Verdict » : The Court May Take Up the Nondelegation Doctrine in <em>DOT v. Association of American Railroads</em> Legal Analysis and Commentary from Justia Fri, 24 Oct 2014 04:01:25 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Whether and Why Delegations of Government Power to Private Actors Are Problematic: The Court May Take Up the Nondelegation Doctrine in DOT v. Association of American Railroads Fri, 24 Oct 2014 04:01:25 +0000 Continue reading →]]> AmtrakAmong the interesting U.S. Supreme Court cases this fall is U.S. Department of Transportation v. Association of American Railroads, to be argued in about a month, involving the so-called “nondelegation” doctrine—the idea that Congress cannot lawfully delegate or cede legislative powers to other institutions or actors. If the Court ends up relying on some form of a nondelegation principle in striking down the federal statute at issue, the case would break important new ground.

Background on the Nondelegation Concept

The nondelegation idea gets fought over most often in the context of statutes that confers very broad—arguably overly broad—power to the executive branch. As I and other scholars have written, under the Necessary and Proper Clause of the Constitution, each constitutionally granted congressional power “implies a power to create authority under it sufficient to effect its purposes.” But for over 150 years, the Court’s decisions have been sprinkled with categorical statements that Congress may not relinquish any of its powers to enact legislation through grants to federal administrators. The first Justice Harlan’s statement of this nondelegation doctrine in Field v. Clark is typical: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

The Supreme Court has twice struck down federal legislation as having improperly delegated legislative power to the President, but both of these cases are more than 70 years old, and came from a Court that was known for its systematically ungenerous attitude towards congressional legislation. Since 1935, the Court has not invalidated a single congressional delegation of legislative authority to an administrative agency or the President, even though many grants of authority that have been upheld are arguably broader than those struck down in 1935. In 1974, when Justice William Douglas’s majority opinion in one case construed the fee-setting authority of a federal agency narrowly so as to avoid nondelegation problems, Justice Thurgood Marshall wrote:

The notion that the Constitution confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930’s, has been virtually abandoned by the Court for all practical purposes . . . The doctrine is surely as moribund as the substantive due process approach of the same era—for which the Court is fond of writing an obituary—if not more so.

The explanation for this judicial hesitance to intervene is easy to see: almost all laws create some significant enforcement discretion in the executive branch, and drawing a principled line between allowable standard-guided authorizations of executive power, on the one hand, and impermissible standardless delegations to the executive branch, on the other, is well-nigh impossible for courts to do. As a result, the Court simply said that Congress must lay down some “intelligible principle” by which the executive branch can determine how to enforce a law, and it has found every law that has come before it to have at least one such “intelligible principle.”

The Railroad Case Currently Before the Court

The case pending before the Justices involves a related, but arguably distinct, kind of nondelegation problem: delegation of lawmaking power by Congress to a private actor. Although the facts of the case are complex, in basic terms the statute under challenge works as follows: The Federal Railroad Administration (FRA), a federal agency that regulates railroads, is directed to work with Amtrak—a complicated hybrid entity that partakes of some private characteristics and some public features—to come up with some performance standards for Amtrak. If Amtrak falls too far short of meeting these standards, another federal agency is directed to investigate whether other railroads—whose rail lines are used by Amtrak—are not giving Amtrak sufficient access to the railways to permit Amtrak to perform better. So far, so good. The potential problem? If the FRA and Amtrak can’t agree on performance standards to be adopted, the FRA doesn’t have the power to override Amtrak’s resistance. Amtrak, in effect, has at least a temporary veto over the FRA’s proposals. In cases of such impasse, the FRA is limited to submitting the matter to an arbitrator, who then gets to decide which standards to adopt. And the statute by its terms doesn’t make clear whether the arbitrator must be a public official or institution, as opposed to a private actor.

Based on this statutory scheme, non-Amtrak railroads brought a challenge alleging that the statute gives private-sector entities (Amtrak and the arbitrator) a right to veto and determine the content of regulation of the railroad industry, including regulation of Amtrak’s competitors. Conferral of this power, the challengers argued, constitutes an impermissible delegation of federal lawmaking powers to private parties. The U.S. Court of Appeals for the D.C. Circuit agreed, calling the statute “legislative delegation in it most obnoxious form,” and observing that delegations to private actors create difficulties that “are even more prevalent” than those raised by delegations to the executive branch. Indeed, the D.C. Circuit observed that “even an intelligible principle cannot rescue a statute empowering private parties to wield regulatory authority.”

Resolving the Case Without Breaking New Nondelegation Ground

The Court may (indeed should) be able to dispose of this case without engaging a fundamental inquiry into the nondelegation doctrine as it applies to private actors. The Court could easily find Amtrak to be a public entity, in which case, at worst, the statute confers power in multiple federal executive agencies rather than to private entities, and (under the intelligible principle idea) the government would win.

The Court could also reasonably hold that the performance standards at issue here do not constitute lawmaking or regulation in any meaningful sense, since they are used—at most—to initiate investigations into whether non-Amtrak railroads have been violating federal law; the performance standards do not themselves apply to any other railroads. And quite often federal investigation of wrongdoing is triggered by private actors, so Amtrak’s role in devising standards that are used to help decide whether investigation of potential illegality is warranted should be unproblematic.

Or the Court might hold the outside arbitrator who resolves disputes between Amtrak and the FRA must be another federal governmental entity, such that private actors (even if Amtrak is deemed a private entity) do not in fact control or have a veto over the formulation of the standards. And many earlier cases make clear that mere involvement or input by private parties in the regulatory process does not, absent a private-party veto over proposed regulation, create delegation problems. Indeed, if the Court thinks a nondelegation problem were otherwise created by Amtrak’s role in the standard-setting process, and that the inclusion of a government arbitrator as a tiebreaker between Amtrak and the FRA would solve the problem, the Court would almost have to read the (ambiguous) statutory references to the arbitrator to mean government arbitrator, because the Court is ordinarily supposed to read ambiguous statutes so as to avoid, rather than create, constitutional questions.

But should the Court, for one reason or another, reach the core of the nondelegation claim, it will have to decide whether the D.C. Circuit is correct that alleged delegations to private parties cannot be cured by intelligible principles, and that such delegations constitute the most serious offense to the nondelegation norm. On these big questions, I am not at all sure the D.C. Circuit got it completely right. To see why, we must first look at where the nondelegation doctrine comes from. (Interested readers can consult earlier and more elaborate work I’ve published in the Vanderbilt Law Review, on which some of the ideas explained below are built.)

Background on the Nondelegation Idea Itself

The nondelegation doctrine is said to have both textual and theoretical underpinnings. Textually, Article I, Section 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). The theoretical justifications of the nondelegation doctrine stem from, as Professor Laurence Tribe has observed, “implicit constitutional requirements of consensual government under law.” As Tribe has explained, American political theory finds legitimacy of government in the “supposed consent of the governed.” This notion of consent presupposes the possibility of tracing governmental exercise of power to a choice made by a “representative” branch that is “politically and legally responsible” to the People. Thus, the valid exercise of a congressionally created power depends upon the prior “adoption of a declared policy by Congress and its definition of the circumstances in which its command is to be effective . . . .”

Both the textual and theoretical justifications for a nondelegation principle are open to question. First, it is not clear why the term “vested” in Article I means nondelegable. After all, Article II provides that “[t]he executive Power shall be vested in a President of the United States of America,” yet no one doubts that the President may transfer executive authority to his underlings in the Executive Branch. Moving from text to theory, why does the “traceability” requirement foreclose delegation? Why can’t we “trace” congressional delegations to the President back to Congress and hold it accountable accordingly? After all, as I just observed, the President delegates executive authority to unelected underlings, and yet we seem to believe that his accountability suffices under American democratic theory. Nor did “accountability” prohibit the People of the United States from delegating some of their sovereign power of self-determination to the federal government by ratifying the Constitution. The fact that the People have given temporary authority to federal institutions to govern on their behalf does not, under American democratic theory, mean that sovereignty has been “divested” from the People and permissibly delegated to the government.

Some might respond to my analogies by pointing out that the People are free to reclaim the power they have given to federal institutions through constitutional amendment, and that the President is free to reclaim authority he has given to his underlings at will. This is all true enough, but it suggests that delegations of power are not problematic per se, but that what might be driving at least part of the nondelegation concern is the ability (or inability) to reclaim power once delegated. This possibility is supported by seminal work done at the beginning of last century by Professors Patrick W. Duff and Horace E. Whiteside. These scholars attempted to uncover the origins of the Latin nondelegation maxim, “delegata potestas non potest delegari,” which most people understand to mean “delegated power may not be redelegated.” Their groundbreaking historical research established that the earliest forms of the common law agency nondelegation maxim—thought by many to explain much of the American constitutional nondelegation concern—were phrased somewhat differently: Delegated authority cannot “be so delegated, that the primary (or regulating) power does not remain with the King himself” (emphasis added). As Professors Duff and Whiteside conclude, the concern is that the “King’s power not be diminished by its delegation to others.” This reformulation focuses attention on one key aspect of the delegation problem: that delegation is more problematic when it is harder to reclaim.

This perspective would suggest that delegations to private actors are in some ways less problematic than delegations to the President. When Congress tries to reclaim delegations to the President, the President (who might be enjoying the delegation) can attempt to veto the proposed repeal law, requiring a supermajority of both houses to overcome. By contrast, if Congress doesn’t like the way Amtrak (if Amtrak be a private entity) is obstructing federal regulation, it can amend the statute to dilute or eliminate Amtrak’s involvement. And unlike the executive branch headed by the President, Amtrak (notwithstanding its political clout) cannot formally veto a subsequent reclamation attempt by Congress.

There are, of course, some ways in which delegations to private actors raise distinct constitutional problems that must be taken into account. Private actors (unlike the executive branch) have virtually no public accountability, and Congress may be too busy to address their misdeeds by repealing legislation. Moreover, and related, regulation in the hands of private actors often raises profound conflict-of-interest and anti-competition problems, with some market participants improperly empowered to make rules governing competitors. But these problems can be addressed without resort to the nondelegation problem; if private actors are wielding government power in ways that are unfair to other private actors, the Due Process and Equal Protection Clauses of the Constitution are the appropriate vehicles. Why might, say, due process be better than the nondelegation doctrine for these purposes?

One reason is that states have nondelegation doctrines that often mirror the federal approach. Indeed, state constitutions usually have the same kind of text (e.g., all legislative power is vested in a legislature and all executive power is vested in a governor) and theory as the federal Constitution, giving rise to doctrine substantially similar to federal law. When we think about application of nondelegation ideas at the state level, we see that due process review, which invokes an explicit balancing of interests, is the right kind of contextual approach to discern problematic delegations (such as giving General Motors a right to regulate car safety standards for its competitors, to use one of the D.C. Circuit’s examples) from unproblematic delegations (such as a minister being empowered to facilitate a civil marriage). (Indeed, even if the Amtrak case really does involve delegation to a private party, it is not clear to me that such a delegation raises major conflict-of-interest or anti-competition concerns – those questions would have to be looked at more carefully.) If we use an uncompromising nondelegation doctrine instead of due process, the system would lack the flexibility to distinguish true problems—where delegation creates harm to the interests of third-parties—from formalistic ones—where regulatory or implementation power may technically be performed by private actors, but in settings where such privatization does no real harm.

So I hope that, whatever the Court does in the Amtrak case, the Justices do not embrace an overly broad rejection of all delegations to private actors. And if the Court has problems with the empowerment of Amtrak, I hope the Justices explain how Amtrak’s involvement is unfair to other participants, and that they limit their holding to those kinds of situations.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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Ben Bradlee, R.I.P. Wed, 22 Oct 2014 19:46:46 +0000 The Washington Post during the Nixon Administration and handled the Post’s coverage of the Pentagon Papers and Watergate. Continue reading →]]> WatergateOn October 21, 2014, Ben Bradlee, who had served as the top editor of The Washington Post during the Nixon Administration, died at age 93. It was not unexpected, for several weeks earlier his wife, Sally, had appeared on C-Span with Brian Lamb and explained that Bradlee had entered hospice care with severe dementia and was sleeping twenty hours a day and eating little. A few days before his passing, I learned from a friend who was close to Ben that the end was near.

Given Bradlee’s legendary standing in the journalistic community it is not surprising that there has been an outpouring of complimentary commentary on his fabled career, with all of it noting that much of his legend centered on his handling of the so-called Pentagon Papers and Watergate. I can add nothing to the reports on his World War II experiences in the South Pacific, his skills as a French speaking (with a Boston accent) foreign correspondent in post-war Paris, his friendship with Senator and later President John F. Kennedy, and his years at Newsweek where he convinced the publisher of The Washington Post to acquire the financially floundering magazine, which it did, with Bradlee receiving a finder’s fee in stock that would later make him a very wealthy man. But I do know a good bit about his journalistic coverage of Richard Nixon, so I might offer a few passing footnotes.

My Last Visit With Ben

Ben Bradlee served in top editorial positions at The Washington Post from 1968 to 1991, and was associated with The Washington Post Company until his death, for he remained vice president at large until that time. Over the years we became acquainted at events undertaking post-mortem panel discussions on either the Post’s handling of Pentagon Papers or Watergate—or both. Often before or after the formal session, Ben would have questions about Nixon and his White House, trying to better understand the man on whom he had made his journalistic bones, so to speak. Sometimes I could answer his questions, other times not. But it was always fun to engage with him for he went right to the heart of any issue.

On June 17, 2012, The Washington Post took note that forty years had passed since the arrests of five burglars dressed in business suits and wearing surgical gloves in the Watergate offices of the Democratic National Committee, with the Post publishing its first Watergate story the next day. For the 2012 occasion, the Post leased the entire top floor of the Watergate office complex (then being renovated) and invited several hundred of the Washington “Who’s Who” for cocktails, hors d’oeuvres, and panel discussions about the Post’s coverage of Watergate. (For the first nine months following the arrests at the DNC it had been only the Post that seriously covered the story, with other national news organizations largely ignoring it.) Ben made a brief on-stage appearance at the event, but said little. It was well known in Washington that he was suffering dementia, but at 90 years of age he still looked great and gave all smiles and waves to the several hundred invited guests at this Watergate fortieth reunion of sorts.

Following this gathering Ben and his wife Sally held a small dinner buffet for those who had participated at their home in Georgetown—a house that had once belonged to Robert Todd Lincoln, the son of President Abraham Lincoln, which had been refurbished by later owners, including Ben’s wife Sally. I looked forward to visiting with Ben, but given his smiles-and-waves only appearance at the Watergate event, I did not expect much of a conversation, if indeed he even would remember me. Because I was heading for teaching a continuing legal education class with my co-presenter, Jim Robenalt, Sally graciously had included him in this small gathering, as well as Jim’s wife Joanna, a longtime reporter/editor at the Cleveland Plain Dealer.

To my delight, our host that evening was the Ben Bradlee of old. After being introduced to Jim and his wife, he remembered and called them by name the entire evening, even flirting with the very attractive Joanna Connors Robenalt. (Jo thought he was flirting with all the ladies.) More strikingly he remembered a story I had told him about J. Edgar Hoover in a conversation we’d had a decade earlier at an American Bar Association conference in Palm Beach, Florida. (Hoover had told me that Post syndicated columnist and muckraker Jack Anderson regularly dug into his trash cans in the alley behind his home where every morning Hoover’s housekeep deposited dog waste from newspapers left out at night for them: “Mr. Dean,” Hoover had declared, “Jack Anderson will go lower than dog shit for a story.” Ben had liked that story and had not forgotten it, much to my amazement.

Watergate and Pentagon Papers Coverage

Our conversation that evening some two years ago did drift in and out of Watergate. I mentioned I was working on a book that would be based on Nixon’s secret tapes, which were filling in many gaps in my knowledge. Until that evening’s conversation I had not known Ben have covered the Nixon/Kennedy 1960 presidential race. He explained that was when he first took a hard look at Nixon, he thought Nixon had lost that race because he was “a bungler,” and while I cannot recall all Ben’s words, in essence, he was telling me that he did not find Nixon nearly as clever or sharp as his reputation. He thought that Nixon’s ham-fisted cover up of Watergate and the other abuses of power in which he was involved were merely more evidence of Nixon-the-bungler than Nixon-the-criminal. At the time I was not far enough along in my work on the book to know if Ben was correct or not. Today, I know he instinctively nailed it. This is the bottom line of what the Nixon tapes reveal: Nixon bungled away his presidency, as I report in The Nixon Defense: What He Knew and When He Knew It.

Bradlee made another interesting observation that evening. With the passage of time he felt Watergate was not all that serious a matter. By comparison, he told me using colorful language, the Iran Contra scandal of the Reagan Administration was a much more serious matter, and notwithstanding an Independent Counsel investigation, and any number of intense journalistic efforts to dig out the story, the full story had never been told. Ben had little doubt that Reagan had been involved in activities that were far more deserving of impeachment than Nixon’s bungling cover-up.

Nor had been lost Ben’s sense of humor, for he was deeply appreciative of all the news copy Richard Nixon had provided the Post, and it had only helped the newspaper’s credibility when word leaked out that Nixon was banning Post reporters from the White House.

There was only a fleeting discussion of the Post coverage of the Pentagon Papers. Ben told me that he was driven by two matters. He said he had been pissed that the New York Times had scooped them on what should have been a Post story, so he went after the papers to catch up. And when Assistant Attorney General William Rehnquist (later Justice and Chief Justice) had called the Post and read them a stilted legal warning about what would happen if they published the secret classified material that Dan Ellsberg was leaking (quickly dubbed the Pentagon Papers), that he realized the Justice Department did not know what it was talking about. He had been in military intelligence during World War II, and familiar with classified materials from his work as a foreign correspondent, he knew the material they—and the New York Times—had was not really worthy of the classifications given it. It was more junk than secrets, more government lies being covered up than important national security information being revealed. Again, he thought Nixon’s response was bungled.

I was fortunate to visit with Ben on a good day. I know others who are in the process of the long goodbye of dementia, and it is terribly difficult for those who love and care for them. I have deep sympathy for Sally Quinn Bradlee, who has not only lost a man she loved but done so through a painful process. All who had the pleasure of knowing Ben understand that while Jason Robards did a wonderful job portraying him, in the movie “All The President’s Men,” Ben was much more colorful, dashing, daring, and I suspect demanding. And he clearly understood Richard Nixon better than most editors of the era, for which the entire country can be grateful. While he thought Nixon a bungler, he correctly thought him dangerous as well.

John W. Dean, a Justia columnist, is a former counsel to the president.
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Good2Go? Good and Gone? Why an Affirmative Consent App Is a Risky Proposition Tue, 21 Oct 2014 04:01:35 +0000 Continue reading →]]> Smartphone AffirmativeIn the past year, there has been a growing focus on the high incident of rape and sexual assault on U.S. campuses. In response to this, several parents with kids in college have developed an “affirmative consent” app known as Good2Go. This first-of-its-kind sexual consent app is designed to help students and young adults navigate the world of sexual relations and to teach them more than “no means no” This new app requires users to seek affirmative consent from their partners. In other words, that only a positive “yes means yes.”

Rather than verbal communication, Good2Go is meant to help potential partners to actually answer a series of questions and to document their affirmative consent via smartphone. The app also asks users to divulge their level of intoxication or sobriety via a self-assessment. As I will discuss below, the app, which was pulled from the Apple iTunes Store in early October, is a rather blunt instrument that raises concerns—both in terms of its evidentiary value as well as about the type of data that the app will collect and have stored.

How Does Good2Go Work?

Good2Go is a new smartphone app that encourages users to give consent before engaging in any sexual acts. The app targets college-aged adults. The Good2Go website, in fact, seeks out campus “ambassadors” to spread the word about Good2Go and the principle of affirmative consent. The apps creators, a group of parents, working via Sandton Technologies, hope it will prevent unwanted sexual conduct by facilitating a step-by-step process to ensure both parties are on the same page.

Lee Ann Allman, president of Sandton Technologies has stated that the purpose of the app was and is to teach young people “the language of affirmative consent.” The Good2Go website also explains that “We believe the proper use of Good2Go as a tool in understanding the role intoxication plays as well as teaching the language of affirmative consent will result in fewer sexual assaults.”

With Good2Go, potential partners are meant to use their phones to secure affirmative consent before they hook up. This is about taking a moment before beginning any encounter to make sure both parties are in agreement. New users, of course, needed to register—which meant giving the app a name, phone number and a password. The new user would then log the code that had just been sent to that number. Otherwise, an existing user simply logged into his or her account. Once this is done, Good2Go could log all of a user’s attempted sexual liaisons.

The app, when deployed, focused on two things: (i) is a person ready to have sexual relations with another person and (2) whether the person is intoxicated and thus unable to consent.

“Good2Go should be treated in the same manner as putting on a condom,” the website explained. “It may stop the action for a second, but everyone understands it is in the interest of safety, so it is worth the momentary pause.”

The free app worked as follows: After one party feels amorous, with a potential partner, one of the people involved launches the Good2Go app on his or her phone.

When it is opened, the app displayed the question, “Are we Good2Go?” The other party then selected one of three options. “No thanks,” “Yes, but . . . we need to talk” or “I’m Good2Go.”

If the person being propositioned selected “No”, a screen popped up for the other party that says, “Remember! No means No! Only Yes means Yes, BUT can be changed to NO at any time!”

The second choice of needing to talk paused the app and leads to a discussion prompt so the pair can have their discussion before a final decision is made.

The third option prompted the parties to answer, honestly, whether they are “sober,” “mildly intoxicated,” “intoxicated but Good2Go” or “pretty wasted.” Surprisingly, it is only if a person checked “pretty wasted” that the app shut down and blocks the user from consenting via his or her phone. But if you said you were intoxicated, you could still proceed to consent.

The New Paradigm of Affirmative Consent

In prior discussions of whether someone consented to sexual relations, students learned that no means no, but advocates have been focusing on the need to educate college students that they should seek a real “yes” from a potential partner. This is known as seeking “affirmative consent—getting to yes—and not assuming that because a person did not speak up, that they consented through silence or inaction.

In September 2014, California Governor Jerry Brown signed into law a bill that requires universities in the state to adopt an “affirmative consent” standard to be used when investigating sexual assault complaints on California college campuses.

California is the first state to make affirmative consent the law. Senate Bill 967 amends the California education code to require higher education institutions whose students receive financial aid to uphold an affirmative consent standard in disciplinary hearings and to educate students about the standard. This means that during an investigation of an alleged sexual assault, student disciplinary committees at both public and private institutions will have to ask whether the sexual encounter met a standard where both parties were consenting. Consent is defined as “an affirmative, conscious and voluntary agreement to engage in sexual activity.”

While the California law has its detractors, it is now the law. And it has brought the issue of affirmative consent into the public forum. The Good2Go app dovetails with this initiative and focuses on “getting to yes” by using a Smartphone app.

Evidentiary Issues

Good2Go is meant to be an educational tool—teaching young adults to seek permission and consent before engaging in sexual activity. But it is an app that is used at the beginning of an encounter; it did not ask users to specify what exactly each party is consenting to. That question is left open, so the app only goes so far in terms of protecting both parties.

It is also unclear whether this type of “consent” could be used legally as proof of consent. One can imagine many problematic scenarios where consent is obtained under duress or coercion, or where people are lying about their own state of intoxication.

Parties have to self-select their level of intoxication, but one person’s intoxication could be another person’s completely wasted. Asking parties to describe their state of inebriation should not be seen as determinative of facts, as people may check one category or another to avoid embarrassment, to prevent being blocked from consenting, etc. And what happens if your potential partners are actually looking over your shoulder as you click to consent—or worse—takes your phone and consents for you. So the future use of the app and the significance of the “consent” obtained are yet unclear, and it raises many unanswered questions.

One would hope that the Good2Go app would not be used as evidence of affirmative consent in university disciplinary proceedings, for example. What if a person clicked “yes” and indicated they were mildly intoxicated—but in fact had been impaired. Would this be concrete and irrefutable evidence of consent?

There are many concerns around the nature of consent via a mobile pap. As noted above, it is a crude instrument—clicking “I agree” like ordering goods or services online may or may not be a good substitute for actual conversation about consent and the limits of a person’s consent.

Privacy Concerns

The second area of concern relates to privacy. Good2Go, as initially offered, was set u to amass a huge amount of sensitive data about individuals and their sexual histories. The Washington Post discussed these concerns in a recent article. The data included a listing of all of your partners to when you have had sexual relations and your reported state of sobriety or intoxication. This is highly sensitive information and it would all be in the hands of a third party.

According to its own terms of use, Good2Go logged personally identifiable information, including names and phone numbers, on all its users. When two people use the app to connect, it records the users’ phone numbers, as well as the time of the encounter and one partner’s sobriety. (Because Good2Go requires you to register with a name and phone number, that number is also tied to your provided name.) Per its loose privacy policy, Good2Go could share that information with law enforcement, “third-party service providers” and other marketing firms “for any reason, in Good2Go’s sole discretion.”

The Good2Go app was free, which left the question as to how Sandton was going to earn revenue to continue operating the service and improving its design. One could imagine that Good2Go might share information with potential advertisers of condoms, birth control, or other services aimed at a young sexually active crowd. Recent revelations of how hackers have been able to obtain nude or explicit photos of celebrities remind us that this sensitive data may not be secure. It could be leaked to embarrass or humiliate young adults—whether famous or not, or worse possibly—for forms of extortion.

This doesn’t just mean that your data is only vulnerable to hackers. Your personal files could be transferred to another company if Good2Go is acquired, be subpoenaed in a civil lawsuit (e.g. a divorce proceeding) or criminal case, or be sold off to a third party entirely.

“To be clear, it is not our policy to disclose these records to just anyone,” Lee Ann Allman, the president of Good2Go and its parent company, Sandton Technologies told the Post. She noted “Good2Go/Sandton Technologies would need to be presented with an official, legal request via law enforcement or a specific university before we would disclose these records.”

As for marketers, she added the company doesn’t currently share records with them, because the app’s “initial focus is to drive adoption . . . and the concept of affirmative consent on college campuses.” But Good2Go is in its infancy—once the data is collected, its unclear what happens if the company needs a profitable business model.

So beyond the fact that the app itself is a poor proxy for face-to-face communication, users should think twice before giving up their sexual history to an app developer and potentially to marketers and others.

Good2Go has promised it will release Version 2.0 of its app and hopes to do so as a crowd sourced product. Let’s hope that its creators throw their money and ambition behind other ways to deal with the real problem of sexual assault.

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Development. She is also a member of the Law, Technology and Arts Group at at the Law School. Ramasastry writes on law and technology, consumer and commercial law, and international law and globalization.
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The Military Commissions Are Still Proceeding Mon, 20 Oct 2014 04:01:37 +0000 Continue reading →]]> GuantanamoWhatever happened to Khalid Sheikh Mohammed (often called KSM)? KSM is the self-proclaimed mastermind behind 9/11. Recall that the Administration wanted to try him for 9/11 crimes in a federal court in New York. New Yorkers objected that option in no uncertain terms, so this Administration is now trying him before a military commission at Guantanamo Naval Base in Cuba. He was captured in 2003 and transferred to Guantanamo in 2006. Since then, what has happened? Delay. Lots of delay.

Recent military actions should cause even more delay. One of the Army lawyers assigned to represent KSM, Major Jason Wright, has now resigned from the military. He resigned because the Army told him he has to leave the case to attend a graduate course, which he wanted to defer and which he could easily defer. The defense lawyer believes that his removal raises ethical issues. He has been counsel for KSM for several years and, he said, it was hard to gain the trust of KSM. That is why, he said, he did not want to be relieved of the case. The Pentagon’s response: “The Judge Advocate General denied the second deferral request because a suitable and competent military defense attorney replacement was available, Major Wright was not the lead or sole counsel, and it ensured Major Wright remained professionally competent and competitive for promotion.” Major Wright then says that he decided to throw in the towel and leave the Army altogether.

Sometimes it is difficult to understand the government mind as applied to legal matters. The decision to prevent Major Wright from delaying his class is just the most recent example. Earlier, the Military Commission’s original rules, like its changed rules of October 2005, did not allow the accused to represent himself. The Commission, by fiat, assumed that no defendant was competent enough to defend himself, although the Commission thought that a defendant was competent enough to plead guilty.

The standard rule in the country is that a criminal defendant has a constitutional right to represent himself in a state or federal trial if he voluntarily and intelligently elects to do so. The Commission rules, until Congress imposed a change by statute, forbade all pro se representation. The rule that prohibited pro se representation did not serve the detainees well, for it prohibited competent adults from exercising the right that every competent defendant has in all American criminal courts, state and federal.

This no-pro se rule also did not serve the military well. Consider the case of al Bahlul, a detainee charged with war crimes who refused civilian or military counsel. During the August 2004 war crimes proceedings, Al Bahlul asked to represent himself. Judge Brownback, the military judge, immediately said no. He conducted no hearing to determine whether al Bahlul was competent to defend himself. He just denied the request.

Then, al Bahlul asked to make a statement, and he asked not to be interrupted. He started speaking and said:

As God is my witness, and the United States did not put any pressure on me, I am an al-Qaeda member, and the relationship between me and Sept. 11 . . .

“Stop!” yelled Judge Brownback, who interrupted him.

Brownback told the lay members of the tribunal members — incorrectly — that he cut off al Bahlul because the defendant’s statement, which was not under oath, was inadmissible as evidence. That is false. Statements made in open court are evidence, even if not made under oath. Admissions against interest are admissible. Hence, the prosecution objected to the judge’s ruling regarding admissibility. Defense lawyers chimed in. Eventually, after the lawyers spoke, Judge Brownback turned back to al Bahlul, who, it seems, had lost his train of thought and sat down! We never heard what al Bahlul had to say. His complete statement might have been interesting.

Later, during the proceedings in January of 2006, al Bahlul again asked to appear pro se. He made clear that he rejected not only his military counsel but also his civilian counsel:

I heard the judge say that I have appointed volunteer lawyers. I would like to tell the judge and the people present here that I never appointed any civilian lawyers, not directly, and not in writing. And I am surprised to hear that from you. This is not because—I’m not surprised that some people [the civilian lawyers] volunteered their services. Many people would like to volunteer in this case just to get some fame. They ask for fame. They want fame for themselves and I do not appoint anyone by writing or even by inference.

Finally, Congress changed the Commission rules by statute. The law now accepts the basic right of a defendant to represent and speak for himself.

In late 2008, a military jury convicted al Bahlul of conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes for his part in September 11, 2001, terrorist attacks. He was sentenced to life imprisonment.

Then came the appeals. In July of 2014, the D.C. Circuit (en banc) rejected Bahlul’s ex post facto challenge to his conspiracy conviction and then remanded that conviction to the original panel to dispose of several remaining issues. In addition, the D.C. en banc court vacated his material support and solicitation convictions as “plainly” violating the Ex Post Facto Clause. The conclusion of his legal journey lies sometime in the future.

Another peculiarity is what happened during oral argument in Hamdan v. Rumsfeld. In that case, the Supreme Court (5–3), reversed a decision that then-Judge John Roberts had joined when he was on the D.C. Circuit. Hamdan held, first, that it had jurisdiction. In other words, the Detainee Treatment Act of 2005, which limited federal jurisdiction, did not apply to pending cases. Second, the Uniform Code of Military Justice did not authorize the President to set up “military commissions” (or “war crimes tribunals” in popular parlance) to try alleged war criminals.

What is intriguing is the oral argument, for it suggested that the Government’s assertion of legal power was amazingly broad. During oral argument in the Hamdan case, Justice Breyer asked the Government, “And if the president can do this, well, then he can set up commissions to go to Toledo and, in Toledo, pick up an alien and not have any trial at all, except before that special commission.”

The Government could have responded that Hamdan was not a U.S. citizen nor was he an alien picked up in Toledo. He was an alien captured in Afghanistan. The military cannot simply prosecute aliens it finds in Toledo. However, if the hypothetical alien had been walking in Toledo and the Government could prove that he was an enemy spy who had been inside enemy lines fighting against the United States, and then sneaked into the United States as a spy, he would be like the aliens whom the Government captured in Ex parte Quirin. Shortly before the Hamdan decision, Justice O’Connor told us that Quirin is the law today. That is what the Government could have argued.

However, that is not the position that the U.S. Government embraced. Instead, it responded: “This is much more of a call for military commissions in a real war than, certainly, the use of military commissions against the Medoc Indians or any number of other instances in which the President has availed himself of this authority in the past.” Justice Breyer did not appear interested in the Medoc Indians.

Some of these actions came during Administration of Barack Obama, while others came during the Administration of George W. Bush. Yet others were decisions that straddle both Administrations. In each case, the Government should try better to justify its decisions or, failing that, make other decisions.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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How the Supreme Court’s Inaction on Same-Sex Marriage Echoes Its Conduct in the Civil Rights Era Fri, 17 Oct 2014 04:01:37 +0000 Continue reading →]]> U.S. Supreme CourtThe Supreme Court opened its new Term this month with a surprise: Instead of granting review in one of the cases in which the federal appeals courts had invalidated state laws banning same-sex marriage, or even “holding” those cases pending further developments in the lower courts, the High Court denied review. Because the Court’s action—or more accurately, inaction—also had the effect of dissolving previously granted stays of the appeals court rulings, thousands of same-sex couples throughout the country were able to marry legally. And because it is difficult to imagine that the Court would have condoned that result if it thought that there were a realistic chance of later ruling against a right to same-sex marriage, most informed observers took the dismissal of the appeals as signaling that a majority of the Justices now believe there is a constitutional right to same-sex marriage.

Various commentators have criticized the Court for failing to confront the issue directly. The criticism comes from both directions. Opponents of a constitutional right to same-sex marriage say they have been deprived of their opportunity to make their argument for state regulatory primacy over marriage; meanwhile, some proponents of the right argue that the Court should deliver the coup de grâce. In its most basic form, the charge from each side amounts to a claim that the Justices took the cowardly way out.

Yet there is an important precedent for the Court’s inaction. In the wake of the landmark 1954 ruling in Brown v. Board of Education, the Justices repeatedly declined to review lower court decisions invalidating racial segregation in contexts other than education. Then, as now, the Court left the lower courts to work out the implications of its broad statement of principle.

By taking note of both the similarities and the differences between the earlier period and the current one, we can shed some light on the work of the Court.

What the Certiorari Denials Mean

As an official matter, when the Supreme Court denies a petition for certiorari (or “cert”), it thereby sets no precedent. The Court accepts only a small fraction of the cert petitions filed for plenary consideration, and cannot possibly give full consideration to the merits of each such petition. Thus, the rule that treats a cert denial as non-precedential makes sense.

Why then do informed observers regard the cert denials in the same-sex marriage cases as signaling a substantive view on the merits? We can see the answer by considering a counterfactual example.

Suppose that a majority of the Supreme Court were open to the possibility that the Constitution permits states to ban same-sex marriage. If so, and if the Court eventually grants cert in a case presenting the question whether a state same-sex marriage ban is valid, what would happen if the Court were to rule that there is no constitutional right to same-sex marriage after all? Thousands of same-sex couples who got married during the period when the lower courts had declared a right to same-sex marriage would find themselves in a legal limbo. The states in which they live might choose to continue to honor their marriages, but they might not. And because a federal court has no power to require a state to provide “grandfather clause” protection based on a subsequently overruled decision, a Supreme Court ruling denying a right to same-sex marriage would create extraordinary legal difficulties for the couples and the states.

Accordingly, if there were any real chance that the Supreme Court will rule against a right to same-sex marriage, it would have been utterly irresponsible for the Court to have denied cert in the cases finding such a right and to have lifted the stays of judgment in those cases. Because there is no reason to think that the Supreme Court is utterly irresponsible, the cert denials therefore sent a strong signal that the Court would recognize a constitutional right to same-sex marriage in some future case—probably if and when a federal appeals court or state supreme court rejects such a right.

The Post-Brown Cases

The Supreme Court’s denial of the certiorari petitions in the same-sex marriage cases earlier this month echoes its approach to racial segregation sixty years ago. Most people recall Brown v. Board as the case that held de jure racial segregation unconstitutional, full stop. But the truth is somewhat more complicated.

In 1896, in Plessy v. Ferguson, the Court rejected an equal protection challenge to a Louisiana law requiring railroads to segregate passenger cars based on race. The concept of “separate but equal”—a phrase that appears in (the first) Justice John Marshall Harlan’s Plessy dissent but not in the majority opinion—was thus entrenched in American law for over half a century.

Brown did not, however, directly overrule Plessy. Instead, while disavowing some of the broader language of Plessy, the Brown Court ended up concluding that whatever might be true about transportation, segregated public educational facilities were unconstitutional. Chief Justice Earl Warren’s opinion for a unanimous Court discussed developments in public education since the Nineteenth Century, and its importance in shaping citizens. He concluded that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

That conclusion raised but did not answer an obvious question: Did the doctrine of “separate but equal”—which, after all, had been first accepted by the Court in a case involving transportation—still have a place in other contexts? The Court did not address that question. Over the next decade and a half, the Justices repeatedly refused to give plenary consideration to any case involving segregation in such other contexts. Instead, the Court simply affirmed without opinion the rulings of the lower federal courts invalidating de jure racial segregation in public parks, golf courses, beaches, buses, athletic events, courtrooms, and other places. Then, as now, the Supreme Court left the specific implementation of the broad principle to the lower courts.

Retroactive Great Case Status for United States v. Windsor

Although the Court’s post-Brown behavior provides an important precedent for the cert denials in the same-sex marriage cases, there are also some differences between then and now. Consider two.

First, the post-Brown cases arose as appeals rather than as certiorari petitions. Under a law that Congress repealed in 1988, when a lower federal court struck down a state law as unconstitutional, the state had a right to appeal to the U.S. Supreme Court. Unlike the writ of certiorari, an appeal under the pre-1988 law conferred non-discretionary jurisdiction on the Supreme Court.

The Supreme Court’s post-Brown decisions ducking the question of whether Brown applied in various other contexts were thus technically judgments on the merits. Whereas we must piece together the current Court’s acceptance of a right to same-sex marriage from the presumed intentions of the Justices, when the Court affirmed the post-Brown cases without opinion, it was officially making law.

Nonetheless, one should not make too much of this distinction. In the decades leading up to the 1988 repeal of the Supreme Court’s mandatory appellate jurisdiction, docket crowding prevented the Justices from giving full consideration to every case that fell within that jurisdiction. Consequently, the Court routinely “cheated,” by summarily affirming rulings of the lower federal courts. Hence, even if a summary affirmance from the pre-1988 era counts as a judgment on the merits in some technical sense, everyone understands that these summary affirmances do not have the full precedential force of an opinion after full briefing and oral argument.

Indeed, the same-sex marriage issue itself demonstrates that the technical difference between appeals and certiorari counts for little. Opponents of same-sex marriage sometimes point to the 1972 case of Baker v. Nelson, in which the Supreme Court summarily affirmed a ruling of the Minnesota Supreme Court rejecting a right to same-sex marriage. But proponents of marriage equality rightly counter that a summary affirmance from that era is barely a precedent at all.

If the difference between a summary affirmance and a cert denial is merely technical, the second difference is more substantial: although Brown v. Board did not fully decide the constitutionality of de jure racial segregation outside the education context, it was clearly a momentous case that was understood at the time to have broad implications, even if the exact borders of those implications were not entirely clear.

By contrast, prior to the cert denials earlier this month, no Supreme Court case came down unequivocally for marriage equality. True, many observers thought that the Court’s 2013 decision in United States v. Windsorstriking down Section 3 of the Defense of Marriage Act—was a good indication that the Court would eventually rule in favor of a constitutional right to same-sex marriage. But there was enough ambiguity in the Windsor opinion to permit other observers, including Chief Justice John Roberts in his dissenting opinion, to read the case as depending on principles of states’ rights that would be absent in a challenge to a state same-sex marriage ban.

The recent cert denials may necessitate a reconsideration of Windsor. Juxtaposed against the post-Brown summary affirmances, these cert denials indicate that Windsor actually was a broad statement of principle whose details were left to the lower courts to fill in.

Many Court watchers have wondered whether Justice Anthony Kennedy—the author of the three leading gay rights majority opinions in the Supreme Court, including Windsor—would some day write the definitive decision finding a right to same-sex marriage. Now it appears that he already has.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
]]> 0 0:09:55 Cornell University law professor Michael Dorf highlights similarities and differences between the U.S. Supreme Court’s inaction during the Civil Rights Era and presently, with regard to the issue of same-sex marriage. Cornell University law professor Michael Dorf highlights similarities and differences between the U.S. Supreme Court’s inaction during the Civil Rights Era and presently, with regard to the issue of same-sex marriage. no no
The Hobby Lobby Solution Thu, 16 Oct 2014 04:01:15 +0000 Burwell v. Hobby Lobby Stores, Inc.. Continue reading →]]> RFRAs MapWhen Hobby Lobby, the huge crafts retailer ($3.1 billion in annual sales with 23,000 full- and part-time employees and over 600 stores nationwide), deployed the federal Religious Freedom Restoration Act (RFRA) to deny female employees coverage for four contraceptive medicines, women’s groups finally took notice that extreme religious liberty statutes are not their friends. They, along with reproductive rights groups, mobilized to fight the lawsuit, filing numerous amicus briefs at the Supreme Court on the side of the government and arguing that the government’s interest in protecting women from discrimination based on gender and religion should be sufficient to trump RFRA and lead to Hobby Lobby’s loss.

Of course, that is not what happened as a narrowly divided Supreme Court in Burwell v. Hobby Lobby held that RFRA handed Hobby Lobby and apparently most for-profit, nonreligious corporations free exercise rights and that Hobby Lobby’s rights under RFRA overcame the government’s compelling interest in the protection of women and reproductive health. This is not the place to get into the minutiae of the decision, which I discussed here, because the time has come to move on. Washington State Democrats have, landing on a smart proposal to protect women from discrimination that can nullify the effect of the pernicious Hobby Lobby decision.

They have made Hobby Lobby and women’s rights election issues, which they should be in every state.

The Political Path to the Protection of Women’s Health Following Hobby Lobby

During this election season, Washington State Democratic Senators Karen Keiser, Jeanne Kohl-Welles, David Frockt, Kevin Ranker, and Jamie Pedersen are promising to introduce legislation in 2015 that would ban discrimination against women in the provision of health care involving contraception. In a word: brilliant.

Now you may ask: how can a state overturn a United States Supreme Court decision on religious liberty?

First, RFRA is just a misguided federal statute, not the Constitution. Under the Constitution, or more specifically, the First Amendment, Hobby Lobby would have lost, because the Supreme Court’s common sense religious liberty doctrine, affirmed in Employment Div. v. Smith and Church of Lukumi Babalu Aye v. City of Hialeah, upholds laws that are neutral and generally applicable, which the contraception mandate plainly is. The Court even said as much in the Hobby Lobby decision.

Second, the federal RFRA is unconstitutional when applied to state law under Boerne v. Flores. That is correct: while RFRA’s proponents and original sponsors like Senator Orrin Hatch persist in talking about RFRA as though it establishes constitutional rights, nothing could be further from the truth. It’s just a statute and one that cannot be applied to state or local law.

This is a brilliant move on the part of the Washington Democratic senators, because it cuts through the rhetoric of the Hobby Lobby supporters. Moreover, nearly every American woman uses contraception at some point, and the ones that Hobby Lobby opposes are vital for victims of rape. (Contrary to Hobby Lobby’s beliefs, they are not abortifacients.) Essentially, these politicians are appealing to all women voters, and they have already gained political traction if the contentious tone of the comments following the article above is any indication.

The Washington Democrats’ Hobby Lobby work around has forced state Republicans to make a public choice on women’s rights. Republican Senator Andy Hill chose women, saying the proposal is “reasonable.” Senator Steve O’Ban, however, took the more dangerous path, asserting that the voters in his district don’t care. At least one of his constituents disagreed, saying, “This issue is very IMPORTANT to me, and to the vast majority of women I have met while out doorbelling and talking with on behalf of our Democrat candidates.”

Every State Can Overturn the Effect of Hobby Lobby, Though Some More Easily Than Others

States have several paths to overturning the effect of Hobby Lobby. One option is to amend the state anti-discrimination laws, as the Washington Democrats appear to be contemplating, to clarify that an employer who does not cover reproductive medical services by gender is guilty of discrimination. Thus, the women who work for the dozen Hobby Lobby stores in Washington would not feel the brunt of the Hobby Lobby decision, because state law would protect their right not to be discriminated against in a health care plan.

Second, a state could require that all employers in the state are required, separate from the federal Affordable Care Act, to cover women’s reproductive health care, leaving the choice of contraception or other reproductive health options to each individual woman in consultation with her doctor. Either of these two solutions are all that would be needed in states without a state RFRA.

Third, there is a wrinkle in this solution in the twenty states have been taken down the primrose path to enact their own state RFRAs, as depicted in this map. Employers in those twenty states could invoke the state RFRA to avoid obligations to women’s reproductive health care, just as Hobby Lobby invoked the federal RFRA for that purpose. The state courts are not required to interpret their state RFRAs in the extreme manner of the majority of the Court in Hobby Lobby, but they could.

If there is a state RFRA, the pathway to overturn the effect of Hobby Lobby would be to (1) include in the new amendments to the anti-discrimination or health coverage law that the state RFRA does not apply to that law (which is perfectly constitutional, because every application of RFRA is gratuitous, not constitutionally mandated); or (2) repeal the state RFRA outright now that has been shown to be what it is: in a word, extreme.

The Big Picture on the Future of Extreme Religious Liberty Statutes

This political development in Washington suggests a template for women’s rights and reproductive rights groups to pursue in every state. It also reveals a new potential coalition with the LGBT community, which is already fighting state RFRAs whether they are in place, pending, or proposed in the future, because they are as dangerous to women’s rights as to LGBT rights (not to mention child protection).

Civil rights groups were blind (or deceived) in 1993 when the first RFRA was enacted, and they blinked in 2000 when it was re-enacted following Boerne. During the latter debate, it was widely assumed by the civil rights community that Title VII would be a bulwark against federal RFRA claims to discriminate. Hobby Lobby proved that they were wrong. Now women’s civil rights rest in the hands of the states.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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The U.S. Supreme Court Revisits Hearsay and the Sixth Amendment Wed, 15 Oct 2014 04:01:22 +0000 Continue reading →]]> Courtroom oathEarlier this month, the U.S. Supreme Court granted review in a case about the meaning of the Sixth Amendment Confrontation Clause. The case, Ohio v. Clark, involved a criminal defendant who was convicted of physically abusing two children, ages (approximately) three and two. Though the trial court deemed the older child incompetent to testify, it admitted the testimony of various (competent) witnesses who repeated the child’s out-of-court statements identifying the defendant as the cause of the child’s injuries. The testimony challenged in this appeal came from a school teacher who, along with another teacher, had questioned their student to find out what had happened to his eyes and face. The teacher testified that the boy responded “Dee Dee,” a nickname for the defendant, who was the boyfriend of the child’s mother.

On appeal, the Supreme Court of Ohio affirmed the appellate court’s reversal of Clark’s conviction, holding that the introduction of the teacher’s testimony impermissibly infringed upon the defendant’s Sixth Amendment right to be confronted with the witnesses against him. The evidence violated the Sixth Amendment because it offered the jury “testimonial” statements without giving the defendant any opportunity to cross-examine the three-year-old child who had made the statements.

The Supreme Court granted review on two questions about the child’s out-of-court statements: (1) As mandatory reporters of child abuse, were the teachers who questioned the child effectively law enforcement officers conducting an interrogation?, and (2) Did the child’s statements to his teachers qualify as “testimonial” for purposes of the Sixth Amendment Confrontation Clause? This column will suggest that in considering how to answer these two questions, the Court may properly see fit to revisit its approach to hearsay and the Sixth Amendment right of confrontation.

Hearsay and the Confrontation Clause

To understand this case, it is useful to review the connection between hearsay and the Sixth Amendment, a connection that has changed over time. The Sixth Amendment text provides a right on the part of a criminal defendant to “to be confronted with the witnesses against him.” This has long been understood to mean, at the very least, that when the prosecution offers testimony by a witness in court, the defense has the right to cross-examine that witness. If, for some reason, the defense cannot conduct cross-examination (e.g., if the witness dies immediately after direct examination), then the jury must be told to disregard the witness’s testimony, and the judge may need to declare a mistrial.

Hearsay presents a special challenge to the confrontation principle. Hearsay is an out-of-court statement (that is, a statement made outside of the proceeding at which it is offered in evidence) that is introduced as proof of what the declarant (the person who made the out-of-court statement) intentionally asserted in the statement. For instance, Penelope Plaintiff calls Wally Witness, who testifies “My friend Darlene Declarant told me that the light was red when David Defendant entered the intersection.” In this scenario, if Penelope Plaintiff is introducing Wally Witness’s testimony to prove that the light really was red when David Defendant entered the intersection, just as Darlene Declarant claimed in her out-of-court statement, then the testimony is hearsay.

Hearsay potentially implicates the Confrontation Clause of the Sixth Amendment because the person who makes the out-of-court statement is very much like a witness. In our scenario above, Darlene Declarant may not be in the courtroom, but her statement about the car accident is offered to the jury as an accurate and truthful account of what occurred, much like an in-court witness’s testimony would be. If Darlene were in court, she would be sworn to tell the truth, visible to the jurors while she made her statements, and—most importantly, for our purposes—subject to cross-examination by the defendant.

When Darlene Declarant’s statements are offered through Wally Witness’s testimony, however, there is no opportunity for David Defendant to cross-examine her and thereby to expose any weaknesses in her statement. Because of this missing opportunity, the law of evidence has long regarded hearsay with suspicion and has excluded it unless it fit within one of a long list of hearsay exceptions. But when offered in a criminal case against a defendant, such hearsay does not just run into an evidentiary rule; it may also implicate the criminal defendant’s constitutional right of confrontation.

Under another Ohio case that the U.S. Supreme Court decided in 1980, Ohio v. Roberts, the Court dealt with hearsay under the Confrontation Clause by holding that so long as it is very reliable (and the declarant is unavailable to testify), hearsay may come into evidence against the criminal defendant without the need for cross-examination. If hearsay fell within a “firmly rooted” exception to the hearsay rule, it would be presumed sufficiently reliable to qualify for this treatment. If, on the other hand, a particular item of hearsay fell outside the scope of the firmly exceptions to the rule, then it could come into evidence without the opportunity for cross-examination of the declarant only if the hearsay showed “particularized guarantees of trustworthiness.”

This system was simple to apply when hearsay fit within a firmly rooted exception. A court could just name the traditional exception and then admit the evidence without further Sixth Amendment analysis. But complications arose in the cases in which the applicable law of evidence permitted admission of hearsay against the defendant under either a generic “catchall” exception to the hearsay rule or under a relatively new exception that fell outside the “firmly rooted” category. In such situations, the Supreme Court called for an assessment of whether the hearsay was sufficiently reliable to come in without cross-examination. The Court had a difficult time developing a consistent and sensible approach to judging reliability in this class of cases and eventually, the Court scrapped the reliability test altogether.

Crawford and Testimonial Statements

In an opinion by Justice Scalia in Crawford v. Washington in 2004, and a series of cases that followed, the Supreme Court held that some hearsay offered against a criminal defendant is “testimonial” in nature and thus requires an opportunity for cross-examination by the defendant, even if the hearsay is very reliable and falls within some firmly rooted hearsay exception. To paraphrase Justice Scalia, the Sixth Amendment may be aimed at reliability, but it does not require reliability; what it requires is confrontation—cross-examination—as a method of ensuring reliability. Therefore, even if testimony is extremely reliable, it cannot come in absent cross-examination. Similarly, Justice Scalia pointed out, even though criminal trials are meant to ensure that a defendant is really guilty, we cannot dispense with a criminal trial just because it is obvious in a particular case that the defendant is guilty; that is because the Constitution guarantees the right to a trial. The Constitution thus mandates the procedures provided in its text, even when we might have an alternative method of assuring a desirable outcome.

The new Confrontation Clause approach to hearsay meant that the existence of a firmly rooted hearsay exception would no longer (except in a few limited circumstances) exempt an out-of-court statement from Confrontation Clause scrutiny. Much more hearsay would therefore be potentially excludable under the Sixth Amendment, regardless of what the law of evidence might have to say about it. But at the same time, not all hearsay would qualify as “testimonial” and accordingly subject to the Confrontation Clause. Thus the determination of what is and what is not “testimonial” became the complicated inquiry under Crawford that the determination of “reliability” for nontraditional hearsay exceptions had previously been under Roberts.

From the progeny of Crawford, we know that if people are just talking casually and one says something to another, introduction of this out-of-court statement at a criminal trial will not trigger application of the Confrontation Clause. To be testimonial, there has to be some thought to preserving what is being said for introduction at a future trial as evidence. At first, the Supreme Court said (in Crawford itself) that statements made to a police officer during an interrogation would qualify as testimonial. But in later cases, it became clear that if the primary purpose of the conversation is something other than evidence gathering, such as addressing an ongoing emergency situation in the course of a 9-1-1 call, then the resulting hearsay will not trigger application of the Sixth Amendment and will be admissible (assuming no sub-constitutional evidentiary objections).

What remained to be seen was when statements to non-police might qualify as “testimonial” and how broadly the Court would draw the category of statements to police that do not qualify as “testimonial.” Though the Court used the phrase “primary purpose,” moreover, it failed to make clear whether the important inquiry was the police officer’s (or other questioner’s) primary purpose, the speaker’s primary purpose, or some combination of the two. In the meantime, various Justices who had originally joined Crawford began to express doubts about its workability.

Enter Clark

In Clark, the case before the Supreme Court with which I began this column, questioning by the out-of-court declarant’s teachers led up to his statement implicating the defendant as a child abuser. Under the Crawford line of cases, the question, then, is whether the child’s statements in response to his teachers’ inquiries were testimonial—whether they were the equivalent of testimony such that they should have been excluded from the defendant’s trial given the lack of any opportunity for cross-examination.

Were it not for the mandatory reporting law, it would seem that the primary purpose of a conversation between teachers and an injured child at school about how the child came to be injured would not be to gather evidence in anticipation of a criminal prosecution. The primary purpose would instead be to help determine what happened to the child in the teachers’ care so that the teachers could help him return to classroom activities in safety and in good condition.

In this case, however, the teachers were obligated under the law to report any suspected child abuse to the authorities. According to the Ohio Supreme Court majority, this obligation transformed the student/teacher exchange into a law enforcement interrogation aimed primarily at gathering evidence against the perpetrator of child abuse. The reason for this transformation, according to the Ohio court, is that a private person who is required to gather information for law enforcement becomes an agent of law enforcement when carrying out that requirement. And when there is no pressing emergency, as there was not in this case, the purpose of the mandatory reporting obligation is plainly to help law enforcement gather evidence of child abuse.

One could argue, as the dissent in Clark argued ably, that just because a school teacher has a mandatory reporting duty does not necessarily change her primary purpose in asking a child in her care what caused his injuries. Part of the job of being a teacher is ensuring the comfort and safety of one’s charges, regardless of what reporting duties one might have, and helping injured children is integral to that aspect of the job. Where reporting duties run counter to one’s ordinary objectives—such as where a therapist who is ordinarily dedicated to keeping all disclosures confidential must report threatening statements by a patient—it might be more plausible to claim that a reporting requirement best explains an interrogation. But where reporting requirements simply affirm what one’s own professional obligations would demand anyway—in the case of a teacher, to care for children—then it is more of a leap to presume that law enforcement motivations lie behind a conversation between a teacher and a student about the student’s injuries.

If the Supreme Court nonetheless finds the Ohio court’s reasoning convincing, then it would seem to follow doctrinally that the primary purpose of the interrogators is what matters in Confrontation Clause analysis. That is because a three-year-old child is presumably not “primarily” trying to build an evidentiary case for trial against his mother’s boyfriend when he responds to his teachers’ inquiries about his injuries, no matter what the mandatory reporting requirements might be. The child’s goal is almost certainly to please his teachers by answering their questions correctly or perhaps to tell trustworthy grownups about something scary and painful that happened to him.

If the Supreme Court affirms the holding and reasoning of the Ohio high court, it would accordingly appear that the U.S. Supreme Court shares the view that the relevant intention when applying the Sixth Amendment to hearsay is the intention of the person asking rather than the person answering the questions. In an earlier case, Michigan v. Bryant, Justices Scalia and Ginsburg indicated (in their dissents) their view that the opposite is true, that the speaker’s intent is what ought to matter.

Purpose Inquiry Exposes Oddity of Determining When a Statement Is “Testimonial”

The reason to ask whether a statement is “testimonial” or not, in determining whether the Sixth Amendment applies, is that the Sixth Amendment literally provides that a defendant must be confronted with the “witnesses” against him. If an out-of-court statement is not “testimonial”—the argument would go—then the individual who made the statement does not become a “witness” that must be subject to cross-examination. For formal statements made under oath or in response to a formal interrogation, it seems sensible to treat them as tantamount to having a witness testify in court.

Once we get beyond the very formal statements of the sort that Justice Thomas has said, in a concurrence in Illinois v. Williams, constitute the entire category of testimonial hearsay subject to the Sixth Amendment, it is difficult to explain why the interrogator’s purpose should matter at all. If the worry is reliability, then it would appear that casual comments made to a friend would be far less reliable—and therefore in greater need of cross-examination—than statements made with the express purpose of preserving information for later use. And if the worry is testimony-like statements, regardless of their reliability, then why would the apparent intentions of the parties (rather than, say, the formality of the setting) be determinative?

Furthermore, even if we think that testimonial intent matters, isn’t it the speaker’s intent that determines the “testimony-like” quality of her responses to questions, rather than the interrogator’s intent? If the speaker, for example, has no idea that she is talking to a police officer, because the officer is working undercover, then the U.S. Supreme Court has said, in Illinois v. Perkins, in the Fifth Amendment Miranda context, that there is no interrogation. Wouldn’t it therefore seem similarly sensible in the Sixth Amendment context to focus on what is happening for the would-be witness rather than focusing on the objectives of the questioner, who may, indeed, have a whole array of different purposes and whose purposes may be completely opaque to the subject of interrogation?

Several Justices have already expressed misgivings about the Crawford framework, given the potential arbitrariness and indeterminacy of any test for what does or does not count as “testimonial.” Though the Roberts reliability test was imperfect, the Court might choose either to return to it or to figure out some alternative means of resolving Confrontation Clause issues around hearsay in a categorical rather than (its current) piecemeal fashion. My prediction and hope, at this point, is a move back to the more predictable and workable Roberts approach.

Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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Traditional Surrogacy in Tennessee: Strange Statute Begets Strange Judicial Ruling Tue, 14 Oct 2014 04:01:41 +0000 Continue reading →]]> Surrogate MotherAccording to a recent article in the New York Times by Tamar Lewin, the United States has become – or is in the process of becoming – a mecca for foreign couples seeking the services of a surrogate to gestate a child for them. Theories differ as to the draw, but the lack of national policy or strict regulation is among the most likely suspects.

An Italian couple was drawn to Tennessee several years ago for exactly this reason. And although the surrogate conceived and gestated a child with her own egg and the intended father’s sperm, as called for by the parties’ agreement, she sought to claim parental rights after its birth. In a recent ruling, aptly named In re Baby, the Tennessee Supreme Court held that while a so-called traditional surrogacy agreement is enforceable, it is subject to several restrictions. This ruling is odd in two key respects. First, a provision of the Tennessee Code seems to expressly contemplate that traditional surrogacy is authorized in Tennessee, without any specific restrictions. Second, the restrictions imposed by the court effectively mean that a surrogate can never be forced to relinquish rights to a child conceived pursuant to a surrogacy agreement, in which case the term “enforceable” loses its meaning.

The Traditional Surrogacy Arrangement at Issue

In 2010, an Italian man and woman – intimately involved but not yet married because they were waiting for her to get a Catholic annulment of her prior marriage – entered into a contract with a woman in Tennessee to conceive and carry a child for them to raise. The intended parents had been unable to conceive a child together naturally and thus sought a surrogacy arrangement. The intended father provided the sperm; the surrogate provided the egg.

The term “surrogacy” generally describes an arrangement in which a woman conceives and carries a child for someone else to raise. The type of arrangement at issue in the Tennessee case, in which the surrogate provided the egg as well as the womb, was once the only type of surrogacy practiced, but is now called “traditional surrogacy.” Before in vitro fertilization techniques were developed and perfected, a surrogate would be impregnated by artificial insemination. It was thus always her own egg being fertilized. But with better, if more expensive, reproductive technology available, almost all intended parents opt now for “gestational surrogacy” in which the egg comes from either the intended mother or from a donor and is fertilized outside the womb before being implanted in the surrogate. This type of surrogacy is thought to eliminate some of the concerns about surrogacy, such as paying a woman to give up her biological child.

Whether the surrogate provides the egg or not, the crux of a surrogacy arrangement is an agreement that the child will be relinquished by the surrogate shortly after birth, and that the child’s legal parents will be the intended parents.

In the Tennessee case, the parties entered a standard agreement with the surrogate and her husband providing that the Italian couple would pay all expenses associated with pregnancy and childbirth, including money for pain and suffering, and the surrogate and her husband make no claim to the child. In all, the intended parents paid her $72,000.

Two months before the child was born, the parties jointly filed a petition to declare that the intended parents would be named on the child’s birth certificate and recognized as the child’s legal parents. A juvenile court issued an order granting the joint request, which entailed the permanent termination of any rights the surrogate and her husband might otherwise have had to the child.

The intended parents were present when the child was born in 2012. The intended mother returned to Italy shortly afterward to help care for her ailing mother and mother-in-law. The intended father stayed and participated in newborn care. With his agreement, the surrogate breastfed the child initially to ensure “the best possible nutrition” for the baby.

Less than a week later, the surrogate filed a petition to vacate the order terminating her parental rights. She challenged the enforceability of the surrogacy agreement and argued that she should be recognized as the child’s legal and biological mother with full parental rights.

Surrogacy Law: A Primer

While surrogacy itself has a long history – it is featured in a prominent Bible story about Abraham and his wife’s handmaid, Hagar – surrogacy law dates only to the 1980s. The first surrogacy case arose in New Jersey, in which courts were asked to rule on the parentage of “Baby M,” a child conceived in traditional surrogacy pursuant to a written agreement. The surrogacy was a disaster in many respects, leading to litigation in two states and, ultimately, a controversial ruling from the New Jersey Supreme Court that surrogacy agreements are void as against public policy and therefore unenforceable.

The ruling in Baby M. raised public awareness of surrogacy; provoked spirited discussions about its ethical, moral, and legal implications; and moved legislatures across the country to debate, and in some cases pass, legislation about surrogacy.

While this area of law is still in flux, states have staked out different positions on a broad spectrum. Several states prohibit surrogacy completely (including some that actually criminalize it). Some states prohibit commercial surrogacy, but allow altruistic surrogacy. Some simply permit it, with no identifiable limitations. And a growing number have passed legislation expressly to permit, but regulate, surrogacy. In this last group of states, some allow both types of surrogacy, while others allow only gestational surrogacy.

Tennessee occupies what might be a unique place on the spectrum. The legislature added a provision to its adoption laws in the 1990s on the subject of surrogacy. That provision, section 48, housed in the “Definitions” section of the chapter on adoption, defines a “surrogate birth” as either “(i) The union of the wife’s egg and the husband’s sperm, which are then placed in another woman, who carries the fetus to term and who, pursuant to a contract, then relinquishes all parental rights to the child to the biological parents pursuant to the terms of the contract; or (ii) The insemination of a woman by the sperm of a man under a contract by which the parties state their intent that the woman who carries the fetus shall relinquish the child to the biological father and the biological father’s wife to parent.”

These definitions, in short, describe first gestational surrogacy and then traditional surrogacy. But defining the term “surrogate birth” does not tell us much about the state’s position on the practice. A term could be defined and then prohibited – such as in a statute defining a discriminatory employment practice. Or it could be defined and then authorized.

The Tennessee statute quoted above, however, is followed by two provisions that raise at least the specter of a conflict. The first states that “[n]o surrender pursuant to this part is necessary to terminate any parental rights of the woman who carried the child to term under the circumstances described in this subdivision (48) and no adoption of the child by the biological parent(s) is necessary.” This provision would seem to authorize surrogacy by making clear that either type of surrogacy arrangement can be given effect without termination of the parental rights of the birth parent or adoption by the intended parents. That is, in essence, the intended result of a surrogacy contract.

But immediately following that provision is one that provides that “[n]othing in this subdivision (48) shall be construed to expressly authorize the surrogate birth process in Tennessee unless otherwise approved by the courts or the General Assembly.” This would seem to negate—or at least throw into question—what appeared in the previous section to authorize the enforceability of traditional and gestational surrogacy arrangements.

The Ruling in In re Baby

In the recent case, In re Baby, the Tennessee Supreme Court treated as a question of first impression whether enforcement of a contract for traditional surrogacy violates state public policy. It held no, but then imposed restrictions on such arrangements that make it hard to imagine how one could ever actually be enforced.

Specifically, the court concluded that the state’s public policy prohibits the following:

“(1) compensation that is contingent on the surrender of the child, is contingent upon the termination of the surrogate’s parental rights, or exceeds the reasonable costs of services, expenses, or injuries related to the pregnancy, the birth of the child, or other matters inherent to the surrogacy process; (2) binding agreements as to the best interests of a child; (3) contractual terms that would circumvent the established procedures for determining a person’s status as a legal parent or terminating parental rights; and (4) termination of parental rights in an involuntary proceeding absent a finding that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated.”

Let’s translate those restrictions into a typical surrogacy arrangement. First, the court tries to sever the financial terms from the relinquishment of parental rights. However, most surrogacy contracts involve installment payments that cover the span of the pregnancy – including one held back until after the child is relinquished to the intended parents and all necessary legal paperwork is completed. The ruling in In re Baby would refuse to enforce such agreements, in effect requiring the intended parents to shell out perhaps tens of thousands of dollars with no protection against the surrogate’s refusing to carry out her end of the bargain. Moreover, the court purports to cap payments in a way that may be less than the amount most surrogates are paid today.

Second, the ruling provides that all surrogacy arrangements are subject to approval based on the best interests of the child. With a gestational surrogacy arrangement, it is likely that courts will view the best interests of the child to lie with the intended parents because the gestational surrogate does not have the benefit of biology or intent to parent tying her to the child. But with traditional surrogacy, courts may well decide – as we have seen in older cases – that a child’s best interests require the biological mother to retain custodial and/or visitation rights. The requirement of post-approval based on the child’s best interests means that the certainty of the contracting process is seriously undermined. (A ruling of the Wisconsin Supreme Court, discussed here, imposed only this restriction on traditional surrogacy arrangements.)

Third, the ruling provides that a surrogacy agreement cannot circumvent for denying or establishing parental rights. Yet, that is the very essence of a surrogacy agreement – to predetermine the parental rights of the parties. If intended parents cannot be guaranteed recognition as legal parents, they might be reluctant to enter into the agreement in the first place (the agreement in which they now, thanks to the ruling, have to pay all of the money prior to relinquishment).

Finally – and this one’s the real kicker – the surrogate’s parental rights cannot be terminated involuntarily without a showing of unfitness to parent. Very few surrogates, most of whom have been extensively vetted by a surrogacy broker or agency, will exhibit parenting that is sufficiently sub-par to justify a finding of unfitness. Thus, this “restriction” in essence gives the surrogate the unfettered power to change her mind after the child’s birth. The surrogacy agreement is “enforceable,” but the intended parents will obtain custody and parental rights to the baby only if the surrogate decides, after receiving all the payments called for by the contract, to voluntarily surrender the child for adoption.

What the Tennessee Supreme Court has done in In re Baby is effectively rule traditional surrogacy contracts unenforceable. This may be a tenable policy position – other states have taken the same one, and most couples have opted for a different style of surrogacy. But the court was not obviously invited to express a policy preference for or against traditional surrogacy. It was asked to interpret a statute that, while admittedly ambiguous, seems to treat gestational and traditional surrogacy agreements exactly the same. Yet the court concluded that gestational surrogacy agreements are enforceable without significant restrictions, but traditional surrogacy arrangements are so restricted as to be effectively unenforceable. The court’s claim that this interpretation is justified by legislative history – not reflected in the text of the statute – is unconvincing.


As I have noted when writing about previous surrogacy cases, the practice is growing at a significant rate and being used in a wider variety of situations than ever before. There is no reliable data, but estimates suggest at least several hundreds of surrogate births a year and a growing number of foreign couples flocking to the U.S. to find surrogates. Yet, the law is unclear and in flux, leaving many in an unwanted legal limbo. States are free to disagree with one another about the proper approach to surrogacy, but each state has a responsibility to carefully consider the issues and take a position that their residents can understand. On this point, Tennessee has clearly failed.

As courts often do in opinions that touch on controversial social issues, the court in In re Baby implored the state’s legislature to enact a more comprehensive surrogacy statute, with greater clarity. Such a statute is long overdue.

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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The Prospects Get Brighter for the Protection of Children as the Nobel Peace Prize Is Awarded to a Child and for the Protection of Children (and Not to Pope Francis) Mon, 13 Oct 2014 04:05:22 +0000 Continue reading →]]> Nobel Peace PrizeThe Norwegian Nobel Committee received 278 nominations (including 47 organizations) for the 2014 Nobel Peace Prize, the most in history. Before the decision was announced last week, the media focused on Pope Francis and Edward Snowden, with the Pope the odds-on favorite.

Then the Committee announced that Malala Yousafzai and Kailash Satyarthi won the Prize for their work on the education and protection of children.   It was historic because Malala is still a child, at age 17, and it is the first time that a Nobel Peace Prize has been awarded solely for the protection of children. Both of the recipients have been outspoken, tireless advocates for the education and rescue of children in the face of powerful forces in their societies, Malala in Pakistan and Satyarthi in India. To the West, the evil they face is “extremism,” but for them it is the status quo. The award has generated opposition to Malala in her homeland, where there were celebrations when she was shot two years ago, while Satyarthi has been seriously injured time after time as he rescued children from slavery and trafficking.

These are true heroes who have fought for children’s flourishing, and this is an important moment in the civil rights movement for children.

The First Child Receives the Peace Prize

Malala is the first child ever to receive the Nobel Prize. The very fact that she was found worthy of this global award is proof that the civil rights movement for children is maturing.   Not long ago, she would have been one of those who is to be “seen and not heard,” not just in her homeland, but also in the United States. In 2014, though, she is a proud rights-holder fighting for the rights of all children who face extremist and social barriers to education.

While this prestigious award to a child should give hope to the children crushed by fanatical Muslims, it should also encourage children and their advocates worldwide.  Children’s lack of education and suffering in extremist sects in the United States—like the Fundamentalist Church of Jesus Christ of Latter-day Saints and the Followers of Christ, among others, and discussed in God vs. the Gavel: the Perils of Extreme Religious Liberty—need Malala and Satyarthi, too.

This Is the First Time That the Peace Prize Was Awarded Specifically for the Protection of Children

The Nobel Peace Prize was first awarded in 1901 to Henri Dunant (founder of the Red Cross) and Frédéric Passy (founder of the first French Peace Society and the main organizer of the first Universal Peace Congress). Ninety-five Peace Prizes have been awarded, to 88 men, 15 women (if one includes Malala), and 22 individual organizations.

The typical categories awarded have been for the “peace movement,” “negotiation,” and “world organizing,” with a healthy number of humanitarian and human rights issues thrown in. Three times women’s rights have been the focus. And then there was this year.

This is the first time that the protection of children has been the sole focus of the Prize. And only the second time that children’s rights were an element in the granting of the award. In 2003, Shirin Ebadi, an Irani jurist, won for her work on women’s and children’s rights. Obviously, children along with adults benefit from a peaceful world, but for children’s rights to stand alone atop this high perch should be encouraging to the millions worldwide fighting for the protection of children.

The Implicit Message That Would Have Been Sent Regarding the Protection of Children Had the Committee Chosen Pope Francis

The global scourge of child sex abuse and trafficking is impossible to overestimate. As we know all too well now, the largest religious organization in the world, the Roman Catholic Church, has been the institutional home for clergy abusers and bishop abettors in large numbers over many decades, if not centuries.

Pope Francis is popular and respected for many of his peacemaking gestures. Indeed, those were the credentials cited by those who thought he would win. On the issue of child sexual abuse, however, he had a sorry history of cover-up in Argentina, and as pope has moved slowly to punish child abusers and to protect children. Had he won the Nobel Peace Prize, he would have been feted beyond his accomplishments. And every victim would have been reminded yet again that his or her needs have been considered second-order.

This year’s award solely for the protection of children implicitly rejected the defense of so many powerful people: The “Yes-but-he/she-has-made-so-many-other-fine -contributions” defense. The endangerment of children is not an acceptable exception to one’s accomplishments if one is being considered for global acclamation (or anything else, frankly). Francis has a very long road to travel before he can receive the Nobel Peace Prize without an asterisk for his and his institution’s endangerment of children. It was remarkable this year that the world, and the bookies, expected Francis to win, even with the United Nations lambasting the Vatican for its failure to protect children and its crimes against humanity, as discussed here.

That is a signal that we have much left to do to protect our children.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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The Supreme Court to Consider When Threats Can Be Punished Consistent with the First Amendment Fri, 10 Oct 2014 04:01:24 +0000 Continue reading →]]> Constitution Gavel’Tis the season to begin looking carefully at the Supreme Court’s 2014–2015 docket, now that the Justices have returned from their summer recess and are hearing cases again. One interesting case to be argued in a couple of months, Elonis v. United States, raises questions about how courts should define so-called “true threats” that fall outside First Amendment protection and thus are subject to punishment. Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons, and his convictions were upheld by the U.S. Court of Appeals for the Third Circuit.

Background Facts of the Dispute

Mr. Elonis allegedly posted threats on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo’ SWAT an explosives expert while you’re at it
Cause little did y’all know, I was strapped wit’ a bomb . . .
I was jus’ waitin’ for y’all to handcuff me and pat me down.
Touch the detonator in my pocket and we’re all goin’ BOOM!

In another posting, Elonis wrote:

That’s it. I’ve had about enough.
I’m checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?”

In posts about his wife, Elonis wrote: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . ”

Throughout his prosecution, Elonis has challenged the definition of a threat to be used by the jury, namely, that “[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” Elonis argues under the First Amendment (and also under the federal criminal statute he is charged with violating) that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. Elonis does not (and could not) argue that the government must prove a defendant intended to carry out the threat, but he does assert that the government must prove that he intended to place the victim in fear of bodily harm or death.

The Third Circuit (along with a large number of other circuits) rejected this kind of subjective intent requirement. Instead, it held that statements that are reasonably construed as threats by the listener can be punished under the First Amendment. Conversely, the Ninth Circuit (and a number of state high courts) has required the subjective intent to threaten as a predicate to a prosecution for threatening speech. The courts that do require subjective intent often rely on the Supreme Court’s 2003 ruling in Virginia v. Black, where the Court upheld the major portions of a Virginia statute making intimidating cross burning illegal. While the Court upheld the ban on threats expressed through cross burning, however, it also struck down a part of the Virginia law that made burning a cross itself prima facie proof of intimidation and relieved the state of having to offer any other evidence as to the meaning of the accused’s symbolic expression. In reaching its decision, the Court observed that “‘true threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals . . . [whether or not] the speaker . . . actually intended to carry out the threat.” The Court noted that prohibitions on threats protect individuals from the fear of violence and the disruption that fear creates, and not just from the likelihood of actual violence. The Court also observed that “intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person . . . with the intent of placing the victim in fear. . . .” Many of the arguments in Elonis focus on what this language from Black means.

The Issues Elonis Presents

Initially, we offer some relatively modest observations about First Amendment doctrine and Supreme Court practice illustrated by Elonis. First, this is a less-than-ideal vehicle to decide whether intent to threaten is statutorily or constitutionally required, since a reasonable jury might easily conclude that the evidence against Elonis establishes such intent in this case in any event. In other words, if Mr. Elonis wins at the Supreme Court, and the case is sent back for a new trial, a new instruction would be given to the jury but a conviction seems likely in any case. Certainly, the Court can (and will likely) reach the merits in Elonis if it wants to, but this is arguably not the best case for resolving the constitutional issue in dispute.

Second, the Court might avoid the constitutional question by reading a subjective intent requirement into the federal statute. If it does so, then it would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)

Third, notice that much of the debate in this case revolves not around core First Amendment principles, but rather what the Court meant in Virginia v. Black. The Third Circuit’s reading of the words in Black certainly seems plausible; the Court’s description of “intimidation” as including the intent to instill fear could, as the Third Circuit held, refer to a subset of true threats, rather than a definition of the entire category of true threats. And we think the Ninth Circuit misreads Black to the extent that the Ninth Circuit believes that the Court’s result in Black necessarily implies the existence of a subjective intent requirement. Whether or not there is a subjective intent requirement, the Virginia statute that made cross burning prima facie evidence of a threat would be constitutionally problematic because it would relieve the government of having to show, in a case where the defendant exercised his right not to present a defense, that a particular cross burning was, in context, something a reasonable person would perceive as threatening (which is certainly true of many but not all cross burnings).

But more generally, we are not sure the Court in Black was offering a general answer to the question of whether subjective intent in a necessary element the government must prove to convict someone for expressing a true threat. Indeed, we think that assigning so much weight to the precise words Justice O’Connor used in her Black opinion misses the forest for the trees. Determining whether subjective intent is a constitutional prerequisite to punishing a speaker for expressing a true threat is an issue the Court needs to discuss and evaluate on its own terms, not as a derivative discussion of the meaning of ambiguous language in a case where the question was never explicitly raised and thus may not have been on the minds of the Justices whose language is being parsed.

Comparing Threats to Other Types of (Potentially) Harmful Speech

Our fourth, larger point goes to the heart of the matter. If subjective intent is required to hold a person liable under a threat statute when a reasonable person would understand the accused’s expression to constitute a serious threat, the speaker who places a victim in fear of bodily harm or death will escape sanction when the government cannot prove beyond a reasonable doubt that the speaker intended to instill fear. But the First Amendment does not give speakers a right to cause, whether intentionally or not, this kind of fear and apprehension. The key free speech issue raised by this case is: When does the First Amendment prevent government from protecting people from speech that undeniably causes real harm because government action jeopardizes other important free speech interests?

We think the best way to analyze this question is to compare the treatment of threats with the treatment of other kinds of potentially harmful speech, such as incitement, defamation, and offensive speech. Threats are proscribed not just because they might lead to action, but because they inflict injury in themselves. Unlike, say, incitement, where the evil to be regulated is the possibility that a listener may be influenced to act on the speaker’s words, threats wound by their very utterance. In this respect, laws banning threats are more akin to laws sanctioning defamatory speech. In providing civil sanctions for defamation, at least as to private figure victims, no subjective intent is required before government can regulate such expression, whereas in the former setting (of incitement), the First Amendment does seem to require intent to incite before punishment can be imposed. What accounts for this difference in treatment? The answer cannot be that society thinks incitement is necessarily less dangerous than defamation; the costs of incitement have always been recognized as significant.

One explanation for this difference in treatment is that the government’s interest in punishing speech because such speech may influence the thoughts and actions of the audience goes to the very core of why we have a First Amendment. The foundation of free speech doctrine is the right to use speech to persuade others of the merits of our ideas. Thus, when speech is dangerous because it might be acted upon, we are more reluctant to regulate it, and we add the extra layer of a subjective intent requirement as protection against government overreaching. Where speech is dangerous because it causes harm directly, however, (as it does in defamation cases) the government’s interests do not conflict directly with foundational free speech principles. Accordingly, we allow the civil sanctioning of defamatory speech without the extra buffer requirement of subjective intent.

Using this comparative analysis, we would ask whether speech that causes a reasonable person to fear that he or she is threatened with bodily harm or death is of sufficient constitutional value to justify courts adding the additional buffer of protection provided by a subjective intent requirement. We are not at all convinced that the value of such speech can justify allowing the harm it causes to go unsanctioned.

Another comparison—this one between threats, incitement and so-called offensive speech (use of vulgar and insensitive words, etc.)—may also be instructive. In the incitement realm we require government to prove intent and immediacy notwithstanding the harm that incendiary speech may cause not only because of our commitment to shielding persuasive speech from government prohibitions. We also recognize that there is a slippery slope with regard to punishing incitement. Every idea expressed with passion risks inciting its audience. And, accordingly, every idea that is critical of the government and its policies risks inciting anti-government behavior and violations of law. If we provide inadequate protection to incitement, all speech critical of government could be subject to sanction.

A similar analysis applies to the full protection we provide to offensive speech. Here too we recognize that offensive speech may cause its victims real harm and anguish. No one doubts that the grieving mourners at a soldier’s funeral who were subjected to the disparaging speech of Westboro Baptist Church protestors suffered psychological torment. Yet in Snyder v. Phelps, the Court protected the protestors’ right to express their hateful and hurtful message free from civil sanction. But here again we also recognize that tolerance of offensive speech is essential to the maintenance of a free speech regime. Every challenge to orthodoxy may offend some people who are comfortable with the status quo. We must vigorously guard against allowing speech to be punished simply on the ground that it offends people because restricting speech to serve this interest risks swallowing up a substantial part of the First Amendment.

Threats are arguably quite different. Unlike state interests justifying restrictions on incitement or offensive speech, the state’s interest in protecting people from threats of physical violence that would instill fear in reasonable people seems more cabined and focused. We do not worry that core free speech principles would be undermined if speech that places reasonable people in fear of serious bodily harm or death is prohibited, whether or not the speaker intends his message to have such a frightening effect.

How Will the High Court Rule?

Some analysts predict the Court will reverse the Third Circuit and add a subjective intent requirement to the test for constitutionally proscribable threats. They say this because the current Court has been extremely protective of expression (even odious expression) in a variety of settings, and because so much speech today (especially in rap music and other popular forms of entertainment) is coarse and uses provocative and sometimes violent language. The notion would be that true threats should not be defined so broadly as to sweep too much of what people actually say in the real world within a category of unprotected speech. (Indeed, Mr. Elonis argues that the rap style of his Facebook postings makes his speech less threatening.)

We understand this argument, but aren’t persuaded by it. The prevalence of violent imagery in music and other cultural venues in today’s society should already be taken into account by the requirement (on which everyone agrees) that a listener’s fear must be reasonable in context, and not based simply on some hypersensitivity to ugly, disturbing language. Unless there is a reason to fear that juries won’t already factor changes in speech patterns into the definition of what reasonable people would experience as a threat, it is not clear, at least to us, that an extra element of subjective intent is needed here.

Before we conclude, we do note (circling back to our comparative analysis) that in the defamation setting, constitutional doctrine does require subjective intent (in the form of knowledge or recklessness as to falsity) when the victim is a public official. The case law is more protective of speech critical of our government officials than it is with respect to negative speech concerning private individuals. Perhaps the same should be true for threats; because we want citizens to be free to vent anger against their representatives, maybe we should allow them to engage in threatening speech except when they mean to instill fear. On the other hand, the requirement that a victim/listener feel reasonably threatened might itself be sufficiently flexible to protect vociferous ranting against officials, in that officials are less likely to be reasonable in feeling fear than are ordinary folks because officials should know that citizens may exaggerate their anger and rhetoric when it comes to government. In this regard, we emphasize that a reasonable-victim standard does not give juries carte blanche to punish speech whenever they desire; judges are perfectly capable of ruling that, as a matter of law, certain provocative words cannot, in modern and specific context, be understood by listeners as actual threats that put the listeners in reasonable fear of harm.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.
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