Harvey Silverglate is an adjunct scholar with Cato.

For more information about the work of FIRE, go here.

Over at Cato’s Police Misconduct Reporting Project, we have named the worst case for the month of November. It was the repeated, forced cavity search of two young men—in separate incidents—in New Mexico. 

The first victim, David Eckert, was pulled over by police for failing to make a complete stop at a stop sign. After a police K‑9 who was uncertified for drug searches indicated the presence of marijuana, the officers told a judge that the victim appeared to be “clenching his buttocks” and requested a body cavity search warrant, which the judge granted. The officers took Eckert to a local hospital and requested that doctors perform the search, but the hospital doctors refused. The cops then took Eckert to a second hospital, in a neighboring county that was not covered by the warrant, where they found doctors willing to perform the search.

First, the doctors took an x‑ray of Eckert’s abdomen, which showed no hidden drugs. Next, they forcibly probed Eckert’s anus with their fingers, which again uncovered no drugs. Undeterred, the doctors inserted an enema and forced Eckert to defecate in front of the officers: again, no drugs. The enema search was repeated twice, and still no drugs were found. Another x‑ray was taken: no drugs. To cap off Eckert’s nightmare ordeal, the officers had the doctors sedate him and perform a colonoscopy, probing his anus, colon, rectum, and large intestines. No drugs found. All of this was done against Eckert’s protest, in a county not covered by the search warrant, with part of the search done after the warrant had expired.

The second victim, Timothy Young, was brutalized in a similar manner after he was pulled over for failing to signal before making a turn, and after another marijuana indication by the same non-certified police dog. He was taken to the same hospital as Eckert and subjected to similar searching methods against his protests.

Cato’s Police Misconduct website often reports instances of police rape and sexual misconduct. In those cases, the offending officers typically do not contend that they have the legal right to abuse their victims’ bodies and are typically punished for their crime, even if often more lightly than others would be punished. Cases like this are entirely different. These cases show that officers can drum up warrants—for a dog’s bark and a perceived “clench”—to repeatedly and forcefully penetrate the depths of the human body for hours on end, and still think they have the power and lawful authority to repeat the process. Even worse, the futile, repeated nature of the searches seriously calls into doubt whether the officers were actually searching for drugs or just torturing the victims under the banner of law enforcement.

Today is a great day for freedom. On this day in 1933, the 21st Amendment was ratified, thus repealing Prohibition. My former colleague Brandon Arnold wrote about it a few years ago:

Prohibition isn’t a subject that should be studied by historians alone, as this failed experiment continues to have a significant impact on our nation.

Groups like the Women’s Christian Temperance Union, a key force in the passage of Prohibition, survive to this day and continue to insist that Prohibition was a success and advocate for dry laws.

Prohibition-era state laws, many of which are still on the books today, created government-protected monopolies for alcohol distributors. These laws have survived for three-quarters of a century because of powerful, rent-seeking interest groups, despite the fact that they significantly raise costs and limit consumer options. And because of these distribution laws, it is illegal for millions of Americans to have wine shipped directly to their door.

The website Repeal​Day​.org urges celebrations of the “return to the rich traditions of craft fermentation and distillation, the legitimacy of the American bartender as a contributor to the culinary arts, and the responsible enjoyment of alcohol as a sacred social custom.” It’s easy! You don’t have to hold a party. Just go to a bar or liquor store and have a drink.

Repeal​Day​.org says that “No other holiday celebrates the laws that guarantee our rights.” I think that’s going too far. Constitution Day and Bill of Rights Day do exactly that. And in my view, so does Independence Day. But that’s quibbling. Today we celebrate the repeal of a bad law. A toast to that!

Cato celebrated the 75th anniversary of repeal with this policy forum featuring Michael Lerner, author of Dry Manhattan: Prohibition in New York City; Glen Whitman, author of Strange Brew: Alcohol and Government Monopoly; Asheesh Agarwal, Former Assistant Director of the Federal Trade Commission’s Office of Policy Planning; and Radley Balko, Senior Editor, Reason.

For the second time this fall, Cato has filed a brief supporting a lawsuit challenging the power of cities to stifle and regulate speech by licensing tour guides—effectively restricting who may lawfully speak to an audience about the city’s history. 

In September, we filed a brief supporting “Segs in the City,” a segway touring company challenging a D.C. law which made it illegal to give tours in Washington, D.C., without completing a licensing process that involves a thorough history exam. Now we’ve filed a brief in the U.S. Court of Appeals for the Fifth Circuit, again joined by First Amendment expert Eugene Volokh, in support of a group of tour guides challenging New Orleans’ licensing scheme. (Both the D.C. and New Orleans guides are represented by our friends at the Institute for Justice.)

Like D.C., New Orleans only licenses guides who can pass a history test. In addition to that blatantly unconstitutional speech restriction, the Big Easy also requires licensees to submit to periodic drug tests. All that just so they can talk about the history and culture of New Orleans without spending five months in prison!

We argue that the licensing regime is a content-based restraint on speech and therefore must pass the strictest judicial scrutiny, so the government needs a compelling reason for it and has no other way of accomplishing the same goal. The law is a content-based speech regulation in that it is (a) triggered by the content of speech, and (b) justified on the basis of the content that it regulates. The Supreme Court has repeatedly held that a law regulating the content of speech—as opposed to its location, timing, or manner—is subject to strict scrutiny. The justifications offered for the licensing law refer to the “sufficient knowledge” of the guides and the accuracy of their speech. That is as much a content-based justification as saying that people need to be protected from hearing “erroneous” political opinions or “controversial” historical theories.

Finally, we argue that tour guides are not members of a “profession,” such as lawyers, doctors, and accountants, which could merit less First Amendment protection in order to protect the public from harm. Unlike those professions, tour guides don’t have intimate relations with clients. Instead, like most businesses, they simply have customers. The government can’t possibly require authors, public lecturers, or documentary filmmakers to get licensed in order to protect the public from “misinformation,” and it has no more basis for licensing tour guides.

The Fifth Circuit will hear argument in Kagan v. City of New Orleans early in the new year.

This month’s Cato Unbound tackles an issue as old as humanity, and maybe even older: Sex work has been a part of nearly all human societies, even despite frequent prohibitions. Well, some say, we should allow it — but we should regulate it very heavily.

Lead essayist Maggie McNeill takes a much more libertarian view: simply allow it. Sex work is “not a crime, nor a scam, nor a ‘lazy’ way to get by, nor a form of oppression,” she writes. “It is a personal service, akin to massage, or nursing, or counseling, and should be treated as such.” As a former call girl and madam, she draws on personal experience, as well as the remarkable body of knowledge found at her blog, The Honest Courtesan. 

Obviously we wouldn’t be a journal of debate without some vigorous dissent, and it will come this month from a panel of three other experts in the field: Ronald Weitzer is a sociologist at the George Washington University; Dianne Post is an international legal advocate who works on gender-based violence; and Steven Wagner is the president of Renewal Forum, a nonprofit opposed to human trafficking. 

Be sure to stop by and see what they have to say over the coming week; feel free to reply in the comments. And if you like what you read, you should also follow us on Facebook and Twitter for regular updates.

The Supreme Court has long applied exacting scrutiny to limitations placed on the freedoms of speech and association. Unfortunately, the Court has not extended such protection to those forcibly unionized.

In Abood v. Detroit Board of Education (1977), the Court accepted that promoting “labor peace”—limiting the number of competing workplace interests that bargain over the conditions of employment—was an interest so compelling that a state may mandate its employees’ association with a labor union, forcing them to subsidize that union’s speech and submit to it as their exclusive representative for negotiating with the government regarding their employment. Since that time, more than a dozen states have forcibly unionized independent contractors who are paid through Medicaid.

In 2003, Illinois forced its home healthcare workers to join and pay dues to the Service Employees International Union as their sole representative before the state. Workers subject to this coerced association have challenged the law as a violation of their First Amendment rights and the case is now before the Supreme Court. Cato, joined by the National Federation of Independent Business, has filed an amicus brief in support. We argue that Abood was wrong when it was decided and should now be overturned. Abood simply assumed without analysis that the Supreme Court had already recognized “labor peace” as a “compelling interest.”

But the cases Abood relied on only regarded “labor peace” as justifying Congress’s exercise of its Commerce Clause authority to regulate labor relations, not as a basis to override workers’ First Amendment rights—and a Commerce Clause analysis is logically irrelevant to the First Amendment. Furthermore, Abood turns the logic of the First Amendment on its head: Unions are designated as the exclusive representatives of those employees that are compelled to support them for the sole purpose of suppressing the speech of dissenting employees, but under Abood it is exactly this suppression of speech that validates coerced association under the First Amendment. Such logic can’t be reconciled with the Court’s strict scrutiny of laws in other First Amendment contexts.

Even if the Court chooses to maintain Abood, it should reject the coercive programs at issue here because they’re unsupported by Abood’s rationale and serve no other compelling state interest. The homecare workers subject to the law aren’t employed by the state. Although they’re paid through a Medicaid disbursal, every crucial aspect of the employment relationship, including workplace conditions, hiring, and firing, is determined by the individual cared-for by the worker. The union is thus limited to petitioning the state for greater pay and benefits. Given this limited scope, there can be no serious claim that SEIU’s exclusive representation of some workers has freed Illinois from any great burden due to “conflicting demands” from other workers. Whatever Abood’s long-term vitality, that flawed case doesn’t support the compelled unionization of workers who are in no way managed by the state.

The Supreme Court will hear Harris v. Quinn on January 21.

This blogpost was co-authored by Cato legal associate Lauren Barlow.

While much attention has focused on the Senate’s recent vote to eliminate the ability to filibuster judicial and executive nominations, another aspect of constitutonal separation of powers will come to the fore in January when the Supreme Court hears argument in NLRB v. Noel Canning.

The Recess Appointments Clause, which gives the president the power to “fill up Vacancies” in federal offices and judgeships that “may happen during the Recess of the Senate,” allows the president to fill vacancies without going through the normal requirements of obtaining the Senate’s “advice and consent.” The Framers understood that, particularly during the nation’s early days, the president and the rest of the executive branch would be the only members of the government in Washington for the entire year, so important offices may become vacant while the Senate was out of session. The Recess Appointments Clause would thus be an important but rarely used exception to the normal confirmation process.

For nearly 200 years, however, presidents have been whittling down the clause’s requirements. For the first three decades of the Constitution, the clause was interpreted to apply only to vacancies that occurred during a recess—perhaps because a cabinet member died—and didn’t apply at all to vacancies that existed while the Senate was in session. During the Monroe administration, the attorney general first authorized appointments to offices that were vacant during the previous recess.

Next was the question, “what is a recess?” There are official breaks between Senate sessions, so-called “intersession” recesses, but the Senate also takes many breaks during official sessions—whether for Christmas, a weekend, or lunch—so-called “intrasession” recesses. During the Harding administration, the attorney general first authorized a recess appointment during an intrasession recess.

Then came the question of how long such an intrasession recess has to be in order to activate the president’s recess-appointments power. President Harding’s attorney general authorized an appointment during a 28-day recess, and that length has been decreasing ever since. Both Presidents Clinton and George W. Bush made recess appointments during 10-day intrasession recesses.

After Bush made some controversial appointments in this manner, Senate Majority Leader Harry Reid began holding pro forma sessions every three days during intrasession recesses in order to block further appointments. (During a pro forma session a lone senator gavels an empty Senate to order and 30 seconds later ends the session.) Some describe these as “sham” sessions, but they’re official according to the Senate’s rules. Since Reid devised these pro forma proceedings, both parties have used them to block potential recess appointments. According to the congressional record, the Senate is never out of session during these breaks for more than three days.

President Obama decided to push the degradation of the Recess Appointments Clause to its next logical step by declaring that pro forma sessions were not “actual” Senate sessions. He thus could ignore them and, on January 4, 2012, recess-appointed three members to the National Labor Relations Board, as well as Richard Cordray to head the Consumer Finance Protection Bureau. Legal challenges were immediately filed, and Obama has now lost in three lower courts. The U.S. Court of Appeals for the D.C. Circuit not only invalidated the president’s appointments, but returned the Recess Appointments Clause to its original meaning—that it only applies to vacancies that come into being during an intersession recess.

The government appealed that ruling to the Supreme Court, and Cato has filed an amicus brief supporting the challengers, a canning company. In the brief, we argue for the “lowest common constitutional denominator” that can decide the case. While we fully endorse returning the Recess Appointments Clause to its original meaning, the Court need not go that far. Indeed, the Court need only answer one question to invalidate President Obama’s recess appointments: “Who decides if the Senate is in session?”

Whereas previous presidents had taken the less egregious step of redefining a “vacancy” and a “recess,” Obama went further in defining an “actual” Senate session. We argue that separation of powers demands that the president not be allowed to meddle in the Senate’s internal processes, which the Constitution commits to the Senate’s discretion. (It would even be illegitimate for the Supreme Court to define a Senate session!) We also argue that the president created an ad hoc standard to define a Senate session, which arbitrariness only underscores how dangerous it is to allow the executive to encroach on the legislative branch.

Finally, we point out that the Recess Appointments Clause is on its last legs; unless the judiciary intervenes, there will only be political gamesmanship divorced from constitutional principle. Without the Supreme Court’s strong guidance, the Senate will increasingly have to jump through hoops of the president’s creation to perform its duty to advise and consent on nominations. After 200 years of drift, there’s no reason to believe the political shenanigans will stop here. The Court should stop this constitutional erosion now.