Topic: Law and Civil Liberties

Watch Your Libertarian Language

Colleges often have to decide what their rules are about language that offends people. Is a professor’s criticism of affirmative action offensive to black students? Is a gay-rights group’s advocacy offensive to Christian or morally conservative students? And people can debate how to weigh free speech versus a nurturing atmosphere in a particular college.

But Marquette University seems to have reached new heights, or depths, in what it considers offensive. A graduate student there posted on his office door a pithy quotation from humorist Dave Barry:

 “As Americans we must always remember that we all have a common enemy, an enemy that is dangerous, powerful, and relentless. I refer, of course, to the federal government.”

A strong opinion, to be sure. One that I’d bet is shared by many but certainly not all Americans. Apparently Barry’s sentiment is not shared by the chairman of Marquette’s philosophy department, who took it upon himself to take down the quotation and sent a department email declaring it “patently offensive.”

Offensive to whom? Surely not to any of the usual identity groups, ethnic or religious or sexual-orientation or gender or whatever. Nor does it use the four-letter words that might be inappropriate for a public space. Perhaps it’s offensive to employees of the federal government, or to those who have a great deal of respect and admiration for the federal government. But one would think that at a university it falls within the parameters of debate. And while Dave Barry writes more effectively and memorably than most philosophers, his statement still qualifies as humor or political commentary or both.

Marquette is a private university and is thus free under the First Amendment to regulate speech as it chooses. But if libertarian jests are “patently offensive” and subject to censorship at Marquette, it might want to note that in a new paragraph of its academic freedom guidelines and perhaps in the catalog provided to prospective students.

Google Office vs. Government “Request”

TechCrunch is a terrific blog covering new Internet products and companies.  Edited by Michael Arrington, it’s a clearinghouse of information on ”Web 2.0” - the agglomeration of innovations that could take online life and business through their next leaps forward.

In this recent post, TechCrunch briefly assessed some concerns with Google’s office strategy.  Google has online offerings in the works that could substitute for the word processing and spreadsheet software on your computer - just like Gmail did with e-mail.

And just like Gmail, documents and information would remain on Google’s servers so they can be accessed anywhere.  This is a great convenience, but brings with it several problems, namely: 

The fact that unauthorized document access is a simple password guess or government “request” away already works against them. But the steady stream of minor security incidents we’ve seen (many very recently) can also hurt Google in the long run.

Arrington’s post goes on to highlight a series of small but significant security lapses at Google.  If Google wants companies and individuals to store sensitive data on their servers, they have to be pretty near perfect - or better than perfect.

Then there is government “request.” Arrington makes appropriate use of quotation marks to indicate irony.  Governments rarely “request” data in the true sense of that term.  Rather, they require its disclosure various ways - by warrant or subpoena, for example, by issuing “national security letters,” or by making a technical “request” that is backed by the implicit threat of more direct action or regulatory sanctions.

On resisting government demands for data, Google has been better than most - an awfully low hurdle.  It opposed a subpoena for data about users’ searches earlier this year.  But Google has a long way to go if it wants people to believe that leaving data in their hands does not provide easy (and secret) access to the government.  Indeed, thanks to the recently passed cybercrime treaty, doing so may well provide access to foreign governments, opening the door to corporate espionage and any number of other threats.

At a meeting of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee in San Francisco last July, I asked Google Associate General Counsel Nicole Wong what the company is doing about its ability to protect information from government “request,” given the sorry state of Fourth Amendment law with respect to personal information held by third parties.  Her answer, which I must summarize because the transcript is not yet online, amounted to “not much.”  (Eventually, the transcript should be linked from here.)

Google has issued a “me too” about an effort to invite regulation of itself.  That project is going nowhere, but if it did get off the ground, it would do nothing about government access to the information that Google holds for its customers. 

Government access to data is a big flaw in Google’s nascent effort to move into online productivity services.

Friday. Orange County. Property Rights.

This Friday afternoon the Federalist Society of Chapman University Law School in Orange, California, will present a seminar (.pdf) on property rights, eminent domain, and California’s Proposition 90. The leadoff speaker will be Timothy Sandefur, author of the new Cato book Cornerstone of Liberty: Property Rights in the 21st Century.

Here you can also find information about upcoming speaking events by Sandefur in Los Angeles, San Francisco, and Berkeley.

Christian Toleration

I’ve just seen an interesting new book, The Choice Principle: The Biblical Case for Legal Toleration, by Andy G. Olree, who is a graduate of the University of Chicago Law School, where he studied under Richard Epstein and Michael McConnell, and now teaches law at Faulkner University’s Jones School of Law. The book presents an evangelical Christian argument for a legal framework that tolerates most “sinful” choices by individuals.

Olree writes, “The Choice Principle posits that Christians are called to influence law and government in ways that maximize opportunities for human freedom of choice–that is, for individual autonomy.” And he applies that principle in ways that might surprise critics of the religious right, to issues ranging from prostitution and homosexuality to Social Security.

He criticizes Roy Moore, Jerry Falwell, Pat Robertson, and James Dobson as “fearmongers” who “simplistically reduce complex societal problems to…the age-old struggle of good versus evil.” But he also takes on more academically serious defenses of enforced morality, devoting an entire chapter to a critique of Princeton professor Robert George’s book Making Men Moral.

Christians and libertarians could learn a lot about each other from reading this book. Or to be more careful with my language: Christian libertarians will find this book an effective presentation of a principle they likely agree with. Non-Christian libertarians and non-libertarian evangelical Christians will find it a provocative challenge.

It’s Not about Same-Sex Marriage

The lead headline in the Washington Post on Tuesday reads “53% of Voters Say They Back Va. Same-Sex Marriage Ban.” Slate’s “Today’s Papers,” reporting on that story, says it shows that “Virginia voters [are] supporting a ban on gay marriage.” Washington’s public-radio WAMU refers to the upcoming vote as “the proposed ban on gay marriage.”

All these journalists are doing the supporters’ work for them. Bans on gay marriage have passed everywhere they’ve been placed on the ballot. That’s what the supporters of the Virginia amendment want voters to think they’re voting on. But that’s not what the Virginia amendment really does.

Same-sex marriage is already prohibited in Virginia, and there’s no prospect of legislative or judicial change in that fact. So this amendment is touted as banning something that is already banned.

The real impact of the amendment can be seen in its second sentence:

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. [emphasis added]

It’s not just about same-sex couples, and it’s not just about marriage. The law firm of Arnold & Porter analyzed [pdf] the amendment and concluded:

the [proposed Virginia] Amendment could be interpreted by Virginia courts to have the following effects:

  • Invalidate rights and protections currently provided to unmarried couples under Virginia’s domestic violence laws;
  • Undermine private employers’ efforts to attract top employees to Virginia by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits; and
  • Prevent the courts from enforcing –

– private agreements between unmarried couples,
– child custody and visitation rights, and
– end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: “This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state.”

Journalists should not call this “the proposed amendment to ban same-sex marriage.” Rather, they should give readers and listeners a more accurate summary, along the lines of “the proposed amendment to restrict gay rights” or “the amendment on unmarried couples.”

Specter’s Signing Statement Bill

Whilst buried by my Cato Supreme Court Review duties, I missed an opportunity to weigh in on the summer blog debate over presidential signing statements (i.e., the president’s practice of announcing how a bill will be interpreted by the executive branch).

My general views track Marty Lederman, Walter Dellinger, et al.’s analysis in this post, which concludes that most common complaints about signing statements are overblown.

There is one problem that Lederman et al. don’t mention: the risk that courts will defer to signing statements when the law is ambiguous. Currently, the Court gives deference to agencies’ interpretation of ambiguous laws, under a narrow set of conditions set out in cases like United States v. Mead. In Mead, the Court underscored that judicial deference to the executive is controlled by Congress. Courts defer to the executive when the law is unclear based on a background assumption — a legal fiction, really — that this deference is what Congress wants when it passes an ambiguous law. 

The Court has never decided whether the president deserves the same deference as the agencies under his control. Courts certainly won’t give any deference to presidential constitutional interpretations, just as they don’t give deference to the constitutional interpretations of agencies. But it’s possible that future courts might defer to some nonconstitutional signing statements, and the explosion of signing statements in this administration suggests the president is perhaps making a bid for recognition of some such future deference. If that bid is successful, the president’s interpretation would act as a kind of “super-legislative” history, trumping competing legislative history by members of Congress when the text of a law is unclear.

Under Mead, Congress has the power to command courts not to defer to signing statements. Sen. Arlen Specter (R-Pa.) has introduced a bill to do just that and, if this were all the bill did, it would deserve the support of all who care about maintaining a balance of power between the president and Congress. Unfortunately, the bill is saddled with some additional provisions that are constitutionally problematic.

Here’s what these additional portions of the bill say:

SEC. 5. CONGRESSIONAL STANDING TO OBTAIN DECLARATORY JUDGMENT.

Any court of the United States, upon the filing of an appropriate pleading by the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, may declare the legality of any presidential signing statement, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

SEC. 6. CONGRESSIONAL RIGHT TO INTERVENE OR SUBMIT CLARIFYING RESOLUTION.

(a) Notice to Congress- In any action, suit, or proceeding in the Supreme Court of the United States, wherein the construction or constitutionality of any Act of Congress in which a presidential signing statement was issued, the Supreme Court shall certify such fact to the Office of Senate Legal Counsel and to the Office of General Counsel for the United States House of Representatives.

(b) Congressional Right To Intervene- In any suit referenced in subsection (a), the Supreme Court shall permit the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of the Act’s construction and/or constitutionality. The United States Senate and House of Representatives shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

(c) Congressional Right To Submit Clarifying Resolution- In any suit referenced in subsection (a), the full Congress may pass a concurrent resolution declaring its view of the proper interpretation of the Act of Congress at issue, clarifying Congress’s intent, and/or clarifying Congress’s findings of fact. If Congress does pass such a concurrent resolution, the Supreme Court shall permit the United States Congress, through the Office of Senate Legal Counsel, to submit that resolution into the record of the case as a matter of right.’.

Ironically, these provisions are far more constitutionally problematic than the signing statement itself. There are three ways to read these portions of the bill:

First, Specter’s bill might be read to invite judicial deference to Congress’s post-enactment interpretations, when introduced into the record by Senate leg counsel, as the word “clarifying” may suggest.    

Second, perhaps the bill’s provisions are protective, allowing Congress to defeat executive reliance on presidential signing statements very quickly, shutting off the window of opportunity created by lengthy delays in private litigation.

Or perhaps, finally, the bill is simply designed to allow Congress a say in court, leaving courts free to treat Congress’s views as they wish, much as they can consider a law review article or amicus brief.

The first interpretation is clearly problematic under cases like INS v. Chadha and Bowsher v. Synar, which hold that Congress can’t assign itself, or its subsets, the power to issue controlling interpretations of laws it passes. Intepretation is an executive and judicial function, not a legislative one. Therefore, Congress cannot delegate to itself the power to issue authoritative interpretations of unclear laws. If it disagrees with the way a law is implemented, its recourse is to clarify its intent by passing a new law. Bowsher v. Synar, 478 U.S. 714, 733 (1986). A necessary corollary is that Congress’s clarifying resolutions deserve no judicial deference.

Perhaps it might be argued that a bicameral resolution endorsing a signing statment would meet the requirements of bicameralism and presentment outlined in Article I, Section 7 of the Constitution, in effect amending the bill. But presentment envisons an order of decisionmaking in which Congress initiates a statutory amendment, presenting it, in turn, to the president — an order of proceeding that restrains the creation of new law, since it is more difficult for Congress to act swiftly.

The second and third interpretations are less clearly problematic as a matter of first principles, but they raise separation of powers problems under current caselaw. They arguably assign an executive power — the power to represent the general legal interests of the United States in the proper enforcement of the law, as opposed to concrete interests of a house or member of Congress in legislative rights and privileges — to Article I legal counsel who are removable entirely at the discretion of Congress, something Bowsher says is a no-no. Moreover, and relatedly, after Raines v. Byrd, it’s hard to see how Congress can grant its own counsel “party” status in litigation without violating the case or controversy requirement of Article III, since Congress has no concrete stake other than its general interest, shared with the public, in the proper interpretation of the laws. 

I’m sympathetic to the Specter bill’s goal — to cut off the signing statement as a wedge for expanding executive power — but it’s on strongest ground in its simple command to courts to ignore presidential signing statements. 

Robberies in the Capital

Today’s Washington Post has a front page story on robberies in the District of Columbia.

The District of Columbia has one of the strictest gun control laws in the United States. And the old saw about gun control is that when guns are outlawed, only outlaws will have guns. (Important loopholes: The mayor has his own armed security detail and so do other government employees.)

On this map of the city, the red dots indicate robberies where the criminal brandished a gun against the victim. Query: Is the city’s gun control policy helping the people or the criminals?

Go here for Cato material on gun control. To learn more about a constitutional challenge to DC’s gun control law, go here.