Topic: Law and Civil Liberties

The Right to Anonymous Speech and Association

Since the Enlightenment, anonymous speech has been an integral component of social change, exemplified by Cato’s Letters, the Federalist Papers, and indeed the Anti-Federalist Papers. Accordingly, the Constitution provides a wide breath for the proper “breathing space” that “First Amendment freedoms need … to survive,” NAACP v. Button (1963), by protecting anonymous-speech rights and requiring judges to be skeptical regarding laws that compel disclosure of identifying information.

California’s attorney general, Kamala Harris, has broken with this tradition in demanding that the Center for Competitive Politics (CCP), an educational foundation and public-interest law firm specializing in the First Amendment and political law, disclose its principal donors to the state. The federal district court determined that the demand for this information in the name of “investigative efficiency” was a valid use of state power, and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling. Importantly, this rule applies to all nonprofit organizations soliciting donations or otherwise operating in California, so the associational chill reaches into the ability of every nonprofit to exist in California while preserving privacy through anonymity.

Cato, joined by the Competitive Enterprise Institute, has filed a brief supporting CCP’s request that the Supreme Court review the case. The Ninth Circuit failed to give proper solicitude to CCP’s constitutional rights here by not applying what lawyers call “heightened scrutiny” at each turn of its analysis. Instead, the lower court applied a party-specific, “as-applied” exception to the general rule that’s only relevant if the compelled disclosure has already survived a broader, “facial” challenge—and it collapsed the clear distinction between the importance of the government interest in disclosure and the extent of the nexus between the disclosure and the asserted interest.

Turbulence Ahead: Domestic Drone Debate Intensifies

National Journal has a new piece out today that highlights the continuing controversy over the Federal Aviation Administration’s failure thus far to publish a final rule governing the operation of drones in domestic airspace (FAA’s current unmanned aerial system (UAS) guidance can be found here). One thing the FAA will not be doing is wading into the commercial sector privacy debate over drones; it has punted that issue to the National Telecommunications and Information Administration (NTIA). But what about federal agencies and their use of UASs?

Federal domestic UAS use has a checkered history.

In December 2014, the Department of Homeland Security’s Inspector General issued a report blasting the Customs and Border Protection (CBP) drone program as waste:

  • The unmanned aircraft did not meeting the CBP Office of Air and Marine (OAM) goal of being airborne 16 hours a day, every day of the year; in FY 2013, the aircraft were airborne 22 percent of the anticipated number of hours.
  • Compared to CBP’s total number of apprehensions, OAM attributed relatively few to unmanned aircraft operations.
  • OAM could not demonstrate that the unmanned aircraft have reduced the cost of border surveillance.
  • OAM expected the unmanned aircraft would be able to respond to motion sensor alerts and thus reduce the need for USBP response, but the IG found few instances of this having occurred.

Hotel California: Teachers Union Edition

If a teacher opts out of her union, but the union refuses to hear it, did she really opt out?

Even where state lawmakers have passed “right-to-work” laws legally enabling teachers to opt out of paying union dues, the practical ability to opt out is far from guaranteed. In Michigan, for example–where dues can cost up to $640 a year–the teachers union surreptitiously created new bureaucratic hoops for teachers attempting to opt out.

In an apparent effort to make it even more difficult or even stop school employees from exercising their right under right-to-work to not pay union dues or fees, the state’s largest teachers union has quietly set up an obscure post office box address to which members must send the required opt-out paperwork. It’s P.O. Box 51 East Lansing, MI 48826.

Based on a letter the Michigan Education Association sent to members who had tried to get out, and discussions with some of them, resignation requests sent to the regular union headquarters address will not be honored.

An extensive search of the union’s websites found references to the post office box address on just one page of MEA’s main website, and on one affiliate union’s website. There is no record of this post office box address existing before this month. In the past, union members who wanted to opt out just had to send notification to the address of the MEA’s headquarters in East Lansing.

The MEA had previously restricted the union dues opt-out period to the month of August until a judge ruled that the restriction was illegal. As reported in Michigan Capitol Confidential, about 5,000 teachers left the MEA last year despite the obstacles.

Merely Saying “I Do” Multiple Times Shouldn’t Be a Crime

Saying “I do” and calling someone your spouse who legally isn’t shouldn’t be a crime, but it can be in Utah. While polygamy—being lawfully married to multiple people—isn’t legal in any state, due to its unique history, Utah has some of the strictest anti-bigamy laws in the country. Which probably makes starring in a reality TV show based on your plural marriage not the best idea for Utahns.

Nevertheless, TLC’s Sister Wives revolves around Kodi Brown, his four partners (Meri, Janelle, Christine, and Robyn), and their 17 children. While Kodi is only legally married to one of women, he claims he is in a “spiritual union” with each of the others, and describes all four as his wives—and that puts the Browns on the wrong side of Utah’s bigamy law. The day after the show premiered in 2010, local authorities announced they were investigating the family.

Because the potential sentences are quite severe (five years for each of the women, and up to 20 years for Kodi), the Browns took preemptive action, filing a federal lawsuit challenging the constitutionality of Utah’s law. The district court agreed. In granting the Brown’s motion for summary judgment, the court held that because the law criminalizes “spiritual cohabitation” (arrangements where the participants claim to be part of multiple religious marriages, but make no attempt to obtain state recognition), it violated the First and Fourteenth Amendments, and was “facially unconstitutional.” The state has appealed that ruling.

Together with First Amendment scholar Eugene Volokh, Cato has filed an amicus brief urging the U.S. Court of Appeals for the Tenth Circuit to affirm the district court. Whether or not the Utah law violates the Browns’ religious liberty, it’s a clear affront to the First Amendment’s protection of free speech.

Should NSA Be Immune from Constitutional Scrutiny?

Today the Court of Appeals for the DC Circuit issued a ruling in NSA v. Klayman that has almost no practical effect, but is a potent illustration of how excessive secrecy and stringent standing requirements effectively immunize intelligence programs from meaningful, adversarial constitutional review.

Contrary to some breathless headlines, today’s opinion does not “uphold” the NSA’s illicit bulk collection of telephone records—which, thanks to the recent passage of the USA Freedom Act, must end by November in any event. Rather, the court overturned an injunction that only ever applied specifically to the phone records of the plaintiffs. And they did so, not because the judges found the program substantially lawful, but because the plaintiff could not specifically prove that his telephone records had been swept into the database, even though the ultimate aim of the program was to collect nearly all such records.

Together with other similar thwarted challenges to mass government surveillance—most notably the Supreme Court case Clapper v. Amnesty International—the decision sends the disturbing signal that mass scale surveillance of millions of innocent people by our intelligence agencies is, for all practical purposes, immune from meaningful constitutional scrutiny. Even when we know about a mass surveillance program, as in the case of NSA’s bulk telephony program, stringent standing rules raise an impossibly high barrier to legal challenges. Perversely, the only people with a realistic chance of challenging such programs in court are actual terrorists who the government chooses to prosecute. The vast, innocent majority of people affected by bulk surveillance—those with the strongest claim that their rights have been violated—are effectively barred from ever having those rights vindicated in court.

Given the routine refusal of courts to step in to protect our Fourth Amendment rights, it is fortunate that Congress has already acted to bring this intrusive and ineffective program to a halt.

Rain on EPA’s Parade

No, the “waters of the United States” subject to Clean Water Act regulation do not include things like dry land over which water occasionally flows. That’s the conclusion of a federal judge who just put on hold the Environmental Protection Agency’s latest power grab.

The Clean Water Act empowers EPA and the Army Corps of Engineers to regulate the use of private property that affects “navigable waters,” which the Act defines as “the waters of the United States.” In late June, EPA and the Corps finalized a rule defining that term. This was, they said, a boon to those potentially subject to CWA regulation, because “the rule will clarify and simplify implementation of the CWA consistent with its purposes through clearer definitions and increased use of bright-line boundaries…and limit the need for case- specific analysis.”

In reality, it was yet another step in what the Supreme Court called “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act.” The rule extends federal regulation—and prohibitions on land use—to “tributaries,” which it defines as anything that directly or indirectly “contributes flow” to an actually navigable body of water or wetland and “is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” The point of that legalese is to reach things like “perennial, intermittent, and ephemeral streams”—in other words, areas that aren’t really “waters” at all. The broader the definition, the more land that is subject to CWA permitting requirements and, ultimately, EPA control.

The problem for the federal government is that the Supreme Court rejected basically the same expansive approach in a 2006 case, Rapanos v. United States. In a separate opinion that some believe to be controlling, Justice Kennedy explained that, to be within the reach of the Act, a water must, at the least, “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Judge Ralph Erickson recognized that the new rule “suffers from the same fatal defect.” It “allows EPA regulation of waters that do not bear any effect on the ‘chemical, physical, and biological integrity’ or any navigable-in-fact water.” That includes “vast numbers of waters that are unlikely to have a nexus to navigable waters within any reasonable understanding of the term.” In other words, EPA is overreaching once again.

Obama Administration Declares War on Franchisors and Subcontractors

In a series of unilateral moves, the Obama administration has been introducing an entirely new regime of labor law without benefit of legislation, upending decades’ worth of precedent so as to herd as many workers into unions as possible. The newest, yesterday, from the National Labor Relations Board, is also probably the most drastic yet: in a case against waste hauler Browning-Ferris Industries, the Board declared that from now on, franchisors and companies that employ subcontractors and temporary staffing agencies will often be treated as if they were really direct employers of those other firms’ workforces: they will be held liable for alleged labor law violations at the other workplaces, and will be under legal compulsion to bargain with unions deemed to represent their staff. The new test, one of “industrial realities,” will ask whether the remote company has the power, even the potential power, to significantly influence working conditions or wages at the subcontractor or franchisee; a previous test sought to determine whether the remote company exercised “ ‘direct and immediate impact’ on the worker’s terms and conditions — say, if that second company is involved in hiring and determining pay levels.”

This is a really big deal; as our friend Iain Murray puts it at CEI, it has the potential to “set back the clock 40 years, to an era of corporate giants when few people had the option of being their own bosses while pursuing innovative employment arrangements.”

  • A tech start-up currently contracts out for janitorial, cafeteria, and landscaping services. It will now be at legal risk should its hired contractors be later found to have violated labor law in some way, as by improperly resisting unionization. If it wants to avoid this danger of vicarious liability, it may have to fire the outside firms and directly hire workers of its own.
  • A national fast-food chain currently employs only headquarters staff, with franchisees employing all the staff at local restaurants. Union organizers can now insist that it bargain centrally with local organizers, at risk for alleged infractions by the franchisees. To escape, it can either try to replace its franchise model with company-owned outlets – so that it can directly control compliance – or at least try to exert more control over franchisees, twisting their arms to recognize unions or requiring that an agent of the franchiser be on site at all times to monitor labor law compliance.

Writes management-side labor lawyer Jon Hyman:

If staffing agencies and franchisors are now equal under the National Labor Relations Act with their customers and franchisees, then we will see the end of staffing agencies and franchises as viable business models. Moreover, do not think for a second that this expansion of joint-employer liability will stop at the NLRB. The Department of Labor recently announced that it is exploring a similar expansion of liability for OSHA violations. And the EEOC is similarly exploring the issue for discrimination liability.

And Beth Milito, senior legal counsel at the National Federation of Independent Business, quoted at The Hill: “It will make it much harder for self-employed subcontractors to get jobs.” What will happen to the thriving white-van culture of small skilled contractors that now provides upward mobility to so many tradespeople? Trade it in for a company van, start punching someone’s clock, and just forget about building a business of your own.

What do advocates of these changes intend to accomplish by destroying the economics of business relationships under which millions of Americans are presently employed? For many, the aim is to force much more of the economy into the mold of large-payroll, unionized employers, a system for which the 1950s are often (wrongly) idealized.

One wonders whether many of the smart New Economy people who bought into the Obama administration’s promises really knew what they were buying.

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