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Supreme Court

All articles with the "Supreme Court" tag.

Published: Sun, 22 Jan 2017 00:00:00 -0500

Last Build Date: Sun, 22 Jan 2017 07:33:00 -0500


Pricing Laws Violate Free Speech

Sat, 21 Jan 2017 10:00:00 -0500

The comedian Gallagher once joked that customers don't like to hear they're being charged more for using credit cards—they'd rather hear they're getting a "discount for cash." But in New York and some other states, it's not just what customers want to hear. Telling customers there's a surcharge to pay by credit card can actually land business owners in jail. Yet it's perfectly legal to tell them something costs less if they pay cash. That, at least, is how New York officials enforced the law, which—read literally—actually only prohibits shopkeepers from charging customers different prices depending on how they pay. Passed in the 1980s, the law is supposedly intended to protect consumers from hidden fees. But business owners must pay processing fees that don't apply to cash transactions. Charging customers to pay that fee makes perfect sense. That's why New York officials didn't punish businesses that said they were giving cash customers a discount. Yet that also means the state was violating the free speech rights of businesses who used the word "surcharge"—which, after all, is the truth. Business owners therefore sued on First Amendment grounds, and the U.S. Supreme Court heard the case last week. The Court has made clear that government can't punish people simply because they express themselves in one way or another. Laws must limit actions, not words. Yet the law's actual language makes no reference to speech. It just says, "No seller…may impose a surcharge on a [customer] who elects to use a credit card." As Justice Stephen Breyer pointed out at the January 10 hearing, that language doesn't seem like a limit on free speech—it's just a kind of price control. How, he asked, could the law violate the First Amendment if it only limits what store owners do, not what they say? Business lawyers answered that however the law may read, it's only enforced when shopkeepers call the price difference a "surcharge," rather than a "discount." But there's a deeper sense in which the New York law violates the Constitution: all price restrictions are limits on free speech. That's because prices are just a way of conveying information. For any product or service on the market, the price is simply a number that represents what the owner is willing to trade for. That number is based on many different factors—how much flour goes into a cake, how much labor goes into a car, how much research goes into a new medical treatment—but ultimately all a price does is convey information about the scarcity of the ingredients that go into that product, and how what other people are willing to give in exchange for that product. As economist Thomas Sowell has put it, "prices are like messengers conveying news." Laws that ban companies from charging what they want don't make products or services cheaper, any more than the government can simply declare that cakes can be baked without flour or cars made without labor. All that price controls do is ban companies from telling people what the products and services are actually worth. Such laws, writes Sowell, "[do] not change the underlying scarcity in the slightest." Price control laws are like painting over the numbers on your speedometer in order to comply with the speed limit. If companies are punished for charging what something is worth, they will just stop selling it. Justice Breyer hinted at this fact in a question to the business's lawyer. Recalling the Depression-era Office of Price Administration, he explained, "Ken Galbraith ran it for a while. And they would—what they would do, he said, is they'd go around and they'd smell what the price was," and "you couldn't charge a higher price. Would you have come in and said, Ken Galbraith says you can only charge $13 for this item. It violates our free speech?" The answer is yes: saying a $50 item only costs $13—or that credit card transactions have no cost—or that there's such a thing as a free lunch—doesn't make it so. Prices can't be "smelled," or dictated, by a government bureaucrat. They can only be truthfully conveyed—or s[...]

Federal Judge on Trump's SCOTUS Short-List Issues Major 2nd Amendment Decision

Thu, 19 Jan 2017 10:00:00 -0500

On Wednesday the U.S. Court of Appeals for the 7th Circuit handed Second Amendment advocates a major victory when it struck down multiple gun range regulations imposed by the city of Chicago as unconstitutional infringements on the right to keep and bear arms. The majority opinion in the case, Ezell v. Chicago, was written by Judge Diane Sykes, whose name appears on Donald Trump's short-list of possible Supreme Court nominees. The underlying issue in Ezell v. Chicago is the Windy City's hostile reaction to the Supreme Court's 2010 ruling in McDonald v. Chicago, in which the Court struck down the city's handgun ban for violating the Second Amendment. In response to McDonald, Chicago enacted a new handgun permitting scheme which, among other things, required permit holders to complete one hour of training at a gun range. Yet Chicago also outlawed the existence of all gun ranges within city limits, thereby placing a rather significant obstacle in the path of any Chicago resident seeking to exercise his or her constitutional rights. In 2011 that city-wide gun range ban was struck down by the 7th Circuit. Judge Sykes also wrote that decision. Yesterday's ruling follows on the heels of the 2011 case. After losing in federal court five years ago, Chicago adopted another new regulatory scheme for gun ranges. But once again the city tried to smother the Second Amendment with red tape. For example, it imposed new zoning regulations that would only allow gun ranges within manufacturing districts while also forbidding gun ranges from being built within 100 feet of each other and within 500 feet of residential districts, schools, or places of worship. In addition, the city forbid anyone under the age of 18 from lawfully entering a gun range. Writing yesterday for the majority, Judge Sykes invalidated all three of those regulations. As she points out, under the new zoning laws, only 2.2% of the city's total acreage is even theoretically available, and the commercial viability of any of these parcels is questionable—so much so that no shooting range yet exists. This severely limits Chicagoans' Second Amendment right to maintain proficiency in firearm use via target practice at a range. To justify these barriers, the City raised only speculative claims of harm to public health and safety. That's not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights. Furthermore, "the age restriction also flunks heightened scrutiny." That's because the Second Amendment, Judge Sykes writes, protects the right to learn and practice firearm use in the controlled setting of a shooting range. The City insists that no person under age 18 enjoys this right. That's an extraordinarily broad claim, and the City failed to back it up. Nor did the City adequately justify barring anyone under 18 from entering a range. To the contrary, its own witness on this subject agreed that the age restriction is overbroad because teenagers can safely be taught to shoot and youth firearm instruction is both prudent and can be conducted in a safe manner. In short, Chicago tried to bypass the Second Amendment and the 7th Circuit benchslapped the city down. The decision in Ezell v. City of Chicago is available here. Related: What Trump SCOTUS Short-Lister Diane Sykes Had to Say About John Roberts and Judicial Deference[...]

SCOTUS Seems Inclined to Nix the Ban on 'Disparaging' Trademarks

Thu, 19 Jan 2017 09:15:00 -0500

Comments during yesterday's oral argument in Lee v. Tam, a First Amendment case in which an Asian-American dance rock band called The Slants is challenging the federal ban on registration of "disparaging" trademarks, suggest a majority of the Supreme Court is inclined to overturn the 71-year-old rule. In addition to skeptical questions from three conservative justices, Deputy Solicitor General Malcom Stewart's defense of the trademark policy faced strong challenges from two left-leaning justices that he had trouble countering. Justice Stephen Breyer asked Stewart to identify a legitimate government interest served by the Lanham Act clause barring registration of trademarks that "may disparage...persons, living or dead, institutions, beliefs, or national symbols." Stewart said the rule is aimed at avoiding terms that "distract the consumer from the intended purpose of the trademark qua trademark, which is to identify [the] source" of the product or service. Breyer was clearly not satisfied by that response, saying he could come up with "perhaps 50,000 examples of instances where the space the trademark provides is used for very distracting messages, probably as much [as] or more so than the one at issue." Later Breyer repeatedly summarized Stewart's position in a way that suggested he did not think much of it. Justice Elena Kagan emphasized that the disparagement clause draws a distinction based on viewpoint, since it allows positive messages but prohibits negative ones. "I always thought that government programs were subject to one extremely important constraint, which is that they can't make distinctions based on viewpoint," she said. Under the ban challenged by The Slants, she noted, "you can say good things about some person or group, but you can't say bad things about some person or group....I would have thought that that was a fairly classic case of viewpoint discrimination." Stewart conceded that a trademark restriction approving praise of politicians but forbidding criticism of them would constitute viewpoint-based discrimination. But he argued that the breadth of the disparagement rule, which applies to all groups of people, makes it less problematic because it means the government is not trying to suppress specific messages. "That's like saying it does so much viewpoint-based discrimination that it becomes all right," a skeptical Kagan replied. The point is crucial because viewpoint-based speech regulation is subject to "strict scrutiny," which makes it presumptively unconstitutional. It can pass muster only if it is narrowly tailored to serve a compelling government interest. Even if we assume that preventing consumer distraction "from the intended purpose of the trademark qua trademark" is a compelling government interest, a rule that applies only to disparagement is clearly not narrowly tailored. Stewart himself conceded that the disparagement rule cannot survive strict scrutiny, meaning it will be upheld only if the Court decides it is not a viewpoint-based speech regulation. The government maintains that the disparagement clause is not really a speech regulation because it merely sets a requirement for obtaining benefits the government has no obligation to provide. Chief Justice John Roberts was unpersuaded. "I'm concerned that your government program argument is circular," he said. "The claim is you're not mark because it's disparaging, and your answer is, 'Well, we run a program that doesn't include disparaging trademarks, so that's why you're excluded.'" Pressed by Justice Samuel Alito, Stewart admitted that "it would be unconstitutional to deny copyright protection" for a book that was deemed disparaging. But he argued that copyright "is much more tied to First Amendment values" than trademark because "the incentivization of free expression" is one of its main functions. By contrast, he said, "trademarks generally have not historically served as vehicles for expression." Justice Anthony Kennedy did not seem to buy that distinction, [...]

‘The Slants’: The Asian-American Band Name the Government Says Is Too Racist to Trademark!

Wed, 18 Jan 2017 16:16:00 -0500

Can the U.S. Patent Office deny trademark requests it deems disparaging or offensive, or is that a violation of the First Amendment? The Supreme Court will decide in the case of Lee v. Tam, which began oral arguments today.

The case, which Jacob Sullum wrote about earlier today, centers around an Asian-American rock group called "The Slants," which attempted to trademark its name in 2011 but was denied on the grounds that it was offensive.

"When I first heard about this," the band's founder and bassist Simon Tam told Reason's Meredith Bragg, "I though it was a practical joke."

Ironically, Tam says, the name was intended "to flip the slur around" and convey a "positive, self-empowering" message to fans.

Interview by Meredith Bragg. Cameras by Joshua Swain and Mark McDaniel, who also edited the video. Music by The Slants.

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Offensive Trademarks Are Free Speech

Wed, 18 Jan 2017 00:01:00 -0500

In 2004 the U.S. Patent and Trademark Office agreed to register Heeb as the name of a magazine covering Jewish culture. Four years later, the PTO refused to register Heeb as the name of a clothing line conceived by the magazine's publishers, because the term is "a highly disparaging reference to the Jewish people." Such puzzling inconsistency is par for the course at the PTO, which since 1946 has been charged with blocking registration of trademarks that "may disparage...persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." A case the Supreme Court will hear today could put an end to that vain, vague, and highly subjective enterprise, which sacrifices freedom of speech on the altar of political correctness. The case involves an Asian-American dance rock band called The Slants, a name that self-consciously repurposes a racial slur. In 2011 the band's founder, Simon Tam, tried to register the name but was rejected by a PTO examiner who deemed it disparaging to "persons of Asian descent." An administrative appeals board affirmed that decision, even while conceding that the band's name was "an attempt not to disparage, but rather to wrest 'ownership' of the term from those who might use it with the intent to disparage." The board said "the fact that applicant has good intentions underlying the use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable." In 2015 a federal appeals court agreed that Tam "may offend members of his community with his use of the mark" but noted that "the First Amendment protects even hurtful speech." The court ruled that the ban on registration of disparaging trademarks amounts to viewpoint-based speech regulation, which the Supreme Court has said is constitutional only if it is narrowly tailored to serve a compelling government interest. The interest in this case—protecting the feelings of people who might be offended by an outré trademark—does not even qualify as legitimate, let alone compelling. The PTO maintains that it's not really regulating speech, since Tam is free to call his band whatever he wants. But denying him the trademark-protecting benefits of registration clearly imposes a burden on his speech, analogous to denying copyright registration for a book that bothers a bureaucrat. The PTO also argues that trademark registration should be viewed as government speech, similar to messages on license plates. But as the Cato Institute notes in a friend-of-the-court brief (which was joined by the Reason Foundation, publisher of this website), that contention is pretty implausible when the list of registered trademarks "includes such hallowed brands as 'Capitalism Sucks Donkey Balls' and 'Take Yo Panties Off.'" Those examples also appear in a brief filed by the corporate owner of the Washington Redskins, which is engaged in its own legal battle over an allegedly disparaging trademark. The brief lists hundreds of arguably disparaging registered trademarks, including band names such as N.W.A., White Trash Cowboys, Whores From Hell, Cholos on Acid, The Pricks, Barenaked Ladies, and The Roast Beef Curtains. Since disparagement is in the eye of the beholder, registration decisions vary with the moods and sensibilities of the PTO's examiners. It is therefore not surprising that "the PTO's record of trademark registrations and denials often appears arbitrary and is rife with inconsistency," as the appeals court found. Among other examples, the court noted that "the PTO denied the mark HAVE YOU HEARD SATAN IS A REPUBLICAN because it disparaged the Republican Party…but did not find the mark THE DEVIL IS A DEMOCRAT disparaging." The PTO "registered the mark FAGDOG three times and refused it twice." Uncertainty about the PTO's decisions has a chilling effect on applicants' choices, encouraging them to steer wide of trademarks that might be controversial. In fact, avoi[...]

One Cheer for Justice Sotomayor

Mon, 16 Jan 2017 07:00:00 -0500

When President Barack Obama nominated Sonia Sotomayor to replace the retiring Justice David Souter on the U.S. Supreme Court in May 2009, he listed Sotomayor's work as a New York City prosecutor as one of her biggest qualifications for the job. "Sonia learned what crime can do to a family and a community," Obama declared, "and what it takes to fight it."

For libertarians, it was an ominous statement. Would Sotomayor turn out to be yet another Supreme Court justice with an unduly deferential attitude toward law enforcement? It looked like a distinct possibility. As New York University law professor Kenji Yoshino told the Los Angeles Times in June 2009, "I think her experience as a prosecutor balances out her liberal tendencies."

But Sotomayor defied that expectation. In fact, over the past seven years, she has distinguished herself as one of the Supreme Court's most outspoken critics of police misconduct and one of its most consistent champions of the Fourth Amendment.

Take the 2015 case of Mullenix v. Luna, in which the Court granted qualified immunity to a police officer who used deadly force to end a high-speed car chase. In a lone dissent, Sotomayor lambasted her colleagues for "sanctioning a 'shoot first, think later' approach to policing [that] renders the protections of the Fourth Amendment hollow."

That same year, during oral arguments in Rodriguez v. United States, Sotomayor practically read the riot act to a Justice Department lawyer who insisted that police officers be granted wide leeway to employ drug-sniffing dogs during traffic stops. "We can't keep bending the Fourth Amendment to the resources of law enforcement," said an exasperated Sotomayor. "What you're proposing," she lectured the government lawyer, is an approach that's "purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper."

Regrettably, Sotomayor is not always so vigilant when it comes to other parts of the Bill of Rights. In 2010, for instance, she dissented in McDonald v. Chicago, the landmark case in which the Second Amendment was first held to be applicable against state and local governments. In 2015, in Horne v. U.S. Department of Agriculture, Sotomayor dissented when the Court ruled against the USDA because it took raisins from raisin farmers without paying them just compensation as required by the Fifth Amendment.

As President Obama likes to say, let me be clear: Sonia Sotomayor is no libertarian. But she has turned out to be a good friend to the Fourth Amendment. That deserves a cheer.

Judge William Pryor, 'No Friend of Criminal Defendants,' Is Said to Top Trump's SCOTUS Short-List

Thu, 12 Jan 2017 10:10:00 -0500

Yesterday President-elect Donald Trump said he plans to announce his Supreme Court pick sometime shortly after taking the oath of office. "I'll be making the decision on who we will put up ... that will be probably within two weeks of the 20th," Trump said. The president-elect also reiterated his promise to choose his nominee from the "list of 20" prospective candidates that he released during the campaign. "We've met with numerous candidates. They're outstanding in every case," Trump said.

(image) One name on that list in particular keeps cropping up: Judge William H. Pryor of the U.S. Court of Appeals for the 11th Circuit. Writing today at The Hill, for example, Alexander Bolton reports that "influential conservatives are pressing [Trump] to nominate Bill Pryor, a judge feared and disdained by liberals but loved by conservatives because of his 'titanium spine.'" Many conservatives seem especially enamored by the fact that Pryor once described Roe v. Wade as the "worst abomination in the history of constitutional law."

Pryor is also the subject of a lengthy profile published this week by SCOTUSblog's Kevin Russell and Charles Davis, who examined the judge's rulings in a variety of cases. Of particular note is their conclusion that Pryor "is no friend of criminal defendants. He very consistently sides with the government in criminal cases on issues both big and small."

I reached a similar conclusion when I profiled Pryor back in November, arguing that Pryor "has a troubling record of favoring broad judicial deference towards law enforcement."

Since Pryor is now rumored to be one of the favorites to replace the late Justice Antonin Scalia on the Supreme Court, it's worth comparing their respective records on criminal justice. Whereas Pryor has proven himself to be a dependable vote in favor of law enforcement, Scalia frequently ruled against the aggressive tactics employed by police and prosecutors. Indeed, Scalia himself liked to joke that he "ought to be the darling of the criminal defense bar" thanks to his opinions in favor of broad Fourth Amendment protections. "I have defended criminal defendants' rights—because they're there in the original Constitution—to a greater degree than most judges have," Scalia said.

Unfortunately, the same thing cannot be said for the pro-government jurisprudence of Judge William Pryor. If Donald Trump does end up nominating Pryor to replace Scalia on SCOTUS, the Senate Judiciary Committee should devote serious attention to this fundamental disagreement between the two conservative judges.


Supreme Court Rules Unanimously to Protect Qualified Immunity for Police

Wed, 11 Jan 2017 08:30:00 -0500

The Supreme Court reversed a decision of the 10th Circuit Court of Appeals, handing down an 8-0 decision in the case of White v. Paulie that will serve to strengthen qualified immunity for police officers. The case revolved around the fatal police shooting of Samuel Paulie in New Mexico. Police officers arrived at the Paulie brothers' home after two women called police to report one of the Paulies allegedly driving drunk. According to the facts presented in the ruling, police determined after talking to the women that they did not have probable cause to arrest Paulie but wanted to go to his house anyway to "get his side of the story," to see if he was drunk, and to see if there was anything else going on. The officers went separately. The first two officers to arrive didn't identify themselves as police, instead telling the Paulies they were surrounded and to come out or they would come in, causing the Paulies to believe they were being targeted for a home invasion and to arm themselves. That's when the third officer, Ray White, the plaintiff of the case that made it to the Supreme Court, arrived, just in time to hear the Paulies yell "we have guns." He took cover behind a wall. Sam Paulie then exited his house with a shotgun, firing one shot that didn't hit anyone. One of the officers shot at Paulie but missed. Then White left his cover and fired at Paulie, killing him. The Supreme Court ruled that White deserved qualified immunity (a concept that, in essence, protects government employees from liability and civil damages so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," as the Supreme Court decided in the 1982 case Harlow v. Fitzgerald. "In the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases," the court noted in its White v. Paulie decision, appearing to signal that there ought to be less of these making it all the way to the Supreme Court. "The Court has found this necessary both because qualified immunity is important to 'society as a whole,' and because as 'an immunity from suit', qualified immunity 'is effectively lost if a case is erroneously permitted to go to trial.'" The crux of the court's decision is that, as "this Court explained decades ago, the clearly established law must be 'particularized' to the facts of the case." The court admonished the appeals court for misunderstanding "the 'clearly established analysis,'" writing that the 10th circuit had "failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment." Given that every police shooting is different in its own way, this is a troubling standard from the perspective of reducing police violence and increasing accountability for it. The appeals court, the Supreme Court continued, "did not conclude that White's conduct—such as his failure to shout a warning—constituted a run-of-the-mill Fourth Amendment violation." The Supreme Court did not explain what they believed a "run-of-the-mill" Fourth Amendment looks like—the phrase is not a legal term of art. The appeals court "recognized that 'this case presents a unique set of facts and circumstances' in light of White's late arrival on the scene. This alone should have been an important indication to the majority that White's conduct did not violate a 'clearly established' right." Justice Ruth Bader Ginsberg offered a concurring opinion that North Carolina criminal defense attorney and prolific legal tweeter Greg Doucette called an "after-the-fact 'this isn't as bad as it looks' concurrence," one "that would be totally unnecessary if it wasn't actually just as bad as it looks." "The Supreme Court's (unanimous) ruling means that absolutely no §1983 case will survive summary ju[...]

What Trump SCOTUS Short-Lister Diane Sykes Had to Say About John Roberts and Judicial Deference

Tue, 10 Jan 2017 15:40:00 -0500

In 2003 President George W. Bush nominated Justice Diane Sykes of the Wisconsin Supreme Court to a seat on the U.S. Court of Appeals for the 7th Circuit. During her 2004 Senate confirmation hearings, which were ultimately successful, Sykes was asked to explain her guiding judicial philosophy. "I believe in deference to the legislative branch of government and the policy choices that the legislative branch of government makes in enacting statutes," Sykes replied. "And so my approach to judicial decision making is one of deference to the legislative branch and one of judicial restraint." It was a predictable answer from a conservative judicial nominee. For decades, conservatives had been preaching the virtues of judicial restraint, arguing that the "least democratic branch" of government should be exceptionally wary about striking down the actions of the democratically accountable branches. As the conservative legal icon Robert Bork once put it, "in wides areas of life, majorities are entitled to rule, if they wish, simply because they are majorities." According to this view, the courts should butt out. Judicial deference still has its followers today on the conservative right. Foremost among them is Chief Justice John Roberts, who concluded his 2012 decision upholding Obamacare with these deferential words: "It is not our job to protect the people from the consequences of their political choices." Which brings us back to Judge Sykes. Currently Sykes is one of the top names being floated by President-elect Donald Trump as a possible nominee to replace the late Justice Antonin Scalia on the U.S. Supreme Court. This raises some questions. Is Sykes still a devotee of judicial deference? Or have her views changed since her 2004 confirmation hearings? There may be reason to think that her views have changed. In 2013 Sykes delivered a lecture titled "Minimalism and its Limits" at the Cato Institute's annual Constitution Day conference in Washington, D.C. Her topic was whether or not Chief Justice John Roberts, and the Court he led, "is committed to [judicial] minimalism and, if so, whether that is a good thing." Judicial minimalism, Sykes explained, "starts from a presumption of deference to the political branches. It self-consciously avoids invalidating acts of the legislative and executive branches either by upholding them on the merits or by using various techniques for avoiding constitutional questions." Sykes then proceeded to critique the chief justice for his misguided pursuit of minimalism in several cases. "The Court's primary duty," Sykes concluded, "is not to minimize its role or avoid friction with the political branches, but to try as best it can to get the Constitution right." It seems to me that there is some discrepancy between the views expressed by Sykes in 2004 and those expressed by her in 2014. If President-elect Trump ends up nominating Sykes to the Supreme Court, I hope that the Senate Judiciary Committee will ask her to further explain her position on the limits of judicial deference and the proper role of the courts. Related: The Trouble With Trump SCOTUS Contender William H. Pryor Trump SCOTUS Short-Lister Joan Larsen Is a Fan of Executive Power and Presidential Signing Statements [...]

Federal Government Files for Certiorari to Supreme Court Over Its Loss in Second Amendment Case Binderup

Mon, 09 Jan 2017 08:15:00 -0500

Federal law states, at 18 USC 922(g)(1), that anyone convicted of most crimes with punishment of more than one year imprisonment (or, if a misdemeanor, more than two years) can't legally own a gun. The Justice Department last week filed for certiorari to the Supreme Court in an attempt to overturn a loss they suffered in September 2016 in the 3rd District Court of Appeals in a case that is now known as Lynch v. Binderup. Binderup consolidated two cases, in each of which a plaintiff who felt his Second Amendment rights had been violated by the specific application of 922(g)(1) won in both district court and in an en banc opinion of the 3rd District Court of Appeals. Daniel Binderup, for whom the case is now named, had a consensual sexual relationship with a 17-year-old in 1998. He was sentenced to probation for three years under a misdemeanor conviction in Pennsylvania for corruption of a minor. The federal government believes this barred him from legal gun ownership forever, as it was a misdemeanor for which he could have been (though was not) given over two years' incarceration. (Julio Suarez, the other person challenging the government in the cases now consolidated, was convicted of possessing a handgun in a car without a permit license to carry in Maryland in 1990.) The complicated issues that arise over whether "punishable" means what punishment could have been applied or what actually was applied is explored at length in the 3rd Circuit opinion, which ultimately concludes, to the detriment of Binderup's legal team which tried to rely on the fact that he did not in fact receive over two years' incarceration on his misdemeanor, that "'subject to a maximum possible penalty of' is the best reading of the phrase 'punishable by.'" Alan Gura, who won two previous Supreme Court cases for Second Amendment rights, Heller (2008) and McDonald (2010), is one of Binderup's lawyers. The constitutional issue being argued was whether that 922(g)(1) prohibition should cover people whose crimes present no evidence of danger to the public, especially given the post-Heller environment in which gun ownership is recognized as a core constitutional right. In that complicated September 2016 decision from an en banc panel of the 3rd Circuit Court of Appeals (in which different elements were signed on to by different batches of judges), the Court declared that the offenses of Binderup and Suarez: were not serious enough to strip them of their Second Amendment rights. For starters, though the Challengers' crimes meet the generic definition of a felony and Congress's definition of a felony for purposes of § 922(g)(1), the Pennsylvania and Maryland legislatures enacted them as misdemeanors. Misdemeanors are, and traditionally have been, considered less serious than felonies...Congress tried to ensure that only serious crimes would trigger disarmament under § 922(g)(1) by exempting from the ban any state-law misdemeanant whose crime was punishable by less than two years' imprisonment.... But we believe that accommodation still paints with too broad a brush, for a state legislature's classification of an offense as a misdemeanor is a powerful expression of its belief that the offense is not serious enough to be disqualifying. This is not to say that state misdemeanors cannot be serious.....Other considerations, however, confirm our belief that the Challengers' crimes were not serious...neither Challenger's offense had the use or attempted use of force as an element.... Also important is that each Challenger received a minor sentence by any measure...punishments are selected by judges who have firsthand knowledge of the facts and circumstances of the cases and who likely have the benefit of pre-sentence reports prepared by trained professionals. With not a single day of jail time, the punishments here r[...]

Trump SCOTUS Short-Lister Joan Larsen Is a Fan of Executive Power and Presidential Signing Statements

Thu, 05 Jan 2017 10:45:00 -0500

President-elect Donald Trump has repeatedly said that his pick to replace the late Justice Antonin Scalia on the U.S. Supreme Court will be drawn from the list of 21 names that he released during the presidential campaign. One of the names on that list is Michigan Supreme Court Justice Joan Larsen. If Larsen does get the nod from Trump, the Senate Judiciary Committee should examine her past statements in support of expansive executive power. On September 13, 2006, while working as a law professor at the University of Michigan, Larsen penned an op-ed for The Detroit News defending the use of presidential signing statements by President George W. Bush. Throughout his presidency, Bush issued hundreds of such statements, in which he asserted his independent authority to reject or ignore parts of the very statutes that he himself had signed into law. For example, on December 30, 2005, Bush signed into law a piece of legislation called the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act. Among other things, this cumbersomely named bill included a provision known as the McCain Amendment. Named after its principal sponsor, Republican Sen. John McCain of Arizona, the McCain Amendment was added for the explicit purpose of outlawing the use of waterboarding and other forms of torture by U.S. forces engaged in the war on terrorism. Specifically, it prohibited "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government." Initially, Bush's signature was seen as a repudiation of his administration's previous pro-torture stance. As NBC News put it, "Bush accepts Sen. McCain's torture policy. President now agrees with pact banning cruelty against terror suspects." But in fact Bush did not agree with McCain. Bush simply believed that he was under no obligation to actually follow the law that he had just signed. As Bush explained in his accompanying presidential signing statement, he would only implement the McCain Amendment "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." Translation: The Bush administration would go on fighting the war on terror as it saw fit, regardless of what the other branches of government had to say about it. So much for the separation of powers. As the journalist Charlie Savage observed in his 2007 book on the Bush administration and its anti-terrorism policies, Takeover, "Bush was claiming that only the parts of the bill that expanded his power were constitutional, essentially nullifying the parts of the bill that checked those new powers." Which brings us back to Trump SCOTUS short-lister Joan Larsen. In her 2006 Detroit News op-ed, Larsen came out firmly in defense of Bush's actions in this instance. The outrage over signing statements "is misplaced," she insisted. "Denying the president a constitutional voice is the real threat to our system of separated powers." After referring to "the anti-torture legislation that sparked much of this controversy," Larsen offered this glowing summary of Bush's signing statement: "If circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute." That is one way of looking at it. Here is another: If the president thinks the law is stopping him from "protecting the nation" (as the president defines it), then the president gets to act above the law. That is, to say the least, a very expansive view of executive power. If Trump does nominate Larsen to SCOTUS, the Senate Judiciary Committee should ask her why she thinks that view is consi[...]

Less Than One-Third of Americans Want to See Roe v. Wade Overturned

Tue, 03 Jan 2017 09:30:00 -0500

(image) President-elect Donald Trump has promised to appoint Supreme Court justices who will overturn Roe v. Wade, the seminal 1973 case affirming a right to legal abortion across America. If it happens, it won't be a popular move. According to a new poll from the Pew Research Center, less than one-third of Americans think that Roe should be overturned.

In the Pew poll, conducted November 30 through December 5, 2016, just 28 percent of respondents said they hoped the historic ruling would be history, while 69 percent—including a majority of Republicans—said the Supreme Court should leave Roe alone. Among Democrats or Democratic-leaning respondents, 84 percent said they did not want to see Roe overturned, while 53 percent of Republican respondents agreed.

Among respondents who described themselves as "moderate" or "liberal" Republicans, only 27 percent supported overturning Roe, ccompared to 57 percent of those who described themselves as "conservative" Republicans.

"Public opinion about the 1973 case has held relatively steady in recent decades, though the share saying the decision should not be overturned is up slightly from four years ago," Pew notes. In January 2013, 63 percent said that Roe should not be overturned. In 2003, it was 62 percent and, in 1992, just 60 percent.

Republican opinion remains little-changed since 1992, when 52 percent of GOP respondents told Pew they support Roe v. Wade. At that time, just 66 percent of Democrats said the same.

Men were slightly more likely to support overturning Roe than were women (30 percent, versus 26 percent). And contra claims that America is getting less pro-choice, those age 50 or older were more likely than their younger counterparts to say Roe should go (33 percent, versus 24 percent).

Education was also associated with a divide on Roe, with 35 percent of respondents who had a high-school education or less saying it should be overturned but just 23 percent of those with a college degree and 12 percent of those with a post-graduate degree saying so. And while Catholic and Protestant support for overturning Roe was roughly equal—34 percent and 35 percent, respectively—nearly half of white, evangelical Protestants said they think Roe should be overturned.

Alexa. Please Don't Answer Police Questions Without a Warrant

Wed, 28 Dec 2016 11:50:00 -0500

(image) The police in Bentonville, Arkansas have asked Amazon to give them access to any voice recordings that its Echo digital assistant may have made at the time that an alleged murder was committed, reports The Information. According to court documents James Andrew Bates is charged with killing Victor Collins on November 22, 2015 after Collins was found dead in Bates' hot tub.

Echo operates by always listening for "hot words" that signal it to send a request to the cloud services offered by Amazon and various third parties. For example, owners might ask Echo through Amazon's voice recognition program Alexa for a weather report or to play Mozart. The device retains fewer than 60 seconds of recorded sound in its storage buffer.

Amazon records all requests with the idea that Alexa will learn better over time how to respond to specfic customers' queries and orders. However, Echo does not record every word that people say in their homes. In other words, always listening is not the same as always recording. So in this specific case, unless someone asked Alexa how to clean up blood stains or the best techniques for garroting a person, the voice recordings from this device are unlikely to be of much help to the police. On the other hand, a smart water meter does apparently show that 140 gallons were used between 1 and 3 am on the night of the alleged murder; perhaps to wash away blood?

Still, Echo might be able to place specific people in the house by noting who requested say a playlist and at what time requests were made. This is not unlike cell phone location information which police regularly request from mobile phone companies. So far, two federal courts have ruled that the police do not have to have warrants to obtain your cell phone location information. The Electronic Frontier Foundation and other digital privacy groups are contesting these rulings on Fourth Amendment grounds in a case before the U.S. Supreme Court.

Amazon is resisting the Bentonville police request. In a statement to Engadget the company said: "Amazon will not release customer information without a valid and binding legal demand properly served on us. Amazon objects to overbroad or otherwise inappropriate demands as a matter of course."

Since The Information reports that the Bentonville police have secured a warrant seeking the voice recordings from Bates' device for November 21 and 22, 2015, it is not clear on what grounds Amazon is refusing to turn over the requested recordings. Go here to learn how to delete Echo voice recordings.

We are now all surrounded by microphones and video cameras in our laptops, tablets, smart televisions, and cell phones, all of which can be potentially hacked by criminals, government spies, and the police. As the Internet of Things expands, the possibilties for how our devices might be used against us greatly expand. Encryption can help, but keeping closer watch on the watchers will be vital.

A Free Market Friend at the FTC

Wed, 28 Dec 2016 06:00:00 -0500

It's not every day that libertarians find themselves cheering for the Federal Trade Commission (FTC), the powerful D.C. agency responsible for enforcing U.S. antitrust laws. But that day came on October 14, 2014, when the U.S. Supreme Court heard oral arguments in the case of North Carolina Board of Dental Examiners v. Federal Trade Commission. At issue was whether the dental board, a state agency largely staffed and controlled by licensed, practicing dentists, was guilty of using public power for personal gain when it prevented non-dentists from competing in the state's lucrative teeth-whitening market. In February 2015 the Court ruled against the board's "private self-dealing," with Justice Anthony Kennedy declaring that "active market participants cannot be allowed to regulate their own markets free from antitrust accountability." It was a resounding defeat for overreaching state regulation. And it came about thanks in no small part to the patient efforts of the FTC's only current Republican commissioner, a self-described devotee of economic liberty named Maureen Ohlhausen. Sitting in her Washington office, Ohlhausen says her vision is for the commission to "promote greater competition and choices for consumers, but also liberty for people who want to enter these businesses." The victory in North Carolina Dental "was the culmination of 15 years of efforts." Many of those efforts involved reforming the way the FTC itself does business. "The more you focus on private anti-competitive behavior," she says, "the more incentive people have to run to the state and try to get the state to bless what they're doing." That's why Ohlhausen and her allies have been pushing the FTC to use its antitrust authority against protectionist state regulations, including occupational licensing. At first the agency's antitrust litigators resisted the strategy. "They kept saying, 'No, we'll never win,'" she says. But eventually they came around and, in the end, the FTC did win. Not surprisingly, Ohlhausen's free-market views have ruffled feathers on both sides of the political aisle. "The Democrats [at the FTC] say, well, we don't want to seem like we're against all regulations," she says. Meanwhile "the Republicans might be worried about trammeling too much on state rights and state prerogatives." What about those federalism concerns?, I ask. Should we be worried about the FTC asking the federal courts to overrule state regulations or state licensing boards? When it comes to "competition and economic liberty," Ohlhausen replies, "the federal government or the state government can impinge inappropriately." Ohlhausen has a record of defending economic liberty. In 2003, for example, while working at the FTC's Office of Policy Planning, she helped draft a staff report detailing the economic harms in terms of cost and variety that result when states restrict internet wine sales. Two years later, the U.S. Supreme Court cited that report in its decision in Granholm v. Heald, which struck down laws in New York and Michigan prohibiting consumers from ordering wine directly from out-of-state wineries. But North Carolina Dental is Ohlhausen's greatest achievement so far as an FTC commissioner. (Her seven-year term expires in 2018.) The matter originated back in 2006, when the state dental board began sending cease-and-desist letters to non-dentists who offered teeth-whitening services at mall kiosks, beauty salons, and similar locations. The board insisted its actions were undertaken entirely in the name of public health. In reality, teeth whitening is a harmless activity, and the kits used by the non-dentists were available for over-the-counter purchase by the general public. A closer examination reveal[...]

The Abortion Battle Ahead—and a Way Out

Thu, 22 Dec 2016 00:01:00 -0500

In the presidential campaign, no issue separated Donald Trump and Hillary Clinton more starkly than abortion. He promised to ban it after the 20-week mark of a pregnancy and appoint Supreme Court justices who would overturn Roe v. Wade. She vowed to protect "the right to safe and legal abortions" against all challenges. With Republicans in control of Congress and most state governments, expect numerous battles on this front. Ohio Gov. John Kasich, a relative moderate in the GOP presidential primaries, just signed a bill largely banning the procedure after the 20th week of a pregnancy, with no exception for cases of rape or incest. Seventeen other states have similar laws, two of which have been struck down by federal courts. But pro-life people shouldn't get their hopes too high. Trump would need at least one more Supreme Court vacancy (besides the one left by Antonin Scalia's death) to have any hope of reversing Roe—and his arrival in the White House will provide reason enough for every liberal justice to stay. Nor would the demise of Roe mean a nationwide ban on abortion. It would only allow states to make their own decisions. In that event, it would most likely remain legal in some 20 states, including California, New York, Illinois, Florida and Washington. Women in states with abortion bans could travel to those places—or Canada—to end their pregnancies. Activist groups would help poor women do so. Medicines that induce abortion would surely be available on the black market, as recreational drugs are. As in the days before Roe, some women would seek out medical professionals providing illegal abortions or even try to self-induce, despite the risks. If the goal is to reduce the number of abortions, legal restrictions are of minimal value. By raising the cost and effort required for women to end their pregnancies, such laws would prevent some from doing so. But the reduction would most likely be small. Making much difference in abortion rates requires a different approach. Abortion is an intractable issue because it involves an irreconcilable conflict between two supreme values: protection of life on one side and personal freedom and physical autonomy on the other. But it's not impossible to uphold both. Hillary Clinton was onto something when she said in 2008 that abortion should be "safe, legal and rare—and by 'rare,' I mean rare." What is needed is a recognition by pro-choice people that there is something awful about destroying a fetus and a recognition by pro-life people that there is something terrible about depriving a woman of control of her body. Such understanding might impel the two sides to look for ways to prevent both horrors. Katie Watson, a professor at Northwestern University's Feinberg School of Medicine, notes that "45 percent of pregnancies in the United States are unplanned—and 42 percent of unplanned pregnancies are terminated with abortions." One obvious way to bring down the abortion rate is to give women ready access to contraception. This, alas, is where the Republican Party's concern for life collides with its contempt for Obamacare. The Affordable Care Act mandates that health insurance providers, including Medicaid, offer 18 different types of birth control, from the pill to sterilization, at no cost to the patient. Repealing that rule would almost certainly mean more pregnancies terminated. We know contraception can curb abortion. Between 2008 and 2011, reports the Guttmacher Institute, the unintended pregnancy rate dropped by 12 percent—and the abortion rate fell by 13 percent. Behind the declines was the growing use of long-acting contraceptives (IUDs and implants), which are exceptionally reliable. [...]