Verdict Legal Analysis and Commentary from Justia Wed, 23 Apr 2014 04:01:02 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no The Supreme Court Again Fractures Over Race Wed, 23 Apr 2014 04:01:02 +0000 Schuette v. Coalition to Defend Affirmative Action. He provides a brief history of Supreme Court jurisprudence on race and contrasts that history with yesterday’s fractured opinions, which consist of a plurality opinion, three concurrences, and a dissent (with Justice Kagan recused). Dorf explains that while the decision has relatively low doctrinal stakes, the case exposes three important fault lines running through the Roberts Court. Continue reading →]]> U.S. Supreme Court BuildingWhen the Supreme Court held de jure racial segregation of public schools unconstitutional in its 1954 Brown v. Board of Education decision, Chief Justice Warren’s opinion spoke for a unanimous Court. Four years later, in the face of defiance by segregationists in Little Rock, Arkansas, the Court was again unanimous. Indeed, the Little Rock case, Cooper v. Aaron, resulted in the onlyopinion ever signed by all nine Justices. Given the divisiveness of race in American history, throughout the civil rights era the Justices thought it important that the Court speak with one voice.

As yesterday’s ruling in Schuette v. Coalition to Defend Affirmative Action illustrates, so far as the Court is concerned, that era is long over. The eight participating Justices wrote five opinions, none of which enjoyed the support of a majority.

Some of that disagreement can be traced to an underlying conflict over affirmative action itself. More broadly still, the disagreement in Schuette continues a struggle over the legacy and continuing impact of the civil rights era.

The Rise and Fall of the “Political Process” Doctrine

The immediate issue in Schuette was the validity of a Michigan constitutional provision, adopted by a referendum as “Proposal 2” in 2006. Proposal 2 banned race-based and sex-based affirmative action by public institutions, including colleges and universities. The U.S. Court of Appeals for the Sixth Circuit found the provision invalid.

Three prior Verdict columns—two by Professor Vikram Amar (here and here) and one by me—explained why the result reached by the appeals court in Schuette is puzzling, at least at first blush. Supreme Court precedents over the last three and a half decades rarely even permit states to engage in race-based affirmative action. How, then, can a state be held to violate the Constitution when it chooses not to pursue such a program?

In answering that question, the appeals court focused on the level of government at which the policy decision was made. By deciding the issue as a state constitutional matter, the appeals court said Proposal 2 placed minority voters—who would benefit from the banned programs—at a disadvantage because they could no longer rely on the ordinary political process to secure such programs. The appeals court cited two Supreme Court precedents—the 1969 ruling in Hunter v. Erickson and the 1982 ruling in Washington v. Seattle School Dist. No. 1—which established this “political process doctrine.”

The Schuette Court fractured badly over the meaning and wisdom of that doctrine. Justice Kennedy wrote the lead opinion for himself, Chief Justice Roberts, and Justice Alito, reaffirming the results in Hunter and Seattle, but overruling the political process doctrine; Justice Scalia wrote a concurrence in the judgment for himself and Justice Thomas, disavowing Hunter and Seattle as inexplicable without the political process doctrine, which they found unjustifiable; Justice Breyer wrote a concurrence in the judgment adhering to the political process doctrine but finding it inapplicable to the facts before the Court because, as he saw things, prior to the ballot initiative, educational administrators, not voters, made the decision whether to employ race-based affirmative action, so the voters had not lost a political opportunity they had previously enjoyed; Justice Sotomayor wrote a lengthy dissent for herself and Justice Ginsburg, describing the political process doctrine as an essential component of civil rights era precedents invalidating formally race-neutral laws that had the effect (and often the purpose) of diluting minority voting strength; Chief Justice Roberts wrote a brief concurrence rejecting what he regarded as Justice Sotomayor’s characterization of opposition to affirmative action as racial discrimination. Justice Kagan might have written yet a sixth opinion, but she was recused.

Three Fault Lines in the Michigan Case

Although the ruling in Schuette is obviously important for Michigan and other states that have adopted state constitutional bans on affirmative action, its direct doctrinal impact is likely to be small. Since Seattle over thirty years ago, the Supreme Court has not relied on the Hunter/Seattle political process theory. To be sure, the Colorado Supreme Court did rely on Hunter/Seattle in invalidating that state’s constitutional ban on local laws barring sexual orientation discrimination, but in affirming that result in the 1996 case of Romer v. Evans, the U.S. Supreme Court provided a different justification, specifically declining to invoke the political process doctrine.

Despite the relatively low doctrinal stakes in Schuette, the case exposes three important fault lines running through the Roberts Court.

First, and most obviously, the case highlights the Justices’ contrasting approaches to the constitutionality of race-conscious government action. Writing for a plurality in Parents Involved in Community Schools v. Seattle School Dist. No. 1 in 2007, Chief Justice Roberts summed up the position of conservatives who read the Constitution to embody a principle of “color blindness”:“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In an obvious reference to that line, Justice Sotomayor’s dissent in Schuette offered the contrary view. She wrote: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.”

Although Justice Kennedy invariably votes with his fellow conservatives to disallow race-based affirmative action programs, he does not always join their categorical endorsement of color-blindness. For example, in Parents Involved, he joined some of the opinion of the Chief Justice, but not the part containing his admonition to “stop discriminating.” Thus, one might think it significant that in Schuette, Chief Justice Roberts and Justice Alito joined Justice Kennedy, rather than the more sweeping opinion of Justice Scalia. Does that intra-conservative cleavage suggest that the Chief Justice and Justice Alito have moved closer to Justice Kennedy’s somewhat more moderate understanding of color-blindness?

That is a possibility, but a more likely explanation would point to a second fault line. Justice Scalia’s separate opinion in Schuette is of a piece with various other opinions by him and Justice Thomas criticizing Chief Justice Roberts for what they regard as unprincipled incrementalism: The Chief Justice frequently distinguishes cases that stand in the way of results he wants to reach, rather than forthrightly overruling them. Justices Scalia and Thomas regard this approach as timid and disingenuous.

The third fault line on display in Schuette runs between the conservative Justices who believe that the concerns that gave rise to Hunter (housing discrimination) and Seattle (desegregative busing) have largely faded into history, and the liberal Justices who regard the quest for racial equality as unfinished business. Justice Sotomayor was unable to persuade her conservative colleagues to view Michigan’s Proposal 2 as the equivalent of disenfranchisement ploys like literacy tests, grandfather clauses, and ever-shifting electoral district lines because the Roberts Court conservatives view such ploys themselves as ancient history.

It should surprise no one that Justices who think that the Voting Rights Act’s coverage formula is unconstitutionally outdated—as a majority ruled last year in Shelby County v. Holder—would reject out of hand the comparison of a state’s prohibition on race-based affirmative action to the preservation of American apartheid.

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 0:07:33 Justia columnist and Cornell law professor Michael Dorf discusses the U.S. Supreme Court’s decision this week in Schuette v. Coalition to Defend Affirmative Action. He provides a brief history of Supreme Court jurisprudence on race and contrasts tha[...] Justia columnist and Cornell law professor Michael Dorf discusses the U.S. Supreme Court’s decision this week in Schuette v. Coalition to Defend Affirmative Action. He provides a brief history of Supreme Court jurisprudence on race and contrasts that history with yesterday’s fractured opinions, which consist of a plurality opinion, three concurrences, and a dissent (with Justice Kagan recused). Dorf explains that while the decision has relatively low doctrinal stakes, the case exposes three important fault lines running through the Roberts Court. Education no no
The High Price of Badmouthing One’s Spouse During Divorce Tue, 22 Apr 2014 04:01:46 +0000 Continue reading →]]> Divorce DecreeWithout question, Ira and Janice Schacter have had a bitter and costly divorce. Seven years passed between the initial petition for divorce and the decree of dissolution, and over a million dollars have been paid to lawyers. They fought over everything—custody, child support, alimony, property distribution, and attorneys’ fees. This was perhaps not surprising, since the divorce court observed that during nineteen years of marriage, “they were never happy.” But this does not make them unique among divorcing couples. Although the trial judge observed that this “acrimonious divorce action presented one of the most contentious litigations this court has ever presided over,” many couples fight over the same things—or would, if they could afford the financial and emotional costs of protracted litigation.

This divorce, however, was in the news. (Thanks to Hofstra Law student Hersh Parekh for bringing it to my attention when we were studying property distribution in family law.) And the publicity itself became the subject of a new legal battle: If the wife pilloried her husband in the press, reducing his ability to attract clients, should her share of the marital property be reduced? In a recent ruling, in Ira S. v. Janice S., a judge said yes, granting her just seventeen percent of the value of his law firm partnership.

The War of the Schacters

The Schacters were married for nineteen years and had two children, one of whom has profound hearing loss. The divorce began with a bang after a physical altercation between the spouses in 2007 that required police intervention and led to their both being arrested. She got a temporary restraining order barring him from their shared Manhattan townhouse; he filed for divorce. Her allegations of abuse were their first foray into the public eye.

Occasional articles in newspapers and postings on the Internet chronicled other low points of the divorce—for example, she complained that he had spent $200,000 on an engagement ring for a Playboy bunny (it didn’t last) while refusing to pay $12,000 for his daughter’s new hearing aids. The hearing aid story took on a life of its own, leading to Ira’s being named a contestant in the sarcastic “Lawyer of the Month” contest on the snarky scandal-watching website, Above the Law.

Ira Schacter, a partner at a top New York law firm, argued in court that his wife’s very public complaints about his behavior had reduced his ability to attract and retain clients, which, in turn, reduced his share of the partnership’s profits. A key factual issue at trial was whether the publicity harmed his earnings, or whether, given the 2008-2012 time period, the recession was the more important variable. The legal question is whether it should matter if her appeals to the media affected his earnings.

The Cost of Fault

When couples divorce, courts are often saddled with the task of dividing their property. In most states, this process is guided by the principle of “equitable distribution,” under which the property a couple has accumulated during marriage (and even the property they brought to the marriage, in some states) will be fairly apportioned between them. Courts are rarely given unfettered discretion in this process, but, instead, are guided by legislatively mandated factors to consider.

New York’s equitable distribution law, Domestic Relations Law § 236(b)(5)(d), provides thirteen factors that courts must consider before dividing marital property. Most of the factors relate directly to economic information such as past earnings, the amount of property the parties brought to the marriage, their expected future income and property acquisition, the tax consequences of property distribution, and whether either party wasted assets during the marriage or transferred them to avoid distribution. In addition, courts are directed to consider non-economic factors such as the duration of the marriage, the age and health of the parties, and the need for a custodial parent to keep the marital residence.

How and when does fault or misconduct come into play? In most cases, it doesn’t. Under New York case law, non-economic fault can be considered only if it “shocks the conscience.” Courts have allowed consideration of egregious fault under the last of the statutory factors: “any other factor which the court shall expressly find to be just and proper.” (Some states allow greater consideration of fault than New York does, but most do not allow it to factor in at all.) This has proven a high standard, met in cases involving attempted murder, rape of a stepdaughter, and sometimes domestic violence, but not in cases of adultery, bearing another man’s child (and lying about it), or general cruelty. This refusal to consider marital fault in most cases is in keeping with one of the key principles of no-fault divorce: marriages break down for complex reasons, rarely attributable to a single, identifiable act of misconduct. There’s thus no reason to fight over who did what, either for finding grounds for divorce or for allocating a couple’s property.

But the type of “fault” at issue in the Schacter divorce is different. Ira claimed that his wife’s behavior—characterized by the judge as “incessant postings and discussion about her husband . . . beyond any reasonable discussion”—directly affected the amount of marital property available for distribution. This type of “economic” fault is allowed to play a role in property distribution decisions. It often comes up when one party, in anticipation of divorce, wastes or otherwise dissipates assets. It can also come up when one party has fed an expensive habit throughout the marriage like gambling, to the detriment of the couple’s economic security. Ira Schacter’s claim is more unusual—that his wife’s public criticism of him during the divorce proceeding directly affected his earning capacity and thus the value of the law firm partnership.

Splitting the Property

In a high-money divorce, neither party ends up in bad shape. The Schacters owned three multi-million dollar houses, as well as countless other valuable assets. For almost everything, the judge ordered that the assets be split down the middle: the houses, the jewelry, the mutual fund accounts, and so on. The wife will also get many thousands in alimony over the next several years.

But what about the law firm partnership? This was deemed a marital asset because it was acquired during the marriage through the joint efforts of the spouses: he was able to devote himself to a demanding practice because of her work caring for the children, one of whom had special needs, and tending to the home. (She also became an advocate for people with hearing disabilities and worked, mostly without compensation, in that field.) The court could also have deemed the wife’s law degree a marital asset—a peculiarity of New York law when either spouse acquires a professional degree during marriage—but found insufficient proof of its value (by how much did her earning capacity increase because of the degree?) at trial. The wife practiced law only briefly after being admitted to the bar and had held only one paid job since then for three months.

The judge could have split this asset 50/50 as was done with the other assets. Instead, the partnership, valued at the commencement of the case at $5 million, was split 83/17 in the husband’s favor. In the judge’s disparaging account, “in essence, the wife chose to bite the hand that fed her.” Although the wife was, in the judge’s view, “well within her rights to publicly raise her concerns about domestic violence,” her repeated attacks against him have played a part in diminishing his income.” Moreover, the judge noted, the leak to the media about the hearing aid dispute was both misleading and unnecessary. It suggested that the daughter was deprived of the hearing aids because of the dispute, but in fact it was only a fight about paying the bill after the fact, which was being considered in court. As the court concluded:

From the evidence presented, the court concludes that the Wife contributed to the decline in value of the Husband’s law practice. The court has considered the multitude of newspaper articles and website postings arising from this divorce litigation. The article and a significant number of the postings presented the Husband in a negative light. Although the Wife was not necessarily the source of each of these postings, she was the initial source of the articles, and, throughout these proceedings, regularly posted negative information about the Husband to various web sites. The Wife claims she never intended to harm the Husband’s career and that she, herself, never mentioned his law firm by name. The court finds her claim completely lacking in credibility. The Wife is intelligent and very savvy with respect to public relations. She would surely have understood that the reason why her stories had legs was precisely because her Husband was a partner at a major law firm. Even if by some stretch of the imagination she thought otherwise, the very first article printed in the Daily News, in which the Husband’s law firm was mentioned by name, should have disabused her of the belief that the Husband’s career might not be affected.

It is hard to judge factual findings from a cold record—for this reason, findings of fact are reviewed on appeal under a deferential “abuse of discretion” standard. But two questions jump off the page of this opinion.

First, was there adequate evidence that there was a direct causal relationship between the wife’s blogging and media activities and the husband’s earnings? The key evidence seemed to be the testimony of a close personal friend of the husband’s that he went to a new firm because his company did not like what they had read about Ira Schacter. But this witness was not a neutral party and, in the high stakes game of law firm rainmaking, one client makes little difference. (It’s also not clear to me that being accused of dating a Playboy bunny would obviously be a cause of disrepute in the hypermasculine world of Wall Street and its lawyers.)

Second, given the obvious impact of the great recession, which coincided almost perfectly with the key years of the Schacter divorce, how could the judge make any reasonable determination as to the relative impact of badmouthing versus the economy (or versus other factors, such as his wife’s claim that he just didn’t work as hard as he used to)? A reduction from 50 to 17 percent is dramatic and not clearly justified by the facts. (Some of the harm may be offset by the judge’s decision to use the law firm partnership’s value at the commencement of the proceedings—pre-recession—than closer to the end. Seventeen percent of a high number may work out to be more than fifty percent of a much lower number.)


At the end of a seven-year divorce, everyone’s tired and exasperated, including the judge. (The children have also suffered. The son has little relationship with his mother, while the daughter has little relationship with her father.) The judge chastised the parties for problems with “personality” and noted that each “party demonstrated troubling and uncooperative behavior during the proceedings;” “[e]ach party at times displayed offensive behavior in court. They each shouted and interrupted court proceedings. They made inappropriate comments and gestures to each other immediately outside the courtroom. They each periodically ran out of the courtroom in the middle of the proceedings.”

But the wife has perhaps learned the hardest lesson—that bitterness, whether justified or not, can be costly.

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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A Federal Court Looks at Wisconsin’s Political War Mon, 21 Apr 2014 04:01:00 +0000 Continue reading →]]> InvestigationWant-to-be President-of-the-United-States Scott Walker, currently the Republican governor of Wisconsin, has given his state ongoing political conflict the likes of which few long-time Wisconsinites can recall. On Walker’s side is a small array of radical Republicans both from within the state and from without: Wisconsin Club for Growth, Koch’s Americans for Prosperity, Rove’s American Crossroads, Republican Party of Wisconsin, Republican Governors Association, Friends of Scott Walker—to name a few. On the other side of this conservative coalition will be found most everyone else in Wisconsin who wants to return to political sanity in the Badger State.

It will be recalled that President Obama carried Wisconsin 52.8 to 46.1 percent in the 2012 presidential election. Yet the more aggressive/activist conservative GOP has used every ploy in the book to successfully take control of Wisconsin’s state government, with Scott Walker leading the way. The Walker administration, in turn, has effectively imposed a solid conservative Republican agenda on the state. The actions of a small minority have caused the majority to examine what the minority in doing, and how they are doing it.

Activity in Wisconsin is important and instructive for two reasons: First, the state is a microcosm for the nation of a situation where radical right Republicans control government over an otherwise centrist-to-progressive population. This minority has been governing for their narrow ideological interests, without regard to the interests of anyone else. Secondly, Scott Walker is one of a few contemporary politicians who is strikingly (if not scarily) Nixonian. (I have looked at Walker before: here and here.)

It is not surprising that the internecine politics of Wisconsin conservatives have caused others in the state to look more closely at what these folks are doing. Conservatives, however, believe these inquiries are a secret political war—an unconstitutional infringement of their First Amendment rights—which they want the federal judiciary to halt. More specifically, Wisconsin conservatives seek to halt the state’s inquiry into potential abuses or misuses of the state’s campaign finance laws. Conservatives have had some success, so far, in persuading at least one federal judge that they have a valid complaint.

The “John Doe” Investigations Battle

In the baggage that Scott Walker carried into the Wisconsin governor’s mansion was a secret John Doe investigation from his days as the Milwaukee county executive. Such investigations are usually secret. While Walker was never criminally charged because of this investigation, others were.

These John Doe investigations are unique to Wisconsin. Wisconsin criminal defense attorney Marcus Berghahn reports this investigative tool has existed since pre-statehood days, and today it is part and parcel of the Wisconsin criminal justice system. It is like a grand jury proceeding without the jurors, for Joe Doe investigations are overseen by state judges in proceedings set forth in the Wisconsin Criminal Code.

Scott Walker’s John Doe investigation was discovered only when he reported creating a legal defense fund to deal with it, which, in turn, sparked news coverage of the activities. Soon thereafter conservatives were claiming they were being attacked in a secret war by Wisconsin “liberals”—by which conservatives actually meant moderates, centrists, and progressives—who were exploiting the state’s John Doe investigative process against them.

Wisconsin conservatives soon began leaking the existence of these investigations to the Wall Street Journal and other conservative media, which have reported about them on a continuing basis. The Wall Street Journal’s editorial page has been particularly outraged by Wisconsin’s interest in quietly determining whether conservatives are playing by the rules. Most recently, the Journal addressed the John Doe investigation in February, and then again this month: Wisconsin Punch Back (02.10.14), Documents Released in Probe of Scott Walker’s Former Aide (02.19.14), and most recently, Wisconsin Civil-Rights March (04.11.14).

This most recent Wall Street Journal editorial got my attention. A leading target of the latest iteration of the John Doe investigations related to Scott Walker is trying to kill the investigation. Wisconsin Club for Growth Director Eric O’Keefe filed a federal lawsuit against the investigator, prosecutors, and judge handling the case to halt their inquiry. These Wisconsin officials have responded by trying, unsuccessfully, to get the federal lawsuit dismissed. So what are we to make of this latest battle with Wisconsin conservatives?

A Federal Court Has Entered the John Doe Investigations Fray

The Wall Street Journal editorial proclaimed: “Score another one for free political speech,” when “Federal District Judge Rudolph Randa soundly rejected a motion to dismiss a federal civil-rights lawsuit against Wisconsin prosecutors who are investigating the political activities of conservative groups (but not liberals).” The editorial noted: “The John Doe probe has been a one-sided investigation conducted against political opponents to chill their ability to influence elections, and now the prosecutors will have to defend themselves in open court.” (Incidentally, the Journal has absolutely no evidence Wisconsin has ignored liberals.)

The Journal, along with a number of conservative blogs, have claimed from the outset that all of the John Doe investigations relating to Scott Walker have been little more than partisan witch hunts against conservatives, notwithstanding the fact they have produced evidence of misconduct in the Walker camp. While it is true there have been more complaints about alleged abuses by John Doe investigations than there have been explanations of what these investigations have uncovered, this is for a very good reason: The work of the John Doe investigations has been secret and sealed to protect the innocent.

Given their secrecy it is not surprising very little has been said about what the John Doe investigations have actually done or may be doing. Accordingly, Marquette Law School Professor Edward Fallone has cautiously speculated that the current John Doe investigation may now be looking at obstruction of justice in connection with its prior Walker-related inquires. But, in fact, no one knows, and the O’Keefe lawsuit sheds very little additional light.

Too Soon to Make a Judgment on the Wisconsin Joe Doe Inquiry

Notwithstanding the Journal’s delight with Judge Randa’s ruling, that decision was very limited. Surviving a motion to dismiss is no great accomplishment for any plaintiff in any lawsuit, not to mention an action like this filed under 42 U.S.C. § 1983, which is an extremely broad federal statute.

O’Keefe’s complaint is loaded with sweeping conclusory statements about the accomplishments of Scott Walker’s administration, and how in the wake of Citizens United, the defendants sought to undertake a Joe Doe investigation to stymie their efforts to further conservative causes. However, all the key factual statements about what, in fact, specifically happened have been redacted in the complaint. Indeed, all the key facts in this case remain secret and sealed. So all the sealed affidavits and declarations filed to support O’Keefe’s complaint tell us absolutely nothing at this stage. And Judge Randa is not the ultimate fact-finder; rather that will be the task of a jury, if this case survives that long.

As Judge Randa’s decision of April 8, 2014, notes, and most all attorneys appreciate, O’Keefe did not have much to do to survive the motion to dismiss. He merely had to file a complaint with factual allegations, and the Judge wrote, “sufficient to state a claim that is plausible on its face, not merely speculative.” The Judge further noted that for purposes of this motion, he had to accept the complaint’s “allegations as true, drawing all reasonable inferences in favor of the plaintiffs.” A motion to dismiss merely tests whether, if all or even some of the facts could be proven as true, as a matter of law the case raises real legal issues for resolution, rather than being a waste of everyone’s time.

There was a very low threshold for this action: “To state a claim for selective prosecution or retaliation, a plaintiff must only allege facts to show the exercise of a constitutional right, state action likely to deter that exercise, and that the protected exercise was at least a ‘motivating factor’ in state action.” O’Keefe claims a violation of his First Amendment rights, and that the state of Wisconsin has violated those rights with its John Doe investigation. Accordingly, O’Keefe seeks preliminary and permanent injunctions to halt the John Doe investigation, and compensatory damages for infringement of his constitutional rights.

But this case has just started. While Judge Randa’s ruling could raise some interesting issues regarding discovery in Wisconsin’s secret John Doe proceedings, that may never happen. The defendants who are conducting the John Doe investigation have filed a notice that they plan to appeal O’Keefe’s action. The U.S. Court of Appeals for the Seventh Circuit may view this case much differently than Judge Randa did.

John W. Dean, a Justia columnist, is a former counsel to the president.
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The Overland Park, Kansas, Anti-Semitic Killer, the Kansas RFRA, the Federal RFRA, and RLUIPA Thu, 17 Apr 2014 04:01:48 +0000 Continue reading →]]> Klan MemberWhen a man shot up a Jewish community center and nursing home in Overland Park, Kansas, last week, it did not take long to figure out he was a white supremacist who is viciously anti-Semitic. Jewish entities were on alert, because of the unusual confluence of Easter, Passover, and Hitler’s birthday (April 20) this year. His name is Frazier Glenn Miller and he has been charged with capital murder in the deaths of a 14-year-old boy and his grandfather, and with murder in the death of a woman. He is the epitome of evil.

To be honest, I don’t care what his name is, because what is far more important is that Americans understand he is not some lone gunman who happened to lose it one day. He is part of a movement of like-minded believers who hold virulent, white supremacist, anti-Semitic, racist, and misogynist views in the United States. Some, like him, pair those beliefs with violent intentions and actions.

The white supremacist movement is evident in various groups catalogued by the Southern Poverty Law Center (SPLC), which performs a critically needed public service by tracking hate groups across the United States. These believers are not shy. For example, some have been trying to overtake a town in North Dakota. Not all white supremacists share the same religious source for their beliefs, however.

Miller’s Religious Beliefs

Most in Miller’s shoes, e.g., your typical Ku Klux Klan member, trace their beliefs to a branch of Christianity, but Miller does not fit that bill. According to CNN, he is an Odinist, which is a neo-pagan religion, derived from Norse mythology. While pagan religions like Odinism and Asatru traditionally have been peaceful, some people, particularly in the prisons, have transformed them into repositories for racist, hate-filled beliefs. He fits into that category.

The SPLC states the following on its website about their burgeoning presence in the prisons: “In a 2004 report, the National Gang Crime Research Center surveyed prison officials in 49 states and found that Odinists, Asatruers and Wotansvolk were the most common ‘white racist extremist religious front groups proselytizing American prison inmates today.’”

The Overland Park killer was clearly not in prison, but roaming free. And he is not alone on the outside. In fact, white supremacist religious believers live across the United States. Note that the brand-new Mayor of Marionville, Missouri, is on record as agreeing with the views of this vicious killer. In fact, white supremacist religious believers live across the United States. The mayor disavows violence, but what public figure wouldn’t in light of these murders?

It matters whether Miller’s actions arose from religious beliefs, because if so, perhaps he can raise the federal and state RFRAs as a defense.

The Kansas RFRA, Otherwise Known as the Kansas Preserve Religious Freedom Act) and Federal RFRA for Murderers Charged with Capital Crimes

Miller who is now in prison, and facing the death penalty, is likely to invoke the Kansas RFRA, otherwise known as the Kansas Preserve Religious Freedom Act. The law is your basic extreme religious liberty statute: if the believer proves the law imposes a substantial burden, the burden shifts to the government to prove the law serves a compelling interest in the least restrictive means for this believer.

Miller is a religious believer—an odious one, to be sure—but he, like all other religious believers in Kansas, may invoke its benefits against every single state law: “The Act applies to all government action, including state and local laws, ordinances, rules, regulations, and policies, and to their implementation, whether enacted or adopted before, on, or after the Act’s effective date.”

There is, however, an interesting wrinkle in the Kansas RFRA, which states that it shall not be construed to “[p]rotect actions or decisions to end the life of any adult or child, born or unborn.” I assume this language is in place pursuant to pressure from pro-life religious groups, whose focus would be on preventing its use in the aid of abortions or assisted suicide. The plain language also seems to say, though, that it doesn’t protect murderers, which would be bad news for Miller.

But let’s suppose this language was clearly intended to be limited to cases of abortion and assisted suicide, and the Kansas legislature never considered murderers. Then he could argue that he should receive the Kansas RFRA’s shield, and, even if the state has a compelling interest in putting to death vile criminals like him, the death penalty is not the “least restrictive means.” A life sentence is “less restrictive” than death.

On the other hand, if Miller were charged by federal prosecutors, he could definitely invoke the federal RFRA and force consideration of whether the death penalty is the “least restrictive” means of regulating his conduct.

The Like-Minded White Supremacists in the Prisons and the Laws that Protect Them: RFRA and RLUIPA

The United States has a growth industry in white supremacists, with beliefs like Miller’s, in the prisons. There are many factors at play, but one undeniable element is the brooding omnipresence of the Religious Freedom Restoration Act (RFRA, which applies in the federal prisons) and the Religious Land Use and Institutionalized Persons Act (RLUIPA, which applies in the state prisons). These two laws handcuff prison administrators to an extreme religious liberty standard, which I described here, and which is unreasonable in the prison context.

Before these two laws entered the scene, prisoners did not have the advantage of super strict scrutiny to challenge prison regulations. At most, their constitutional claims were subjected to relatively low-level scrutiny under Turner v. Safley, and, more specifically, their free exercise claims were subjected to rationality review under O’Lone v. Estate of Shabazz.

The Supreme Court had an opportunity in 2005 to declare RLUIPA unconstitutional in the context of a facial challenge from the state of Ohio. That case, Cutter v. Wilkinson, involved a group of “nontraditional” faiths, including Asatru, that invoked RLUIPA to obtain accommodation of their religious practices. The Ohio state prison system responded by saying that the extreme version of religious liberty mandated by RLUIPA, in the prison context, was a violation of the separation of church and state and a true threat to prison security and safety.

A unanimous Supreme Court declined to rule RLUIPA unconstitutional across the board, but issued a decision with many caveats, including an invitation for as-applied challenges in the future:

Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.

The prisons continue to struggle, and now the Supreme Court has granted certiorari in a new prison case, involving a prisoner who is fighting the Arkansas prison’s rule against facial hair. Unless the Court takes more seriously this time the very real threats inside prison walls, it will once again fail to do the right thing. Hopefully, Miller will remind them that many prisoners, like he is now, are not benign.

White supremacists are alive and real in the United States, and this newest reminder out of Overland Park should force everyone to adopt more realistic assessments of what extreme religious liberty portends. Even if such a believer can’t win under RFRA as its supporters no doubt will argue, such a statutory system is nonsense when you consider the wide variety of troubling conduct motivated by religious belief.

Had Arizona’s Gov. Jan Brewer not overruled its wrongheaded law to empower private businesses to invoke RFRA against people whose practices they disapproved, white supremacists like Miller, the Mayor of Marionville, and many ex-cons could have invoked it against Jews, blacks, and everyone else they loathe. Likewise, one can only laugh at the Mississippi business owners who have now pledged that they won’t take advantage of the new Mississippi RFRA to discriminate. What good does that do? They don’t control the rest of the Mississippi businesses. We now have a vivid reminder that there are plenty in our country who would never sign such a pledge. Ever.

Marci A. Hamilton is a professor of law at Cardozo School of Law, and the author of Justice Denied: What America Must Do to Protect Its Children, which was just published in paperback with a new Preface. She also runs two active websites on issues she writes about frequently, and Her email address is
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Minnesota Court Rules That First Amendment Protects Encouraging a Suicide Wed, 16 Apr 2014 04:01:16 +0000 Continue reading →]]> Constitution GavelIn March, the Supreme Court of Minnesota decided a case involving a criminal defendant who had used a false Internet identity (posing as a caring and knowledgeable female nurse who intended to kill herself) to actively encourage each of two depressed and suicidal people to kill themselves.  One of the two targets hanged himself, as the defendant had urged him to do.  The other jumped off a bridge, contrary to the defendant’s advice that she hang herself immediately (a method that would have allowed the defendant to watch the suicide via webcam).

The Minnesota Supreme Court ruled that two of the three activities that the law under which the defendant was prosecuted prohibited are actually protected by the First Amendment freedom of speech, as incorporated against the states via the Fourteenth Amendment Due Process Clause.  The offending parts of the law, in the court’s analysis, prohibited a person from advising or encouraging another in taking the other’s own life. The valid part prohibited a person from assisting another in taking the other’s own life.

Though there was a dissent from the court’s decision, the dissent agreed with the court’s First Amendment invalidation of two parts of the statute and would have gone further to invalidate the entire statute, as applied to the defendant’s case, as a violation of the First Amendment.  According to the dissent, even the prohibition against assisting a suicide could not validly be applied to a person whose involvement in a suicide consisted exclusively of speech.  In this column, I will consider whether the Minnesota Supreme Court correctly decided the case.

Categories of Unprotected Speech

The Minnesota law at issue in State of Minnesota v. Melchert-Dinkel, states the following:  “Whoever intentionally advises, encourages, or assists another in taking the other’s own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.”  The state supreme court, in analyzing the validity of the statute, under which William Francis Melchert-Dinkel was convicted, raises the question whether advising or encouraging or assisting suicide falls within one of the traditionally unprotected categories of speech, such as obscenity.

As the Minnesota Supreme Court explains, “the Supreme Court [of the United States] has long permitted some content-based restrictions in a few limited areas, in which speech is ‘of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.’” [quoting Chaplinsky v. New Hampshire].  As the Minnesota Supreme Court observes (and as the appellant argued), the speech here potentially fits within one of three such categories:  (1) fraud, (2) incitement to imminent lawlessness, and (3) speech integral to criminal conduct.

Is Encouraging Suicide Fraud?

One potential category of unprotected speech that might cover the defendant’s conduct is fraud.  A person necessarily commits a fraud through speech:  a fraudulent actor might tell a customer falsely that if the latter buys and drinks the potion that the fraudulent actor is selling, then the customer’s cancer will go into remission.  To commit a fraud is to make a false claim, as the Minnesota court states, “to ‘gain a material advantage,’ including money or ‘other valuable considerations,’ such as offers of employment.”

Lying alone is not enough then.  One must lie with the intention of inducing the listener to enrich the liar in some way, as a result.

How did Melchert-Dinkel potentially commit fraud?  In online communications with his two targets, two depressed individuals considering suicide, the defendant presented himself as a caring and compassionate female nurse who was also going to commit suicide.  In fact, the defendant was a male, was not a nurse, and had no plan to kill himself.  His goal in making these false representations was to induce the two strangers to kill themselves by hanging, and to do so in view of a webcam so that he could watch them die.

The false representation aspect of fraud is clear in this case, because the defendant plainly lied to the targets about his identity, his expertise, and his plans.  According to the Minnesota high court, however, there was no fraud because the defendant did not gain “a material advantage or valuable consideration from his false speech.”  Lies that yield no enrichment for the defendant do not qualify as fraud.

The Minnesota Supreme Court is correct to note that not all falsehoods constitute fraud.  For example, if you tell a friend that you cannot go to his birthday party because you have a competing obligation, but you actually have no such competing obligation, you will not be held liable for any sort of fraud.  At the same time, in some sense, all lies are intended to get something for the liar—perhaps to create a positive impression on the listener (or to avoid creating a negative impression with the truth, which might be “I have nothing else to do that day but would rather watch paint dry than attend your birthday party”).  Yet there must be something more concrete to be gained to constitute a fraud than the simple benefit of knowing that the lie’s recipient believes something untrue.  Otherwise, the material gain requirement would have no effect.

In Melchert-Dinkel, is it accurate to say that the defendant sought nothing material from his deceptions?  He certainly was not seeking the sort of gain that a normal person might seek, such as money or a promotion at work.  What he sought, however, was the reward of having his targets commit suicide and, in particular, the opportunity to have them kill themselves by hanging in front of a web camera so that he could watch.  His intended gain, while disgraceful and bizarre, is nonetheless a cognizable gain, as we can see if we consider a different market in viewable conduct.

Consider a person who visits a purveyor of films showing unwitting couples having sex in the purveyor’s hotel. Assume that the person pays the purveyor some amount of money and receives a password in return.  The password enables the payor to sign onto a website where he can then watch a film of hotel guests having sex.

Many people would regard this transaction as reprehensible.  However, it is clear that both parties to the transaction would regard it as an exchange of material benefits—one gained cash, and the other gained visual access to a sexual scene.  What Melchert-Dinkel hoped to gain from his self-representation as an empathic and knowledgeable female nurse who was similarly planning to commit suicide was (and perhaps even motivated by similarly sexual urges):  the opportunity to watch someone kill himself or herself.  The Minnesota Supreme Court therefore could have upheld the statute—at least as applied to this defendant—as addressing a fraudulent act in pursuit of some gain, albeit of an unusual sort (one hopes).

Fraud, however, is admittedly not the ideal vehicle with which to defend the particular statute in this case.  It is, after all, just happenstance that this defendant pretended to be a suicidal female nurse in his efforts to induce his targets to commit suicide.  Much of the time, presumably, someone who advises or encourages or assists people in committing suicide, as the statute forbids their doing, will be speaking honestly and will thereby disqualify himself or herself from prosecution for fraud.

It is nonetheless clear that the statute was aimed at stopping people from engaging in such conduct, however honestly, and that fraud was not contemplated as integral to the conduct targeted by the law.  Therefore, though the fraud category works better than the court envisioned in defending the prosecution of Melchert-Dinkel, it is not well-suited in general to defending the prosecution of those who advise, encourage, or assist others in killing themselves.

Is Encouraging Suicide Incitement?

Another option that the Minnesota Supreme Court considers is incitement to imminent lawlessness.  According to Brandenburg v. Ohio, a prohibition against inciting or producing imminent lawless action would represent an exception to the First Amendment’s protection of freedom of speech (though the Court held there that the exception did not properly apply to the facts of Brandenburg itself).  For example, if a speaker speaks in a manner directed at getting a listener all riled up to commit a specific murder right away, then the speaker can, without running afoul of the First Amendment, be held criminally (or civilly) responsible for such incitement, notwithstanding the fact that he was using words to accomplish the incitement.

This category seems a good fit for this case, because Melchert-Dinkel was saying the things he said in an effort to provoke each of his targets to commit suicide right away.  This would appear to be a perfect example of incitement to imminent lawlessness, so why does the Minnesota court balk?

The answer is that, as the court explains, suicide is not a criminal act.  Incitement typically refers to someone speaking in a manner so as to provoke the listener to violate the law; hence the phrase “imminent lawlessness” in incitement doctrine.  If one is inciting another person to do something legal, however, then the incitement in question cannot qualify as “incitement” to imminent lawlessness.  Or can it?

In answering this question, it is helpful to consider why suicide, which used to be a crime, is no longer classified as criminal.  Some formerly criminal actions become lawful, because society comes to the realization, through moral progress, that there was never anything truly wrong with the conduct to begin with.  Criminal laws prohibiting same-sex relationships fall into this category.  Other formerly criminal actions, however, stop being criminal for different reasons.  Where does the decriminalization of suicide fall?

In the past, suicide was understood as a crime similar to homicide—you must not kill yourself, because you are illegitimately taking a life.  This view has changed, however, in response to a more enlightened understanding of depressive illness.  The law currently reflects the view that suicide in most circumstances is a tragedy and not a crime.  Rather than decriminalizing suicide because it is harmless, then, the change in the law reflects a more evolved understanding of suicide.  Someone is suffering terribly and concludes that she cannot feel better, so she prefers not to live anymore.  A person who commits suicide is, in that sense, a victim of a crime for which there is no perpetrator.

If we understand suicide in this way, as a “perpetrator-less” crime, then it no longer makes sense for the law to tolerate the incitement of suicide as protected free speech, when it would not similarly tolerate other incitement of violent conduct.  The reason that we exempt incitement to lawless activity from First Amendment protection has nothing to do with the mens rea (guilty state of mind) of the recipient of the incitement; it instead has to do with the grave and immediate harm that is accomplished (without sufficient time for intervention) as a direct consequence of the inciter’s speech.  The fact that one is inciting an act that falls within the criminal law is arguably neither necessary nor sufficient for application of the incitement exception to free speech.

Consider, for example, Justice Brandeis’s discussion of what would essentially amount to incitement of a trespass on land, in his concurring opinion in Whitney v. California:

[A] state might, in the exercise of its police power, make any trespass upon the  land of another a crime….  It might, also, punish an attempt, a conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross uninclosed, unposted, waste lands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass.

Incitement, in other words, must result in a serious harm, not a mere technical violation of the law.

Conversely, a veritable cliché for the sort of speech that falls outside of the First Amendment’s protection is a person falsely shouting “fire” in a crowded theater.  As Justice Oliver Wendell Holmes said for the Court in Schenk v. United States (an otherwise questionable opinion upholding the prosecution of people distributing written materials encouraging others to resist government efforts to enlist them in the military):  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”  Though the “clear and present danger” standard the Court announced there has given way to the “incitement to imminent lawlessness” standard of Brandenburg, I have yet to hear an argument from anyone that falsely shouting “fire” in a crowded theater now qualifies for First Amendment protection.

Why is this “shouting fire” example relevant?  It is relevant because people running for their lives from a crowded theater after hearing “Fire” are not necessarily engaged in unlawful conduct in the sense of criminally actionable behavior.  What makes inciting people to imminently stampede (by falsely yelling “fire” in a crowded theater) unprotected speech is the enormous injury and possible death that would result from such speech, just as inciting an imminent murder is unprotected speech because it would imminently trigger conduct resulting in a death.  The fact that running from a theater might not be a crime, while murder is a crime is fundamentally beside the point:  the outcomes are both grave harms, and the imminence of incitement speech means that pro-social intervention is highly unlikely.

It is indeed arguable that inciting a person who cannot be held criminally responsible for his actions is more—rather than less—dangerous than inciting a fully responsible person to act in a manner for which he can be held criminally liable, as in the case of incitement to imminent murder.  This is because a responsible person can, by definition, more readily exercise a level of cognition and control that enables him or her to refrain from committing a criminal act, notwithstanding another’s incitement.  By contrast, a person who is not fairly subject to being held responsible for what he is about to do—either because of circumstances (a panic) or because of the tremendous suffering that motivates a suicide—is likely to be far less able to resist the incitement that he confronts.

Is Encouraging Suicide Speech Integral to a Criminal Act?

The Minnesota Supreme Court rejects, as well, the notion that advising or encouraging a suicide represents an integral part of conduct in violation of a valid criminal statute.  For the same reason that it rejects the application of the doctrine of “incitement,” it views this exception as inapposite, because there is no criminal act in a suicide, and encouraging someone to commit suicide therefore cannot be “integral” to a nonexistent criminal act.  This exception indeed does seem inapposite, given its express reference to criminality, although one could make a case that suicide actually becomes a crime when someone other than the one who is killing himself plays a causal role—a perpetrator-less crime becomes a crime with a perpetrator.  Yet incitement still seems the better choice, for the reasons I discussed above.

The Remand

After ruling out the application of the various categories of unprotected speech, the Minnesota Supreme Court applies strict scrutiny (an extremely demanding constitutional standard) to the law in question and concludes that part of it passes this scrutiny, while part of it does not.  The part that fails the test, which requires that a restraint on fundamental rights be narrowly-tailored to advancing a compelling governmental interest, is the prohibition on intentionally advising or encouraging another to commit suicide.  The part that survives the test is the prohibition on assisting another in committing suicide.

The Minnesota Supreme Court concludes that the trial court’s judgment of conviction against Melchert-Dinkel was ambiguous as to whether the court had actually found the defendant guilty of all three forms of aiding a suicide, or whether it had found him guilty of only one or both of the two forms that constitute protected speech (advising or encouraging).  The high court therefore sends the case back down for the trial judge to clarify his ruling and then act accordingly on the basis of the high court’s First Amendment holding.

As I mentioned earlier, the dissent objected to the remand on the ground that even “assisting” a suicide through words alone is constitutionally-protected under the First Amendment.

As I explained above, I believe that both the majority and the dissent are mistaken in their Free Speech analyses, because advising or encouraging a suicide in a direct and targeted manner, which the law in question contemplates, does not fall within the protection of the First Amendment, as it represents incitement to imminent lawlessness.

Ironically perhaps, what makes the actions of the defendant in this case especially repugnant, in my view, is less his “assistance” (that is, his explaining exactly how a person might go about hanging himself) than his attempt to motivate his targets to carry out the act (through advice and encouragement).  Stated differently, the one thing on which majority and dissent seem to agree—the constitutionally-protected status of advising and encouraging suicide—is precisely what strikes me as wrong about the decision.

I am far less certain that verbally assisting someone in committing suicide should be constitutionally subject to prohibition.  To the extent that such assistance involves providing how-to information, then the person who is truly ambivalent about his choice will have an easier time saying no.  (Indeed, one of the defendant’s targets chose to kill herself in a manner quite distinct from that which the defendant proposed).  The person about whom I worry is someone who is ambivalent about his choice to kill himself and will not act unless someone encourages him to do so (for example, by saying “Let’s do this together”).  In the very different context of physician-assisted suicide, for instance, my view would be that a doctor should be allowed to provide assistance to a patient but should never be allowed to try to persuade an ambivalent patient that he really should go ahead and end his own life.

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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Animal Rights Activists Should Have Clear Notice of the Bounds of the Animal Enterprise Terrorism Act (AETA) Mon, 14 Apr 2014 04:01:43 +0000 Continue reading →]]> DemonstrationOn March 7, 2014, Chief Judge Lynch of the U.S. Court of Appeals for the First Circuit held that that five animal rights activists were not entitled to declaratory and injunctive relief stating that the Animal Enterprise Terrorism Act (AETA)—which criminalizes force, violence, and threats—is unconstitutional.

The five plaintiffs, all animal rights activists, filed the lawsuit to receive guidance on their plans for future protest activity. The plaintiffs want to lawfully protest animal abuse, but fear being criminally prosecuted under AETA for their protests. In rejecting the plaintiff’s right to bring the action, Chief Judge Lynch held that the plaintiffs had failed to allege an objectively reasonable chill on their First Amendment rights, and therefore had failed to establish an injury-in-fact. The court held that until the protestors have actually protested, the plaintiffs do not have standing to have a court determine whether the AETA’s restrictions on protests may be enforced.

The court’s decision is unfair. It chills the ability of protestors who wish to lawfully communicate their political agenda out of fear of inadvertently triggering AETA. Instead, the court left the activists in fear, unsure of what they may or may not legally do. This situation is unfair to the protesters and, even more so, to the innocent animals whose lives they might otherwise have saved.

Briefly, in 1991 Congress enacted AEPA, which criminalized the use of interstate commerce to cause physical disruption of an animal enterprise. In 2002 and 2006, Congress amended the statute and renamed it AETA—inserting “terrorism” into its title. In addition to higher penalties, the AETA, unlike the AEPA, does not limit itself to physical disruption of an animal enterprise. Instead, the AETA also criminalizes threats made against third parties who are associated with animal enterprises.

Prior to the AETA, animal rights activists had been successful in shaming other businesses which conduct business with animal abusers. This strategy has been used by many protest movements. Notably, many anti-Apartheid protests in the U.S. were directed not at the South African embassy, but U.S. corporations that refused to divest. The AETA was written to curtail the ability of the animal rights protestors in this regard.

The plaintiffs, wishing to engage in protests, sued to obtain declaratory and injunctive relief stating that AETA is unconstitutional under the First Amendment. They point to three alleged flaws in AETA:

  1. Portions of AETA are overbroad;
  2. AETA discriminates as to content and viewpoint; and
  3. AETA is void for vagueness.

Each of the activists had sought to engage in activities that they reasonably fear will trigger AETA prosecution, as follows:

The Activities at Issue

These activities are as follows:

(1) Sarahjane Blum would like to lawfully investigate, but has been deterred from, investigating, a Minnesota foie gras farm, and publicizing the results of her investigation via a documentary film. She says that she would also like to organize letter-writing and protest campaigns to raise public awareness, and pressure local restaurants to stop serving foie gras.

(2) Ryan Shapiro would like to lawfully document and film animal rights abuses, but is deterred from doing so. Although Shapiro continues to engage in leafleting, public speaking, and campaign work, he fears that these methods of advocacy are less effective than investigating underlying industry conduct.

(3) Lana Lehr alleges that she would, but for AETA, attend lawful, peaceful anti-fur protests, bring rabbits to restaurants that serve rabbit meat, and distribute literature at events attended by rabbit breeders. Now, Lehr’s advocacy is limited to letter-writing campaign, petitions, and conferences.

(4) Iver Robert Johnson, III alleges that although he himself has not been deterred from speaking by AETA, others have been deterred, and their being deterred has led Johnson to be unable to engage in effective animal rights advocacy.

(5) Fifth and finally, Lauren Gazzola alleges that she is chilled by AETA from making First-Amendment-protected statements that are short of the incitement of illegal conduct.

(Gazzola was convicted in 2004 based on the predecessor statute, AEPA, that was in effect before AETA, and based on the claim—highly debatable on the facts—that Gazzola had made true threats.)

The Right To Bring Pre-Enforcement Lawsuits

Typically, for a party to obtain a judicial remedy, the plaintiff must prove “standing.” This requirement arises from Article III of the U.S. Constitution, which provides that the courts only hear “cases” and “controversies.” The Founders, in order to restrict the powers of the judicial branch, limited federal courts to matters where the plaintiff can show a concrete, particularized, and actual or imminent injury.

Thankfully, cases interpreting the First Amendment have held that the plaintiff need not actually undergo a criminal prosecution in order to challenge an unconstitutional law. Instead, the plaintiff must either allege an intention to engage in a course of conduct that is proscribed and there is a credible threat of prosecution. Alternatively, a plaintiff may obtain standing when she is chilled from exercising her right to free expression. The Supreme Court has held that the alleged chill cannot be the subjective opinion of the plaintiff, but rather there must be a specific present objective threat of harm.

The Court Holds That the Plaintiffs’ Fears of Prosecution Are Not Sufficiently Concrete

Despite the plaintiffs concerns of prosecution, the court held that there is no objective reason for the protestors to have such concern. The court felt that aspirational language in the statute that supported free expression would guide prosecutors away from prosecuting the plaintiffs. Further, the court placed great weight on the government’s statement that it did not intend to prosecute the plaintiffs’ planned actions.

Like the plaintiffs, I am doubtful that the prosecutors will necessarily exercise the restraint that they claim to possess. In particular, Ms. Gazzola informed the court that she intends to voice support for other animal rights activists who are engaged in illegal activities. She further intends to participate in lawful protests. Ms. Gazzola—having previously been successfully prosecuted—understandably wants a judicial determination on the validity of aspects of the AETA before she proceeds. I disagree with the court that her fear of prosecution is unreasonable.

The court concludes with noting that should Ms. Gazzola and her co-plaintiffs be prosecuted, they will have the right to raise all of these concerns as defenses at that time. Leaving the activists in fear and unsure of what they may or may not legally do is unfair to the protesters and, even more so, to the innocent animals whose lives they might otherwise have saved.

Julie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read... a work of art." Her website’s address is
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The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor Fri, 11 Apr 2014 04:01:51 +0000 Hobby Lobby Supreme Court case. They add that it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. Thus, they comment on how the opinion should—and should not—be crafted. Continue reading →]]> U.S. Supreme CourtThe Sebelius v. Hobby Lobby Stores case argued before the Supreme Court last week raises the question whether the Hobby Lobby chain of arts and crafts stores is entitled, under the Constitution or the federal Religious Freedom Restoration Act (RFRA) to be exempt from the requirement in Obamacare that employers who provide health insurance to their employees include in the insurance policy certain forms of contraceptives, the use of which for some persons (including the owners of Hobby Lobby) is forbidden by religious principles. Many commentators, ourselves included, predict that Hobby Lobby will win the case, and be found to be exempt from the Obamacare requirements by virtue of RFRA.

Yet at the oral argument, many Justices, especially Justices Ginsburg and Sotomayor but also Chief Justice Roberts, pressed Hobby Lobby’s lawyer, Paul Clement, on just how far his religious-exemption argument might extend. Right out of the gate, Justice Sotomayor asked him about religiously-inspired objections to vaccines and blood transfusions. Moving beyond healthcare mandates to other federal regulations of employers, Justice Kagan asked, a few moments later: “So another employer comes in and that employer says, ‘I have a religious objection to sex discrimination laws’; and then another employer comes in, ‘I have an objection to minimum wage laws;’ and then another, child labor laws. And [under] all of that [the federal government can win only if it satisfies] the exact same test [for RFRA you describe today,] which you say is this unbelievably high test?

If, as we expect, Hobby Lobby prevails, it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. In the space below, then, we try to identify how an opinion in Hobby Lobby’s favor should—and should not—be crafted.

Do Corporate Entities Enjoy Protection Under the RFRA?

Let us turn first to one key question under RFRA—whether its protections extend beyond natural persons to corporate entities like Hobby Lobby (a closely held for-profit “S” Corporation owned by the Green family.) We think RFRA can be found to apply, but that the Court should make clear that RFRA is designed to protect religious freedom of conscience and that a corporation itself does not have a conscience in the same sense that human beings have a conscience.

Some commentators argue that just as the Supreme Court held that corporations are persons for freedom of speech purposes in the Citizens United case, corporations must be considered persons in free exercise or RFRA cases as well. We think that analogy is mistaken, and that grounding a decision in Hobby Lobby’s favor on this analogy would be unnecessarily expansive. Freedom of speech in the context of political expenditures by corporations is an instrumental right. We protect it because of its utility for democratic decisionmaking. In Citizens United, the Court held that corporations are persons for free speech purposes for explicitly instrumental reasons—because corporations can present voices or perspectives that should be part of the marketplace of ideas.

Freedom of religion and conscience are dignitary rights. Our society protects them not because doing so serves some instrumental goal, but because accepting and living one’s life based on religious beliefs, or deciding not to live a religious life, is part of what it means to be human. Government must respect the right of human beings to make self-defining decisions and to live their lives authentically in light of those choices.

Corporations have no such dignitary rights. They do not love. They do not feel guilt or shame. They have no conscience. They will not stand before G-d to answer for their sins after they die, because they are not human. They are artificial entities that exist in perpetuity. We are inclined to agree with Chief Justice Rehnquist’s dissenting opinion in Pacific Gas and Electric Co. v. Public Utilities Commission of California (a compelled speech case), where he wrote: “Extension of the individual freedom of conscience decisions to business corporations strains the rationale of those cases beyond the breaking point. To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.” Bluntly, if we are talking about corporations in a formal sense, corporations do not have religious liberty rights.

However, in many cases corporations can be viewed as the representative of or—as our UCLA colleague Eugene Volokh has suggested—a “proxy” for individual persons and groups. Whatever protection society provides to the corporate form is intended to recognize and protect the dignity not of the entity but, of the entity’s owners or managers. An incorporated church or a religious non-profit organization satisfies this criterion. A closely-held corporation like Hobby Lobby that is not publicly traded, and that is owned by a small number of actual individuals, does so as well.

Thus, the Court could hold that RFRA protects the conscience of the owners of Hobby Lobby notwithstanding their decision to do business in a corporate form. But it should make it clear that no such argument justifies protecting the conscience of publicly-traded corporations such as General Motors or Exxon. While Justice Roberts intimated that closely-held corporations could be distinguished from publicly-traded corporations, and that the protection provided to the latter by RFRA need not be decided in this case, a more prudent and limited opinion, and one that reflects the proper understanding of dignitary rights, could resolve this question in definitive terms once and for all.

The Strict Scrutiny Test, and (the Very Limited) Relevance of Statutory Exemptions in Assessing the Weight of the Government Interest

The most important issues that the Court will have to navigate in drafting a narrow opinion relate to the standard of review imposed by RFRA. To satisfy RFRA, the government must justify its regulations under strict scrutiny; that is, the government must demonstrate that its regulations are the least restrictive way to further a compelling governmental interest. Hobby Lobby wins its case if the government fails on either prong of this rigorous standard of review.

It is important in this case to examine each of these prongs separately. Several arguments presented to the Court attempt to establish that the government lacks a compelling interest to require the cost-free provision of medical contraceptives to employees who are provided health insurance. We think these arguments are wrong on the merits, in part because they are extremely broad and expansive in their implications. If the Court concludes that the government lacks a compelling interest in Hobby Lobby, many religious claimants might successfully challenge a very wide range of laws under RFRA.

In response to the somewhat obvious intuition that women need access to contraceptives for important birth-control and health reasons, and the fact that often the safest and most effective contraception is also among the most expensive, Hobby Lobby argues that Obamacare’s preventive medicine regulations are so underinclusive that the government interests can’t be compelling. The fact that businesses that employ fewer than 50 full-time employees are not required to offer any health plan to their employees, and the fact that many current health plans that do not include cost-free preventive medicine coverage are “grandfathered in” under Obamacare so that they continue to operate without change are said to demonstrate that the government itself does not treat the public health interest it is asserting as if it were a particularly important concern.

We think Solicitor General Verrilli effectively challenged this contention during oral argument. The fact that a law is underinclusive often has little bearing on whether the government’s goal that it furthers is compelling. Important civil rights laws, such as Title VII (which prohibits race discrimination by employers), often exclude small businesses from their coverage. Indeed, most laws have more exceptions to them, or limitations to their applicability, than their basic purposes might suggest. It is common for government to serve very important interests while moving forward in a piecemeal fashion to accommodate other non-trivial interests, particularly when it is breaking new regulatory ground. And new legislative programs serving compelling interests, such as the American with Disabilities Act, may be phased in to their operation without the phase-in suggesting that the interest being served is unimportant. It is hard to argue that the government lacks a compelling public health interest in making preventive medical services more available because—in the herculean task of transforming the provision of health care in the United States—it has grandfathered in some existing plans to protect important reliance interests and to facilitate a smoother transition to the new health care system. Most problematically, if the Court holds that the government lacks a compelling state interest in Hobby Lobby, all laws with exclusions, exemptions, limitations in applicability or phase-in periods would be vulnerable to similar RFRA challenges.

Narrow Tailoring—and A Plausible Narrow Way Out in the Hobby Lobby Dispute

The second prong of the RFRA standard—which asks whether the preventive medicine regulations are the least restrictive means to accomplish the government’s compelling state interest—provides a much narrower foundation for ruling in Hobby Lobby’s favor. Here, one arguably less restrictive means by which the government could achieve its goals that seemed to generate support from several Justices at oral argument was for the government to exempt employers asserting religious objections from the regulations, while arranging for the employees of such exempt employers to receive medical contraceptive insurance coverage from an alternative source—with either the insurance company providing the coverage or the government itself incurring the cost of these benefits. Indeed, the government already grants an accommodation to religious non-profits (recall that Hobby Lobby is for-profit), and requires health care insurers to provide the disputed coverage to the employees of the accommodated non-profit employers at the insurer’s own cost. A similar accommodation could be extended to closely held for-profit employers who object to the regulations on religious grounds.

It is important to note here that this alternative would be unavailable in most cases where a for-profit business seeks a religious exemption from a general regulation; the preventive medicine insurance coverage mandated by the Affordable Care Act is an unusual regulatory scheme in important respects. The benefits provided by the Act—generally available and affordable health insurance—are fungible, intangible goods that can be provided by either the public or private sector. And the Act’s beneficiaries have no reason to care about the source of the insurance.

This is not your ordinary workplace regulation. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans, whether they are in a workplace or not. Employers are used simply as a convenient instrument to distribute healthcare to many Americans—but that is incidental to the ultimate purpose of the legislation. Indeed, for many Obamacare backers, providing these benefits through the healthcare plans of private employers was the second-best alternative. A government health insurance (“single payer”) program was thought by some to be the most desirable and efficient way of guaranteeing affordable health insurance in our society.

In other circumstances, including many mentioned by the Justices at oral argument, if the government has to bear the cost of providing religious accommodations to employers, the price tag might be prohibitively high. Or any meaningful accommodation might involve interventions that are unacceptably complex and individualized. Or, as Paul Clement pointed out, in some cases—such as RFRA claims for exemptions from civil rights laws prohibiting discrimination—the unavoidable harm caused by granting an accommodation would simply be too great. But none of those problems would arise if the government provided supplemental insurance coverage (or required health plan insurers to do so) to the employees of religiously-exempt organizations like Hobby Lobby. Indeed, if the government provided the insurance coverage, it could limit its costs in doing so by requiring any accommodated business (e.g., Hobby Lobby) to contribute whatever funds it saved by not providing the contraceptive coverage to some other public good identified by the government that would be consistent with the employer’s faith, and on which the government would otherwise be spending the public’s money. (Exempt employers would be required to offer alternative contributions to satisfy their civic obligations, in much the same way that a religious pacifist exempted from conscription as a conscientious objector would be required to perform alternative service as a condition to receiving an accommodation.)

A decision in Hobby Lobby’s favor on these “least restrictive alternative” grounds would not be completely sui generis. It would apply to some other cases. But it would be the narrowest basis for a holding in Hobby Lobby’s favor. At a minimum, it would guarantee that the Court’s decision would provide no direct support to RFRA claims for exemptions from civil rights laws.

Would Granting Hobby Lobby an Accommodation Violate the Establishment Clause?

There is one final issue about the scope of any opinion the Court will issue that has to do with a constitutional question concerning the scope of RFRA. Several commentators and amici have argued that it will violate the Establishment Clause of the First Amendment if the Court rules in Hobby Lobby’s favor. They argue that the Establishment Clause imposes a cap or limit on religious accommodations. An accommodation violates the Establishment Clause if it goes too far and imposes too heavy a burden on third parties or the general public. Such a violation will occur if Hobby Lobby is exempt from the medical contraceptive regulations, the argument runs, because Hobby Lobby’s employees will not receive valuable public health benefits to which they would otherwise be entitled. Religious exercise cannot be privileged by accommodations if doing so imposes such a heavy cost on third parties.

One expansive rejoinder to this argument challenges the contention that the employees of an exempt employer will be harmed by the accommodation. The employees had no “right” to these benefits, after all. The government was not obligated to mandate the provision of no-cost health insurance for preventive medicine to these employees or anyone else. Indeed, the benefits are available only because of the very law to which Hobby Lobby claims to be exempt. The government isn’t harming or taking something away from employees if it (through the enactment of RFRA) decides not to provide as many benefits as it might, in order to protect religious liberty.

We think this rejoinder is overly broad and mistaken on the merits. An analogy to an early religious freedom ruling by the Court might help make the point. In some ways, the Establishment Clause argument here is the flip side of the Free Exercise claim upheld in Sherbert v. Verner, the seminal case in which the Court held that the state violated the free exercise rights of a Seventh-day Adventist when it denied her unemployment compensation because she refused jobs that required her to work on the Sabbath. In that case, as in the Affordable Care Act setting, the government was under no obligation to provide unemployment benefits to anyone, and therefore might be thought to have been free to deny benefits to persons who refused appropriate job offers. The fact that the state created the benefit scheme through an act of political discretion made no difference to the Court’s free exercise analysis in Sherbert, however, and we think it should make no difference to the application of the Establishment Clause in Hobby Lobby.

As a general matter, we believe that the loss of generally available benefits to which one would otherwise be entitled is a cognizable harm for both Establishment Clause and Free Exercise Clause purposes. Thus, denying an individual a generally available benefit to which she would otherwise be entitled, in order to accommodate some other person’s religious practice, is a cognizable harm for Establishment Clause purposes. And denying an individual a generally available benefit to which she would otherwise be entitled if she obeyed the dictates of her faith is a harm for Free Exercise purposes.

There is, as should be clear from our earlier analysis, a narrower ground for rejecting the argument that a judicial finding in Hobby Lobby’s favor will violate the Establishment Cause. If the Court finds in favor of Hobby Lobby, it will basically hold that if the government wants to provide medical contraceptive insurance coverage for the employees of religious employers, it will have to choose some way to do that other than by substantially burdening the employer’s religious liberty. The Court may then conclude that this holding, standing alone, does not violate the Establishment Clause because the government still retains alternative ways to accomplish its goals without burdening either the religious exercise of objecting companies or third parties. The government, as we suggested, could pick up the cost of the insurance coverage itself, and provide coverage to the employees of religiously-exempt organizations directly, or it could assign that obligation to health plan insurers—as it has done with the accommodations for religious non-profits. (And again, if it wanted to, the government could seek—and then redistribute—money from the exempt for-profit companies who are saving dollars by not offering the coverage.) This rejoinder to the Establishment Clause concern might not be available in many cases, but it is available in Hobby Lobby, and therefore should be invoked as a basis for narrowly deciding this case.

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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Now That the Affordable Care Act Is Working, It Is Time to Adopt National Single-Payer Health Care Thu, 10 Apr 2014 04:01:42 +0000 Continue reading →]]> HealthcareTo the surprise of many people, and to the great consternation of Republicans, the Affordable Care Act (ACA, or the dreaded “Obamacare”) failed to fail. Last week, to much fanfare, the Obama Administration announced that the ACA’s enrollment target had been met, which means that the health care law will not collapse from lack of adequate participation.

This was surprising, of course, because of the early software problems that emboldened the ACA’s opponents, and which raised the possibility that technical problems would doom the new law before it could even get started. Now, however, we know that we will proceed to the next stages of our national experiment with a broad expansion of profit-oriented, subsidized health care.

Despite this success, we must now plan to get rid of the ACA, and replace it with something much better. The ACA is inherently incapable of solving the larger long-term problems that our country faces in providing health care to all of our citizens. It was an important step forward, and we should be happy that it did not die a premature death, but we cannot now allow ourselves to believe that the current system is sustainable, or even acceptable.

That is why it is essential to say, clearly and unambiguously, that the United States needs to adopt a system of universal, single-payer national health insurance, as soon as possible. The ACA is as good as it gets, when it comes to basing a health care system on private insurance, and it is simply not good enough. Even as the ACA takes effect, therefore, we need to start planning to make it disappear.

The Success of the ACA, and the Importance of Its Component Parts

The reason that the ACA was at risk of failing to launch is actually a somewhat complicated story, but the explanation is ultimately about the nature of private insurance. If, against all logic, we decide to continue to run our health care system through competition among private insurers, the system must be designed with several key elements, in order to avoid what economists call a “death spiral.”

Insurers, even those that are not-for-profit companies, need to make sure that they do not ultimately have to pay out more in benefits than they take in from customers’ premiums. This means that insurers will try to separate people into different categories, on the basis of how expensive they are likely to become in the future. Smokers, for example, are treated differently from nonsmokers, for obvious reasons.

It is this simple logic that causes insurers to refuse to insure people with pre-existing conditions. If, for example, you have late-stage cancer, and you want to be covered by a health insurance policy, it would make no sense for the insurer to agree to take you on as a customer. Short of charging you exactly as much as you would have to pay directly for your cancer treatments, the insurer cannot help but lose money on you.

If you fail to disclose to the insurer that you have a late-stage cancer, then the insurer would need a way to protect itself from the economic loss that your deception would create. That is why insurance contracts generally exclude coverage for treatments related to pre-existing conditions. The problem is that insurers, over time, perfected increasingly aggressive ways to define what counts as a pre-existing condition, such that too many people who were insured suddenly found (after paying premiums year in and year out) that their insurers were canceling their coverage because, for example, a cancer patient had failed to disclose that she once had an unrelated illness (such as psoriasis).

Public outrage against such abuses grew, and the result was that even most opponents of President Obama understood that the insurers had overplayed their hands regarding pre-existing conditions. This meant that, when serious discussions began in 2009 regarding health care reform, one of the fundamental elements required of any such plan was that Americans could not be denied coverage due to pre-existing conditions.

This, however, raised a further difficulty. If everyone were to know that they could never be denied insurance coverage for an illness, then there would be no reason to take out insurance in advance of getting sick. This meant that people needed to be required to sign up for insurance in advance. Healthy policyholders, in particular, are an essential part of the economic model of private insurance. Without them, no private company could stay in business for long, because it is the currently healthy people’s premiums that finance the benefits that are paid on behalf of currently sick people.

The so-called mandate, which was the subject of the much discussed NFIB v. Sebelius Supreme Court decision two years ago, was thus an inextricable part of the ACA, because without it, no one would have any reason to sign up for health insurance in a world where they could not later be turned away, no matter how sick (and thus expensive) they became. Without the mandate, the entire insurance system would collapse. Hence, the term “death spiral.”

Finally, in order to allow everyone to become part of the insurance pool, the law had to recognize that some people could not afford to pay for their insurance. They would need to receive subsidies, allowing them to sign up, and thus to make the system nearly universal.

When this was all turned into law, however, it turned out that there was still some possibility that a large number of people would choose to pay the tax (or penalty) that was designed to push them into the insurance pool. Hence, the drama leading up to March 31’s enrollment deadline, which was entirely a matter of seeing whether the insurance pool would be large enough—and include enough currently-healthy people—to avoid the death spiral. Happily, it worked.

The System Is Inherently Wasteful, Even When the ACA Is Running As Planned

The success of the ACA will, ultimately, be seen in its expansion of coverage to people who were otherwise uninsured (a longstanding national shame), as well as its elimination of the risk that people will lose their insurance coverage due to abusive practices by insurance companies. This is no small accomplishment, because health-related tragedies have long been one of the leading causes of personal bankruptcies and family ruin.

Even so, the very difficulty of explaining why the ACA had to include its three component parts—(1)universal coverage, (2) mandated participation, and (3) subsidies—gives us some sense of what is still wrong with our system now. Private insurers are still in the business of sorting customers, and trying to get them to take on more of their own health care expenses, so that insurers can spend less money on benefits.

However, this effort to get people to take on more of their own costs up front, and to bear more risk of higher expenses later, is itself an expensive proposition. Even if insurance companies can no longer kick people who become sick off of their rolls, insurance companies still have every reason to try to extract more money from people.

The most direct way in which we can see these additional costs in action is, in fact, in the sign-up process itself. The insurers were allowed to create different types of plans (Gold, Silver, and Bronze) on the basis of costs, deductibles, and so on, for people who were willing to take on different degrees of risk. People then needed to figure out which of the available options was best for them.

Every step of this process involved needless expense. Designing the choices was expensive. Building the website was expensive. Advertising the coverage was expensive. Helping people navigate the exchanges was expensive. And, going forward, insurers will spend a great deal of money trying to poach their competitors’ best customers, by spending money on promotional materials, hiring attractive representatives to talk to the public about why Insurer A is better than Insurer B, and so on.

Why is that expense “needless”? Because, if there were only one insurer, there would be no need to get people to sign up for one insurance company rather than others, and there would be no reason to spend money and resources getting people to choose insurance as if they were choosing among different brands of breakfast cereal.

The Potential Savings From Adopting a Single-Payer System

How much extra money do we spend in the U.S. because of our commitment to keeping private health insurance companies in business? In 2012, we spent nearly 18% of total U.S. gross domestic product (GDP) on health care, or about $2.8 trillion. The Congressional Budget Office estimates that this amount will rise to 22 percent of GDP by the year 2038.

By comparison, the next most expensive health care system, among our economic peers, is France’s, which devoted less than 12 percent of its GDP in 2012 to health care. If the U.S. had been able to accomplish that feat, we would have spent almost one trillion fewer dollars on health care in that year.

The United States government could take on the role of “insurer” in the sense that it would use revenues to pay doctors, hospitals, and others for providing treatment to all Americans. It would, like other advanced countries’ governments, become the single payer, making it unnecessary to have private insurers engage in destructive competition that wastes so much of the nation’s resources.

We already have such a system for a sub-group of Americans. It is called Medicare, and it is extremely popular. It is true that Medicare faces possible financial difficulties, but any such problems loom only because we insist on treating Medicare as a stand-alone system financed by payroll taxes, rather than admitting that it is simply a well-run government program that provides insurance for nearly everyone over age 65. It has extremely low administrative costs, and its costs for paying for medical care have risen more slowly than those for private insurers.

Is Medicare’s success expandable, such that we could cover the entire U.S. population? There is, in fact, a proposal in Congress that would put the United States on the road to a single-payer system. The Expanded & Improved Medicare For All Act (H.R. 676) would expand our current elders-only single-payer health care program into a universal program, available to all regardless of age.

But would such a program actually save money in the United States? The economist Gerald Friedman, of the University of Massachusetts, has studied H.R. 676. He estimates that, by 2023, the U.S. could shave 7 percent of GDP off of the costs of our health care system, compared to the costs of continuing current law. At that point, that will amount to almost one and a half trillion dollars.

There are many subordinate questions regarding the adoption of a single-payer health care plan for the United States, which are beyond the scope of this column. For now, however, it is important to remind ourselves just how much we are wasting because Republicans as well as Democrats (very much led by President Obama in this regard) peremptorily ruled out any consideration of transitioning to a single-payer system.

People who oppose single-payer thus need to confront a simple question: Do your reasons for protecting private insurers justify the diversion of over one trillion dollars per year, rising every year in perpetuity, from other productive uses into unproductive health care expenses?

As happy as we should be that we now have moved our country forward, coming closer to the laudable goal of universal health care coverage, we cannot let that accomplishment obscure just how absurd our health care system is, at its core. It is expensive and wasteful, and we have the means to change it. It is time to get started.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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Stalking Us as We Shop: HP’s New Smartshopper App Tue, 08 Apr 2014 04:01:41 +0000 Continue reading →]]> SmartphoneHewlett Packard has unveiled a new mobile application (“app”) that retailers can use to trail people as they shop in order to send them targeted ads and promotions. The iOS mobile app called SmartShopper was unveiled at the Interop conference in Las Vegas at the end of March. It is being promoted by HP’s CEO Meg Whitman as a way for retailers to monetize their networks, and as a way to build “tighter relationships with their customers.”

The app has the ability to send location-based offers to customers’ iPhones in real time. It does this by tracking where shoppers are at any moment. As a result, it is being touted by privacy advocates as the newest “stalker” app—because it can trail us wherever we go. This is not the first time that so-called stalker apps have been in the news,with critics deeming them to be intrusive of consumer privacy.

In this column, I will look at two more recent examples of so-called stalker-shopper apps, and also at legislative attempts to address these new ways of tracking our movement and behavior. At the moment, there is nothing illegal about these apps—but the lack of transparency about what happens to data collected about us gives rise to many open questions that deserve answers.

SmartShopper Unveiled

A recent HP video clip that was posted online that shows how the Smartshopper app works. HP tells retailers: “Imagine reaching your customers with the right offer, and the right moment in the right place.”

The video clip is revealing, as it shows fake customer profiles that are quite detailed. There is “Julia,” a woman who likes running shoes and shoe shopping, is a high online spender, and recently had a baby. Then there is “John,” a contractor who likes beer, wine, and skiing and does not buy online. These profiles are intimate: They know who we are, and what we like and do. These customers are at the “Great Mall” in the video, and based on their location, retailers can send them online offers immediately. John, for example, is given a coupon for happy hour wine shopping.

SmartShopper is integrated with HP’s Location Aware Software Defined Network (SDN) application, also unveiled today, which is powered by technology developed at HP Labs, the company’s central research arm.

Dominic Wilde, a VP within HP’s Networking Division has boasted about the accuracy of SmartShopper: “It has very accurate location capabilities so that we can identify a device down to 2m, which is 60 percent better than anything else on the market today. In best case, even down to 1m.” This is like having someone snooping on you in very close proximity.

How will retailers identify one of us as a Smartshopper? SmartShopper is designed to lure customers, via their smartphones, to products and services that they are interested in through the merger of geolocation data with real time analytics. According to Wilde, SmartShopper merges your location with other servers that map out the location of items throughout a mall or store,while tapping into big data analytics about individual consumers.

In other words, HP’s app will be able to merge your location, your consumer profile, and the data about what in a nearby store should be attractive to you. Retailers will have the ability to cross-check consumers’ current location with their buying history, based on information gathered from the use of a rewards card, or from other existing customer databases. The system can then use that data to nudge a shopper toward a sale he or she might be interested in, by sending them a coupon while they shop. HP reports that it is in discussions with a number of retailers that are interested in using the app.

HP is not the first company to offer up location-based tracking services to market products to consumers as they shop and wander around stores. I discussed some of these in a previous column. In some situations, retailers like Nordstrom directly tracked consumer movements via a Wi-Fi network to serve up offers depending on a shopper’s location. Such attempts to track consumers based upon their location, were cruder, however, and did not necessarily merge a consumer’s buying patterns and other data with their movements in a store. HP’s app works across retailers, and allows for more data analysis and aggregation.

Renew’s Recycling Debacle

Of course, customers can always choose not to download an app like Smartshopper. But the fact remains that a customer may be entranced by the offer of discounts, and thus will download a free app—without knowing about the profiles that advertising firms partnering with HP will collect,and then sell to other persons, etc. It is unclear what privacy safeguards will be put in place, and so it may be that HP not only makes money by working with retailers and advertisers, but will also profit from our data being collected, melded together, and sold.

When consumers do find out about location tracking,they can get annoyed or disturbed ,depending on the nature of the tracking. Last August, a company called Renew was asked to discontinue its location tracking via recycling bins in London’s “City”—its financial district. Recycling bins were installed that monitored the cell phones of passers-by, so advertisers could serve up targeted messages to people whom the bins recognized.

Renew, the company behind the scheme, equipped about a dozen recycling bins with technology that could track smartphones. The bins recorded a unique identification number, known as a MAC (media access control) address, for any nearby phones and other devices that had Wi-Fi enabled. Renew could then determine if the person walking by was the same one from yesterday, and even track the pedestrian’s daily route down the street, and how fast he or she walked. This might allow Renew to determine where they stopped to browse or buy a coffee.

According to The Daily Telegraph, after privacy advocates expressed concern and shock, the City of London asked Renew to stop its pilot, and referred the case to the British Information Commissioner’s Office (ICO), the national privacy watchdog.

 Disclosure and Transparency as a Way Forward?

Consumers need to be aware of the fact that the minute that an app is downloaded, there is always a chance that it leads to the potential for tracking, and also monitoring of consumer patterns and behavior. So it’s good for us to push to know what data is being tracked and how it is used by business. In the end, we—or some of us—may feel that it’s just fine for folks to know what we do.

But what if we are purchasing items that are private, such as items in adult bookstores, or medical marijuana from a dispensary. Will the tracking be so ubiquitous that an app ultimately takes over our life and records it in a database? This is the consequence that consumers need to consider. And what happens when you lend your phone to a friend or relative—will their movements be interpreted as yours—such that someone else’s habits influence your own profile?

Privacy advocates worry not about how data is initially collected for providing coupons but about knock-on effects. Will the more robust compilation of data based on tracking us daily lead to profiles that reveal our innermost secrets, and information that can be used to discriminate against different communities—excluding some populations from particular opportunities. And there is no sense that we would be able to correct anything compiled about us that is wrong. Our hypothetical Julia and John in HP’s world may actually not be as described but won’t be able to challenge their profile.

In 2012, Senator Al Franken introduced a bill to ban so-called “stalking apps,” hidden programs that others can use to track the location of victims by surreptitiously using smartphone relocation data. (I discussed this in a prior column as well). The term stalker apps has been used in two ways—one to deal with apps that may be installed by a boss, spouse, lover, or parent on another relative’s phone to track someone’s movements covertly. These apps have names such as “Is He Cheating?” Senator Franken’s legislation would ban such apps, which give domestic violence advocates heartburn.

The second use of the term refers to the shopper and other geolocation apps that monitor consumer movements. Franken reintroduced his bill in 2014, with some modifications, but never sought to ban apps like SmartsShopper. “Tens of millions of Americans have smartphones now,” said Sen. Franken. “And the companies that make the software on your phone, including apps, can track your location at any time. I believe that Americans have the right to control who can collect their location, and whether or not it can be given to third parties. But right now, companies—some legitimate, some not—are collecting your location and giving it to whomever they want.”

 The Location Privacy Protection Act of 2014 is meant to close legal loopholes that allow stalking applications to exist on smartphones. Sen. Franken’s bill would address this problem by requiring all companies to get customers’ permission before collecting their location data or sharing it with third parties. It also contains targeted provisions to ban the more nefarious stalking apps.

Would SmartShopper be covered by Senator Franken’s legislation? The answer is “Maybe.” Of course, if it is an app, consumers would have to download it and so would have to consent to tracking—but if it comes bundled with other apps as part of a cell phone package, that might be different. And then it’s not so much that a consumer is being tracked—but how they are being tracked, and how that data is being used, that really matters.

According to Senator Franken’s bill summary, his new legislation would “Require that any company that collects the location data of 1,000 or more devices publicly disclose the data they’re collecting, what they do with it, who they share it with, and how people can stop that collection or sharing.”

And that’s the crux of the matter: whether by industry initiative or by regulation, HP and other companies that are trying to monetize our lifestyles and habits need to divulge more about what exactly they will track, when, and then what it is they know about us.

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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Just Shy of Bribery: The Roberts Court Embraces Francis Underwood’s View of Washington Mon, 07 Apr 2014 04:01:46 +0000 McCutcheon v. Federal Election Comm’n striking down aggregate limits on individual contributions to political campaigns. Dorf argues that the Court’s plurality opinion is poorly reasoned and disregards the broader purpose of aggregate limits: to prevent wealthy donors from buying Congress as a whole. Continue reading →]]> Money BundlesIn Season 1 of the Netflix Original Series House of Cards, Kevin Spacey masterfully portrays Francis Underwood, whose scheming and manipulation take him from House majority whip to the Vice Presidency. Season 2 centers around a money-laundering scheme. An increasingly malevolent American billionaire partners with a shady Chinese businessman to funnel illegal contributions through a Native American casino and to Congressional campaigns. Underwood uses the scandal and misuses various people in order to further his career.

House of Cards is over-the-top fiction, but it succeeds because it exaggerates real people to fashion its characters, rather than creating them from whole cloth. When he makes his first appearance in Season 1, the simple-living Midwestern billionaire Raymond Tusk is a passable imitation of Warren Buffet. Underwood’s career appears to be based on Lyndon Johnson’s path to power, while his relationship with his wife (played by Robin Wright) brings to the small screen some of the more lurid speculation about the relationship between Bill and Hillary Clinton.

House of Cards is at its best when its characters do and say extreme things that contain more than a kernel of truth. For example, in the penultimate episode of Season 2, Underwood’s successor as whip, an Iraq-War-veteran-turned-ruthless-Congresswoman, appears to balk at Underwood’s boldest play for power. “What you’re asking,” she objects, “is just shy of treason.” Unfazed, Underwood replies: “Just shy, which is politics.”

Much of what Underwood himself does is not simply politics, of course; it’s criminal. But the suggestion that anything shy of treason is politics, the viewer understands, is meant to be a characterization of Washington politics even as practiced by ordinary Washington politicians.

Sadly, that cynical view of American politics was on full display last week in the real-life Supreme Court of the United States. In its latest dreadful ruling, the Court’s Republican-appointed majority invalidated the limits on the total amount of money an individual may contribute to federal candidates and party committees. Five Justices thought that restricting donors to giving $123,200 per two-year election cycle—on top of the unrestricted millions that they may spend on “independent” expenditures—was a violation of the First Amendment.

As I shall explain in this column, last week’s decision in McCutcheon v. Federal Election Comm’n is poorly reasoned as a matter of legal craft. But beyond that, it reveals a Court with an utterly benighted view of politics.

Fast and Loose With Precedent

The modern constitutional case law regarding campaign finance regulation begins with the 1976 ruling in Buckley v. Valeo. To oversimplify somewhat, Buckley invalidated limits on how much money a candidate can spend, but upheld limits on how much money an individual may contribute to a campaign. The Court’s theory was that limits on campaign expenditures directly limit political speech, whereas someone who contributes to somebody else’s campaign is not directly speaking, but rather giving money to others to use as they see fit, including in shaping campaign speech. Accordingly, the Buckley Court applied the most demanding First Amendment test of “strict scrutiny” to the expenditure limits, but a more permissive standard to contribution limits.

In the ensuing thirty-eight years, Buckley’s line between expenditures and contributions has been criticized from both ends. Proponents of vigorous campaign finance regulation argue that money is not speech and that even though money can facilitate speech, the same interests that justify contribution limits also justify expenditure limits. Meanwhile, proponents of a wide-open campaign finance regime argue that current case law provides insufficient protection for campaign contributions.

In McCutcheon, only one Justice voted to eliminate the expenditure/contribution distinction. Justice Clarence Thomas did not join the lead opinion, writing only for himself that he would overrule Buckley and apply the strict scrutiny standard to contribution limits as well as to expenditure limits.

Justice Thomas’s concurrence in the judgment had the virtue of honesty. By contrast, the lead opinion, written by Chief Justice John Roberts and joined by Justices Scalia, Kennedy, and Alito, purported to adhere to Buckley’s expenditure/contribution line, but in fact dissolved it.

The Buckley Court applied the following standard to contribution limits: they must advance “a sufficiently important interest and employ[] means closely drawn to avoid unnecessary abridgement of associational means.” Although that language may sound demanding, constitutional lawyers know it as “intermediate scrutiny”—a test that is considerably less demanding than the strict scrutiny standard applicable to direct censorship.

Beyond the fine verbal distinctions, we know that the Buckley standard for judging contribution limits is only moderately demanding because the Buckley Court itself upheld contribution limits. Indeed, it also upheld the predecessors to the very aggregate contribution limits that were challenged in McCutcheon.

Chief Justice Roberts evades the Buckley standard through two dubious maneuvers. First, his McCutcheon plurality opinion quotes the intermediate scrutiny language of Buckley in the way that a layperson might. To the untrained ear, that language does sound almost as rigorous as the strict scrutiny standard, and so the Chief Justice says it is unnecessary to “parse the differences between the two standards.” But that assertion appears at best disingenuous to anyone who has carefully studied the Court’s case law.

The Chief Justice’s path around Buckley’s direct precedential force is also unconvincing. He begins by saying that the Buckley Court had only devoted three sentences to explaining why the aggregate contribution limits were constitutional, and therefore that it provides only limited “guidance” on the issue. Prior cases do not, however, establish a minimum word length for precedential force.

To be sure, the plurality opinion also contends that circumstances have changed since Buckley. Whereas the Buckley Court thought that the aggregate limits served to prevent donors from circumventing individual limits, additional restrictions adopted since Buckley now supposedly provide assurances against circumvention, so that the aggregate limits are no longer necessary.

As I shall next explain, however, the plurality’s views regarding circumvention rest on a set of deeply flawed, and deeply myopic, assumptions.

The Court’s Myopia

The plurality opinion in McCutcheon, like the majority opinion in Citizens United v. FEC, repeatedly characterizes the permissible goal of campaign finance regulation in extraordinarily narrow terms. The government may restrict campaign contributions in order to avoid the reality or the appearance of a quid pro quo, the conservative majority states, but not in order to limit the broader corrupting influence of money on politics.

On the contrary, the Court’s conservative majority treats that broader influence—the ability of wealthy individuals (and in other contexts, corporations) to “speak” to elected officials and the public by spending their fortunes promoting or attacking candidates or causes—as at the heart of the First Amendment. Frank Underwood says anything short of treason is politics. John Roberts thinks that anything short of provable bribery is constitutionally protected freedom of speech.

Dissenting in McCutcheon, Justice Stephen Breyer, writing for himself and Justices Ginsburg, Sotomayor, and Kagan, strongly criticizes the plurality’s apparent naïveté. Wealthy donors, he explains, “buy” politicians even when they do not reach an explicit agreement.

In a remarkable Appendix to his dissent, Justice Breyer provides numerous examples of coordinated fundraising by members of Congress and political parties. His examples show how, even without any quid pro quo, political donors buy access and influence. More directly to the narrow question of circumvention, they show how parties and their candidates work together.

Chief Justice Roberts takes issue with Justice Breyer’s evidence, arguing that it does not show that aggregate limits are necessary to block circumvention of the individual contribution limits; other mechanisms may suffice, the Chief Justice says. But even if that were so, it would only address the circumvention concern, rather than the broader purpose of the aggregate limits.

Aggregate limits do not serve only to prevent political donors from funneling more than the maximum individual contribution (currently $5,200 per election cycle) to an individual member of, or candidate for, Congress. Indeed, that is not even their main justification.

The public may legitimately worry that a wealthy donor who gives money to individual members of Congress does so in the hope of influencing legislation. The fact that his contribution buys influence with an individual member of Congress is chiefly worrisome insofar as that member’s vote may tip the net balance for or against a bill becoming law. The ability of a donor to buy more members of Congress makes that outcome even more likely.

Accordingly, rather than serving to backstop the individual limits, aggregate limits are best understood as the primary line of defense against wealthy donors buying Congress as a whole. The Court’s focus on circumvention is therefore misguided. A donor who comes to party leaders with two million dollars to spread among party organizations and candidates—as McCutcheon now allows him to do—can have that much more influence over national policy than one who is legally constrained to donate “only” $123,200.

Raymond Tusk and Frank Underwood surely get it. They understand that more money buys more influence. So do non-fictional figures like Senator John McCain and former Senator Russ Feingold. The wonder is that five Justices of the Supreme Court do not get it—or worse, that they do get it, but that they think that a Congress that is super-responsive to the interests of the super-rich is a cherished feature of our Constitution, rather than a pathological bug that desperately needs to be fixed.

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 0:11:01 Justia columnist and Cornell Law professor Michael Dorf critiques the U.S. Supreme Court’s recent decision in McCutcheon v. Federal Election Comm’n striking down aggregate limits on individual contributions to political campaigns. Dorf argues that t[...] Justia columnist and Cornell Law professor Michael Dorf critiques the U.S. Supreme Court’s recent decision in McCutcheon v. Federal Election Comm’n striking down aggregate limits on individual contributions to political campaigns. Dorf argues that the Court’s plurality opinion is poorly reasoned and disregards the broader purpose of aggregate limits: to prevent wealthy donors from buying Congress as a whole. Politics no no