of any majority. These cases also demonstrate the importance of an independent judiciary that is prepared to check the other branches of government—to stand athwart the majority and yell "Stop!" It is no coincidence that Justice Holmes was the one who led the Court in trashing the First Amendment in Schenck and Debs. Far too often throughout his long career on the bench, Justice Holmes advocated judicial deference to majoritarian government. "A law should be called good," Holmes once wrote, "if it reflects the will of the dominan[...]

Why Did a Conservative Judge Uphold an Assault Weapons Ban?

Thu, 15 Jun 2017 06:00:00 -0400

In February, the U.S. Court of Appeals for the 4th Circuit dealt gun rights advocates a bitter defeat. In Kolbe v. Hogan, it upheld a Maryland law that bans "assault weapons" and detachable large-capacity magazines, holding that the Second Amendment offers no impediment to such prohibitory legislation. Among the judges who joined the 10–4 decision was J. Harvie Wilkinson III, who during the George W. Bush administration was rumored to be on the president's shortlist of Supreme Court candidates.

What led a respected conservative judge to uphold a sweeping gun control law? In addition to joining the majority opinion, Wilkinson filed a separate concurrence in which he explained his thinking. The matter boiled down to the core principle of judicial deference, he wrote: "It is altogether fair to argue that the assault weapons here should be less regulated, but that is for the people of Maryland (and the Virginias and the Carolinas) to decide."

In Wilkinson's view, if the federal courts get in the business of invalidating democratically enacted gun control measures, the end result will be to "empower the judiciary and leave Congress, the Executive, state legislatures, and everyone else on the sidelines." As far as he is concerned, the federal courts "are not impaneled to add indefinitely to the growing list of subjects on which the states of our Union and the citizens of our country no longer have any meaningful say."

It was the classic case for judicial deference: If you don't like what your lawmakers have done, take your complaint to the ballot box, not to the courthouse. For decades, this was a dominant view among legal conservatives. As recently as 20 years ago, Wilkinson's deferential stance would have placed him squarely within the mainstream of conservative legal thought.

But the times are changing. Judicial deference is no longer quite as popular among legal conservatives as it once was, and this particular case helps to illustrate why. After all, doesn't the Second Amendment itself suggest that there are some subjects on which democratic majorities should not have any meaningful say? Doesn't the Constitution place certain rights beyond the reach of lawmakers, and isn't it sometimes the job of federal courts to enforce those constitutional limits and strike down overreaching legislation, even when doing so means acting in an anti-democratic fashion?

As a principled advocate of judicial deference, Wilkinson effectively answers no to such queries. The big question going forward is how many legal conservatives are still willing to take his side.

Is This the Supreme Court's Next Big Case Against Public-Sector Unions?

Thu, 08 Jun 2017 10:20:00 -0400

State governments can compel public-sector workers to pay union fees as a condition of employment, even when those workers are not union members. The U.S. Supreme Court approved this practice in the 1977 case Abood v. Detroit Board of Education, on the grounds that non-union "free riders" should still have to contribute something to the union's treasury, since those non-members also benefit from the union's collective bargaining activities. Needless to say, mandatory fees have been a boon to public-sector unions over the past 40 years. But the Supreme Court almost overturned the Abood precedent last year in a case called Friedrichs v. California Teachers Association, in which an eight-member Court deadlocked 4-4 and narrowly preserved the status quo. Most court-watchers believe that if Justice Antonin Scalia had not died unexpectedly while Friedrichs was still under deliberation, Abood would have been reversed by a 5-4 vote. This week a potentially explosive new petition asked the Court to pick up where Friedrichs left off and overrule Abood once and for all. The case is Janus v. American Federation of State, County, and Municipal Employees, Council 31. Mark Janus is a public-sector worker in Illinois who has declined to join his local public-sector union, yet is required by state law to pay fees to support general collective bargaining activities. He maintains that this requirement violates his First Amendment rights because it forces him to support political speech and political activity that he does not wish to support. His goal is to overturn the 40-year-old precedent that undergirds the state requirement. "The Court should take this case," Janus' lawyers argue in their petition, "to overrule Abood and declare [mandatory public-sector union] fees unconstitutional." If that argument sounds familiar, it's because California public school teacher Rebecca Friedrichs took the same basic position in her case last year. Like Janus, Friedrichs refused to join the public-sector union and objected to the payment of mandatory union fees on First Amendment grounds. "Just as the government cannot compel political speech or association generally," Friedrichs' lawyers told the Supreme Court, "it cannot mandate political speech or association as a condition of employment." Friedrichs appeared to be on her way to a 5-4 victory. But then Justice Scalia died in February 2016 and, a little over a month later, the Court issued a terse 4-4 ruling that affirmed the status quo. Without Scalia around to tip the balance, Abood remained in place. Which brings us back to the petition filed this week in the Janus case. Now that Justice Neil Gorsuch has joined the bench, Janus and his lawyers are betting that the new conservative majority is prepared to take another swing at Abood. SCOTUSblog reporter Amy Howe thinks the Court "is likely" to take the case. She may be right. After all, four justices have already signaled their willingness to rule against the public-sector unions on this issue, and Gorsuch could conceivably provide the fifth vote they need. If there are now five justices willing to overrule Abood and limit the legal privileges afforded to public-sector unions, this case is their opportunity to do so.[...]

Trump's Travel Ban Is Security Theater

Wed, 07 Jun 2017 00:01:00 -0400

Donald Trump is starting to sound like a critic of his own administration. "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.," he tweeted on Monday, referring to the executive order currently before the Supreme Court. It was Trump, not the Justice Department, who decided to issue that revised order, based on the reasonable expectation that it would be easier to defend in court. And contrary to Trump's claim that his "smart, vigilant and tough" policy provides "an extra level of safety," there is little reason to think either version of the travel ban would reduce the average American's already tiny risk of being killed by a terrorist. Trump's original order, issued on January 27, imposed a 90-day ban on travel to the United States by citizens of seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It suspended admission of refugees for 120 days, indefinitely for Syrians. The revised order, issued on March 6 after the first version was blocked by the courts, removed Iraq from the list of targeted countries and eliminated the distinction between Syrians and other refugees. Two other changes were more legally significant. The revised order clarified that the travel ban does not apply to lawful permanent residents, who according to the Supreme Court have a right to due process when the government tries to exclude them, or current visa holders, whose American hosts might have standing to sue. Trump's lawyers also excised a preference for refugees from religious minorities (typically Christians), which critics cited as evidence of unconstitutional anti-Muslim bias. Trump, who approved those changes, now says they were a mistake. "The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court," he tweeted on Monday, "& seek much tougher version!" That comment misconstrues the roles of the Justice Department, which is defending Trump's order, not rewriting it, and the Supreme Court, which can only review the order as it stands. And if Trump plans to revive the original ban after the second one passes muster, he will only prolong the litigation he claims is endangering national security. That claim is highly implausible. Trump says he picked the seven (now six) countries covered by the travel ban because they were on a list of nations excluded from the visa waiver program as sponsors of terrorism or havens for terrorists. But people from those countries seem to pose a much smaller terrorist threat than people from countries that were omitted from the order. Based on his count of domestic plots and attacks by foreign-born terrorists from 1975 through 2015, Cato Institute immigration analyst Alex Nowrasteh reports that 19 perpetrators came from Saudi Arabia, 14 from Pakistan, 11 from Egypt, and 11 from Cuba. Their combined death toll was 2,537. During the same period, Nowrasteh found, six foreign-born terrorists came from Iran, six from Sudan, two from Somalia, and one from Yemen. None came from Libya or Syria. The combined death toll for terrorists from those six countries was zero. University of North Carolina at Chapel Hill sociologist Charles Kurzman compiled information on Muslims who carried out or were accused of planning domestic attacks last year. Most (12 out of 23) were American-born converts. Just two, both Somalis who were shot and killed during nonfatal knife attacks, came from a country on Trump's list or had parents who did. Even if the list made sense, it is hard to imagine how the "extreme vetting" Trump promises could identify future terrorists. As an internal Department of Homeland Security report noted last March, "most f[...]

SCOTUS Agrees to Hear Significant 4th Amendment Case on Warrantless Cell Phone Location Searches

Mon, 05 Jun 2017 10:50:00 -0400

Today the U.S. Supreme Court agreed to hear a major case that has the potential to reshape the face of Fourth Amendment jurisprudence in the age of the cell phone.

At issue in Carpenter v. United States is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cell phone call and location records of several suspected armed robbers. By pinpointing the cellular towers that handled the suspects' calls during the time periods in which the robberies were committed, federal officials were able to trace back the suspects' movements and link their whereabouts to their alleged crimes.

According to the U.S. Court of Appeals for the 6th Circuit, which ruled in favor of the government's warrantless activity in this matter, "although the content of personal communications is private, the information necessary to get those communications from point A to point B is not." And "cell-site data," that court said, just "like mailing addresses, phone numbers, and IP addresses [are] information that facilitate personal communications, rather than part of the content of those communications themselves. The government's collection of business records containing these data therefore is not a search."

The 6th Circuit justified its decision by citing U.S. Supreme Court precedent. For example, in Katz v. United States (1967), the Court held that "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Even more significantly, in Smith v. Maryland (1979), the Court ruled that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Otherwise known as the "third-party doctrine," this legal standard has proven to be a great boon to law enforcement. But it has also placed certain Fourth Amendment rights on the chopping block. The question for the Supreme Court in Carpenter v. United States is whether the fundamental right to be free from unreasonable search and seizure can be squared with the vast warrantless search powers that law enforcement officials now routinely enjoy.

Oral arguments in the case are likely to be held at SCOTUS this fall. Will the Court cabin the third-party doctrine, curb the power of the police, and recognize broader Fourth Amendment protections for cell phone users?

At least one member of the Court seems inclined to do all of the above. As Justice Sonia Sotomayor remarked in the 2012 case of United States v. Jones, "people disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.... I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

Stay tuned.

SCOTUS Rejects Deportation of Immigrant Who Had Sex With His 16-Year-Old Girlfriend When He Was 20

Thu, 01 Jun 2017 09:45:00 -0400

This week the Supreme Court unanimously ruled that a lawful permanent resident cannot be deported merely for having consensual sex with his girlfriend when he was 20 and she was 16. The opinion, written by Justice Clarence Thomas and joined by all of his colleagues except for Neil Gorsuch, who did not participate in the case, hinges on statutory interpretation but implicitly recognizes the danger of lumping all "sex crimes" together in an undifferentiated mass. The case, which Lenore Skenazy covered here in February, involves Juan Esquivel-Quintana, who in 2000 emigrated with his parents from Mexico to Sacramento, California. In 2009 he pleaded no contest to "unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator." California's law defines a minor as anyone younger than 18 and says violations can be treated as misdemeanors or felonies. Esquivel-Quintana's sentence—90 days in jail, plus five years of probation—suggests the judge did not view his behavior as particularly heinous, and it would not even have qualified as a crime in most states. Thirty-one states and the District of Columbia currently set the age of consent at 16, while several other states have close-in-age exceptions that would cover a difference of four years. The Department of Homeland Security nevertheless argued that Esquivel-Quintana's intimacy with his girlfriend qualified as an "aggravated felony"—specifically, "sexual abuse of a minor"—under the Immigration and Nationality Act (INA), making him subject to deportation. An immigration judge and the Board of Immigration Appeals agreed, and a federal appeals court deferred to their interpretation of the statute. The Supreme Court overturned those decisions. "Absent some special relationship of trust," Thomas writes, "consensual sexual conduct involving a younger partner who is at least 16 years of age does not qualify as sexual abuse of a minor under the INA, regardless of the age differential between the two participants." When Congress added that offense to the INA in 1996, Thomas notes, the age of consent was 16 or younger in 34 states and the District of Columbia. "Reliable dictionaries provide evidence that the 'generic' age—in 1996 and today—is 16," he says. Adding to that impression, a federal law dealing with "sexual abuse of a minor or ward," enacted in 1986 and amended in 1996, explicitly applies only when the victim is younger than 16. Thomas notes that Congress updated that statute "in the same omnibus law that added sexual abuse of a minor to the INA, which suggests that Congress understood that phrase to cover victims under age 16." More generally, Thomas notes that the INA describes sexual abuse of a minor as an "aggravated" felony and lists it in the same subparagraph as murder and rape. "The structure of the INA therefore suggests that sexual abuse of a minor encompasses only especially egregious felonies," he writes. The government argued that its interpretation of the INA should receive deference under the Chevron doctrine, which gives executive agencies broad discretion to decide the meaning of ambiguous statutes. Esquivel-Quintana's lawyers, by contrast, said any ambiguity should be resolved to his benefit under the rule of lenity, which favors the defendant when the meaning of a criminal law is unclear. The Supreme Court says neither argument is apposite, since the law is not really ambiguous. "We have no need to resolve whether the rule of lenity or Chevron receives priority in this case," Thomas writes, "because the statute, read in context, unambiguously forecloses the Board's interpretation." Strictly speaking, this decision hinges on figuring out[...]