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Supreme Court



All Reason.com articles with the "Supreme Court" tag.



Published: Wed, 28 Jun 2017 00:00:00 -0400

Last Build Date: Wed, 28 Jun 2017 11:41:03 -0400

 



Trump's Travel Ban Is Legal but Dumb

Wed, 28 Jun 2017 00:01:00 -0400

This week the Supreme Court unblocked most aspects of President Trump's executive order limiting entry into the United States, signaling that the restrictions are likely to be upheld. That makes sense, because the reasons that two federal appeals court offered for upholding injunctions against Trump's order are unpersuasive. But the fact that Trump's policy is legal does not make it smart. The original version of Trump's order was issued in great haste a week after he took office, and it showed. The 90-day ban on entry by citizens of seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) applied to current visa holders, including people working and studying in the United States, and legal permanent residents, who were barred from returning home after traveling abroad. Adding to the confusion, the travel ban took effect immediately, stranding residents and visitors in mid-trip without notice. The result was dismay and disorder at airports around the world as officials, travelers, and lawyers grappled with the new policy. After the order was blocked by the courts, Trump issued a revised version on March 6, clarifying that the travel ban did not apply to legal permanent residents, who have a right to due process when the government tries to prevent their re-entry, or to current visa holders, whose hosts may have standing to sue. Notably, the order issued by the Supreme Court on Monday says that while the case is pending the travel ban should not be enforced against visa applicants or would-be refugees with a "bona fide relationship" to Americans, such as relatives, students accepted by U.S. universities, employees hired by U.S. companies, or lecturers booked to speak here. The revised order also eliminated Iraq from the list of targeted countries and excised language favoring religious minorities from the section imposing a 120-day moratorium on admission of refugees. Critics cited that preference as evidence that the order was motivated by anti-Muslim bias. The U.S. Court of Appeals for the 4th Circuit nevertheless concluded that the March 6 order "in context drips with religious intolerance, animus, and discrimination." The context that the court deemed relevant consisted mostly of statements made by Trump or his surrogates before and after the election, including his support for "a total and complete shutdown of Muslims entering the United States." But that is not the policy Trump actually tried to implement, and relying on his campaign comments to conclude that his executive order is a "Muslim ban" in disguise leads to strange results. The plaintiffs conceded, for example, that if Hillary Clinton had been elected president and issued exactly the same executive order, it "could be constitutional." The U.S. Court of Appeals for the 9th Circuit relied on a different rationale when it upheld an injunction against Trump's order, saying he exceeded his statutory authority because he did not make an evidence-based determination that admitting the people he wants to exclude would be "detrimental to the interests of the United States." But that was really just another way of saying that Trump's policy, which is supposedly aimed at protecting Americans from terrorists, is half-baked and empirically unsound. That much is true. Since 1975, no terrorist from any of the countries covered by the travel ban has killed anyone in the United States, and the odds of being killed by a refugee are infinitesimal. In any case, it has never been clear why a travel ban was necessary for Trump to deliver the "extreme vetting" he promised. Even the "total and complete" Muslim ban he originally proposed was supposed to last only as long as it took to "figure out what is going on," which according to his executive orders means three months. Trump has been president for more than five months. By his own account, he could have made any necessary improvements in traveler screening by now. His failure to do so provides further evidence that his policy is just for show. © Copyright 2017 by Creators Syndicate Inc.[...]



To Save His Travel Ban at SCOTUS, Trump Is Citing This 1972 Precedent

Tue, 27 Jun 2017 17:05:00 -0400

The U.S. Supreme Court has agreed to review the legality of President Donald Trump's executive order banning travelers from six majority-Muslim countries. At the heart of the Trump administration's legal case is a 1972 Supreme Court decision that recognized sweeping executive authority over immigration. If Trump ultimately wins on the merits, it is likely to be because a majority of the Court shares his administration's interpretation of the precedent set in a case called Kleindienst v. Mandel. In 1969 a Belgian journalist and self-described "revolutionary Marxist" named Ernest Mandel applied for a nonimmigrant visa to the United States in order to give a speech at Stanford University. Mandel's application was denied because, under the terms of U.S. immigration law, "aliens shall be ineligible to receive visas and shall be excluded from admission to the United States" if they "write or publish" in support of "the economic, international and governmental doctrines of world communism." Federal law gave the attorney general the power to grant waivers from this restriction on a case-by-case basis, but no such waiver was given to Mandel. Mandel then joined with six U.S. citizens, all of them university professors, in a lawsuit filed in federal court. They argued the First Amendment protected the right of American scholars to "hear [Mandel's] views and engage him in a free and open academic exchange." The constitutional right to listen and speak to Mandel in person, the professors argued, trumped the government's power to keep Mandel out of the country. The Supreme Court, however, ruled for the government. "Plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established," the Court observed. And Congress has delegated much of that power to the executive branch. "We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason," the Court said in Kleindienst v. Mandel, "the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." Writing in dissent, Justice Thurgood Marshall accused the majority of bending over backwards in favor of the government. "Even the briefest peek behind the Attorney General's reason for refusing a waiver in this case would reveal that it is a sham," Marshall wrote. Yet the majority "demands only 'facial' legitimacy and good faith" from the government, "by which it means that this Court will never 'look behind' any reason the Attorney General gives.No citation is given for this kind of unprecedented deference to the executive, nor can I imagine (nor am I told) the slightest justification for such a rule." As far as Marshall was concerned, "Americans cannot be denied the opportunity to hear Dr. Mandel's views in person because their Government disapproves of his ideas." The Mandel ruling is now at the center of the legal battle over Trump's travel ban. Specifically, it is at the center of the battle over whether the federal courts should take Trump's various comments, tweets, and campaign statements disparaging Muslims into consideration when weighing whether or not the travel ban was motivated by illegal anti-Muslim animus. According to the Trump administration, because the president took this executive action in the name of national security, his order is "legitimate and bona fide" and therefore fully satisfies Mandel. In fact, the administration insists, under Mandel the travel ban is owed extensive deference from the courts. By contrast, the parties challenging Trump's executive order insist that Mandel should be read more narrowly. They argue that the courts must "look behind" Trump's purported justifications and examine his history of anti-Muslim statements. That history, they argue, demonstrates that the travel ban was designed to serve the unconstitutional purpose of heaping official disfavor on Muslims. The trouble [...]



The Republican Health Care Dud, Harry Potter, and Supreme Court Shakeup [Reason Podcast]

Mon, 26 Jun 2017 15:00:00 -0400

"Were trying to extend twentieth century or even nineteenth century entitlement spending into the twenty-first century," says Reason's Nick Gillespie about the Senate Republicans' health care legislation. "The demographics don't work, the economics don't work, and nobody will talk about just increasing the supply and variety of health care. It's maddening!"

Peter Suderman joins Nick Gillespie and Katherine Mangu-Ward in a discussion moderated by Andrew Heaton. In addition to making sense of the unimaginative Republican bill and suggesting more radical reforms in place of it, they discuss a new CATO piece about the true number of libertarians in America; the cultural impact of Harry Potter two decades in (and which house Gillespie and Mangu-Ward would would fall into); and who should replace Justice Kennedy on the Supreme Court if he retires.

Audio production by Ian Keyser.

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Trump's Travel Ban Is Headed to the Supreme Court

Mon, 26 Jun 2017 13:22:00 -0400

(image) Today the U.S. Supreme Court agreed to hear consolidated oral arguments in the cases of Trump v. International Refugee Assistance Program (IRAP) and Trump v. Hawaii. At issue is whether President Donald Trump's controversial executive order banning travelers from six majority-Muslim countries violates the Establishment Clause of the First Amendment and/or exceeds the president's lawful powers under federal immigration law.

The Supreme Court says it will schedule oral arguments "during the first session of the October Term 2017."

These cases raise fundamental questions about the reach of executive power, the meaning of federal immigration law, the scope of the Establishment Clause, and about the role of the courts in policing the boundaries.

According to the Trump administration, not only did Congress give the president vast leeway to control what happens at the border, the executive branch is entitled to overwhelming judicial deference in all matters dealing with national security. According to the state of Hawaii and to the International Refugee Assistance Program, Congress did not authorize Trump's approach and Trump should get no deference from the courts because he is using government power to heap disfavor on Muslims.

Until now, the Trump administration has mostly lost on this matter in federal court. In May, the U.S. Court of Appeals for the 4th Circuit, in IRAP, issued an injunction blocking enforcement of the executive order on the grounds that the legal challengers were likely to prevail in their Establishment Clause challenge. Then in June, the U.S. Court of Appeals for the 9th Circuit, in Hawaii, issued an injunction blocking enforcement of the executive order on the grounds that Trump was exercising powers that federal law did not properly delegate to him.

But today the Supreme Court partially lifted those injunctions, allowing the executive order to go into effect in certain limited circumstances. Specifically, in an unsigned per curiam opinion, the Court lifted the injunctions "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." That is a small victory for the Trump administration.

However, the Court left the injunctions in place with respect to foreign nationals "who have a credible claim of a bona fide relationship with a person or entity in the United States." The Court explained, "a foreign national who wishes to enter the United States to live with or visit a family member...clearly has such a relationship.... So too would a worker who has accepted an offer of employment from an American company or a lecturer invited to address an American audience." That is a sizable loss for the Trump administration.

Notably, Justice Clarence Thomas, joined by Justice Samuel Alito and Justice Neil Gorsuch, wrote separately to argue that the injunctions should be lifted "in full." This suggests those three justices may be inclined to ultimately rule in favor of the Trump administration. After all, if they think they might rule against the executive order in October, why would they want to let the order go into full effect right now? It also raises the interesting possibility that Chief Justice John Roberts and Justice Anthony Kennedy may be more inclined to ultimately rule against Trump.

One thing is certain: This fall Donald Trump will face the first major test of his presidency before the U.S. Supreme Court.




Clarence Thomas and Neil Gorsuch Blast SCOTUS for Refusing to Hear Major Second Amendment Case

Mon, 26 Jun 2017 10:53:00 -0400

(image) Today the U.S. Supreme Court declined to hear a major case out of California that asked whether the Second Amendment right to keep and bear arms includes the right to carry firearms in public. By refusing to get involved, the Court left in place a ruling by the U.S. Court of Appeals for the 9th Circuit that denied constitutional recognition to the right to carry.

Writing in dissent, Justice Clarence Thomas, joined by Justice Neil Gorsuch, blasted the Court for its failure to act and for its "distressing trend" of treating "the Second Amendment as a disfavored right."

According to Thomas, "the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it." Thomas added, "even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively."

Thomas offered a sharply worded case for why the Court should have taken up the question. Federal circuits, he pointed out, have reached different conclusions and are therefore irrevocably split on this pressing constitutional matter. "This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to 'bear arms' means to 'wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.'" As Thomas observed, "I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen."

Today's case, known as Peruta v. California, centered on a state law that says that conceal-carry permits will only be issued to those persons who have demonstrated to the satisfaction of their local county sheriff that they have a "good cause" for carrying a concealed firearm in public. What counts as a "good cause?" In the words of one San Diego official, "one's personal safety is not considered good cause" in and of itself.

What this means in practice, as one earlier court ruling observed, is that "in California the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table."

Despite the strenuous protest of Justice Thomas and Justice Gorsuch, that option remains off the table thanks to the Supreme Court's inaction today.




Supreme Court to Hear Case on Gay Wedding Cakes

Mon, 26 Jun 2017 10:38:00 -0400

(image) Is a wedding cake speech? When a baker makes a wedding cake, is he or she declaring support for the couple's marriage? Can a baker decline to bake a cake for a gay couple (and defy a state's anti-discrimination laws) because he or she objects to same-sex marriage on religious grounds?

Today, the Supreme Court announced they would be taking up a case that may answer these questions for anyone who provides services for gay weddings. This is likely to be a case with a narrow ruling about religion and compelled speech and what constitutes an artistic expression. Don't expect a broad ruling that would change the nature of state-level public accommodation laws one way or the other.

In Masterpiece Bakeshop Ltd. Vs Colorado Civil Rights Commission the owner of a bakery in Lakewood, Colo., declined to bake a wedding cake for a gay couple because he had religious objections to same-sex marriage. In 2014 he was ruled to have violated the state's anti-discrimination laws on public accommodation.

He is one of a handful of similarly-minded business owners who offer their goods and services to weddings but oppose same-sex marriage recognition. We've seen other cases involving bakers, florists, photographers, and owners of private wedding venues.

The Supreme Court had previously turned away challenges to state-level antidiscrimination laws, but the court has been sitting on this case for months without deciding one way or another if they'd take it. Today was the last day in this session for the court to report out whether they would grant the case. After months of rescheduling, they've decided that they will.

The case will in all likelihood be very narrowly focused on whether the free speech and free religion rights of bakery owner Jack Phillips have been violated. The Supreme Court will have to consider whether the making of a wedding cake is a form of artistic impression and whether, therefore, laws forcing Phillips to serve same-sex couples constitutes compelled speech.

Historically, as I explained about these cases in 2015, courts have not determined cakes themselves to be expressive activity (therefore not protected speech). But text, writing, and imagery placed on the cake can be considered speech, and a bakery cannot be forced to communicate text or images they deem offensive. The question is whether the creation of a wedding cake itself is a form of speech.

Libertarians hoping for a broader ruling related to whether public accommodation laws violate the free association rights of business owners will probably be disappointed. There is zero chance this court is going to rule in such a way that alters state-level public accommodation laws. This case will mostly revolve around whether the activities of people like bakers and florists are considered artistic speech and therefore are possibly exempt from such laws.

Read more about the case itself from SCOTUSblog here.




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[...]



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. "S[...]



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[...]



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, Rodr[...]



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 seat[...]



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 [...]



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 Reason.tv'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 Reason.tv'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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