Tag: Supreme Court

Defending the Right to Public Presence

The essential distinction between “private” and “public” property is the egalitarian nature of the latter. There’s no true equality in private property: its owners are free to set whatever restrictions on its use they wish.

On the other hand, public property, especially public fora such as sidewalks, parks, and roads—which have traditionally been available for public speeches, protests, and rallies—is entirely different. Just as we’re all equal in a court of law, or at the ballot box, we’re all supposed to be equal in our freedom to use and enjoy public spaces.

In 2008, however, Massachusetts turned this understanding on its head, declaring that in certain public spaces, some people are more equal than others. The state passed a law making it a crime to physically come within 35 feet of abortion clinics unless you’re a clinic patient, staff member, or government agent, or are using a public road or sidewalk to travel past the clinic. By the state’s own admission, the law was designed to prevent anti-abortion advocates from engaging in “sidewalk counseling.”

When a group of peaceful anti-abortion advocates challenged the law as a violation of their free speech rights, the district and circuit courts accepted the state’s argument that the law was valid as a content-neutral regulation of the time, place, and manner in which the public may engage in free speech. The Supreme Court has now taken up the case, and the petitioners argue that a law designed to target one type of speech, in one type of location, cannot be considered content- or viewpoint-neutral.

While this is indeed an important test-case for the First Amendment, Cato filed an amicus brief in support of the petitioners to present a separate point. The Fourteenth Amendment’s Due Process Clause protects certain fundamental rights against government infringement: rights that are essential to the enjoyment of the freedoms protected by the Bill of Rights, or that are part of the meaning of “ordered liberty,” or that are part of America’s history and traditions.Regardless of your preferred formulation for these protected rights, we argue that one of them is the right to public presence: the right to peacefully use public property in any manner that doesn’t harm others or unreasonably restrict their freedom to use that same public space.

The First Amendment Is More than a Political Slogan

During the November 2010 election, a number of Minnesota voters were greeted at the polls with threats of criminal prosecution just for wearing hats, buttons, or shirts bearing the images, slogans, or logos of their favorite political causes (typically not relating to the Republican or Democratic parties).

Election officials cited Minnesota Statute § 211B.11, which makes it a misdemeanor to wear a “political badge, political button, or other political insignia” to the polls on election days. While there is no definition of “political” in the statute, an Election Day Policy distributed before the election explained that the statute bans any material “designed to influence or impact voting” or “promoting a group with recognizable political views.”

After several of their members were forced to cover up or remove clothing or accessories deemed to be political — in the sole discretion of an election official — a group of organizations and individuals brought suit to challenge the state law on the grounds that it unlawfully stifles core First Amendment-protected speech. The federal district court dismissed the suit, finding that § 211B.11 satisfied the lesser degree of judicial scrutiny to which viewpoint-neutral speech restrictions are subject. On appeal, a divided panel of the U.S. Court of Appeals for the Eighth Circuit upheld the law’s constitutionality, citing precedent permitting bans on active campaigning at polling sites and extending that reasoning to allow prohibitions even on passive political expression.

Those challenging the law have now asked the Supreme Court to review their case. Cato joined the Rutherford Institute on a brief supporting them, arguing that the Minnesota law’s absolute ban on “political” materials at polling sites is an unconstitutional restriction of core First Amendment speech.

Protecting the right of the people to advocate political causes is one of the primary purposes of our constitutional protections for the freedom of speech, so government restrictions in this area must be narrowly drawn and for a truly compelling reason, regardless of the type of forum where the ban applies. While the Eighth Circuit relied on precedent permitting bans on campaigning at polling sites, prohibiting inert political expression at these locations doesn’t serve a similar interest; passive expression simply doesn’t pose the same threats to elections — intimidation and chilling of voters — that active campaigning can. Accordingly, § 211B.11 cannot pass strict scrutiny; in legal terms, the restrictions it imposes are simultaneously under-inclusive, over-inclusive, and overly broad.

The Supreme Court will decide whether to take the case of Minnesota Majority v. Mansky late this fall.

Curbing Class Action Settlement Abuses

In 2007, Facebook launched the controversial “Beacon” program, which automatically broadcast purchases made by Facebook users. The disclosures revealed embarrassing movie choices, indulgent spending habits, and even ruined the purchase of a young couple’s engagement ring.

In the subsequent class action lawsuit, a $9.5 million settlement was reached in which Facebook would pay $3 million to cover attorneys’ fees and a remaining $6.5 million would be used to set up a new charitable organization—controlled by Facebook—whose mission would be to educate the public about Internet privacy. The millions of class members, however, would get nothing.

This redistribution of settlement money from the victims to other uses is referred to as cy pres. “Cy pres” means “as near as possible,” and courts have typically used the cy pres doctrine to reform the terms of a charitable trust when the stated objective of the trust is impractical or unworkable. The use of cy pres in class action settlements—particularly those that enable the defendant to control the funds—is an emerging trend that violates the due process and free speech rights of class members.

Accordingly, class members objected to the Facebook settlement, arguing that the district court abused its discretion in approving the agreement and failed to engage in the required rigorous analysis to determine whether the settlement was “fair, reasonable, and adequate.” The San Francisco-based U.S. Court of Appeals for the Ninth Circuit affirmed the settlement, however, and expressed its unwillingness to inquire into the nature of the award because to do so would be “an intrusion into the parties’ negotiations.”

Now that the objecting class members have asked the Supreme Court to review the case, Cato filed an amicus brief arguing that the use of cy pres awards in class actions violates the Fifth Amendment’s Due Process Clause and the First Amendment’s Free Speech Clause. Specifically, due process requires—at a minimum—an opportunity for an absent plaintiff to remove himself, or “opt out,” from the class. Class members have little incentive or opportunity to learn of the existence of a class action in which they may have a legal interest, while class counsel is able to make settlement agreements that are unencumbered by an informed and participating class.

In addition, when a court approves a cy pres award as part of a class action settlement, it forces class members to endorse certain ideas, compelling speech in violation of the First Amendment. When Facebook receives money—essentially from itself—to create a privacy-oriented charity, the victim class members surrender the value of their legal claims in support of a charity controlled by the defendant. Class members are left uncompensated, while Facebook is shielded from any future claims of liability.

The Supreme Court will decide this fall whether to take the case of Marek v. Lane.

NSA Spying in the Courts

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel.

Cato senior fellow and Georgetown University law professor Randy Barnett joined me this week on a brief to the Court urging it to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation.

Government Can’t Simply Ignore Judicial Rulings It Doesn’t Like

By design, the federal judiciary is the weakest of the three branches of government. While the executive wields the sword, and Congress holds the purse strings, the courts have no temporal power.

To give effect to their decisions and orders, courts depend on popular legitimacy and the cooperation of the other branches. While that cooperation is normally forthcoming when needed to enforce judicial decisions against private citizens, when the subject of a court’s order is the government itself, there’s always a risk that it will be ignored or avoided.

Such is the case in Hornbeck Offshore Services v. Jewell, which began when the Interior Department (DOI) chose to put itself above the courts and above the law. Following the Deepwater Horizon disaster in April 2010, DOI issued a total ban on drilling activity in the Gulf of Mexico. A district court judge held that this drilling moratorium was irrational and not supported by scientific research or other credible evidence. The judge issued an injunction prohibiting DOI from enforcing its ban.

Instead of obeying the injunction — or appealing it — DOI ignored it. The Secretary of the Interior told Congress that as far as he was concerned, the drilling ban was still in effect. DOI then issued a second ban on drilling that was identical to the first. The district judge held DOI in contempt of court, noting that “each step the government took following the Court’s imposition of a preliminary injunction showcase[d] its defiance” of the court’s authority.

On appeal, a panel of the New Orleans-based U.S. Court of Appeals for the Fifth Circuit sided 2-1 with the DOI’s position that the contempt finding was improper because the issuance of a second (identical) drilling ban was not technically disallowed by the text of the injunction — which explicitly prohibited only enforcement of the initial ban. Cato has filed an amicus brief urging the Supreme Court to hear the case because the appellate court’s ruling undermines the rule of law and the judiciary’s independent authority.

Under the Fifth Circuit’s rule, government agencies will be able to legally avoid court orders with bureaucratic trickery. If only the explicit text of an injunction — and not any of its spirit or clear purpose — binds the federal government, Congress or the executive could simply rename whatever statute or regulation has been declared unconstitutional and continue enforcing the substantively unconstitutional rule. Such an overly technical rule would force district court judges into the role of mind-readers, trying to predict how the government could weasel its way out of a ruling.

Without an effective contempt power to punish the violation of its orders, even the Supreme Court would be unable to enforce its important rulings, such as ending the District of Columbia’s unconstitutional ban on handguns, and striking down section 3 of DOMA. In both of those recent cases, the sort of semantic game-playing endorsed by the Fifth Circuit here would have resulted in hollow victories for liberty and an evisceration of the idea that in our constitutional republic, the government is bound by the same (if not stricter) rules as the rest of us.

Government Should Bear the Burden of Showing Why You Can’t Exercise Your Right to Bear Arms

For anyone who has watched The Wire, it’s no surprise that Maryland (Baltimore, in particular) has one of the highest rates of violent crime in the country. In an alleged effort to address this persistent problem, the state requires an applicant for a license to carry a handgun to demonstrate “a good and substantial reason to wear, carry, or transport a handgun as a reasonable precaution against apprehended danger.”

Under this prove-it-to-use-it standard, Baltimore County resident Raymond Woollard, who had had a license to carry for six years (after a violent home invasion), was denied a license renewal because he could not document that he had been threatened recently. The fact that he had been attacked by his son-in-law seven years earlier, an event to which it took law enforcement two-and-a-half hours to respond, was insufficient to meet Maryland’s special-need requirement.

Woollard, along with the Second Amendment Foundation, thus brought suit challenging the law under the Supreme Court’s recent decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). Although the district court ruled for Woollard, finding that Maryland’s restriction violated the Second Amendment, the U.S. Court of Appeals for the Fourth Circuit overturned the lower court and reinstated the law. The court purported to apply “intermediate scrutiny,” which allows a challenged statute to survive only if it is “substantially related to the achievement of an important governmental interest,” but in fact, hardly applied any scrutiny at all. The court’s analysis was both circular and contemptuous of Heller, finding that a regulation is “substantially related” to the valid government interest of curtailing criminal gun violence if it merely reduces the number of citizens lawfully carrying handguns, thus accepting the state’s implicit argument that the right to bear arms was itself the problem, one that should not be overcome without “a good and substantial” reason.

“Libertarianism Has Won Over the Supreme Court Conservatives”

So says the subtitle of provocative new essay in The New Republic by my friend and sometime antagonist Simon “Si” Lazarus.  Si’s argument boils down to the following:

  1. Legal experts are puzzled. The “most conservative” Court issued major rulings this term supporting gay rights and declined to toss out the University of Texas’s racial preferences, among other iconoclastic opinions.
  2. The public seems to think that the Court is either liberal or “middle of the road,” while the media line is that the Court is still “inching to the right.” What’s going on?
  3. The Court may well be “inching right,” but the “right” isn’t made up solely of social conservatives or business types.  There’s also libertarians!
  4. It’s precisely this libertarian flavor of conservatism that’s now ascendant, as evidenced by, among other things, Cato’s success this year. [Cabin the issue of whether libertarians/Cato are part of the Right, the conservative movement, or anything else that better fits on a two-dimensional political spectrum.]
  5. This rising libertarian influence isn’t all good news to progressives, despite our alliance over same-sex marriage.  Remember, it’s they, even more than traditional conservatives, who are leading the charge to roll back the New Deal, Great Society, and everything else that’s good and holy in the modern progressive pantheon.

Well, it’s nice to be noticed, I guess, and while there are kernels of truth here – see my piece in the Huffington Post earlier this month – Si does overstate the point.  In other words, yes, a combination of Justice Kennedy’s faint-hearted libertarianism, some outlandish assertions of federal power at the Supreme Court, and a president who wants to govern despite constitutional checks and balances, does put us in a bit of a “libertarian moment.”  But we have a long way to go before we undo the damage of the last 75 years’ worth of bad legal doctrine

As Ilya Somin puts it:

Even if conservatives and libertarians prevail in every single one of the cases [Lazarus] mentions, the federal government would still retain massive regulatory authority over almost every aspect of the economy and society. Obviously, it’s possible to characterize any decision to strike down or limit “regulatory legislation” on structural grounds as “junking the New Deal settlement.” But that’s like saying that any decision enforcing even modest constitutional limits on law enforcement amounts to junking the criminal justice system.

Still, we shouldn’t pooh-pooh libertarian achievements even if we recognize that libertarian legal nirvana isn’t just over the horizon.  As Randy Barnett comments:

… the political mood of a significant segment of country does appear to be trending libertarian to some degree at the moment, due in part to the threat to constitutionally-limited government posed by the Obama administration that this segment now perceives — combined with a general war weariness that makes national security conservative dismissals of libertarian noninterventionism less politically effective.  …  Recent developments on such hot-button social issues as legalizing marijuana and recognizing gay marriage also show a more libertarian trend in the body politic at the moment.  We all know these trends have always influenced [the Court] whether legal arguments made to the Court seem “off the wall” or “on the wall.”

So I take Lazurus’s essay to be another sign that libertarianism is trending up at the moment, perhaps more so than at any time in my lifetime.  There is good reason for libertarians to worry that all this is “too little too late” in the face of the Obama administration’s success in expanding the welfare-administrative state in his first two years, and defending the gains over the past 2 years, combined with its embrace of the surveillance state that was expanded under the Bush administration.

But you can’t win, if you don’t play.  And libertarians are now certainly in the game.

Yes we are. Though I don’t think, as the cheeky url of the Lazarus piece suggests, that it’s “supreme-court-libertarianism-ron-pauls-bench.”  

Moreover, whatever’s going on behind the scenes at the Supreme Court, it’s not that “Alito Shrugged,” as the article’s title would have it.  However much the Court becomes libertarian – as a whole, on average, in fits and starts – I don’t think that Justice Alito, let alone Justice Scalia, or Justice Ginsburg for that matter, is more libertarian than he was five or ten or twenty years ago.