Ilya Shapiro (Author at The Cato Institute)

Is Justice Scalia Abandoning Originalism? (Commentary)

Tue, 09 Mar 2010 00:00:00 EST

Justice Antonin Scalia holds himself out as the patron saint of originalism, the idea that judges should interpret the Constitution according to its original public meaning. To do otherwise, he adds, is to succumb to government by black-robed philosopher-kings who fill the empty vessel of a "living ...

Doe v. Reed (Legal Briefs)

Thu, 04 Mar 2010 00:00:00 EST

Under Washington's constitution, a popular vote must be ordered on any bill passed by the legislature if a specified percentage of state voters sign a petition for a referendum. Washington's Public Records Act (PRA) makes public records, including such referendum petitions, available for public inspection. In 2009, opponents of same-sex marriage used the referendum procedure to attempt to reverse a state law which expands the rights of state-registered domestic partners. Proponents of the law sought access to the petition and two of the petition signers sought a preliminary injunction to prevent disclosure of their personal information, arguing that the PRA violates their right to speak anonymously. The Ninth Circuit Court of Appeals held that the right to access trumps the right to anonymity. The Supreme Court granted certiorari to determine whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels the public release of identifying information about petition signers, and whether compelled disclosure of such information is narrowly tailored to a compelling government interest. Cato filed a brief supporting the petition signers, in which we argue that the Court should establish a bright-line rule prohibiting laws that mandate the full disclosure of petition signers' identities and contact information. Public disclosure carries significant burdens and unconstitutionally chills the exercise of First Amendment rights when no compelling government interest is at stake. If the Court finds that the state has a compelling interest in public disclosure, disclosure exemptions are constitutionally required. Failure to require exemptions would permit the government to suppress the expression of offensive or unpopular ideas and would discourage individuals from associating in the first place. Finally, our brief argues that even exemptions are not a substitute for strict scrutiny and provide inadequate protection where disclosure is not justified by compelling state interests. Exemption rules still chill speech, by their nature as an ad hoc process without fixed standards; the government is ill-suited to identify which groups should be exempt from disclosure, as is evidenced by their poor track record of erroneously suppressing controversial or unpopular speech.

Dispatches from Vancouver, Vol. VI: Requiem for a Games (Commentary)

Wed, 03 Mar 2010 00:00:00 EST

The last few days of the Olympics passed by in a blur as I finished a three-week business trip that ended up taking me to four climates and nine different overnight locations, all without checking bags. And my gallivanting around the West paralleled the North American tour de force that the ga...

Supreme Court Protects Gun Rights, Fails to Restore Greater Freedom (Commentary)

Wed, 03 Mar 2010 00:00:00 EST

Two years ago, the Supreme Court decided in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. But the Second Amendment, like the rest of the Bill of Rights, only applies to the federal government, so yesterday, the Supreme Court heard oral a...

Dispatches from Vancouver, Vol. IV: Bringing Sexy Back from Where the Wild Things Are (Commentary)

Wed, 24 Feb 2010 00:00:00 EST

On my last day in Vancouver, I didn't end up attending any sporting events—preferring to save my money for sushi and souvenirs. Instead I walked around bits of the city I hadn't previously covered, such as the bridge over False Creek by the Olympic Village (whose high rises are bedecked ...

Dispatches from Vancouver, Vol. V: A Tale of Two Hockeys (Commentary)

Wed, 24 Feb 2010 00:00:00 EST

Having left Vancouver for a long weekend in the Bay Area, I now arrived in the frozen desert. It was 38°F when I landed, and the temperature dropped below freezing overnight. Never mind that I was now over 1,000 miles south of the Winter Games; I had returned to winter for the first time ...

Using Guns to Protect Liberty (Commentary)

Wed, 24 Feb 2010 00:00:00 EST

In the landmark case District of Columbia v. Heller, the Supreme Court found that the Second Amendment protects an individual right to keep and bear arms. Because the District is a federal enclave, however, the court stopped short of deciding whether the Second Amendment applies to the states ...

Dispatches from Vancouver, Vol. II: First Impressions (Commentary)

Fri, 19 Feb 2010 00:00:00 EST

Today is my second day here, and so far my impressions can be summarized by paraphrasing the title of one of the movies I avoided on the flight over: cloudy with a chance of snafus. Indeed, with the overcast skies, periodic rain, and balmy temperatures — when not too snowy in more remote venue...

Dispatches from Vancouver, Vol. III: Da Da Latvija, Nyet Nyet Soviet (Commentary)

Fri, 19 Feb 2010 00:00:00 EST

Yesterday I went downtown to the Robson Square Celebration Site (Is that like Berkeley's free-speech zone such that you can't celebrate anywhere else?) to see if I could pick up a hockey ticket. I love using scalpers: no waiting in line at the official box office, no Ticketmaster "service" charge, n...

Dispatches from Vancouver, Vol. I: A Myth of Olympic Proportions (Commentary)

Wed, 17 Feb 2010 00:00:00 EST

The 2010 Olympics, held in the largest city ever to host a Winter Games, have not gone completely according to plan. Before the games even began, organizers lamented how Washington, D.C., was getting a surfeit of snow that would have helped certain venues. Then, a luger lost his life to a track t...

Christian Legal Society v. Martinez (Legal Briefs)

Wed, 03 Feb 2010 00:00:00 EST

Hastings College of the Law, a public law school in California, has a policy prohibiting discrimination on the basis of "race, color, religion, national origin, ancestry, disabilities, age, sex or sexual orientation." In 2004, the Christian Legal Society, a religious student organization at the school, applied to become a "recognized student organization" — a designation that would have allowed CLS to receive a variety of benefits afforded to about 60 other Hastings groups. While all are welcome to attend CLS meetings, CLS's charter requires that its officers and voting members abide by key tenets of the Christian faith and comport themselves in ways consistent with its fundamental mission, which includes a prohibition on "unrepentant" sexual conduct outside of marriage between one man and one woman. Hastings denied CLS registration on the asserted ground that this charter conflicts with the school's nondiscrimination policy. CLS sued Hastings, asking for no different treatment than is given to any registered student group. The district court granted Hastings summary judgment and the Ninth Circuit affirmed. The Supreme Court granted certiorari to determine whether Hastings's refusal to grant CLS access to student organization benefits amounted to viewpoint discrimination, which is impermissible under the First Amendment. Cato filed an amicus brief supporting CLS, in which we argue that CLS's right to intimate and expressive association trump any purported state interest in enforcing a school nondiscrimination policy. While Hastings may impose reasonable restrictions on access to limited public forums, it should not be allowed to admit speakers with one point of view while excluding speakers who hold different views. Our brief also discredits Hastings's assertion that its ability to exclude the public at large from school premises renders their content-based speech restrictions constitutional. We urge the Court to safeguard public university students' right to form groups — which by definition exclude some people — free from government interference or censorship.

Ruling on Hillary Movie Heralds Freer Speech for All of Us (Scholar Comments)

Thu, 21 Jan 2010 00:00:00 EST

Today the Supreme Court struck a major blow for free speech by correctly holding that government cannot try to "level the political playing field" by banning corporations from making independent campaign expenditures on films, books, or even campaign signs. While the Court has long upheld campaign finance regulations as a way to prevent corruption in elections, it has also repeated that equalizing speech is never a valid government interest.

After all, to make campaign spending equal, the government would have to prevent some people or groups from spending less than they wished. That is directly contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions about the freedom of speech.

No case demonstrates this idea better than Citizens United, where a nonprofit corporation made no donations to candidates but rather spent money to spread its ideas about Hillary Clinton independent of the campaigns of primary opponent Barack Obama, potential general election opponent John McCain, or any other candidates. Where is the "corruption" if the campaign(s) being supported have no knowledge, let alone control over what independent actors do? -- be they one person, two people, or a large group?

Today's ruling may well lead to more corporate and union election spending, but none of this money will go directly to candidates -- so there is no possible corruption or even "appearance of corruption." It will go instead to spreading information about candidates and issues. Such increases in spending should be welcome because studies have shown that more spending — more political communication — leads to better-informed voters.

In short, the Citizens United decision has strengthened both the First Amendment and American democracy.

Free Speech for All (Commentary)

Thu, 21 Jan 2010 00:00:00 EST

Will the Supreme Court's Citizens United decision destroy American democracy? You might think so given the responses of its critics. The Citizens United decision, far from signaling the fall of the republic, strengthens the First Amendment and freedom of speech. Let's start with the facts of the ca...

Indefinitely Confining the 'Sexually Dangerous' (Daily Podcast)

Fri, 08 Jan 2010 00:00:00 EST

Trouble in Paradise: Akaka Bill's Passage Would Threaten Many Hawaiian Institutions (Commentary)

Thu, 07 Jan 2010 00:00:00 EST

As we enter 2010, we can at least be thankful that another year has passed without the Native Hawaiian Government Reorganization Act becoming law. Rumors of it being attached to defense appropriations turned out to be unsubstantiated and, though the Akaka Bill has cleared the committee stage, it sti...

Privileges or Immunities Revival? (Daily Podcast)

Mon, 28 Dec 2009 00:00:00 EST

Skilling v. United States (Legal Briefs)

Thu, 17 Dec 2009 00:00:00 EST

Following Enron's downfall, the federal government charged company CEO Jeffrey Skilling with "honest services fraud" connected to the alleged manipulation of Enron's market value (and other securities irregularities). This charge — also at issue in two other cases before the Court this term — is based on a statute which states, in its entirety: "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." Skilling was convicted, and his conviction was upheld by the Fifth Circuit. The Supreme Court agreed to review the application of the "honest services fraud" statute to Skilling (as well as the issue of potential jury bias stemming from pretrial publicity in Houston). Cato, joined by the Pacific Legal Foundation, filed an amicus brief supporting neither party, arguing simply that vague statutes such as the one at issue here offend due process. We take no position on whether the "honest services fraud" statute can be construed in a way that satisfies due process principles, or whether Skilling in particular violated that statute. Instead, we argue that the Court should clarify that the constitutional prohibition on vague laws protects sophisticated and unsophisticated defendants alike in the realm of economic regulation, as well as in criminal law. The due process requirements of fair warning and definiteness apply equally in the contexts of white collar business crimes, business torts, and civil regulations. Vague laws involve three basic dangers: First, they may harm the innocent by failing to warn of the offense. Second, they encourage arbitrary and discriminatory enforcement because vague laws delegate enforcement and statutory interpretation to individual government officials. Third, because citizens will take extra precautions to avoid violating the law, vague laws inhibit our individual freedom.

Peekaboo, I See a Constitutional Violation (Commentary)

Mon, 07 Dec 2009 00:00:00 EST

Imagine a government agency with the authority to create and enforce laws, prosecute and adjudicate violations, and impose criminal penalties. Then throw in the power to levy taxes to pay for all the above. And for good measure, make the agency independent of political oversight. As any middle-sc...

Judicial Takings at SCOTUS (Daily Podcast)

Tue, 01 Dec 2009 00:00:00 EST

480.00 Acres of Land v. United States (Legal Briefs)

Mon, 23 Nov 2009 00:00:00 EST

In federal eminent domain cases, the "scope of the project" rule requires that in determining "just compensation" under the Fifth Amendment's Takings Clause, any increase or decrease in property value caused by the federal project be disregarded. Here, the federal government had discussed the idea of expanding Everglades National Park for over 30 years, and also induced the local government to enact tougher zoning standards that decreased the value of the property that was to be taken for this purpose. These federal actions forced Gilbert Fornatora to watch the value of his South Florida property decline until the federal government finally condemned it—and paid him much lower compensation than he would otherwise have received. Then, once condemnation proceedings began, the government manipulated the hearing schedule by front-loading ill-prepared owners who lacked counsel, thereby setting a low valuation precedent that would then be applied to the later parties with representation, like Fornatora. The Eleventh Circuit sided with the government, so Fornatora petitioned the Supreme Court to review the case. Cato filed an amicus brief supporting this petition, arguing that property owners have virtually no "scope of the project" protection if they must prove that the government's sole or primary purpose for pre-condemnation action was to depress property values for later eminent domain proceedings. A more workable test, consistent with due process, is merely to require evidence of a nexus between the government's actions and the depressed property value. The Court should also hear this case to ensure that just compensation proceedings comport with the due process, equal protection, and general fairness standards the government is required to follow in a variety of other settings.

McDonald v. City of Chicago (Legal Briefs)

Sat, 21 Nov 2009 00:00:00 EST

Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago's handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court has agreed to review the case and specifically consider whether the Fourteenth Amendment's Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states. Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban—who are represented by Alan Gura, who successfully argued Heller—and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment's framers and in direct contradiction to the developments in legal theory that underlay its adoption. We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine—that the Due Process Clause imposes something more than mere procedural limits on government power—was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.

Palmer v. Waxahachie Independent School District (Legal Briefs)

Thu, 05 Nov 2009 00:00:00 EST

School officials denied student Pete Palmer the right to wear a shirt supporting John Edwards's presidential campaign at his Dallas-area high school. They cited the district's dress code, which prohibited messages on student clothing except for those that supported school activities or district-approved organizations, clubs or teams. The Fifth Circuit agreed with the school district that this was a reasonable "time, place and manner" speech restriction. Applying the test from United States v. O'Brien, the court found that the dress code was content- and viewpoint-neutral, and served an important governmental purpose. Palmer now seeks Supreme Court review, citing seemingly contradictory precedents from the Second and Third Circuits and arguing that the regulation here flies in the face of the protection afforded to student speech by the famous case of Tinker v. Des Moines Independent Community School District. Cato, joined by the Institute for Justice, the Becket Fund for Religious Liberty, the Christian Legal Society, and the National Association of Evangelicals, filed an amicus brief supporting Palmer's petition and urging the continued use of Tinker. We argue that the Court should clarify its jurisprudence in this area to stop schools from applying broad restrictions in an attempt to avoid controversy and debate—and thereby threaten the very political and religious speech at the First Amendment's core. To prevent the chilling of student speech, the Court should solidify Tinker's central tenet, reaffirming that so long as speech doesn't "materially and substantially disrupt" the educational process, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

United States v. Comstock (Legal Briefs)

Wed, 04 Nov 2009 00:00:00 EST

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, one provision of which authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the Attorney General certifies to be "sexually dangerous." The effect of such an action is to continue the certified person's confinement after the expiration of his prison term, without proof of a new criminal violation. Six days before the scheduled release of Graydon Comstock—who had been sentenced to 37 months in jail for receiving child pornography—the Attorney General certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone. He and several others challenged their confinements as going beyond Congress's constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case. Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress's limited and enumerated powers. The government's reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely "carries into execution" the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers. While the government justifies its actions by invoking its implied power "to establish a federal penal system"—itself a necessary and proper auxiliary to certain enumerated powers—civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity. As the Supreme Court recognized almost 150 years ago in Ex Parte Milligan, "[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole," than the government's unconstitutional assertion of power against its own citizens. In this spirit, the Court should affirm the Fourth Circuit's rejection of this blatant government overreach.

First Amendment at SCOTUS (Daily Podcast)

Fri, 16 Oct 2009 00:00:00 EDT

Indiana State Police Pension Trust v. Chrysler LLC (Legal Briefs)

Tue, 06 Oct 2009 00:00:00 EDT

In January 2009, Chrysler stood on the brink of insolvency. Purporting to act under the Emergency Economic Stabilization Act, the Treasury extended Chrysler a $4 billion loan using funds from the Troubled Asset Relief Program (TARP). Still in a bad financial situation, Chrysler initially proposed an out-of-court reorganization plan that would fully repay all of Chrysler's secured debt. The Treasury rejected this proposal and instead insisted on a plan that would completely eradicate Chrysler's secured debt, hinging billions of dollars in additional TARP funding on Chrysler's acquiescence. When Chrysler's first lien lenders refused to waive their secured rights without full payment, the Treasury devised a scheme by which Chrysler, instead of reorganizing under a chapter 11 plan, would sell its assets free of all secured interests to a shell company, the New Chrysler. Chrysler was thus able to avoid the "absolute priority rule," which provides that a court should not approve a bankruptcy plan unless it is "fair and equitable" to all classes of creditors. Cato joined the Washington Legal Foundation, the Allied Educational Foundation, and George Mason law professor Todd Zywicki on a brief supporting the creditors' petition asking the Supreme Court to review the transaction's validity. We argue that the forced reorganization amounted to the Treasury redistributing value from senior, secured creditors to debtors and junior, unsecured creditors. The government should not be allowed, through its own self-dealing, to hand-pick certain creditors for favorable treatment at the expense of others who would otherwise enjoy first lien priority. Further, a lack of predictability and consistency with regard to creditors' expectations in bankruptcy will result in a destabilization of existing and future credit markets.

Independence Institute v. Buescher (Legal Briefs)

Mon, 05 Oct 2009 00:00:00 EDT

Article XXVIII of the Colorado Constitution requires any group supporting or opposing a ballot initiative to register as an "issue committee" and comply with many regulations, such as disclosing the identity of anyone who has donated more than $20. Or, should the state find that a group of citizens has as its major purpose supporting or opposing such a ballot issue, state law imposes registration and compliance requirements, including contribution limits. In 2005, political opponents filed a complaint against the Independence Institute for not complying with such regulations when it spoke against a ballot initiative. Although the think tank eventually beat back this challenge, the litigation proved expensive and time-consuming—so the Institute decided to challenge the law as an unconstitutional abridgement of its free speech rights. The Colorado courts rejected those claims, and the Independence Institute, represented by the Institute for Justice, now wants the U.S. Supreme Court to review those decisions. Cato has joined the Wyoming Liberty Group, the Center for Competitive Politics, the Sam Adams Alliance, the Montana Policy Institute, and the Goldwater Institute on a brief supporting the Independence Institute. We argue that Colorado's ballot campaign regulations run roughshod over constitutional protections for political speech and association, which lie at the very heart of the First Amendment—particularly for think tanks and other organizations that regularly comment on public policy matters. Loss of these First Amendment protections will chill think tanks' future attempts to educate the public about issues that are the subject of ballot campaigns. The Court should thus review this case and ensure that citizens maintain their associational rights—including the right to remain anonymous when donating to non-profits—and associations their freedom of expression.

Cato on Upcoming Supreme Court Cases (Scholar Comments)

Fri, 02 Oct 2009 00:00:00 EDT

Continuing its trend from this past term, the Court has further front-loaded its caseload with 56 arguments on its docket before the term has even started. Fortunately, unlike last year, we'll see many blockbuster cases, including:

The applicability of the Second Amendment to the States;
First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
an Eighth Amendment challenge to life sentences for juveniles;
a potential revisiting of Miranda rights;
federalism concerns over legislation regarding the civil commitment of "sexually dangerous" persons;
a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
judicial takings of beachfront property;
the "reasonableness" of mutual fund managers' compensation.

Perhaps more importantly, we also have a new justice and, as Justice White often said, a new justice makes a new Court. While Sonia Sotomayor's confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the "wise Latina" speeches that led people to question her commitment to judicial objectivity. Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent and the first term is not necessarily indicative. Key questions for the new Court's dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right. We've already seen her make waves at the Citizens United, campaign finance reargumen by questioning the scope of corporations' constitutional rights, so it could be that she will decline to follow Justice Alito's example and jump right into the Court's rhetorical battles.