Monday, November 1, 2010
"Anna Nicole Smith Trial" Results and Convictions
Wednesday, August 25, 2010
What's Going On In Arizona?
So, this topic has been introduced to us a couple months ago and that's the new Arizona immigration law that would take effect July 29.
This new law, "directs officers to question people about their immigration status during the enforcement of any other laws such as traffic stops and if there's a reasonable suspicion they're in the U.S illegally." But it's the "suspicion" part of the equation people have the most problem with. How can you tell what an illegal immigrant is before you look at their papers? Well, because it's Arizona, the police will be looking for Hispanics...but not all Hispanics are illegal and not all Hispanics carry their Immigration Visas around with them or their birth certificates.
That's where the racial profiling comes in, because they're saying this race is illegal and therefore we have the right to pull them over, etc. But what really is racial profiling? This term has been popping up in the news fairly regularly, but I have an inkling many people don't really know what it is or why it's "wrong". Reason magazine states, "Although there is no single, universally accepted definition of 'racial profiling,' we're using the term to designate the practice of stopping and inspecting people who are passing through public places -- such as drivers on public highways or pedestrians in airports or urban areas -- where the reason for the stop is a statistical profile of the detainee's race or ethnicity." That is the definition of racial profiling and that's what the Arizona law wants the police to do.
To put this all in layman's terms, the Supreme Court has ruled before that immigration falls under the category of something the federal government dictates. They go on to connect this with the supremacy clause to make the point that their laws go above what the state government does. After hearing the case and looking at the current laws Judge Bolton ruled on the case recently and issued an injunction to stop the law from taking effect. One of her reasons for issuing the injunction was because , "Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced."
In my personal opinion, I think she made the right decision.
Further reading:
Tuesday, August 10, 2010
Anna Nicole Smith Trial: Day One Recap
Monday, August 9, 2010
Elevator Quotes
So, we have decided to chronicle some of the funniest things we've heard on the elevator going to court. Please enjoy:
Sheriff's Deputy 1: Man, I hope they didn't tow our car!
Deputy 2: Yeah, then we'd have to take the subway back to Long Beach for the rest of our work day.
Deputy 1 (to Anya and Ashley): Did you guys drive here? Do you have a car? Are you going to Long Beach?
Ashley: No, we took the subway.
Deputy 2 (The 6’5’’, 220 lb. man with a gun and awesome tattoos): Was it scary?
********
Random Press Guy 1: "These elevators are about the only thing slower than the criminal justice system."
Everyone Else In The Elevator: *General chuckles, snickers, and murmurs of agreement*
Random Press Guy 1: Speaking of, you know, the legal system is like a constipated elephant. Nothing happens for months, then suddenly there's a huge pile of crap that nobody wants to deal with.
Everyone Else In The Elevator: *Dies of laughter*
Random Press Guy 2: You . . . really have a way with words, man!
That's all for now, but we will be going into court this week too so hopefully we'll have some more quotes for ya'll.
"All arise for the Hon. Judge..."
Sunday, August 1, 2010
Speak Up to Remain Silent: An Analysis of Berghuis v. Thompkins
Anyone who's seen even one episode of a cop show on TV knows the Miranda warnings: "You have the right to remain silent. Anything you say can and will be used against you in a court of law." And so on. What most people don't realize is that those are simply the rights enumerated in the fifth and sixth amendments. Police have been required to inform suspects of those rights since the Supreme Court's ruling in Miranda v. Arizona in 1966. After those warnings, a suspect can request a lawyer, or they can start talking to the police.
The ruling in Berghuis v. Thompkins, though decried by some as an abuse of suspects'/prisoners' rights, is actually a welcome clarification as to how these rights can we waived or claimed. It says that "If the accused makes an 'ambiguous or equivocal' statement or no statement, the police are not required to end the interrogation". In other words, if you want to remain silent, you must say so. Simply remaining silent is not enough to claim the right against self-incrimination, a statement something along the lines of "I'm not going to talk to the police" must be made. (Sotomayor's dissent criticized that decision, because she said police were not likely to inform suspects what words to use to invoke their right. I . . . don't think it's that hard to figure out.) This is not a decision that comes out of the blue: The Court already rules in Davis v. United States that a suspect's right to counsel must be unambiguously invoked; there is no reason to treat the right to remain to silent any differently.
The facts of the case are these: Van Chester Thompkins was arrested in 2000 for his role in a drive-by shooting in Michigan. As Lyle Denniston wrote for SCOTUSblog, "At the beginning, they warned him about his rights, and asked him to read part of the list out loud, to make sure he understood English. But he refused to sign the form, showing he understood his rights. There is a dispute about whether he ever was asked orally whether he understood the warnings." During his three hour interrogation, he was mostly silent, answering very few questions (when he did answer, it was in monosyllables). Near the end, the officers asked if Thompkins prayed to god for forgiveness for shooting the boy, and Thompkins answered "yes". That was used as his confession in court, and he was convicted. He later appealed, saying that he, by his general uncooperativeness, had invoked his right to silence. After all the state courts ruled against him, he finally won in the Sixth Circuit. Michigan appealed to the Supreme Court.
Although I don't agree that this is a sweeping re-writing or gutting of the Miranda ruling, warning, or rights, this case offered the opportunity for such re-interpretation. But the thing is, Thompkins really did himself no favors during his interrogation. As Justice Kennedy says, “If Thompkins wanted to remain silent, he could have said nothing in response to [the detective's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation.” Thompkins had answered some questions earlier in the interrogation, and he had refused to answer others. He could easily have not said anything.
This ruling is a welcome clarification for suspects and police officers alike. As the American Thinker wrote, "In assessing the rights and requirements of both law enforcement and the accused, the Supreme Court has applied a reasonable standard to both parties while balancing the rights of the individual with the necessity of protecting lawful interrogations." Under this decision, it will be clear what statements are and aren't admissible in Court. Miranda requires that a suspect "knowingly and intelligently" waived his rights. Well, Thompkins answered questions posed to him by the police. I can't think of any situation in which that would not be considered a waiver of the right to remain silent. Thompkins follows established precedent (the Davis case) and places responsibility on both the police and the suspect, protecting both their rights, while making it easier for the police to gain admissible confessions legally an constitutionally.
As a side note, I find it rather amusing that I, the liberal, am siding with the conservatives in this case; and Ashley, the conservative, is siding with the liberals :).
Further Reading:
Monday, May 24, 2010
McDonald v. Chicago: Brief for the Respondents, by Alyssa & Veronica
IN THE
Supreme Court of the United States
————
No. 08-1521
————
OTIS MCDONALD, et al., Petitioners,
v.
CITY OF CHICAGO, Respondent.
————
On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit
————
BRIEF FOR RESPONDENTS CITY OF CHICAGO AND VILLAGE OF OAK PARK
————
Ms. Chief Justice, and may it please the Court:
The Second Amendment should not be incorporated and applied to the States because the right it protects is not necessary to the idea of ordered liberty. For the past two centuries or so, firearms regulation has been administered by state and local governments.
The Second Amendment is different from the rest of the Bill of Rights because it protects firearms. Firearms — unlike anything else protected in the Bill of Rights — have the power and are designed to injure and kill. The reason the framers created this Amendment was that they feared the Federal Government disarming the militia. The right to self defense — while, yes, very important — "had little to do with its codification" as stated in Heller.
The Second Amendment is unique in that it's a right that gets controlled in accordance with local conditions, with local cultures and with local views about the questions of how best to protect public safety. States should be allowed to regulate guns as they see fit, seeing that they know the problems of their own states best.
With a strict interpretation of the Constitution, one could argue that the right of a person to bear arms is clearly stated, however, we are asking the Court to interpret this law in light of society's current needs and the community's concern. In today's society, is it "fundamental" to a person's well-being to carry a gun? No. Also, the historical record shows that the ratifiers of the 14th Amendment had no reason to suspect that it would make the 2nd Amendment, never mind the whole Bill of Rights, applicable to the states.
McDonald v. Chicago: Opinion of the Court, by Chief Justice Anya Prynn
Our AP Government class did a mock court session on McDonald v. Chicago, a gun control case. Ashley wrote for the petitioners, I was Chief Justice, and we have guest bloggers Alyssa and Veronica writing for the respondents.
_________________
No. 08–1521
_________________
OTIS MCDONALD, et. al., PETITIONER v. CITY OF CHICAGO
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[May 20, 2010]
At issue in this case is whether or not the Second Amendment should be incorporated as against the states. This Court rejects the petitioners’ argument that the Privileges or Immunities clause of the Fourteenth Amendment is a suitable vehicle for such incorporation, moreover, this Court believes that incorporation by any means should be avoided. This stems from nearly 200 years of precedent, as well as concerns about how such incorporation would affect states’ police powers and the ability of police officers to effectively protect ordinary people. A second argument, not fully explored in the oral arguments but often used in incorporation cases, for incorporation through the Due Process Clause, also fails upon a closer examination.
A
The clauses at issue are found in §1 of the 14th Amendment, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (United States Constitution Amend. XIV). The petitioners argue that this language should be sufficient to force the States to adhere to any and all provisions set forth in the Bill of Rights. In so arguing, however, they fail to take into account that the Court has struck down that reasoning ever since the Slaughter House Cases, 83 U.S. 36 (1873) where they found that the Fourteenth Amendment protects only those rights which “owe their existence to the Federal government, its National character, its Constitution, or its laws”. The right to bear arms is not such a right; even the petitioners freely acknowledge that it is considered a fundamental right, one that dates from old English common law. Other rights which are now considered even more “fundamental” than gun ownership, such as freedom of speech, were not always so considered and therefore merit the extra protection that incorporation provides.
Aside from the fact that the Court has never incorporated any provisions from the Bill of Rights against the states through the Privileges or Immunities Clause, incorporation in such a way has rather disturbing consequences.
The right to keep and bear arms is not a right granted by the Constitution. What the Constitution does do is prevent the federal government from infringing on that right. While the petitioners in this case may view the difference between “the government may not prevent people from bearing arms” and “citizens have the right to bear arms” as splitting hairs, such a distinction has been made ever since United States v. Cruikshank 92 U.S. 542 (1876), when Chief Justice Waite ruled that
“[The right to bear arms] is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
The right to bear arms is therefore an unenumerated right in the Constitution. Petitioners would wish to see it included in the Privileges or Immunities Clause even if the Second Amendment, the core issue in this case, was not included in the Constitution. Suddenly, it becomes impossible to define the exact reach of the Fourteenth Amendment; any person who imagines that one of their rights, enumerated or unenumerated, is being challenged, can take their case to court. For 140 years, the Due Process Clause has been used to incorporate the Bill of Rights, while acknowledging that the Privileges and Immunities Clause, although valuable, does not have a part in the incorporation debate. This Court is loath to overturn such precedent, and the petitioners’ performance during oral arguments did nothing to change that view.
A better path to take would have been to argue for incorporation based on the Due Process Clause. While briefly explored during oral arguments, this path was not covered in as much depth. However, because it has been used in every other incorporation case, it would be a sad mistake to not address it here. While still not enough to justify incorporation, it makes more sense to use it as a basis for argument because of its long history in incorporation cases.
There can be no question that handgun bans -- or indeed, any weapons bans, including the Chicago one -- have no issues under procedural due process as long as they are properly passed by the state or local legislatures. Substantively, however, they merit closer examination. Because the issue here is a fundamental right and also raises a Constitutional question, we apply the strict scrutiny test. The test, designed in Footnote Four of United States v. Carolane Products 304 U.S. 144 (1938) as a more rigorous version of the rational basis test, is applied to cases involving fundamental rights. States must show that there is a compelling government interest in infringing on individuals’ rights and liberties, as well as showing that the law or policy in question is narrowly tailored to achieve that interest. In this case, the government interest is obvious: protecting the lives and safety of its citizens (this goes along with police powers, which will be discussed more in depth in a later section). It is this court’s judgement that that interest is sufficiently compelling to allow gun regulations and bans, even though such legislation may facially appear to contradict the Constitution. As to the legislation being narrowly tailored, this Court sees no reason why a ban on several specific types of weapons, which are known to play central roles in multiple types of violent crimes violates this stipulation.
Also worth discussion here is the text of the Second Amendment itself, which reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” (United States Constitution, Amendment II). The version ratified by the states, however, reads “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed”. Regardless of which version is considered, it should be quite clear that the amendment is meant to provide for the people’s right to bear arms in national defense. It sprung from the people’s distrust of both the federal government and the standing army. Nothing in either the text of the amendment or the intent of the Founders was meant to provide for individual self-defense; the dual purpose was to protect the people from the threat posed by the army, and to provide a supplement to the army when the nation as a whole faced a threat. Because the amendment was designed specifically to promote national security, it would be a mistake to apply it to the states.
An additional argument against incorporation here is the changed perception of the militia. In the brief for Kay Bailey Hutchinson and multiple other Congresspeople it is argued that “The Constitution vests Congress with authority to raise a standing army and to call forth and regulate the militia. U.S. CONST. art. I, § 8, cl. 12, 15-16”, and therefore incorporation would threaten Congress’s war powers. However, militias have both widely fallen out of use (the last use was during World War II, and that was only small-scale local action) and negatively viewed. State National Guard units have mostly taken over militia duties as originally envisioned, and police officers deal with individual altercations. “Militia” has become to many people the nebulous, gun-toting groups in the Midwest who get arrested for killing police officers (the Hutaree militia are one, albeit extreme, example of this). Even in the decades immediately following the ratification of the Constitution, during the Whiskey Rebellion and the War of 1812, the militia was viewed as ineffective. Not incorporating the Second Amendment (ie, letting the status quo prevail) would not mean that people would not be allowed to bear arms, and therefore does not place an undue burden on Congress’s war powers.
One last argument in this section has to do with the original intent of the Fourteenth Amendment. It has been argued in multiple articles and amicus briefs, and to a lesser extent in the oral arguments for this case, that the Second Amendment, above other amendments, is especially suited to incorporation because of the Fourteenth Amendment’s history. One of the major reasons for the Fourteenth Amendment’s passage was to constitutionally validate both the Freedman’s Bureau Act and the Civil Rights Act of 1866. Both those Acts had provisions to prevent the disarmament of black Union soldiers and to prevent states of the former Confederacy from denying their black citizens numerous rights, including their constitutional right to keep and bear arms. Does that mean that protecting Second Amendment rights was the main cause, or even one of the causes of the Fourteenth Amendment? No. It means that the Fourteenth Amendment was being used to stop discrimination, to ensure that rights applied equally to blacks and whites. The right to keep and bear arms was one of several rights that the Acts kept from being distributed only to select people based on their race.
With the Constitutional basis for our judgment explained, we move on to several other, more practical reasons for our ruling. Because the Second Amendment deals with possession of an instrument that is designed to kill and injure other people, it is necessary to consider the effects of incorporation in a different light than incorporation of other Bill of Rights provisions.
This is also an issue of federalism, and of state’s police powers. Forty-four state constitutions provide for the right to keep and bear arms (the exceptions are California, Iowa, Maryland, Minnesota, New Jersey, and New York). In nearly every case in which the arms right is protected, an individual right or a self-defense right is also explicitly protected. This leads to the question of why incorporation of an amendment written to apply specifically to the federal government is necessary. State and local governments know best how to combat crime in their own jurisdictions. A single, inflexible federal law has the power to do far more harm than good in this case. Each city has its own local flavor, its own problems with gang violence, drug deals, and violent crimes, and their administrators know better than the federal government which weapons should be restricted and to what extent the restrictions should go.
It is important to note that the Second Amendment is not unique in this respect. The Fifth Amendment right to indictment by a grand jury was held to be not incorporated against the state in Hurtado v. California, 110 U.S. 516 (1884). Both then and now, multiple state constitutions protect the right to a grand jury indictment. Justice Matthews, who wrote the majority opinion in Hurtado, was concerned that states be able to make their own laws without federal infringement, and that the Constitution not be considered static and bound specifically to any one time.
As per the police powers granted to states, states have the authority to make and enforce laws that provide for the public health and safety of its citizens. It is hard to imagine any laws more conducive to health and safety than those which restrict gun possession to those who have passed strict background checks, or those which keep the favored weapons of gangs out of their hands. Incorporation of the Second Amendment would unfairly restrict these police powers and prohibit state and local governments from protecting their citizens to the fullest extent.
We reject as naive and unfounded the petitioners’ assertion that gun ownership is a deterrent to crime. Both hypothetical situations presented as justification for incorporation are flawed. Flashing a gun (be it at police officers that one fears have nefarious intentions or at someone who is trying to attack one in the street) is often just an incitement to more violence, rather than a deterrence from violence. The street violence in particular that could arise from incorporation is chilling: one could be shot and possibly killed for minor theft, and gang violence could easily spill over into crowds of innocent passers-by. As to the idea of “someone is less likely to break into your house if they know you have a gun”, the burglar would have no way of knowing who does or does not own a gun. In any case, selective bans and restrictions do not unduly limit people’s ability to defend themselves.
The petitioners also do nothing to further their case by suggesting that even if the Second Amendment is incorporated, only “responsible people” will be allowed to own guns, and that restrictions and background checks would still be allowed. In essence, they seem to be arguing, nothing will change . . . except there will be more guns on the streets and available in black markets. While Heller left in place many restrictions on gun ownership, such restrictions seem to be contrary to the spirit of incorporation. Rights that have been incorporated (such as the right to a speedy trial and the right to notice of accusations) are generally incorporated in full, and with no restrictions. One major exception is the right to free speech, which can be limited at both a federal and state level by the Bad Tendency Test. For instance, one’s right to yell “Fire” in a crowded theatre is not protected by the First Amendment. There have been multiple cases which deal, essentially, with the topic of speech v. life. In such cases, the Court has ruled consistently on the side of life. In this case, where the topic of issue is guns (which are far more dangerous than words) v. life, there is no compelling reason to rule against life.
When considering whether or not to incorporate provisions in the Bill of Rights against the states through the Fourteenth Amendment, two general principles are considered.
The first and most restrictive was established in Palko v. Connecticut, 302 U.S. 319, 325 (1937), and is that of “ordered liberty”: rights in the first 10 amendments will be incorporated if they are “of the very essence of a scheme of ordered liberty”. The right to bear arms is not one such right. In fact, the proliferate and generally unregulated purchase and use of guns that will result from incorporation is detrimental to ordered liberty. To cite only two of the multitude of examples, guns used during the commission of violent crimes are used to deprive people of liberty (and on occasion their lives) and guns on the streets can be used to incite violence and prevent police officers from doing their jobs, which takes away from order. The argument that guns are necessary to the militia is both outdated (as explained above) and less significant when compared to the other, less noble and more dangerous uses of guns in the hands of many citizens.
The second principle, which is both more widely used and less restrictive, has largely replaced the ordered liberty standard. In Duncan v. Louisiana, 391 U.S. 145 (1968), the court held that all rights “fundamental to the American scheme of justice” should be applied to the states. This has allowed the incorporation of almost all elements of the Bill of Rights (Duncan itself incorporated the right to a jury trial in non-petty criminal cases). However, it does not apply to the Second Amendment. Indeed, as with the ordered liberty standard, this is an argument against incorporation in this case. Gun possession by civilian individuals traditionally has nothing to do with justice -- unless, of course, we are talking about vigilante justice. Such “justice” is not condoned nor desired by any rational government, and the fact that such “justice” could arise from incorporation is disturbing. Additionally, prosecutors at the federal and state levels would have a much harder time winning convictions in gun possession cases and in cases where guns are used during the commission of a violent crime. They may be pressured into accepting less restrictive plea deals for criminals, or be forced to release them all together. Incorporation is therefore not only not fundamental to justice, it would inhibit justice from being carried out.
It is in this Court’s best interest to consider the long-term effects of incorporation. The consequences are overwhelmingly negative.
Blanket incorporation of the Second Amendment would lead to potentially countless lawsuits, as people attempt to define the reach and scope of the newly incorporated amendment. Are background checks still allowed? What about gun shows? How tightly would purchases there be regulated, if at all? Would the ban on felons owning guns still be in place? The hours and money spent and wasted on such suits is incalculable.
This problem would not be solved by ruling for incorporation with restrictions. Heller was such a case, and in the year and a half after that decision, courts in multiple states faced over 190 suits. Even restrictions that Heller specifically cited as being left in place (such as 18 U. S. C. § 922(g)(9), barring people convicted of domestic violence from owning firearms) are being challenged and even overturned in federal courts (see United States v. Skoien, No. 08-3770, United States Court of Appeals for the 7th Circuit).
One group of people who will be greatly negatively impacted by Second Amendment incorporation are the police officers and law enforcement officials. Police, especially those who work in high-risk areas such as gang turf (which is, unfortunately, in abundance in many urban areas such as Chicago) will be put at a much greater risk if guns are as widely available as they would be under an incorporated Second Amendment. They will also have a harder time arresting suspects, and prosecutors will have a harder time gaining convictions, because of the Fourth Amendment’s exclusionary rule.
Incorporating the Second Amendment would also have an adverse effect on the Fourth Amendment, which protects against unlawful search and seizure. As noted in the brief for the Association of Prosecuting Attorneys, police officers are able to arrest people if they suspect the person of possession of an illegal weapon. In many cases, when investigating the people arrested, they are brought up on additional charges, such as drug possession. All of these arrests would be imperiled with an incorporated Second Amendment, because all weapons would be presumed legal. Any arrests in which the arrestee were armed could be challenged, and, in extreme cases, the very definition of “reasonable suspicion” in firearms cases could be imperiled. Prosecutors, as explained in II.C. would also be adversely affected.
Last but not least, it has been shown that these gun control laws are effective, both in stopping violent crimes and in bringing the perpetrators to justice. In just one instance, when the District of Columbia enacted its handgun ban, homicide rates dropped by 25% (Philip J. Cook et al., Gun Control After Heller: Threats and Sideshows from a Social Welfare Perspective, 56 UCLA L. Rev. 1041, 1076 (2009).
In holding that the Second Amendment does not apply to the states, this Court re-affirms a long line of decisions that have held exactly the same thing: Slaughter House Cases, 83 U.S. 36 (1873), United States v. Cruikshank, 92 U.S. 542 (1876), Presser v. Illinois 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894).
Incorporating the Second Amendment is an unjustifiable idea both legally and socially. The judgment of the United States Court of Appeals for the Seventh Circuit is affirmed.
It is so ordered.
If some of this doesn't quite track with what's in Ashley's brief for the petitioners, I'm sorry, we're in two different periods of AP Government and the arguments varied from class to class.
Sunday, May 16, 2010
When Animals, Federal Statutes, and the First Amendment Collide: An Analysis of United States v. Stevens
I have to start this post off with a confession. I am a Supreme Court junkie who spends far too much time on oyez.org reading SCOTUS decisions, listening to oral arguments, and generally happily wasting my time on the internet's biggest time sink. So I can say (pretty safely) that I am the first person Justice Samuel A. Alito Jr. has ever gotten kicked out of a library, and I was not at all surprised that I was.
No, I'm not kidding. I was, as usual, reading Oyez after school, and suddenly I was reading that Justice Alito was the sole dissenter in a decision that overturned a ban on videos depicting animal cruelty. Now, as a rule, I don't like Alito that much. I disagree with his interpretations of laws and the constitution, and am not a fan of his conservative ideology. But for this one case, I find myself in total agreement with him. And when I found that out, I might have been a bit . . . loud in my surprise/agreement. And, uhhhh did I mention we have a really strict librarian at our school? So yes, Justice Alito, it is partially your fault that I got kicked out of the library.
Anyway, that aside, this case is a very important one in terms of both free speech and animal cruelty laws. According to NPR, "the law was meant to prohibit a particularly gruesome genre of video called "crush videos" in which small animals are crushed by women wearing high heels, a sexual fetish practice many people find offensive on a number of levels. The particular case that made its way to the Supreme Court was about videos that showed pit bulls fighting other dogs or attacking animals like pigs." The 8-justice majority ruled that the law was too broad, and therefore unconstitutional under the first amendment. Alito takes a different view, stating in his dissent that he would instruct the lower courts to "decide whether the videos that respondent sold are constitutionally protected" (NPR).
With that background, let's move on to the facts/specifics of the case. Robert Stevens was convicted under Title 18, Section 48 of the U.S. Criminal Code, which bans the knowing creation, sale, or possession of depictions of cruelty to animals "with the intention of placing that depiction in interstate or foreign commerce for commercial gain" (18 U.S.C. §48). There are exceptions to this: if the work has "serious religious, political, scientific, educational, journalistic, historical, or artistic value", it is permissible to create/sell/possess the work (18 U.S.C. §48). Stevens' conviction "stems from an investigation into the selling of videos related to illegal dog fighting" (Oyez). The district court convicted him, and he appealed to the Third Circuit, arguing that his conviction was not valid because the federal statute was itself unconstitutional. Third Circuit reversed the district court, the government appealed to the Supreme Court, and Stevens won a 5-4 victory with a decision that upheld the Circuit based on the fact that the statute was broad enough to be unconstitutional.
The law is rather broadly worded; there are slight grey ares. Nevertheless, I am disappointed that this law was struck down, for several reasons. First, I agree with Alito when he blasts the Court for applying the overbreadth doctrine to §48. Second, I do not see any undue restrictions on first amendment rights.
In general, for a federal statute to be considered "overbroad", it must prohibit a substantial amount of protected speech. Since those acts have already been deemed illegal, and there have been no constitutional challenges to those laws, I don't see how overbreadth can be applied. As Stevens challenged the law on its face, he would typically have to prove "that no set of circumstances exists under which [§48] would be valid" (United States v. Salerno) or that the law has no "plainly legitimate sweep" (Washington v. Glucksberg). Because Stevens is a First Amendment case (neither Salerno or Glucksberg were), the Court uses a different standard, codified in Washington State Grange v. Washington State Republican Party which states that a law is overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." (Opinion of the Court, page 10).
In reading the opinion of the court, I see that they are chiefly concerned with hunting videos, and with videos of animals being killed for food. First, I see no reason why hunting videos would be covered under §48. Almost every single state has exceptions to their animal cruelty laws for wildlife/hunting (a comprehensive and specific list can be found in the appendix to Alito's opinion). Thus, they are clearly exempt under part (c) part (1) of the law, which states that the law only applies to videos depicting illegal acts. Even though the Court rather tortuously applies overbreadth because hunting is illegal in the District of Columbia, hunting would still be exempt under §48(b) because hunting can be (and usually has been) viewed as having "“scientific” value in that it promotes conservation, “historical” value in that it provides a link to past times when hunting played a critical role in daily life, and “educational” value in that it furthers the understanding and appreciation of nature and our country’s past and instills valuable character traits" (Opinion of Justice Alito, page 7). In regards to the second worry of the Court, animals being humanely slaughtered for food: such acts are not illegal under the criminal codes of most states, and therefore §48 cannot be applied. So it cannot reasonably be argued that §48 "bans a substantial amount of protected speech in absolute terms" (Opinion of Justice Alito, page 19).
Moving on to the first amendment issue, we run into a more complex can of worms. Free speech is generally considered one of the most fundamental rights: by the preferred position doctrine, it occupies a higher consideration when deciding cases than do most other rights. However, that doesn't mean free speech is absolute. Both the Bad Tendency Doctrine and the Clear and Present Danger Doctrine restrict what speech is protected under the first amendment. Speech can be limited if it might lead to harm or to illegal action, or if there is an imminent threat to society. So if you want to yell "Fire!" in a crowded theater (a bad idea in any case) that is not protected under your right to free speech.
With that explanation of free speech and its exceptions, let's consider how those guidelines apply to animal cruelty videos, be they crush videos, dogfights, or something else. Does this "speech" lead to harm or illegal action? Obviously, yes. All states have laws (of varying strengths) against animal cruelty, and videos promoting it not only show that people can get away with breaking the law, but that it's fun, and, guess what, you can do it too! As for harm, well, the harm done to the animals is blatant, and in many cases, irreparable. Is there an imminent threat to society? That's more difficult to explain, but again, I would argue "yes". Numerous studies have shown that it is a short step from killing/torturing animals to killing/torturing humans. Representative Gallegley, the original sponsor of the 1999 bill, points out that "The FBI, U.S. Department of Education and the U.S. Department of Justice consider animal cruelty to be one of the early warning signs of potential violence by youths" (ConsumerAffairs.com). And, once again, encouraging people to break laws is in no way beneficial. In this case, I would disagree with the Third Circuit and the Supreme Court when they say that there is not enough compelling government interest for §48 to survive strict scrutiny.
I would even go so far as to question the free speech aspect of this case. The law specifically states that the animal torture videos are illegal "if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place" (18 U.S.C. §48 (c)(1)). I referenced that section above, but in essence, what this section is providing for is the arrest and (possible) conviction of people who possess videos of themselves or others committing an illegal act. Justice Alito addresses this in his opinion, while connecting the crush videos the law was intended to ban with the dogfighting videos at the core of this case: "as with crush videos, moreover, the statutory ban on commerce in dogfighting videos is also supported by compelling governmental interests in effectively enforcing the Nation’s criminal laws and preventing criminals from profiting from their illegal activities." (Opinion of Justice Alito, page 19).
Okay, taking off my Judge hat, I will move on to the effect of this decision. First off, this decision severely limits the prosecutorial discretion of the government. As the majority of the Court says (repeatedly), §48 was originally intended to allow for the possession/sale/creation of crush videos. However, the government has used it to prosecute people for the possession/sale/creation of other videos depicting people torturing animals in ways that are also illegal -- dogfighting being just one example. In relying overmuch on original intent, the Court is making it more difficult for the government to prosecute people who wish to sell videos of themselves committing illegal acts.
Secondly, it brings into question multiple other Court decisions, most specifically those dealing with obscenity and child pornography. As noted previously, the courts have decided that some speech is unprotected; the Government asked in this case that a new category be added, saying in their brief "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs." The Court reacted badly to this view, claiming that, even though they have in the past decided that in cases of unprotected speech "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required" (New York v. Ferber, child pornography case). What I find interesting, and slightly hypocritical here, is this sentence: "We made clear that Ferber presented a special case: The market for child pornography was intrinsically related to the underlying abuse, and was therefore an integral part of the production of such materials, an activity illegal throughout the Nation." (Majority opinion, internal quotations omitted). Apart from the fact that the subjects are animals rather than human children, the market's relationship to the illegal act is the same in Stevens as it was in Ferber, if not more pronounced. The Humane Society found more than 3000 animal crush videos online before the 1999 law went into effect; once the law was passed, the market vanished virtually overnight -- only to reappear with a vengeance once the Third Circuit decision came out. With such a clear correlation, how can the court continue to justify Ferber, arguable one of the most important decisions in terms of protecting those who have no voice from harm and exploitation?
The Representatives behind the §48 are working to produce a more narrow version of the law, which will hopefully satisfy these critics while still doing an effective job of both preventing criminals from profiting from their illegal acts and protecting helpless animals.
Further Reading:
Friday, February 5, 2010
The Intrigue of Campaign Finance
A huge decision was made by the Supreme Court recently on the issue of Campaign Finance. The opinion basically states that banning campaign contributions for corporations is unconstitutional because that violates the first amendment (freedom of speech) and campaign contributions are a form of political speech. The case was Citizens United v. Federal Election Commission, No. 08-205 and was decided on a 5-4 vote. Justice Kennedy wrote the majority opinion and was joined by Chief Justice Roberts and Justices Thomas, Scalia, and Alito. Justice Stevens wrote the dissenting opinion and was joined by Justices Breyer, Ginsburg, and Sotomayor.
The other side to this argument is that corporate speech is not the same as individual speech. I don’t know about the strength of this argument because corporations are just made up of many people (the investors, the Board, etc.) and because of that they, generally, have more money than the individual. Should they not be allowed to practice their “free speech” and endorse whom they want because they have more money? The Supreme Court says not. And you may be thinking to yourself; how can they spend the money on campaigns? I don’t know all the logistics, but they have to get the shareholders approval for this because it is their money. So, that is a check on the CEO or the board so that they can’t spend money on campaigns without approval. Even if there isn’t an official “vote” before the money is spent, the shareholders can elect new board members and that is a huge power and check on this type of spending.
This case was so huge because it overturned two precedent cases (meaning these issues have already been ruled upon by the Court), which are Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission. Austin was a decision that basically said corporate restrictions on political spending, more specifically on the support or opposition of a candidate, are okay. McConnell v. Federal Election Commission was the case that upheld the Bipartisan Campaign Reform Act, generally known as the McCain-Feingold Act. McCain-Feingold “banned the broadcast, cable or satellite transmission of ‘electioneering communications’ paid for by corporations or labor unions from their general funds in the 30 days before a presidential primary and in the 60 days before the general elections.” When the Court overturns precedents it’s admitting that they were “wrong” on the previous issues. Because of “stare decisis”, which is, “the legal principle by which judges are obliged to obey the precedents established by prior decisions” (more:http://en.wikipedia.org/wiki/Stare_decisis), the Court really only does this rarely (like in the case of Brown v. The Board of Education of Topeka, Kansas which overturned Plessy v. Ferguson).
The ramifications of this decision are wide-ranging. First of all, we must realize that there are things that may not seem “right” that are protected by the law and that is the problem I have with this case. I do believe there shouldn’t be censorship on free speech and concur with Justice Kennedy’s statement that “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.” But I also agree with something Sandra Day O’Connor said: “Of course I’m worried about it” — ‘it’ being the potential of so much more political spending by corporations — “because so much money has been going into judicial campaign races in recent years. It has the effect of turning judges into these politically elected figures. And [what] the framers of our constitution tried to achieve…was an independent federal judiciary.” Now, she is only talking about the effect on the judiciary, but if that branch was somehow “compromised” by political spending which therefore turns judges into politicians with agendas, then that is most definitely unconstitutional because the judiciary established in the Constitution is supposed to be “independent” from politics and the bullying of politicians. Politicians seem to have views on this issue also. For example, Obama took a swipe at the Court in his State of the Union address when he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities.” This decision also affects elections of politicians generally; money is power. And because it seems like the person who puts the most money up wins the nomination for their party…well, that is also interfering with democracy. We, the people, are supposed to decide who our candidates are, not some elitist CEO or corporation with their own agendas. So how do we bridge the gap between free political speech and the hindering of our democratic processes? It looks like we haven’t figured that out yet.
Further reading:
- http://www.nytimes.com/2010/01/22/us/politics/22scotus.html
- http://www.cnn.com/video/data/2.0/video/living/2010/01/28/tsr.wolf.oconner.interview.cnn.html: Interview with Sandra Day O'Connor
- http://www.oyez.org/cases/2000-2009/2008/2008_08_205
- http://www.nydailynews.com/news/politics/2010/01/28/2010-01-28_full_transcript_text_of_president_obamas_2010_state_of_the_union_address_with_vi.html?page=1: Obama's State of the Union speech
Monday, January 18, 2010
"Only Loyal Love Can Bring You Happiness"
Perry v. Schwarzeneggerbegan in federal court today, launching what is sure to be one of the most high-profile cases of the year, if not forever (okay, maybe that's an exaggeration. But still). No matter what, this is going to be a fascinating case, for several reasons.
First, neither of the defendants in the case actually wants to defend Proposition 8. Attorney General Jerry Brown is a vocal opposer of Prop 8. Even Republican governor Arnold Schwarzenegger supports the lawsuit! Which leaves the plaintiffs fighting against . . . the original proponents of Prop 8, Dennis Hollingsworth et al.
Second, even pro-gay-marriage groups are uncertain if this case is the best way to proceed. Many think it's too soon, that risking defeat now risks making defeat permanent. I disagree. I think there couldn't be a better time. This is such a prevalent issue in society right now, and especially after the recent defeats in New Jersey and New York, we need this case more than ever.
But on to the issue itself. Was prop 8 legal? Welllllllll legal in the sense that its supporters went about putting it on the ballot properly. Legal in the sense that it denies marriage to a segment of the population? I say no. Besides my own personal beliefs, I believe there's plenty of precedent to back me up here.
- The Constitution. The Holy Grail of American politics, written by the founders to protect everyone from the tyranny of the majority. Back then, "majority" meant "uneducated, rabble-rousing farmers", and "tyranny" was "acting like George III of England, or really just any dictator in general". 'Course, this is different. But I see a majority (the people who voted 'yes' on Prop 8) and I see tyranny (denying couples the right to marry). Am I missing something here? Or is Prop 8 very contrary to the spirit, if not the letter, of the Constitution?
- 14th Amendment, Part 1. I know that only a ridiculously small percentage of Americans have even a passing knowledge of the Constitution, so let us help you out here. The 14th Amendment states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". There's more, but this is the part I want to talk about here. Privileges and immunities is a very broad term. What these really are have not been specifically enumerated in the Constitution, however the Supreme Court can rule if a certain right or privilege falls under this clause. The Court has done this for the right to acquire and retain property, the right of assembly, and habeus corpus. So, why not marriage? And if marriage, why not gay marriage? The anti-Prop 8 lawyers might hesitate to use this clause to support their arguments, because they would first have to prove that it applied to marriage. But in my view, anyone with a grain of sense understands that marriage -- in any form -- is a fundamental right. Even if you want to get technical an say that a marriage licence, like, say, a driver's licence is a privilege and not a right . . . guess what! Privileges are still protected by this clause!
- 14th Amendment, Part 2. Moving on through section 1 of the 14th amendment, we find that "nor shall any state deprive any person of life, liberty, or property without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws". Well, the California Supreme Court has decided that Prop 8 had enough "due process" behind it to deny people liberty (freedom to marry). But I believe that what they did not take into account is that Prop 8 is denying equal protection to gay couples . . . and equal protection cannot be taken away, even by due process. Domestic partnerships are not the same as marriages, they are only "almost equivalent" to them (from wikipedia). Yet they are the only option available to gay couples in some states; in others, they are denied even that.
- Brown v. Board of Education of Topeka, Kansas. The historic Supreme Court ruling that contended that the "separate but equal" doctrine established by Plessy v. Ferguson was unconstitutional. Civil unions give same-sex couples some (or all) of the benefits that opposite-sex couples have. While that is progress . . . separate but equal is not equal. Remember those restrooms that said "whites only" and "blacks only"? Well, it's like marriage has a big sign hanging off it that says "opposite sex couples only" and civil unions have a big sign that says "same sex couples only". While thats not technically true, because some civil unions are open to heterosexual couples, I think you get my point.
- Separation of Church and State. The supporters of Prop 8 have made no secret that their religion is one of the main reasons they oppose gay marriage. News flash, guys: no one's trying to tell you you have to like gay marriage. No one's trying to tell you that gay marriage "must" be taught in schools. No one is trying to tell priests that they have to marry gay couples, if they don't want to. Marriage is a civil institution, as well as a religious one. Open your eyes, open your minds, stop spreading lies.
- The Futility of the "Tradition" Argument. Right, so this one isn't a strictly legal argument. But let me tell you some other things that have been justified by their being "tradition". Slavery. Denying women the right to vote. Heck, denying women any rights. The ban on interracial marriages. To some extent, the ban on abortions. And now, the ban on gay marriages. Tradition has been used to justify denying so many people civil rights that it shouldn't really come as a surprise that gay couples are next on the list. But look around you. Slavery is gone, women have equal rights, no one is allowed to deny a mixed-race couple a marriage licence, and abortion is legal. Precedent? I think so. I hope so.
- And in the end, shouldn't the full faith and credit clause of the Constitution have made gay marriage legal everywhere after Massachusetts legalized it in 2004? I admit that mine and Ashley's understanding of that particular clause is less than perfect, so if anyone has any better idea, please share!
Ultimately, Jerry Brown has said it best: "Proposition 8 violates constitutionally protected liberties. There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights. If every fundamental liberty can be stripped away by a majority vote, then it's not a fundamental liberty."
- http://www.npr.org/templates/story/story.php?storyId=122447805&ft=1&f=1001
- http://www.nytimes.com/2010/01/12/us/12prop8.html?src=twt&twt=nytimes
- http://www.latimes.com/news/nation-and-world/la-na-prop-8-12-2010jan12,0,7701011.story
- http://en.wikipedia.org/wiki/Perry_v._schwarzenegger
And yes, I have (rather) shamelessly cribbed the title quote from Sinead O'Connor's song "What Doesn't Belong to Me". Credit where credit is due . . . it's a great song!
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