Topic: Law and Civil Liberties

The Government Should Spend More Money!

From today’s New York Times editorial page:

What is a year of your life worth? How about 10 years? Or 20? In many ways the question is unanswerable: Who can assign a dollar amount to the experience of watching a child grow up, of being able to care for an elderly parent?

But when the government has wrongfully convicted and imprisoned someone, a cash payout is the most meaningful way to make amends and achieve some measure of belated justice….

Thirty states, the federal government and the District of Columbia have laws providing for compensation to the wrongfully convicted — from $5,000 per year in Wisconsin to $80,000 per year in Texas. But, over all, almost a third of those exonerated get nothing.

Wait, let’s go over that one more time: A third of the persons wrongfully imprisoned receive no compensation from the government?  What to make of policymakers who manage to spend billions of dollars and yet say there is no room in the budget for compensating the victims of government mistakes or misconduct?

The Pope Weighs in on Charlie Hebdo

Just when the West is struggling to make clear to the rest of the world the nature and importance of free speech—and the underlying political separation of sacred and secular—Pope Francis weighs in and muddies the waters. Responding during a flight to the Philippines today to press questions about the Charlie Hebdo killings in Paris last week, the Pope said clearly that “One cannot make war [or] kill in the name of one’s own religion, that is, in the name of God. To kill in the name of God is an aberration.” He said also, however, that free speech does not imply total license to insult or offend another’s faith: “One cannot provoke, one cannot insult other people’s faith, one cannot make fun of faith. Every religion has its dignity.”

So far so good—insofar as his “cannot” implies simply that one “ought not” to make fun of another’s faith, as a matter of good behavior, other things being equal. That caveat is necessary because there are times when religious claims and, especially, practices are rightly ridiculed, as when they threaten to restrict the freedom of those of no or of other faiths. Thus understood, however, the Pope is simply distinguishing between what one has a right to do—speak freely, even if offensively—and what one ought to do—refrain from giving gratuitous offense.

But the Pope did not stop there. He added, “In freedom of expression there are limits, like in regard to my mom”—alluding to an earlier comment, “If [a dear friend] says a swear word against my mother, he’s going to get a punch in the nose. That’s normal.” To be sure, it may be “normal,” but it breaks down the distinction between speech and force—and opens the door to justifying the use of force to punish speech. If legitimate in the personal sphere, why not in the public sphere as well? In fact, American law has such a doctrine, the “fighting words doctrine,” which the Supreme Court held in 1942 in Chaplinsky v. New Hampshire to refer to words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” and are among the “well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem.”

But that doctrine has never sat comfortably within our free speech jurisprudence, and in fact it has been steadily narrowed over the years, for good reason. The proper response to offensive speech is speech in turn. Otherwise, were the force of law to be sanctioned as a proper response, there would be no end to the fine lines that would need to be drawn to distinguish when and when not force would be justified—and no clear bounds on official powers to sanction. Indeed, do we need more than to look around the world to places where speech is not protected? Surely, the Pope did not mean to open the door to blasphemy laws, but he cracked the door just a little.

Big Win for Student Liberty

The Atlanta-based U.S. Court of Appeals for the Eleventh Circuit has issued another landmark opinion that protects student rights against the arbitrary diktats of university officials. In a case that has wound up and down the federal judiciary several times, the court today again ruled for Valdosta State University student Thomas Hayden Barnes, who had been placed on administrative leave without a hearing after he had peacefully protested the construction of a parking garage.

As I described in summarizing the last brief Cato filed in this case, the Eleventh Circuit had previously affirmed the denial of qualified immunity against university president Ronald Zaccari, restating that malicious public officials aren’t entitled to special protections when they clearly violate the rights of another. On remand, the district court inexplicably let the defendants off on the student’s claim that Zaccari and others retaliated against him for exercising his First Amendment rights—he had already won on other claims regarding his due process rights—then applied a severe across-the-board reduction of attorney’s fees awarded to Barnes, and even granted reverse attorney’s fees for the defendants who were held not liable, going so far as calling those claims frivolous solely because they were unsuccessful.

The Eleventh Circuit has now reversed the lower court yet again, on all these points, asking the district court to reconsider the First Amendment claim and recalculate the attorney’s fees. The decision is pretty technical with no really quotable passages, but the workmanlike slap-down of the district court is notable.

Students who stand up for their constitutional rights are rare, and imposing unfavorable fee awards will only make it more difficult for them to secure strong representation. (Barnes’s counsel is the renowned First Amendment lawyer and Cato adjunct scholar Bob Corn-Revere.) The district court, while acknowledging that some rights were violated, only offered half-measures as a remedy. The Eleventh Circuit has now corrected that mistake, sending university officials the loud, clear message that constitutional protections don’t stop at the edge of campus.

Public Schooling’s Pluralism Problem and the School Choice Solution

Last month, the Orthodox Union, a prominent Jewish organization, launched a campaign advocating for private school choice policies. That raised hackles from Americans United for Separation of Church and State (AU), which condemned the chutzpah of the Orthodox Union to work for equal funding for children in their community:

“It [the campaign] will require us to stop being timid,” [Orthodox Union executive vice president Allen Fagin] said. “We pay our taxes, and our kids are also entitled not to be left behind.”

That statement, of course, is only half-true: Fagin’s constituents do pay their taxes, and their children are indeed entitled to an education. But that’s exactly what public schools are for. OU’s campaign relies on the same faulty logic we’ve seen from advocates of voucher programs: Because parents pay taxes, they should be able to ask every other taxpayer in the state to subsidize their child’s religious education. It’s a clear constitutional violation. […]

It’s unconscionable (and exceptionally brazen) for OU to demand that further funds be siphoned away from public schools intended to serve entire communities in order to promote their private religious agenda. If Orthodox parents want to place their children in religious schools, that’s their right. And it’s their responsibility to pay for it.

In reality though, it’s the idea that so-called “public” schools are actually “public” that is only half-true. District schools are technically open to any student whose parents can afford to live in the district, but they are certainly not “intended to serve entire communities.” For example, they are not intended to serve Orthodox Jews or others like them who have a different vision of education. When everyone is forced to pay for one school system and decisions about education are made via a political process, there will be winners and losers.

Highlights from Overlawyered—2014

At my Cato blog Overlawyered I’ve been pulling together month-by-month highlights of stories from last year. I’m currently up to October in the series. Here’s a small sampling of my favorites: 

Read the whole series here.

Stop Them Damn Pictures

Through Tammany Hall, the New York City Democratic political machine in the late 19th century, “Boss” William M. Tweed essentially controlled the city’s government and much of the state’s. Like most political leaders he never felt entirely secure, and he tried to bully his opponents, including journalists. He is famously reported to have been especially outraged by cartoonists such as Thomas Nast, and to have roared to his associates,

Let’s stop them damn pictures. I don’t care so much what the papers write about—my constituents can’t read—but damn it, they can see pictures.

It seems that Islamic extremists may feel the same way. Theo van Gogh was murdered after producing a film about Islam. The publication of cartoons about Muhammad in the Danish newspaper Jyllands-Posten generated much outrage and numerous death threats. And now we have the brutal murders of cartoonists and other journalists from the French newspaper Charlie Hebdo. At least Boss Tweed just used bribery and corrupt politics to ruin his enemies.

Walter Olson wrote eloquently in Time magazine yesterday about the Charlie Hebdo murders and the challenge they present to liberal society:

There is no middle ground, no soft compromise available to keep everyone happy–not after the murders at the satirical newspaper Charlie Hebdo. Either we resolve to defend the liberty of all who write, draw, type, and think–not just even when they deny the truth of a religion or poke fun at it, but especially then–or that liberty will endure only at the sufferance of fanatical Islamists in our midst. And this dark moment for the cause of intellectual freedom will be followed by many more.

Flemming Rose, the editor who commissioned the Jyllands-Posten cartoons, writes about threats to free speech in his book The Tyranny of Silence, published recently by the Cato Institute, and in various articles and interviews.

And herewith my favorite Thomas Nast cartoon, not primarily about Boss Tweed’s corruption, but about “Peace with a War Measure” – peace and liberty shackled by the income tax.

Thomas Nast Cartoon on peace and income tax

 

Challenging President Obama’s Immigration Action Even Though It’s Good Policy

Our immigration system is broken and Congress has shamelessly refused to fix it. Of course, this unfortunate circumstance doesn’t give the executive branch the power to institute reforms itself. Yet through a recently announced policy known as Deferred Action for Parental Accountability (DAPA), President Obama has given partial legal status to more than four million illegal migrants, entitling them to work authorizations and other benefits.

This unilateral action is good policy, bad law, and terrible precedent. Perhaps most importantly, it violates the separation of powers and is thus unconstitutional.

In what is becoming a routine occurrence under this administration, 25 states have sued the federal government in response to this executive action. The case is now before a federal district judge in Brownsville, Texas, who is entertaining the plaintiffs’ motion to enjoin DAPA.

Cato, joined by law professors Josh Blackman, Jeremy Rabkin, and Peter Margulies, has filed an amicus brief supporting the motion. It’s highly unusual for Cato to file at the district court level—indeed amicus briefs of any kind are unusual in this forum—but this is a highly unusual situation.

To be clear, we support comprehensive reform that would provide relief to the aliens protected by DAPA (among many other goals), but it’s not for the president to make such legislative changes alone.

President Obama has defended his action by citing past deferrals for (1) battered and abused aliens, (2) aliens involved in human trafficking, (3) foreign students affected by Hurricane Katrina, and (4) widows of U.S. citizens. But these deferred actions, to the extent they’re relevant here, served as temporary bridges from one legal status to another, not tunnels that undermine legislative structure or detours around the law to hitherto unknown destinations. Moreover, they were several orders of magnitude smaller than DAPA, in the tens of thousands not the millions. Most significantly, they were all approved by Congress.

None of these principles holds true for DAPA. The administration itself stated the applicable test in the memorandum setting out DAPA’s legal justification: “an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.” This executive action represents a fundamental rewrite of the immigration laws that is inconsistent with the congressional policy currently embodied in the Immigration and Naturalization Act (INA)—a policy that, again, those who joined this brief by no means endorse.

As Prof. Blackman explains in a new law review article, DAPA is in palpable tension with the INA, implementing under the guise of executive discretion wholesale waiver/suspension/deferral that swallows the enforcement rule. Indeed, Congress rejected or failed to pass immigration-reform bills reflecting this policy several times, so executive power in this area is “at its lowest ebb,” to use Justice Robert Jackson’s famous formulation from the 1952 Steel Seizure Case.

In our constitutional architecture, executive action based solely on Congress’s resistance to presidential policy preferences has no place. While we agree that the immigration laws need to be overhauled and sympathize with the plight facing undocumented aliens, the path designed by the Framers for implementing needed reforms goes through the halls of Congress. Unilateral exercises of power such as DAPA undermine the separation of powers and ultimately the rule of law.

Judge Andrew Hanen, who was nominated by George W. Bush and unanimously confirmed by the Senate, will hold his preliminary injunction hearing in Texas v. United States on Jan. 15 in Brownsville, Texas.