Topic: Law and Civil Liberties

Wisconsin’s Criminalization of Political Speech

Just when you thought the long-running “John Doe” prosecution/persecutions in Wisconsin couldn’t get any worse—SWAT teams conducting pre-dawn raids on family homes, gag orders on the victims, and the prosecutor’s recusal motion directed against no fewer than four state supreme court justices, all over politically driven campaign finance allegations—Milwaukee County District Attorney John Chisholm suggested over the weekend that Gov. Scott Walker could be criminally charged for lying. Walker’s “crime”? In Iowa on Saturday, he questioned whether the prosecution’s tactics were constitutional.

As so often happens in litigation over often inscrutable campaign finance law, this case is a tangle of legal complexities, many of which are outlined in Cato’s amicus brief, urging the U.S. Supreme Court to hear the appeal of the “John Does,” their lives on hold as they suffer in silence. At its conference last Friday, the Court considered their cert petition, but it was not included in the Court’s list of denials this morning, indicating a “hold” and hence an increased likelihood that the Court will hear the appeal.

Only two weeks ago, in her first campaign stop in Iowa, Hillary Clinton took a shot at the Roberts Court, calling for a constitutional amendment to overturn the Court’s Citizens United decision. That would amount to nothing less than an assault on the First Amendment’s protection of political speech. With that speech so threatened, no better illustrated than in the appalling Wisconsin prosecutions, it’s time for the Court to bring an end to this tyranny.

Throw out Massachusetts’s Sedition Act

John Adams left his state a conflicted legacy. As a young man in 1765, Adams took to the Boston Gazette to protest censorship, reminding his readers that “liberty cannot be preserved without a general knowledge among the people,” and for that reason “none of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of America, than the press. Care has been taken that the art of printing should be encouraged, and that it should be easy and cheap and safe for any person to communicate his thoughts to the public.” Fifteen years later, Adams was called upon to write a constitution for the Commonwealth of Massachusetts, which provided that as “[t]he liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.”

Wise words from a wise man. But two decades hence later, Adams was no longer a young man, and no longer so wise.

In 1798, Adams was an embattled and unpopular president, under constant fire from the nation’s papers. In response, he pushed through a law that made it a crime to “write, print, utter or publish … any false, scandalous and malicious writing or writings against the government of the United States.”

Reviled as an unconstitutional affront to liberty, the Sedition Act was so unpopular that it cost Adams a second term, and has served for over 200 years as a symbol of tyrannical overreach. Adams also gave his name to the courthouse where the Supreme Judicial Court of Massachusetts meets; that Court will now have to decide which version of Adam’s legacy it will embrace.

For almost 100 years, Massachusetts has had its own version of the Sedition Act, a law making it crime to publish “any false statement in relation to any candidate for nomination or election to public office, which is designed or tends to aid or to injure or defeat such candidate.” Cato has filed a brief pointing out just how absurd and unconstitutional this law is.

No, not that brief, but if the law sounds familiar it should: Ohio had a similar law—until a trip up from the federal district court to the U.S. Supreme Court and back resulted it in being struck down. Statutes in Minnesota and Washington have suffered the same fate. These laws are a direct and indefensible attack on the freedoms protected by the First Amendment, and because John Adams was right when he described censorship as the “jaws of power … always opened to devour, if possible, to destroy the freedom of thinking, speaking, and writing,” it’s time for Massachusetts to follow suit.

As a more modern president from the Commonwealth once said, the government cannot be “afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”

The Massachusetts Supreme Judicial Court hears argument in Commonwealth v. Lucas on May 7.

A Reasonably Good Week for the Fourth Amendment

This week, two federal court decisions here in D.C. reiterated the importance of the Fourth Amendment in police encounters.

In the U.S. Supreme Court, Justice Ruth Bader Ginsburg wrote the Court’s opinion in Rodriguez v. United States, declaring that prolonging a traffic stop to initiate a K-9 sniff of a vehicle was unconstitutional. It’s not a revolutionary decision or a watershed moment in the Court’s Fourth Amendment jurisprudence, but it’s always good to see the Court recognize that there are limits on the police during traffic stops. (Such recognition is not usually the case.) That said, police will still try to find ways to get you to surrender your rights during stops.

Down the street at the U.S. Court of Appeals for the D.C. Circuit, Judge Janice Rogers Brown wrote a concurrence in a case that gets to the heart of the problem in Fourth Amendment law today. Because lower courts are not allowed to ignore Supreme Court holdings even when judges think SCOTUS is wrong, Judge Brown had to vote in favor of the government. But in United States v. Gross, concerning D.C.’s roving patrols for illegal firearms in high crime areas, Judge Brown was quite clear when she wrote:

Despite lacking any semblance of particularized suspicion when the initial contact is made, the police subject these individuals to intrusive searches unless they can prove their innocence. Our case law considers such a policy consistent with the Fourth Amendment. I continue to think this is error. Our jurisprudence perpetuates a fiction of voluntary consent where none exists and validates a policy that subverts the framework of Terry v. Ohio, 392 U.S. 1 (1968).

In the absence of any particularized reports, evidence, or suspicions, patrolling officers simply question every likely person they encounter. They “employ[] a simple technique: they ask[] any individual they encounter[] if he or she ha[s] a gun and then watch[] to see if that individual engage[s] in what the officers perceive[] to be suspicious behavior.” If consent to question or search is refused, officers frequently construe citizens’ varied reactions to their probes as rationalizing a Terry stop.

As a thought experiment, try to imagine this scene in Georgetown. Would residents of that neighborhood maintain there was no pressure to comply, if the District’s police officers patrolled Prospect Street in tactical gear, questioning each person they encountered about whether they were carrying an illegal firearm? Nothing about the Gun Recovery Unit’s modus operandi is designed to convey a message that compliance is not required. While viewing such an encounter as consensual is roughly equivalent to finding the latest Sasquatch sighting credible, I submit to the prevailing orthodoxy, but I continue to reject its counterintuitive premise.

With the guise of voluntary consent stripped away, the reality of the District’s regime is revealed. It is a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects. If the Fourth Amendment is intended to offer meaningful protection in the context of Terry stops, the voluntary consent exemption cannot be used to engage with members of the public en masse and at random to fabricate articulable suspicions for virtually every citizen officers encounter on patrol. (Internal citations omitted.)

The state of Fourth Amendment jurisprudence is not good, but cases like these provide a glimmer of hope that the Supremes will come around one of these days. You should read Judge Brown’s full concurrence here.

Police Misconduct and ‘Law Enforcement Officers’ Bill of Rights’ Laws

The problems of the teacher tenure system, especially in big cities where powerful unions defend members against dismissal, are familiar enough. Less well known is the newer, parallel–and arguably more alarming–rise of police and prison-guard tenure under what are known as Law Enforcement Officers Bill of Rights (LEOBR or LEOBOR) laws. 

Baltimore Mayor Stephanie Rawlings-Blake, for example, has blamed Maryland’s LEOBR law for frustrating the investigation into the death of Freddie Gray while in police custody. Maryland’s law provides that after an incident superiors cannot question an officer without the presence of a lawyer of the officer’s choosing, and that officers have 10 days to line up such representation. Critics say that by the time those suspected of misbehavior have to commit to a story, they will have had ample opportunity to consult with others about what to say. Most of the officers present have cooperated with the investigation of Gray’s death, the city says, but at least one has not. 

While the details of LEOBR laws vary from state to state, Mike Riggs’s 2012 account in Reason (“Why Firing a Bad Cop Is Damn Near Impossible”) cites these features as typical: 

Unlike a member of the public, the officer gets a “cooling off” period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated “at a reasonable hour,” with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only “for reasonable periods,” which “shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.” Unlike a member of the public, the officer under investigation cannot be “threatened with disciplinary action” at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.

What happens after the interrogation again varies from state to state. But under nearly every law enforcement bill of rights, the following additional privileges are granted to officers: Their departments cannot publicly acknowledge that the officer is under investigation; if the officer is cleared of wrongdoing or the charges are dropped, the department may not publicly acknowledge that the investigation ever took place, or reveal the nature of the complaint. The officer cannot be questioned or investigated by “non-government agents,” which means no civilian review boards. If the officer is suspended as a result of the investigation, he must continue to receive full pay and benefits until his case is resolved. In most states, the charging department must subsidize the accused officer’s legal defense.

A violation of any of the above rights can result in dismissal—not of the officer, but of the charges against him.

Loretta Lynch Confirmed as Attorney General

After one of the longest confirmation processes in the history of the Attorney General’s office, Loretta Lynch was confirmed by the Senate today as Eric Holder’s successor.

From a criminal justice perspective, whether Lynch will embrace or abandon Holder’s position on state-level drug legalization and his announced commitment to reforming civil asset forfeiture are two questions that spring immediately to mind.

Loretta Lynch zealously defended civil asset forfeiture during her confirmation hearings, and was a devoted practitioner of it as a U.S. Attorney in New York.  One of her seizure cases, that of the Hirsch brothers [$], garnered widespread attention and condemnation, and helped spur the nationwide calls for reform to which Eric Holder responded.

Senator Whitehouse Declaims

On the floor of the Senate last night, on the eve of Earth Day, Rhode Island Sen. Sheldon Whitehouse went after the Cato Institute—among others, including the Washington Times and the Wall Street Journal—for our having accused the senator and his friends in the environmental movement of “having a widespread faith in the government’s ability to solve problems.” We plead guilty. Not only do we believe those folks are of that faith—the evidence is plain, even if the evidence supporting the faith is lacking—but we believe also that it is a self-serving faith, because it drives them to find ever more problems to solve, problems most of us never knew we had.

But it’s a letter that then-Cato President John Allison recently sent to Sen. Whitehouse and others in Congress that seems most to exercise the good senator. As the C-SPAN transcript puts it:

cato also sent us a letter in response to our inquiry, telling us we cannot use the awesome power of the federal government to cow cato and others. cow? according to the “wall street journal” editorial page, which, sadly, has become a front for the fossil fuel industry, we were – quote – “trying to silence the other side.” although i have to confess, mr. president, it is not clear how the other side would be silenced by simply having to reveal whose payroll they’re on, which is all we asked. let’s be clear our letter didn’t suggest that industry scientists should be silenced, just that the public should know if those scientists are being paid by the very industries with a big economic …

Ah. There we have it. We’re in the pockets of Big Oil. Never mind that the facts show otherwise, that Cato’s donor base is wide and composed almost entirely of individuals animated by the idea of a free society under limited government.

But that’s not the main point, not really. Rather, it’s the assumption of Sen. Whitehouse and his friends that they, whose outlook depends so much on government funding, fairly dripping with the taxpayers’ blood, have the cleanest of hands and the purest of motives. Yet why should we believe that the avaricious individuals these folks call on government to check, suddenly become virtuous when they have the monopoly power of government in their grasp, to say nothing of the public till at their disposal? If ever scrutiny were warranted, I should think it on that side of the ledger.

Henry Butler: George Mason Law School’s New Dean

Our friends over at the George Mason University Law School have a new dean this morning—and he’s one of their own, Henry Butler, Foundation Professor of Law at George Mason and Executive Director of the law school’s Law & Economics Center. Late last evening, George Mason Provost and Executive Vice President S. David Wu sent out a notice of the appointment to a wide circle of the law school’s friends.

Over the years, Henry has contributed more than once to Cato’s work.  And in 2009 we filed an amicus brief with the Supreme Court on behalf of Henry and the late Professor Larry Ribstein, challenging, among other things, the method through which members of the Public Company Accounting Oversight Board were removed under the 2002 Sarbanes–Oxley Act. In 2010, citing a violation of the separation of powers, the Court would find that method unconstitutional.

Following in the footsteps of Dean Daniel Polsby—and especially, before that, of his mentor, the late Henry Manne—“Henry II” has a great foundation on which to build. The first Henry brought the law school into national prominence. Dean Polsby secured that accomplishment by adding stellar members to an already impressive faculty, many of whom we have worked with and published. With Dean Butler now at the helm, we look forward to more such cooperation in the future. Congratulations Henry.