Topic: Law and Civil Liberties

House Approves Using DEA Money for Body Cameras

On Tuesday the House of Representatives unanimously passed an amendment to the  Commerce, Justice, Science, and Related Agencies appropriations bill, introduced by Rep. Joaquin Castro (D-TX), which takes $10 million from Drug Enforcement Administration (DEA) funds for salaries and expenses and puts it towards the Department of Justice’s Body Worn Camera Partnership Program. The program provides 50 percent matching grants for law enforcement agencies that wish to use body cameras.  

Prior to the passage of Castro’s amendment, the appropriations bill provided $15 million for the body-worn camera partnership initiative, $35 million less than requested by the Obama administration.

Castro’s amendment is one of the latest examples of legislation aimed at funding police body cameras which, despite their potential to be great tools for increasing law enforcement accountability, are expensive.

The cameras themselves can cost from around $100 to over $1,000 and are accompanied by costs associated with redaction and storage. The fiscal impact of body cameras is a major reason why some police departments have not used the technology. In 2014 the Police Executive Research Forum received surveys from about 250 police departments and found that “39 percent of the respondents that do not use body-worn cameras cited cost as a primary reason.”

An Illinois body camera bill on Gov. Rauner’s desk not only outlines body camera policies for Illinois police agencies that want to use body camera but also introduces a $5 fee on traffic tickets aimed at mitigating the cost of body cameras.

Illinois Uses Racial Preferences for No Good Reason

Since before the Declaration of Independence, equality under the law has been a central feature of American identity. The Fourteenth Amendment expanded that constitutional precept to actions by states, not just the federal government. For example, if a state government wants to use race as a factor in pursuing a certain policy, it must do so in the furtherance of a compelling reason—like preventing prison riots—and it must do so in as narrowly tailored a way as possible.

This means, among other things, that race-neutral solutions must be considered and used as much as possible. So if a state were to, say, set race-based quotas for who receives its construction contracts and then claim that no race-neutral alternatives will suffice—without showing why—that would fall far short of the high bar our laws set for race-conscious government action.

Yet that is precisely what Illinois has done.

Illinois’s Department of Transportation and the Illinois State Toll Highway Authority have implemented the U.S. Department of Transportation’s Disadvantaged Business Entity (“DBE”) program, which aims to remedy past discrimination against minority and women contractors by granting competitive benefits to those groups. While there may be a valid government interest in remedying past discrimination, Illinois’s implementation of the program blows through strict constitutional requirements and bases its broad use of racial preferences on studies that either employ highly dubious methodology or are so patently outdated that they provide no legal basis on which to conclude, as constitutionally required, that there remains ongoing, systemic, widespread racial (or gender) discrimination in the public-construction-contracting industry that only the DBE program can rectify.

Sen. Whitehouse: Bring RICO Charges against Climate Wrongthink

Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?

Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:

In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.

By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.

Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”

P.S. Kevin Williamson notes that if the idea of criminalizing policy differences was ever something to dismiss as an unimportant fringe position, it is no longer. (cross-posted from Overlawyered)

Senate Hearing on King v. Burwell This Thursday

At 2pm this Thursday, I will be testifying before the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts at a hearing investigating how the Internal Revenue Service developed the (illegal) “tax-credit rule” challenged in King v. Burwell. Witnesses include three Treasury and IRS officials involved in drafting the rule:

Panel I

The Honorable Mark Mazur
Assistant Secretary for Tax Policy
Department of the Treasury
(invited)

Ms. Emily McMahon
Deputy Assistant Secretary for Tax Policy
Department of the Treasury
(invited)

Ms. Cameron Arterton
Deputy Tax Legislative Counsel for Tax Policy
Department of the Treasury
(invited)

The second panel will consist of Michael Carvin (lead attorney for the plaintiffs in King v. Burwell, who argued the case before the Supreme Court), University of Iowa tax-law professor Andy Grewal (who discovered three additional ways, beyond King, that the IRS expanded eligibility for tax credits beyond clear limits imposed by the ACA), and me.

Supreme Court Protects Your Right to Make Negligent Facebook Posts

True to form, in Elonis v. United States the Supreme Court continued its unparalleled defense of free speech – this time in the social-media context. Also true to form, however, Chief Justice John Roberts put together a near-unanimous majority by shying away from hard questions and thus leaving little guidance to lower courts.

The case involved a statute that made it a federal crime to transmit in interstate commerce – the Internet counts – “any communication containing any threat … to injure the person of another.” Based on a bizarre series of Facebook posts styled largely on the lurid lyrical stylings of Eminem, Anthony Elonis was convicted under that law of threatening his wife, the police, an FBI agent, and a kindergarten class. Yet prosecutors didn’t prove that Elonis intended to threaten anyone or even understood his words as being threatening. All they showed was that the individuals in question felt threatened by the posts. The Supreme Court correctly ruled that that’s not enough, that negligently throwing around violent rap lyrics shouldn’t get someone thrown in prison. As Roberts noted, the general rule is that a “guilty mind” – what lawyers call mens rea – is a necessary element of any crime.

But alas that’s as far as Roberts went: since the statute in question doesn’t specify the requisite state of mind, mere negligence isn’t enough. He did not say – the Court did not rule at all – whether an amended statute criminalizing negligent speech would pass First Amendment muster. (This issue was the focus of Cato’s amicus brief.) Indeed, as Justice Alito points out in partial dissent, the majority opinion doesn’t even say whether “reckless” Facebook posts come under the statute’s purvey (or whether that reading would in turn satisfy the First Amendment).

In short, I’m glad that amateur poet “Tone Dougie” (Elonis’s nom de rap) won’t be practicing his art in the hoosegow, but the Supreme Court’s minimalism has guaranteed this type of case – and maybe even this defendant – an encore. Particularly as social media and other new means of expression evolve, the justices need to do more than narrowly slice speech-chilling criminal laws.

EEOC v. Abercrombie: Headscarfs and Judicial Modesty

Reversing the Tenth Circuit, the Supreme Court this morning ruled to allow an Equal Employment Opportunity Commission (EEOC) suit to go forward against retailer Abercrombie & Fitch in the widely noted “headscarf case.” The retailer had turned away a Muslim applicant who wore head covering, rather than considering whether its prescribed salesperson “look” might reasonably be refined to accommodate her wish. The outcome was not a surprise, given the way the case had developed, and in the end turned on narrow issues of statutory interpretation not much connected to the other religion-and-law cases that have riled the Court and the nation in recent years. And while the Court declined Cato’s invitation to draw a clearer line that would have averted more future disputes, its ruling is likely to be of limited direct significance: there just aren’t that many discrimination disputes that hinge on whether an employer has been explicitly told of someone’s religious beliefs.  

The Court’s near-unanimous ruling (Justice Clarence Thomas dissented in part) was unsurprising in part because the facts in evidence were not favorable toward Abercrombie: even though Samantha Elauf had not declared that her wish to wear a scarf was based on her religious beliefs, managers apparently did realize that it was so based, which mean that later, when lawyers argued that she had not put the company on notice of it being a religious issue, it seemed, well, lawyerly of them.  As Justice Antonin Scalia observed in Footnote 3 of his majority opinion – and as Justice Samuel Alito made clear as well in his concurrence – this does not mean employers will lose if they genuinely don’t know about an employee’s religious beliefs, or if they have an inkling about them but are motivated in their decision by other factors.

Even if not many future cases fall into the Abercrombie pattern, employers are still at risk in at least two other ways. First, they will be tempted to ask explicitly whether some requested accommodation (such as weekend scheduling) is based on religious belief, and such questions will sometimes rouse a suspicion of religious discrimination (or perhaps even be an act of discrimination itself). Second, they will be encouraged to make assumptions about employees’ unvoiced religious preferences that will shade into stereotyping (“She seemed so pious, we figured she probably wouldn’t want to be assigned Sunday work.”) One good way to avoid situations of being sued if you do, sued if you don’t is for judges to spell out clear rules that are easy to follow. In its concern to craft a modest statutory reading, the Court missed a chance to do that today.

Good Precedents against NSA Spying

With debate about NSA spying continuing in the Senate, it’s worth looking at some of the historical and modern precedents for protecting our communications and communications data. A few highlights:

  • The earliest precedent for protection of communications in the United States is the treatment of mail. The founders used postal mail to communicate their revolutionary ideas and even to plan their insurrection against the tyranny of King George, so they prioritized protecting the privacy of the mail. In the Act of Feb. 20, 1792, passed a few short years after ratification of the Constitution, the U.S. Congress enshrined protections for mail in the law, creating heavy fines for opening or delaying mail.
  • The Supreme Court confirmed the existence of constitutional protection for postal communications in Ex Parte Jackson. In that 1877 case, the Court described the Fourth Amendment’s guarantees in very interesting and clear language: “Letters and sealed packages … are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.” Though we place mail in the hands of government agents, the Fourth Amendment protects it like it’s inside our homes.
  • The year Ex Parte Jackson case was decided, both Western Union and the Bell Company began providing voice telephone service. The Supreme Court addressed constitutional protection for phone calls some decades later in 1928. The Olmstead case was wrongly decided, we now know. It found that telephone communications weren’t protected by the Constitution. So the dissents are where to look for precedential language. Justice Brandeis’s famous dissent spoke of the “right to be let alone,” but Justice Butler provided thinking and language that should have more lasting value: “The contracts between telephone companies and users contemplate the private use of the facilities employed in the service,” he wrote. “The communications belong to the parties between whom they pass.” The communications belong to the parties. That’s a fasacinating and important way to think about our communications, as property that we own.