Topic: Law and Civil Liberties

Don’t Compel Doctors to Promote State-Favored Programs

Like all states, California has licensed medical centers of every kind. One particular type, often known as a “crisis pregnancy center,” provides pregnancy-related services with the goal of helping women to make choices other than abortion. Based on opposition to these centers, the California legislature enacted a law requiring licensed clinics “whose primary purpose is providing family planning or pregnancy-related services” to deliver to each of their clients the following message: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” But the law also creates an exception for clinics that actually enroll clients in these programs—so, in effect, it applies only to clinics that oppose the very program they must advertise.

Several of these crisis pregnancy centers sued to block the law, arguing that it violated their First Amendment rights by forcing them to express a message to which they are opposed. But the U.S. Court of Appeals for the Ninth Circuit upheld the law, holding that it regulates only “professional speech” and therefore should be reviewed under a more deferential standard, rather than the normal strict judicial scrutiny that applies to laws compelling speech. The centers have petitioned the Supreme Court to review their case; Cato has filed a brief supporting that petition.

Internet Speech 2016: More Regulation Needed?

Election law expert Nathaniel Persily has written an interesting article about the Internet and the 2016 election. The problems Nate (and others) see in 2016 will inform the debate about free speech now and in future elections.

Persily notes that the 2016 campaign saw an “online explosion of campaign-relevant communication from all corners of cyberspace.” Here’s his description of the Trump campaign’s social media efforts:

Employing traditional web-based communication, event promotions, new apps, native advertising (in which web ads are designed to look like articles in the publication containing them), and new uses of social media, the campaign launched 4,000 different ad campaigns and placed 1.4 billion web impressions (meaning ads and other communications visible to individual users)…the campaign targeted 13.5 million persuadable voters in sixteen battleground states, discovering the hidden Trump voters, especially in the Midwest, whom the polls had ignored.”

Trump himself tweeted a great deal, having 13 million followers by election day. But the mainstream media also picked up the tweets and prompted wide discussion and attention to them. Trump garnered about $4 billion in free media during the primaries and the general election, an astonishing sum. The new media thus drove the agenda for the mainstream media; in the past, the latter shaped the agenda for everyone.

From a First Amendment perspective, 2016 saw more speech by more people than previous elections. The election also showed that you can win the White House without dominating fundraising, an outcome that weakens the case for campaign finance regulation. Both results seem good for free speech.

However, Nate Persily is a learned and sensible analyst, and his concerns about 2016 merit our attention.

Supreme Court Reaffirms the Presumption of Innocence

On Wednesday, the Supreme Court decided a relatively small but important case out of my home state of Colorado. Colorado, like many states, imposes certain monetary penalties and costs on convicted defendants. Those can include court costs, docket fees, and payments into victim restitution funds. What happens, however, if a defendant’s conviction is later overturned, either by a higher court or on a re-trial? Can the once-convicted defendants easily get their money back, as would seem to be only fair? Not in Colorado, which is (was) unique in requiring that exonerated defendants go to court again to prove their innocence by clear and convincing evidence before they could get their money back. Thankfully, the Supreme Court, in a 7-1 opinion (Justice Gorsuch only began participating in cases in the last two weeks), held that Colorado’s “Exoneration Act” violates the due process guarantee of the Fourteenth Amendment.

Nelson v. Colorado is a combination of two different cases. One concerned Shannon Nelson, who was convicted by a jury of two felonies and three misdemeanors arising from the alleged sexual and physical abuse of her four children. Nelson conviction was reversed on appeal, however, and on retrial she was acquitted of all charges. In the course of her ordeal, Nelson paid $8,192.50 in costs and fees.

Louis Madden, the petitioner in the other case, was convicted of patronizing a child prostitute and third-degree sexual assault. His conviction was later overturned by the Colorado Supreme Court, and the state declined to retry the case. Madden paid the state $1,977.75 in the course of his legal troubles.

Although Madden and Nelson were innocent of their crimes in the eyes of the law–remember everyone is innocent until proven guilty by a legally proper trial (Cato’s brief in the case focused on the deep historical roots of the presumption of innocence)–they were faced with having to prove their innocence in a subsequent civil proceeding if they were to get their money back. Instead, they went all the way to the Supreme Court, arguing that it was unconstitutional to require them to do anything more to prove their innocence.

Writing for the Court, Justice Ruth Bader Ginsburg made fairly short work of Colorado’s law. “The sole legal basis for these assessments was the fact of Nelson’s and Madden’s convictions,” she wrote, and “absent those convictions” Colorado has “no legal right to exact and retain petitioners’ funds.” Once the convictions were erased, “the presumption of their innocence was restored” and “Colorado may not presume a person adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”

Eighteen Years After Columbine, What Have We Learned About Spree Shootings?

Eighteen years ago today, Dylan Klebold and Eric Harris walked into Columbine High School and murdered 12 students and a teacher, as well as injuring dozens more people. The mayhem ended when the two killers took their own lives as police closed in.

The massacre, perpetrated with guns and rudimentary explosives, created a political firestorm. Music, video games, and especially guns became lightning rods for outrage and demands for new legislation. The controversy re-energized gun control advocates and spawned Michael Moore’s award-winning anti-gun film Bowling for Columbine. Hundreds of new gun control bills were introduced, although few became law.

Subsequent school shootings, such as Virginia Tech in 2007 and Newtown, Connecticut in 2012, have generated similar cycles of gun control fervor followed by demands for new laws, but the fundamental debate remains the same: what can we do to effectively mitigate the risk of such tragedies?

In 2015 David Kopel attempted to answer this question by analyzing the efficacy of the types of gun control proposals that are so common after school shootings, including magazine bans, universal background checks, and assault weapons bans. He found little evidence that gun control legislation has been or could be effective at preventing spree shootings.

From the summary:

Although universal background checks may sound appealing, the private sale of guns between strangers is a small percentage of overall gun sales. Worse, the background check bills are written so broadly that they would turn most gun owners into criminals for innocent acts — such as letting one’s sister borrow a gun for an afternoon of target shooting.

Magazine bans are acts of futility because the extant supply is enormous. Today, magazines of up to 20 rounds for handguns, and 30 rounds for rifles, are factory standard, not high-capacity, for many of the most commonly owned firearms. These magazines are popular with law-abiding Americans for the same reason they are so popular with law enforcement: because they are often the best choice for lawful defense of one’s self and others.

Gun-control advocates have been pushing for a ban on assault weapons for more than 25 years. This proposal is essentially a political gimmick that confuses people. That is because the term is an arbitrarily defined epithet. A federal ban was in place between 1994 and 2004, but Congress declined to renew it after studies showed it had no crime-reducing impact.

What has occasionally proven effective at stopping spree shootings is the armed self-defense of would-be victims or bystanders.  Kopel notes, for instance, that shootings at Pearl High School in Mississippi and at Appalachian School of Law in Virginia were halted by armed bystanders.

Highly motivated killers who plan their attacks weeks or months in advance (as Klebold and Harris did) have an inherent advantage over their unarmed victims, and are unlikely to ever be deterred by criminal penalties. The best examples of these crimes being stopped in their tracks are examples of armed defense, not legislative preemption.

Notably, the Columbine tragedy did produce one effective policy change, but it wasn’t about guns. 

At the time of the shooting, standard police procedure for an active shooting situation was for the officer on the scene to cordon off the area and await the arrival of a SWAT team or other specialized unit to handle the crisis.

4/20, John Oliver, and Marijuana Reform

Since today is 4/20, a day that marijuana users celebrate, it is an appropriate occasion to consider government policy on this subject. All too often, people in the news media try to joke and chuckle about marijuana use. That’s unfortunate because there are very serious issues surrounding the government’s policy of criminalizing possession and use. 

More than 20 million Americans use marijuana regularly. Millions more use it occasionally.  In the eyes of the law, all these people are considered “criminals.”  That is absurd–and not unlike the sad chapter in U.S. history when the government tried to ban alcohol consumption. There is a marijuana arrest in the U.S. every minute of every day all year round. Some go to prison, some spend short periods in jail, others go to drug court. Everyone will get an arrest record. It is a tremendous waste of time and money.

John Oliver is once again on the mark with his critique of marijuana policy. Take a few minutes to listen to his words of wisdom, then blast it to your friends on social media and remind them that the war on marijuana isn’t just about those who choose to use marijuana any more than alcohol prohibition was just about those who liked to drink. The war has many destructive side-effects and should be ended immediately. During his campaign, Trump said marijuana legalization was a matter for the states to decide. If he’s not going to reverse federal law, he should at least allow the states to opt out of the war on marijuana. 

For related Cato scholarship, go herehere, and here.

Price, Sessions Force Trump’s Hand on Cost-Sharing Reduction Payments

In a recent op-ed at The Federalist, I argued Donald Trump has serious leverage over both Republicans and Democrats in Congress when it comes to ObamaCare:

President Trump can force Republicans and Democrats back to the negotiating table, and get a bill that keeps his promises to fully repeal Obamacare and to protect people with preexisting conditions…by simply undoing the illegal actions by his predecessor, which he has also already promised to do.

One of those illegal actions is the illegal exemption from ObamaCare that President Barack Obama granted members of Congress and their staffs.

Another is the illegal “cost-sharing” subsidies President Obama began issuing – and that President Trump is still issuing – to insurers participating in ObamaCare’s Exchanges. In a case where the House of Representatives challenged the payments, a federal judge ruled that issuing those payments “violates the Constitution” and ordered them to stop, pending appeal. The Obama administration was pursuing an appeal, but the Trump administration has not indicated whether it would continue to appeal that ruling or enforce the judge’s order. Trump must do one or the other.

Two of President Trump’s cabinet picks have practically forced his hand on this issue.

When the federal district-court judge issued her ruling striking down the cost-sharing subsidy payments, Health and Human Services Secretary Tom Price was a Republican member of Congress. He issued a statement endorsing the ruling:

Today, Congressman Tom Price, M.D. issued the following statement after a federal judge ruled in favor of House Republicans’ lawsuit against Obamacare, saying that the Administration does not have the power to spend money on “cost sharing reduction payments” to insurers without an appropriation from Congress:

“The ruling proves a momentous victory for the rule of law and against the Obama Administration’s overreach of Constitutional authority,” said Congressman Tom Price, M.D. “This historic decision defies the Obama’s Administration’s ask that the courts disregard the letter of the law and reasserts Congress’s power of the purse as defined by our nation’s founders in Article One of the Constitution.”

“In recent weeks, we’ve seen insurers announce that they will exit the exchange markets in 2017, further deteriorating patients’ access and choice to health care plans that they want. This is yet again proof that Obamacare is on an unsustainable path, and House Republicans must remain committed to repealing and replacing this law. As a member of the Health Care Task Force, I’m honored to be working with my colleagues to advance positive, patient-centered solutions to the challenges in our health care system.”

Price has made clear his view that Congress did not appropriate funding for these payments, and that continuing to make them would constitute executive overreach and violate the rule of law. If President Trump chooses to appeal the lower-court ruling, he would put Price in a situation where he would have to help implement a policy that he considers unconstitutional. Price arguably would have to resign.

Yesterday, Trump’s attorney general Jeff Sessions expressed his view that the payments are unconstitutional and that the lawsuit challenging those payments “has validity to it.” If Trump chooses to appeal the lower-court ruling, Sessions would be the guy who carries out that appeal. It would be…awkward for him to defend a policy he believes to be unconstitutional. If Trump asks him to do so, Sessions too may have to resign.

Continuing President Obama’s illegal cost-sharing reduction payments could cost President Trump two cabinet officials.

A Surprisingly Easy Supreme Court Win for Religious Nondiscrimination?

The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both of these religion clauses have been made applicable to the states via the Fourteenth Amendment. The continuing question is how they interact with one another – the play in the joints,” the Supreme Court has called it – in particular regarding when the government can treat religious institutions differently than secular ones, and when it must do so to avoid endorsing or entangling itself with religion.

Yesterday the Supreme Court heard oral argument in Trinity Lutheran Church v. Comer, which involves a Missouri program that provides subsidies to construct playground flooring out of recycled old tires. Trinity Lutheran Church runs a daycare center that had a playground open to the public, so it applied for a grant under the competitive program – and was denied solely because it’s a church. Missouri defended its position by citing a state constitutional provision that prohibits state funds from going to support religion. (For more on these Blaine Amendments, see this summary.) The U.S. Court of Appeals for the Eighth Circuit upheld the state denial, the Supreme Court agreed to hear the case, and Cato filed a brief supporting the church.

That’s when things got weird. The high court agreed to hear the case back in January 2016, but then Justice Antonin Scalia died. Even though briefing proceeded apace, the case wasn’t scheduled for argument before the end of the term in June. When the argument calendar was released for the new term that started in October, Trinity Lutheran was still not there. The conventional wisdom was that the justices must have thought that there would be a 4-4 deadlock. But then lo and behold in early February – days after Neil Gorsuch’s nomination – two other cases that had been granted at the same time as Trinity were scheduled for argument in March. A couple of weeks after that, when Gorsuch’s confirmation was by no means assured, the Court released its April calendar, which did include this religious-liberty case.

Was the Court simply confident that Gorsuch would take his seat in time, or did the chief justice think it unseemly to hold the case through another entire term? Either way, Gorsuch was indeed sworn in on April 10 – but that wasn’t the end of the drama. Late last week, the new governor of Missouri, Eric Greitens, changed the policy at issue, announcing that, going forward, religious organizations would be eligible for the scrap-tire subsidies, among other grants administered by the state’s department of natural resources.

The Court then asked the parties to submit letter-briefs about whether this latest development mooted the case or otherwise affected it. They both agreed that the argument should proceed, that the issue was a live one – in part because the governor’s policy decision could be reversed at any time and in part because lawsuits were expected over the reversal of course anyway. Curiously, the lawyer allowed by the state to argue for the old policy was the former solicitor general, who had been swept out of office along with the rest of the attorney general’s political appointees when Josh Hawley (a personal friend of mine, and a friend of Cato) was elected in November.

In any event, the argument proceeded apace and went very well for the church. Justice Anthony Kennedy opened the questioning by expressing concern for the use of religious status to deny government benefits. It was mostly downhill from there for the state, as Justice Samuel Alito launched into a devastating series of hypotheticals regarding Homeland Security funds for terrorism-prevention, grants to rebuild religious structures damaged in the Oklahoma City bombing, and other government transfers to pay for certain non-devotional expenses. Justice Stephen Breyer also got into that mix, questioning how provision of police, fire, and other public health protections okay but making playgrounds safe was not. Even Justice Elena Kagan, at first appearing skeptical of the church’s position, acknowledged her discomfort with the burden Missouri had placed on a constitutional right. Justice Gorsuch stayed quiet until the very end of argument, when he expressed bewilderment at how the Court was supposed to draw the line the state’s lawyer was suggesting between “general” or “universal” programs and “selective” ones like the scrap-tire grant here.

Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only ones suggesting opposition to the church’s free-exercise and equal-protection arguments, and they were also the only ones who seemed inclined to see problems of mootness or “adversariality” after the change in state policy. That’s surprising, because if indeed the case is headed to a 7-2 resolution, then it would’ve been 6-2 without Gorsuch and there was no need to hold it for so long.  

Anyhow, my basic position remains what it was when this saga began: Missouri isn’t required to have a scrap-tire grant program, but once it created one, it must open it to all without regard to religious status.

(For more case background and commentery, see the case’s SCOTUSblog page, read the argument transcript, and listen to my Federalist Society teleforum that will be posted soon.)