Topic: Law and Civil Liberties

Nat Hentoff, RIP

Cato Senior Fellow Nat Hentoff passed away on Saturday evening at age 91.  He was a leading authority on the Bill of Rights and most especially the First Amendment.  He authored 37 books and countless newspaper and magazine articles.  He is perhaps most well-known for his opinion articles in the Village Voice, where he wrote for 51 years, from 1957 until 2008.  He joined the Cato staff in 2009 and never stopped researching and writing.  A few years ago, he told me that he was following Duke Ellington’s guide with respect to his own work in defense of the American Constitution:

Rule 1: Don’t Quit

Rule 2: Reread Rule #1

Nat actually knew Duke and many other luminaries, from Malcolm X to Supreme Court Justice William Brennan.  He was a jazz expert, writing on music for the Wall Street Journal.  He often said that “jazz and the Constitution were his main reasons for being.”  He said his passion for jazz and liberty overlapped because they were both about respecting everyone’s individuality.  

Nat was bemused by both his fan mail and hate mail as the years passed.  He didn’t play the political game—he would condemn Democrats and Republicans alike if they attacked constitutional principles. And he was always enthusiastic when he found a member of Congress coming to the defense of the Constitution, such as Senator Russ Feingold’s (D-WI) lone vote (in the Senate) against the Patriot Act in 2001, or, more recently, Senator Rand Paul’s (R-KY) efforts to scale back the surveillance state.  Go here to view an interview with his thoughts on other current events.

Nat said one of the best things about losing his job at the Village Voice in 2008 was that it afforded him the opportunity to (sort of) read his own obituaries.  “Dig this one!,” he would tell me over the phone with a chuckle. 

Interestingly, when asked about his proudest achievement, he would say it was not anything he wrote.  He got an opportunity to work as a producer for a television special about jazz music in 1957.  He jumped at the chance to bring beautiful jazz music into the living rooms of folks who had never really been exposed to it before.  Here is Billy Holiday’s Fine and Mellow from that special.  According to Nat’s relatives, he passed away while listening to his favorite jazz tunes.

We’re sad you’re gone, but we celebrate your good life.  Rest in peace.

79% Want Police Misconduct Investigated by Independent Agencies

In most jurisdictions, local police departments typically conduct internal investigations of police officer shooting and misconduct complaints.[1] However, 79% of Americans would prefer that an “outside law enforcement agency take over the investigation” when an officer is suspected of criminal wrongdoing. Alternatively, 21% favor police departments conducting internal investigations of their own officers.

The proposal to have outside investigations of misconduct, rather than internal department investigations, enjoys broad public support. Overwhelming majorities across demographics and partisan groups, including majorities of blacks (82%), whites (81%), Hispanics (66%), Republicans (76%), independents (77%), and Democrats (83%), all favor outside investigations and prosecutions of officers accused of misconduct.

Find the full public opinion report here. 

For public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies.

 The Cato Institute/YouGov national survey of 2000 adults was conducted June 6–22, 2016 using a sample drawn  from YouGov’s online panel, which is designed to be representative of the U.S. population. YouGov uses a method  called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by  YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points.  The full report can be found here, toplines results can be found here, full methodological details can be found here.

 


[1] USCCR, “Revisiting Who Is Guarding the Guardians? A Report on Police Practices and Civil Rights in America,” U.S. Commission on Civil Rights, November 2000, http://www.usccr.gov/pubs/guard/main.htm.

Americans Want Police to Prioritize Fighting Violent, Property Crime, but Few Prioritize Drug War

Although Americans are divided in their perceptions of how police do their jobs, majorities across demographic and partisan groups agree on what law enforcement’s top priorities ought to be.

A newly released Cato Institute/YouGov survey of 2,000 Americans finds that when people are asked to select their top three priorities for the police they choose the following:

  1. Investigating violent crime like murder, assaults, and domestic violence (78%)
  2. Protecting individuals from violent crime (64%)
  3. Investigating property crime and robbery (58%)

Notably, only 30% think police should make enforcing drug laws a top three priority. Some may find these results surprising, given that police made more arrests for drug abuse violations (1.6 million) than they did for violent crimes (498,666) in 2014. The estimated number of violent crimes committed that year was 1.2 million.

Find the full public opinion report here.

Nineteen percent (19%) say police should make enforcing traffic laws a top priority. In other words, Americans de-prioritize the task leading to the most common interaction individuals have with the police—receiving a traffic ticket.[1]

Another 18% think police should prioritize going beyond traditional law enforcement responsibilities by “providing guidance and social services to troubled young adults.” And another 12% say police enforcing public nuisance laws is most important. 

Black, white, and Hispanic Americans, Democrats and Republicans prioritize the same top three tasks for law enforcement. However, groups differ in their intensity of support. African Americans and Hispanics (45%) and Democrats (51%) are less likely than white Americans (63%) and Republicans (63%) to prioritize the police investigating property crime and robbery. (Although this difference largely dissipates among individuals above the median income.) African Americans, Latinos, and Democrats (27%) are about twice as likely as whites (15%) and three times as likely as Republicans (9%) to say the police should prioritize “providing guidance and social services to troubled young adults.”

No racial group is more likely to prioritize the police enforcing drug laws—30% of whites, Hispanics, and blacks each say it should be a top priority. Even partisans generally de-prioritize fighting the drug war. Thirty-five percent (35%) of Republicans and 27% of Democrats say it should be a top three priority.

Despite these modest differences, Americans across partisanship and demographics agree that the police should prioritize fighting violent and property crime and protecting people from being victims of violence. 

For public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies.

The Cato Institute/YouGov national survey of 2,000 adults was conducted June 6–22, 2016 using a sample drawn from YouGov’s online panel, which is designed to be representative of the U.S. population. YouGov uses a method called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points. The full report can be found here, topline results can be found here, and full methodological details can be found here.


[1] Christine Eith and Matthew R. Durose, Contacts between Police and the Public, 2008, edited by Bureau of Justice Statistics (Washington, D.C.: U.S. Department of Justice, 2011), https://www.bjs.gov/content/pub/pdf/cpp08.pdf.

New SEC Chief Criticized Foreign Anti-Bribery Law. Good.

“Trump’s pick for SEC chair criticized U.S. anti-bribery enforcement in 2011 as too zealous,” gasps one tweet reacting to President-elect Donald Trump’s selection of Sullivan & Cromwell attorney Jay Clayton to head the Securities and Exchange Commission. In a subhead, the WSJ says Clayton “criticized SEC and [Department of] Justice handling of Foreign Corrupt Practices Act as overly aggressive.”

Good! Clayton is right to voice such criticisms. As I’ve argued in this space, the 1977 FCPA “is a feel-good piece of overcriminalization that oversteps the proper bounds of federal lawmaking in at least four distinct ways, any of which should have prevented its passage”: it is extraterritorialvicariouspunitive, and vague. It is not clear that a more carefully drafted law would have been a good idea; my Cato colleague Jeffrey Miron writes that while curtailing Americans’ involvement in overseas corruption may be a well-intentioned goal, FCPA “discourages U.S. companies from doing business abroad in the first place,” is readily circumvented in many situations, fails to distinguish between the most corrosive forms of bribery and those in which favors to officials are “an attempt to get around laws that make little sense in the first place”—such as restrictions on entering markets—and leaves some countries to welter in poverty if they cannot fix a local culture of baksheesh.

All of this was made worse by the Obama administration’s decision to step up the pace of FCPA prosecution, which ran into a series of rebukes from federal judges throwing out high-profile cases. Allegations of FCPA violations led to a great furor about Wal-Mart’s operations in Mexico that mostly fizzled later, while other prosecutions have been based on purported corruption oddly reminiscent of practices that go on right here in the U.S. without anyone prosecuting, such as Western banks’ alleged practice overseas of hiring young relatives of influential persons, something that has been known to happen in politics and the media here in Washington, D.C.

Don’t back down, Mr. Clayton.

When You Sue the Police, You Should Get Your Day in Court

Antonio Buehler was arrested in Austin, Texas, after recording a woman he believed was getting abused by police. The officer even threatened other innocent bystanders with arrest if they didn’t stop paying attention to what was going on. The officer later said that he arrested Buehler for spitting on him, but the video and independent witnesses dispute this and a grand jury refused to indict him for it. The grand jury did, however, indict Buehler for failure to obey the officer in putting his hands behind his back—but even on this charge he was found not guilty.

Now Buehler is trying to sue the police because he believes his arrest, along with two earlier arrests, were in retaliation for his video recording—a First Amendment-protected activity. The Austin Police Department moved for summary judgment on this lawsuit, claiming that the police should not be liable even if Buehler’s account is correct because he was indicted—and that indictment is conclusive evidence of the probable cause justifying his arrest. The federal district court granted this motion, dismissing the case, and the U.S. Court of Appeals for the Fifth Circuit affirmed that result.

Cato, joined by the National Press Photographers Association and five other media organizations, has filed an amicus brief asking the Supreme Court to take this case and give Buehler his chance to prove that the facts underlying the grand jury indictment were false. Instead of taking the grand jury determination as conclusive, the Fifth Circuit should have relied on the Supreme Court’s holding in Hartman v. Moore (2006) that probable cause “is not necessarily dispositive,” and even if it was that the plaintiff need only “plead and prove its absence.” Buehler has pled the absence of probable cause and seeks only to prove it.

Considering the facts that he has pled, where the officer explicitly told him after he was arrested that “it would have been so much easier if you would just pay attention to your own selves,” it’s reasonable for a jury to infer that this was the real reason for the arrest.

Sadly, Buehler’s travails aren’t isolated happenstance. Police around the country have been trying to put the technological genie back in the bottle by harassing those who are just trying to record what the police do. Even credentialed journalists have not been immune and many have been arrested on trumped up charges.

It’s for this reason that it’s critically important that the Court takes this case, not just to secure justice (or even a day in court) for Mr. Buehler, but to help all people like him who are pretextually arrested by police just because they choose to record what these law-enforcement agents do. Everyone deserves the opportunity to prove that the facts underlying one’s arrest aren’t true and to be awarded compensation for the government’s violation of our rights.

The Supreme Court will decide later this winter whether to take Buehler v. Austin Police Department.

A Proposed House Rule Could Lead to Good Constitutional Amendments

On Monday, House Republicans will vote on a possible addition to the House Rules proposed by Rep. Kevin Cramer (R-ND) and endorsed by Rep. Pete Sessions (R-TX), Chair of the House Rules Committee. The proposed “Tenth Amendment Rule” could incentivize states to propose useful, limited-government constitutional amendments without any fear of a “runaway convention” (not that such fears are justified, just prevalent and therefore worth a response). It could be the most important House rule change in a generation.

The proposed rule states in its entirety:

It shall not be in order to consider a bill, joint resolution, amendment, or conference report referring to the States for ratification under Article V of the Constitution of the United States any amendment to the Constitution which is proposed by a convention called by Congress pursuant to such Article unless the amendment is within the permitted scope of the convention, as authorized under each of the applications of the States calling for the convention or, if the resolution or other legislation enacted by Congress to call for the convention identified specific resolutions adopted by States to call for the convention, the amendment is within the permitted scope authorized by such resolutions.

In other words, the House cannot refer back to the states for ratification any constitutional amendment that wasn’t duly proposed by the states in the first place. No amendment convention would be able to go beyond its charge; states could limit such a convention to an up-or-down vote on a specific amendment. 

This proposed rule has been named after the Tenth Amendment because that provision reserves most power to the states and to the people – which suggests that the states and the people have the power to limit the scope of any Article V convention. James Madison indicated that states had that power when he wrote in Federalist 43: “It [the Constitution] equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

Since 1994, when the American people supposedly triggered a tectonic shift by ending 60 years of Democratic control of the House, efforts to restore the federal government to its limited, constitutional roots have either failed to win 60 votes in the Senate, been countermanded by the big-government aspects of the Bush administration, or been eviscerated by subsequent Democratic majorities. But in 2017, proponents of limited government have a new advantage: the legislatures of 33 states have Republican majorities looking to push back on Washington.

A coalition of congressional and state leaders could potentially persuade Congress to propose permanent constitutional limits on federal power and debt. There has never been a constitutional amendment enacted after a proposal by the states and then an Article V convention – because Congress has seen the writing on the wall and jumped ahead of any such actions by proposing its own amendment. Similarly now, if states, emboldened by the new House rule, start making calls for amendment conventions, Congress would almost certainly propose the very amendments the states want – and, again, refer only them for ratification.

What sorts of amendments are worthy of consideration? I wrote about one idea at the start of the new Congress four years ago, and no constitutional reform has become more evidently necessary than the rebalancing of federal power by requiring that Congress approve major new federal regulations. The House has already twice voted to do just that in the form of the REINS (Regulations from the Executive in Need of Scrutiny) Act. But a statute like the REINS Act could be challenged in court or repealed by a future Congress. A constitutional amendment would be permanent.

More than 900 state legislators, 6 governors (including Vice President-elect Mike Pence), a unanimous Republican National Committee, and resolutions passed by 19 state legislative chambers have already urged Congress to propose such an amendment – called the Regulation Freedom Amendment – and polls show 2-1 voter support for it.

Empowered by the 10th Amendment Rule, House Republicans could mobilize state allies to persuade Congress to move this sort of thing along, among other opportunities for lasting reform. It will be interesting to see how House Republicans react to this opportunity.

Thrown in Jail for Surfing the Web

Lester Packingham beat a parking ticket and celebrated on his Facebook page by proclaiming, “God is good! … Praise be to GOD, WOW! Thanks JESUS!” For this post, he was sentenced to prison—because he was a registered sex offender and a North Carolina statute bans such people from accessing a wide variety of websites. (Packingham took “indecent liberties with a minor” when he was 21, receiving a suspended sentence and probation, which he had completed.)

The law is meant to prevent communications between sex offenders and minors, but it sweeps so broadly that it conflicts with basic First Amendment principles. It doesn’t even require the state to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any other illicit purpose.

After the state court of appeals overturned Packingham’s conviction—finding the criminal “access” provision unconstitutional—the North Carolina Supreme Court, over vigorous dissent, reversed and reinstated the conviction and sentence. The U.S. Supreme Court took the case and now Cato, joined by the ACLU, has filed an amicus brief supporting Packingham’s position.

The North Carolina law bans access not just to what people consider to be social-media sites, but also any sites that enable some form of connection between visitors, which would include YouTube, Wikipedia, and even the New York Times. The statute is also vague, in that it covers websites that “permit” minor children to create profiles or pages—and you can’t even find out what a website “permits” without first looking at its terms of service—itself a violation of the statute. Even if the site purports to stop minors from accessing its content, it’s impossible for someone to know whether and how that contractual provision is enforced in practice. Someone subject to this law literally can’t know what he can’t do or say; the police themselves aren’t sure!

The statute also fails constitutional scrutiny because it criminalizes speech based on the identity of the speaker. It’s well established that a state may not burden “a narrow class of disfavored speaker,” but that’s exactly what happens here. The very purpose of the First Amendment is to protect the speech of disfavored minorities—which sex offenders certainly are. Signaling out this speech for prosecution—without any allegation that it relates to conduct or motive—should earn the Tar Heel State a big “dislike” from the Supreme Court.

The Court hears argument in Packingham v. North Carolina on February 27.