RSSCategory: Court Decisions

A Supreme Court Opinion to heed

July 10, 2013 | By | Reply More
A Supreme Court Opinion to heed

Back in 1971, Justice Hugo Black issued an extremely well-reasoned concurring opinion in the case of New York Times v United States. Many things have changed since 1971, but this clear-headed opinion addresses many aspects of the current controversy involving Edward Snowden. Back in 1971, The NYT had begun publishing installments of the then-classified Pentagon Papers, which indicated that America’s war efforts were a sham, and that America had little to no hope of success in the conflict. This was sharply at odds with what U.S. politicians had be telling the public. In response to the initial publication installments, President Richard Nixon’s Attorney General, John Mitchell, filed an injunction action seeking to prevent publication of further installments. The injunction was granted, and the case quickly rose up for review by the United States Supreme Court. There was no majority opinion, but the divided court did vote 6-3 to reverse the trial court and to allow the NYT to continue publication. The following excerpts are from Justice Black’s concurrence:

“[T]he injunction against the New York Times should have been vacated without oral argument when the cases were first presented … . [E]very moment’s continuance of the injunctions … amounts to a flagrant, indefensible, and continuing violation of the First Amendment. … When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights … . In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe … . In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. … [W]e are asked to hold that … the Executive Branch, the Congress, and the Judiciary can make laws … abridging freedom of the press in the name of ‘national security.’ … To find that the President has ‘inherent power’ to halt the publication of news … would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’ … The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security … . The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.

The government had based its case on the Espionage Act of 1917. I’m reprinting an excerpt from the Act immediately below. One can immediately see how vague (arguably constitutionally defectively vague) and broad (arguably constitutionally overbroad) at least this portion of the Act is, something to keep in mind when considering that this is the law the government is supposedly enforcing in modern times to punish whistle-blowers, including Bradley Manning and Edward Snowden.

Section 793(e) of the act (a section that Snowden was apparently charged under) makes it a criminal offense to do the following:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.

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Democracy: More than majority rule

July 7, 2013 | By | Reply More

At Salon.com, Nicholas Buccola explains that a true democracy does more than merely count the votes. It is more than mob rule. The context is Justice Scalia’s dissent in United States v. Windsor.

While the right to govern ourselves collectively is part of the “the beauty of what our Framers gave us,” it is not the whole of it. This right exists alongside the rights of individuals to be treated with dignity and respect. In his Windsor dissent Scalia all but mocks the majority’s concern for the “personhood and dignity” of individuals and contends that not only should the government be free to exclude same-sex couples from the institution of marriage, but he reminds us repeatedly that he believes the government should be empowered – if the majority wills it – to imprison homosexuals for making love in the privacy of their own homes.

What one cannot detect in Scalia’s Windsor dissent is an appreciation for the idea that true democracy entails not only collective self-government, but respect for the right of the individual to govern his own conduct. Scalia’s dissent has all the markings of a brand of democracy too shallow to accept. Genuine democracy – like the conception of democracy defended by Frederick Douglass – is far more worthy of celebration this Fourth of July weekend.

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Judge Richard Posner skewers Justice Antonin Scalia’s so-called originalism

September 19, 2012 | By | 3 Replies More
Judge Richard Posner skewers Justice Antonin Scalia’s so-called originalism

In his recent detailed article published in The New Republic,The Incoherence of Antonin Scalia,” Judge Richard Posner has taken United States Supreme Court Justice Antonin Scalia’s theory of textual originalism to task. Yes, this article presents an extended series of technical legal analyses, but it is written in a way that many lay readers can appreciate. It should be read by anyone who wants to understand the repeated protestations by Justice Scalia that when he rules on case, he is doing so by rigorously paying attention to the actual words of enacted laws. [More . . . ]

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US claims it is illegal to challenge illegal spy statute in court

July 19, 2012 | By | Reply More
US claims it is illegal to challenge illegal spy statute in court

We are definitely living in Orwellian times, based on the following article from the Electronic Frontier Foundation, which I am reprinting in its entirety (it is licensed by Creative Commons):

EFF Challenges National Security Letter Statute in Landmark Lawsuit

Since the first national security letter statute was passed in 1986, the FBI has issued hundreds of thousands of such letters seeking private telecommunications and financial records of Americans without any prior approval from courts. Indeed, for the period between 2003 and 2006 alone, almost 200,000 requests for private customer information were sought pursuant to various NSL statutes. Prior to 2011, the constitutionality of this legal authority to investigate the records of Americans without court oversight had been challenged in court — as far as we know — exactly one time. EFF is today releasing FBI-redacted briefing from a major new ongoing case in which it is challenging one of the NSL statutes on behalf of a telecommunications company that received an NSL in 2011. Not only does this briefing show that the Department of Justice continues to strongly protect the FBI’s NSL authority, it highlights a startlingly aggressive new tactic used by the Department of Justice: suing NSL recipients who challenge the FBI’s authority, arguing that court challenges to such authority themselves amount to breaking the law.

National security letter statutes — five in all — are controversial laws that allow the FBI to easily bypass courts and issue administrative letters on their own authority to telecommunications companies and financial institutions demanding information about their customers. The NSL statutes permit the FBI to permanently gag service providers from revealing the fact that the demand was made, preventing them from notifying either their customers or the public. While the statute has many deficiencies, one of the core constitutional issues (already recognized by one federal appeals court) is that it turns the First Amendment’s procedural prior restraint doctrine on its head by allowing the FBI to issue a never-ending prior restraint on its own, then requiring the recipient service provider to undertake a legal challenge. Another fundamental problem with the NSL statutes is that courts are all but written out of any part of the process: the FBI can issue demands for records and gag provisions without court authorization, and recipient telecommunications and financial companies have no way to determine whether and how the government might be overreaching or otherwise abusing its authority. Not surprisingly, given these significant structural barriers, legal challenges are extraordinarily rare.

EFF brought its challenge on behalf of its client in May of 2011, raising these and other fundamental due process and First Amendment concerns about the structure of these problematic statutes. In response, the Department of Justice promptly filed a civil complaint against the recipient, alleging that by “stat[ing] its objection to compliance with the provisions of” the NSL by “exercis[ing] its rights under” the NSL statute to challenge the NSL’s legality, the recipient was “interfer[ing] with the United States’ vindication of its sovereign interests in law enforcement, counterintelligence, and protecting national security.” While it ultimately agreed to a stay, temporarily suspending its suit against the recipient, the government has moved to compel disclosure of the subscriber information and to uphold the gag. The petition to set aside the NSL is currently pending before the United States District Court for the Northern District of California. Whether the recipient will be permitted to speak out about its specific experiences — and whether the FBI will be permitted to issue NSLs, at least in one district — should soon be known.

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Proposed new law to protect bloggers from SLAPP suits

July 19, 2012 | By | Reply More
Proposed new law to protect bloggers from SLAPP suits

Join EFF and the Public Participation Project in calling on Congress to support the PETITION Act, strong federal anti-SLAPP legislation. The concept is simple: when a blogger faces a legal threat for legitimate online content, she can file a motion to get the case dismissed quickly. If the case is found to be frivolous in court, she won’t have to pay the legal fees.”

Here is discussion of a meritless suit against Matthew Inman that illustrates the need for such a law.

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Fighting loan sharks at the Missouri Supreme Court

June 25, 2012 | By | 9 Replies More
Fighting loan sharks at the Missouri Supreme Court

More than 180,000 Missouri Citizens signed petitions to allow Missourians to vote to put a cap (of 36%) on payday loans and other small consumer loans this coming November. Here is some background information on the ballot initiative. But then the predatory loan industry lawyered up, bringing multiple suits to throw out all of the signatures in an attempt to destroy this ballot initiative.

Today, John Campbell and I traveled to Jefferson City to participate in an afternoon of oral arguments before the packed courtroom of the Missouri Supreme Court. John and I (we both work with The Simon Law Firm in St. Louis) also helped to write an appellate brief on behalf of those who seek to allow Missouri voters to decide this critically important issue this November. There was lively argument before an attentive court on numerous contentious issues drummed up by the predatory loan industry. We expect a ruling from the Missouri Supreme Court within the next month on this issue. It is our hope that the Court will rule that Missouri citizens will have the final say on whether loans that currently run from 300% – 500% will be capped at no more than 36%. This is critically important because these loans are currently dangerous products that trap consumers in long-term debt, and drive many people into foreclosures and bankruptcy. For many decades, Missouri did fine without loan-shark rate interest rates, and it’s time to make things right. Stay tuned.

If you want more detail, all of the appellate briefs can be read at the site of the Missouri Supreme Court.

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The Chamber of Commerce is perfect before the U.S. Supreme Court

June 24, 2012 | By | 1 Reply More
The Chamber of Commerce is perfect before the U.S. Supreme Court

The Chamber of Commerce can do no wrong before the United States Supreme Court this term, as reported by the Constitutional Accountability Center:

With today’s decision in Southern Union Company v. United States, the Chamber has declared victory in all seven of its cases that have reached a clear outcome (two are additionally classified as “other” because the Court avoided addressing the issue at stake on procedural grounds, and in one the Chamber filed on behalf of neither party).

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Federal judge strikes down NDAA indefinite detention

May 17, 2012 | By | Reply More
Federal judge strikes down NDAA indefinite detention

Federal judge Katherine Forrest of the Southern District of New York provided a tremendous, though rare, victory for those who believe in basic civil liberties, which have taken a massive beating in the context of the alleged “war on terror.” Amy Goodman and her guests (Chris Hedges, a journalist who filed the suit challenging the NDAA along with six others, and Bruce Afran, the group’s attorney) offer insight into the ruling:

In a rare move, a federal judge has struck down part of a controversial law signed by President Obama that gave the government the power to indefinitely detain anyone it considers a terrorism suspect anywhere in the world without charge or trial — including U.S. citizens. Judge Katherine Forrest of the Southern District of New York ruled the indefinite detention provision of the National Defense Authorization Act likely violates the First and Fifth Amendments of U.S. citizens. . . . “This is another window into … the steady assault against civil liberties,” Hedges says. “What makes [the ruling] so monumental is that, finally, we have a federal judge who stands up for the rule of law.”

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Behind the scenes regarding Citizens United

May 14, 2012 | By | 3 Replies More
Behind the scenes regarding Citizens United

The New Yorker offers a detailed behind the scenes look of the final decision of Citizens United. In this article, Jeffrey Toobin credits Chief Justice John Roberts with the way the Court analyzed and ruled on the case:

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

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