Articles Posted in Constitutional Law

Justia columnist and attorney Julie Hilden comments on a recent school speech case from Missouri in which twin brothers, both high-school juniors, created a blog that derogated fellow students in racist and sexist ways. Hilden argues that it’s no surprise that the brothers were suspended from their school and required to continue their studies elsewhere, given that the U.S. Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. Sch. Dist. allows students to be punished when substantial disruption foreseeably results from speech that they directed at their school. She also notes that it is unlikely that the U.S. Supreme Court would grant review in a case like this one, and describes the kind of school-speech case that might, conversely, be a good candidate for the Court’s review.

Justia columnist and Cornell law professor Michael Dorf comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, throwing out the conviction of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in 2001. Dorf chronicles Hamdan’s long legal journey, and the repercussions that it has had for U.S. law. Dorf also explains that while the most recent decision regarding Hamdan is narrow, it nevertheless carries symbolic significance, casting doubt on the Bush Administration’s and the Obama Administration’s respective, and similar, detainee policies.

Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent court decision in which two African-American men challenged what they alleged was differential treatment in their auditions for the reality show The Bachelor. With neither The Bachelor nor its sister show, The Bachelorette, ever having had an African-American lead, the plaintiffs saw evidence of racial discrimination when the show, they allege, gave them shorter interviews than other would-be contestants received, and did not ultimately select them to join the show’s cast. Ramasastry explains why the plaintiffs lost in court: the First Amendment protects casting decisions, whether by dramas, comedies, or reality shows. She notes, though, that the lack of court relief here doesn't mean the men were wrong on the merits, but only that they will now need to find another avenue, such as protesting and/or continuing to speak out, in order to make their point.

Justia columnist and attorney David Kemp comments on the recent decision by the U.S. Court of Appeals for the Second Circuit striking down Section 3 of the Defense of Marriage Act (DOMA), which defines marriage, for federal purposes, as being between a man and a woman. Kemp discusses why the Second Circuit held that the Constitution’s Equal Protection Clause required the application of intermediate scrutiny. Kemp also notes that the Second Circuit was the first court facing this issue not to also analyze the issue using a lower level of scrutiny. In addition, he discusses a number of other cases decided by courts across the country, that have confronted the issue of what level of scrutiny is proper for classifications based on sexual orientation—and why such cases may well lead to eventual Supreme Court review.

Justia columnist and Cardozo law professor Marci Hamilton comments on an incident in Pakistan in which a 14-year young woman was shot by the Taliban because she voiced her view that girls should be educated; and an incident here in the U.S. where the American Family Association—which is characterized by the Southern Poverty Law Center as a hate group—has essentially come out in favor of the bullying of homosexual children on Mix It Up at Lunch Day, which is meant to break up cliques, even if just for one day. Hamilton argues that the first incident shows the need for the international recognition of civil rights, and of the rule of law, and the second incident involves a particularly repellent form of homophobia that has no place in our public schools. Each incident is made all the worse, Hamilton suggests, because children are the victims. Hamilton reminds us, too, that we are fortunate here in the U.S. to have the benefit of the First Amendment's Establishment and Speech Clauses.

Justia columnist and Hofstra law professor Joanna Grossman comments on the second presidential debate, and especially on Mitt Romney’s now-famous comment about “binders full of women,” which has now become an Internet meme. Grossman argues that the comment reveals Romney’s dated and uninformed view of women in the workplace. She also notes that Romney, while avoiding the question about pay inequity that led to the “binders” comment, revealed that he believes that the only workers who need flexible schedules are women, apparently due to the assumptions that all women have children, and that only women perform child care.

Justia columnist and Cornell law professor Michael Dorf explains the origin and meaning of the concept of having a “critical mass” of minority students in the affirmative action context, and the role that this concept played in a recent Supreme Court oral argument relating to affirmative action at the University of Texas. Without a critical mass of minority students, it has been argued, such students will feel isolated in class and on campus, and there may be little diversity within the group of minority students itself. For these reasons, the University of Texas gives such students a special “plus factor” in admissions. Dorf explains how both conservatives and liberals on the Court have come to place what he argues is excessive weight on the “critical mass” concept, when it comes to affirmative action in education. He also summarizes the conservative Justices’ critique of the concept, but contends that that critique is itself flawed.

Justia guest columnist and Cornell Law Visiting Fellow Antonio Haynes comments on a recent controversy in which parents of two public school students did not object to their daughters undergoing corporal punishment (specifically, paddling), but did object to the punishment being carried out by men, rather than women. Haynes points out that, upon closer examination, the issue here is not actually about sex, but about sexual orientation; the parents assumed the males conducting the spankings were straight and thus thought that they might find performing the spankings erotic. Noting that corporal punishment in the schools has not been ruled by the Supreme Court to be unconstitutional, and that 19 states still allow it, Haynes suggests that issues like who may administer a spanking tend to distract us from asking deeper questions such as why we still accept corporal punishment in our schools, and why—if we trust school officials to paddle students—we do not also trust them not to harbor erotic motives while doing so.

Justia columnist and attorney Julie Hilden comments on the recent controversy over a Philadelphia public school geometry teacher's deriding student Samantha Pawlucy for wearing a Romney/Ryan T-shirt. The incident blew up into a full-blown controversy, with Romney personally calling the girl and speaking with her parents. Hilden parallels the incident to the key 1969 Supreme Court student-speech case, Tinker v. Des Moines Ind. Comm. Sch. Dist., in which students near Pawlucy's age wore black armbands in school in order to protest the Vietnam War. Hilden also argues that Pawlucy’s is an easy case, and that she would have a much harder First Amendment case, had the incident occurred in a History or Social Studies class. Finally, Hilden questions whether this was a case of teacher/student bullying, and suggests that teachers and students alike should be required to learn basic school-speech First Amendment tenets.

Justia columnist and U.C., Davis law professor Vikram Amar takes strong issue with Justice Scalia’s recent remark that certain constitutional questions are “easy”—including questions relating to the constitutionality of the death penalty, laws restricting abortions, and limits on the rights of gays and lesbians to engage in homosexual activity. Amar argues that even if one uses Scalia’s own interpretive method of originalism, the answers to such constitutional questions are far less easy than Scalia claims them to be; and Amar cites a number of interesting examples to prove his case. Amar also contends that a full approach of originalism would go much further than the examples Scalia gives, would destroy important and basic contemporary Court precedents, and thus would seriously disrupt constitutional law as we know it. Finally, Amar contends that the counterarguments that Scalia might make to the objections that could be raised regarding his views would only get him into deeper trouble analytically.

In Part Two in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb continues to address the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Specifically, here in Part Two, Colb considers the two possible ways in which the Supreme Court uses the phrase “reasonable expectations of privacy” in practice in Fourth Amendment cases. In the phrase, Colb notes, “reasonable” may mean “empirically realistic,” but it also may mean “morally justifiable.” Colb gives examples of Supreme Court and Sixth Circuit cases in which the phrase is used in these two different ways. In addition, she examines the exclusionary rule’s role here—noting that the rule, which forbids evidence from being admitted in court if it was obtained unconstitutionally, may in concrete cases seem to simply help out criminals, but at a more abstract theoretical level, protects us all from police misconduct. Colb also predicts that the Supreme Court will need to revisit these issues sooner, rather than later, to ensure that the law is clear.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the use of biometrics in school lunch lines and elsewhere in schools. More specifically, she notes, schools are using an infrared scanner that identifies children’s unique palm and hand vein patterns, and converts these patterns into an algorithm through which the child can be recognized quickly and uniquely by a hand scan. Ramasastry raises privacy concerns about this kind of scanning: Could it lead kids to see other compromises of their privacy as commonplace? Will the databases that contain the scans be used for other purposes—even when the kids become adults? Might law enforcement attempt to use the databases of the hand scans? And what about parents with religious objections to schools’ using the hand scans on their children? At the very least, Ramasastry suggests, the scanning system should be “opt in” and not “opt out,” so that parents can think carefully about allowing their children to become part of the scanning system, and thus part of the related database.

Justia columnist and attorney Julie Hilden comments on an important recent First Amendment ruling by a Chicago judge, Thomas More Donnelly. Judge Donnelly ruled in favor of Occupy Chicago protesters who broke the 11:00 p.m.-to-6 a.m. curfew for Grant Park, and were consequently arrested. Significant in Judge Donnelly's decision were the Illinois Constitution’s especially broad right of assembly; the fact that, in 2008, Obama rally participants were allowed to break the curfew in Grant Park without suffering arrest or other consequences; and the poor treatment that the Occupy Chicago protesters had earlier endured from the Chicago police, before the Grant Park arrests. Hilden argues that Judge Donnelly was correct to rule for the protesters.

Justia columnist and Cardozo law professor Marci Hamilton comments on a recent decision from a federal district judge regarding employers’ duties under the Affordable Care Act (ACA). The case arose when the Chairman of a for-profit company, who is Catholic, objected to the ACA’s requirements that his employee health plan must cover contraception and sterilization. Specifically, the Chairman claims, among other things, that his constitutional right to the free exercise of religion has been violated by the requirement. Hamilton, citing several U.S. Supreme Court cases, argues that the Chairman is wrong, and that if his position were to be accepted by the courts, then we would be on a dangerous slippery slope, for even minimal burdens on religious exercise could then lead to important consequences for those who are of other religions, or no religion at all. In addition to addressing these constitutional issues, Hamilton also discusses the issues raised in this area by the Religious Freedom Restoration Act (RFRA).

In Part One in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb discusses the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Previously, Colb explains, the U.S. Supreme Court held in United States v. Jones that police need a warrant and probable cause to attach a global positioning device to a vehicle and thereby track a suspect’s whereabouts. But now, the U.S. Court of Appeals for the Sixth Circuit has held that police may, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Colb examines the legal concepts that the Supreme Court and Sixth Circuit decisions invoke, including those of trespass, and of privacy, and comments on the court’s analysis.

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman comment on the law regarding the despicable practice of “upskirting.” As Grossman and Friedman explain, upskirting is the secret taking of photos or videos with a camera that is angled so as to look up a woman’s skirt. They begin by discussing expectations of privacy, and go on to consider the particular invasion of privacy that is perpetrated through upskirting. They then note that while one might assume that upskirting (and its counterpart, downblousing) in a public place would be illegal and penalized in every jurisdiction, in fact that is not the case. Grossman and Friedman explain the puzzling legal status of upskirting in many jurisdictions, and comment on why the current law in this area often defies our intuitions about privacy—though some recent state laws are now authorizing punishments for upskirters.

Justia guest columnist and Loyola Law School professor Paula Mitchell discusses the high costs of the death penalty in California and suggests that life in prison without the possibility of parole is a more expeditious alternative. Mitchell describes the different components contributing to the expense of having the death penalty, including direct appeals and habeas corpus petitions, finding that the total costs far exceed a system where life without the possibility of parole is the maximum sentence. Mitchell then explains the initiative that will appear on the ballot in California in November 2012—Proposition 34—which will give California voters an opportunity to reform the state’s penal system by replacing the costly death penalty with life in prison without the possibility of parole.

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on California’s law attempting to regulate demonstrations at funerals, as well as similar efforts by the federal government and other states. Amar and Brownstein consider whether such laws are consistent with the First Amendment. As they note, the issue has arisen due to the activities of the Westboro Baptist Church, a Kansas-based family group that has shown up to picket near the sites of funerals—including, often, military funerals. One of the group’s messages is that America is too tolerant of homosexuality. The group’s activities, Amar and Brownstein note, have already been the subject of a Supreme Court ruling, Snyder v. Phelps. In addition to analyzing the Snyder case, Amar and Brownstein discuss another analytical framework that they argue would better suit such cases than the one the Court invoked, and consider related questions such as how broad a no-picketing zone can be imposed to protect mourners’ privacy, and how long that zone can last, before and after a funeral.

Justia columnist and U. Washington law professor Anita Ramasastry comments on regulatory responses in the EU and the U.S. regarding Facebook’s facial-recognition tool, which suggests the identities of registered Facebook users for possible tagging by other users in uploaded photos. As Ramasastry explains, the tool has sparked concern by EU regulators due to privacy worries, and even in the U.S., Facebook has voluntarily—but perhaps temporarily—suspended the tool. Ramasastry notes some reasons why Facebook users may have concerns about the tool, including its accompanying archive of tagged photos, which could in theory be used for law-enforcement, intelligence, or other purposes that users never authorized. In the EU, Facebook has agreed to soon stop using the tool, and to delete related data. But what will happen with the tool and the resulting database, here in the U.S.? With complaints from the Electronic Privacy Information Center (EPIC), a leading NGO, and a complaint filed with the FTC, the facial- recognition tool is now in hot water in the U.S. as well as the EU.

Justia columnist and Cardozo law professor Marci Hamilton takes strong issue with the U.S.’s stance on the anti-Islam YouTube video that has sparked protests and violence in the Muslim world. Hamilton argues that President Obama’s statement, rather than speaking of the hurt feelings of religious believers, instead should have taken a strong First Amendment stance. Hamilton argues that the right to criticize government and religion, the two most powerful social structures in society, is key here, and that President Obama should have made that clear. Hamilton contends, as well, that Mitt Romney’s remarks on this topic—though better than Obama's in vindicating the First Amendment—still were tepid and abstract when they ought to have been passionate. Hamilton also notes that Obama is taking a page from the Bill—and now Hillary—Clinton playbook when it comes to religious believers.