Articles Posted in Constitutional Law

Justia columnist and attorney Julie Hilden covers a new North Carolina law, described by the North Carolina ACLU as possibly the first of its kind in the United States, which seeks to protect teachers from students’ (1) building a fake online profile or website of the teacher; (2) posting the teacher’s private, personal, or sexual information; (3) tampering with the teacher’s online networks, data or accounts; (4) signing the teacher up to a pornographic website; or (5) making any statement, whether true or false, that is likely to provoke someone else to stalk or harass the teacher. Violations of any of these five provisions carry criminal penalties. Hilden argues that the law’s genuine concern for protecting teachers is already sufficiently addressed by existing civil and/or criminal law, and that to the extent that the provisions go further than existing law, they may raise serious First Amendment issues—issues that have already left the North Carolina ACLU primed to challenge the statute. Hilden also underlines the point that teachers typically have far greater resources and maturity to deal with bullying than students do, and thus, she argues, teachers need less protection from bullying than students do.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a closely watched affirmative action case that the Supreme Court will very likely resolve. As Amar notes, the case concerns how a state that tries to abolish affirmative-action programs may, in doing so, violate the Constitution. As Amar explains, such programs are never constitutionally required to be initiated, but their abolition may be constitutionally problematic—for instance, if programs that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult; or when minorities are subjected to greater political obstacles in the adoption (or re-adoption) of the programs they might support than are other groups.

Justia columnist and Cornell law professor Michael Dorf comments on two questions involving same-sex marriage that the Supreme Court may or may not duck: First, there is the question whether Section 3 of the Defense of Marriage Act (DOMA)—which defines marriage under federal law as opposite-sex marriage, even when state law recognizes same-sex marriage—is constitutionally valid. And, second, there is the question whether California violated the Constitution when it enacted Proposition 8, which prospectively eliminated the possibility of same-sex marriage, and thereby nullified an earlier California Supreme Court ruling that had found a state-constitutional right to same-sex marriage. Dorf considers why the Justices might—or might not—see the cases that raise these questions to be appropriate vehicles for Supreme Court review, and notes what might happen next if the Court does not take up a DOMA case.

Justia columnist and former counsel to the president John Dean takes strong issue with the Norquist Pledge, which Washington lobbyist Grover Norquist has asked Members of Congress to sign. The Pledge says, “I [insert name] pledge to the taxpayers of the state of [insert name], and to the American people that I will: ONE, oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses; and TWO, oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.” The Pledge has become significant in the context of raising taxes as a solution to the potential “fiscal cliff” crisis. Dean contends that the Pledge is not only a bad idea, but also one that violates the Constitution. Moreover, Dean points out that, as the pledge is not a valid contract, for it is missing key elements that contract law requires, it is also not enforceable as such.

Justia columnist and Cardozo law professor Marci Hamilton comments on a recent decision from a three-judge panel of the U.S. Court of Appeals for the Second Circuit. The decision addressed the question whether the New York City Board of Education can exclude houses of worship from occupying public schools. Hamilton argues that this controversy is part of a much larger issue, regarding religious groups’ seeking government entitlements. She covers the key U.S. Supreme Court cases that are relevant to this issue, and connects the issue to the “church-planting” movement. The ultimate goal of those who seek to allow religious groups to occupy public school, is much more ambitious than just that, Hamilton suggests: It is to convince governments to pay as much money to support religious private schools as it pays to support public schools.

Justia columnist and Cornell law professor Sherry Colb comments on a controversy in Germany in which Germany’s branch of People for the Ethical Treatment of Animals, PETA-D, compared animal exploitation and slaughter to the Nazi Holocaust, in a series of seven graphic posters. The European Court of Human Rights (ECHR) subsequently held that Germany’s censorship of the images was lawful. Colb, who is both an ethical vegan and the daughter of Holocaust survivors, critically analyzes (1) PETA-D’s decision to launch a campaign comparing animal slaughter to the Holocaust; (2) the ECHR’s decision that such a comparison diminishes Holocaust victims and survivors; and (3) the specific nature of the offense that is felt by those who condemn the analogy between animal exploitation and the Holocaust. In her analysis, Colb refers to sources ranging from Adorno, Singer, and Coetzee on animal suffering, to Seinfeld’s “Soup Nazi,” a comparison to which most people don’t object, but perhaps logically should.

Justia columnist and attorney Julie Hilden comments on a federal district court case that was brought after Mississippi teen Taylor Bell was suspended based on the lyrics of a rap song he wrote and posted on Facebook and YouTube, where it was heard by his high school classmates. Hilden explains why the case implicated the U.S. Supreme Court’s decision in Tinker v. Des Moines, even if the rap song fell short of constituting a “true threat” under other free speech precedents. Taylor lost before the federal district court, but, as Hilden explains, his attorney has noted a number of key points that will likely help strengthen Taylor’s case in the planned appeal.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the new couples pages feature on Facebook, which aggregates a Facebook user’s information with that of his or her self-designated significant other. Ramasastry notes that the feature has been controversial, and explains why some users have been upset by it. She notes, too, that Facebook is entering a privacy gray area with the couples pages feature, under which Facebook relies on its privacy policies, but users feel they have lost control. Moreover, Ramasastry suggests that the Electronic Privacy Information Center (EPIC), which previously criticized Facebook’s Timeline feature, may want to scrutinize Facebook’s couples pages feature as well. Finally, Ramasastry questions whether Facebook’s couples pages are permissible under Facebook’s recent settlement with the FTC.

Justia columnist and Cardozo law professor Marci Hamilton discusses the child-sex-abuse investigation in Australia and developments regarding child sex abuse here in the U.S. Hamilton argues that America’s response to evidence of child sex abuse in our institutions has been woefully deficient. While some local or state prosecutors have moved forward, Hamilton argues that what is needed, as well, is a response at the federal level. Hamilton suggests that Members of Congress are afraid to take on the relevant institutions, despite the terrible toll that child sex abuse takes on children and the monetary costs that are associated with that toll. Hamilton argues, however, that addressing child sex abuse is not only the right thing to do, but also ultimately in Members of Congress’ political interests. In particular, she urges Republicans to change their focus from “unborn children” to actual children who are suffering due to child sex abuse. Hamilton also urges Democrats in Congress and President Obama to investigate and act on this important issue, including by reforming the insurance industry's role.

Justia columnist and Hofstra law professor Joanna Grossman evaluates the meaning of the votes cast across the nation on the various pro-same-sex marriage referendums. Such referendums passed in Maryland, Maine, and Washington State. Grossman describes the details of the various referendums and other ballot measures relating to same-sex marriage, and notes the split, in each state she discusses, regarding votes for Obama and for Romney, respectively. Grossman explains why such referendums are noteworthy: (1) the common but not necessarily correct idea that this is an issue for the people (not courts) to decide; (2) the fact that the referendums may augur the future of same-sex marriage in America; and (3) the referendums show that young voters tend to be pro-same-sex marriage, and as more and young people reach voting age, there very likely will be even more pro-same-sex marriage voters. Grossman concludes, citing relevant statistics and developments, that among young people, and Americans generally, we are seeing a sea change toward support of gay marriage.

Justia columnist and attorney Julie Hilden comments on a U.S. Court of Appeals for the Ninth Circuit panel decision arising out of a controversy regarding the treatment by Oregon State University (OSU) of a conservative student newspaper, The Liberty. While OSU's traditional newspaper, The Barometer, was allowed to use on-campus newsbins, The Liberty first had its copies dumped out of its newsbins, with no prior notice, and then was allowed to put The Liberty in only two designated areas on campus, whereas The Barometer suffered under no such restrictions. Hilden argues that the Ninth Circuit panel was right to rule that the student newspapers should have been treated equally, with The Liberty accorded the same access as The Barometer.

Justia guest columnist and Cornell Visiting Scholar Antonio Haynes comments on an issue that was raised recently in a Los Angeles Proposition best known as Measure B: Should pornography industry performers be required to use condoms while on set? L.A. voters said yes, but Haynes contends that there is a strong First Amendment argument against the measure, based on the tenet that speech cannot (with very limited exceptions) be regulated based on its content. Although decreasing the incidence of unprotected sex is a compelling government interest, Haynes notes, Measure B does not seem to solve an “actual problem,” to use the Supreme Court’s phrase, as the adult film industry has self-regulated with great effectiveness. Thus, the objection to pornography without condoms seems to arise not from the fear of disease, so much as from the objective of controlling the content of pornography. Ultimately, too, Haynes says, performers’ dignitary interests are at stake—just as all Angelenos’ would be if everyone, not just porn performers, were subject to Measure B.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on an interesting lawsuit that involves both the Free Speech Clause and the Establishment Clause of the First Amendment. The suit was brought by a group of public high school cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games. Does the Establishment Clause forbid what they are doing? And does the Free Speech Clause come into play? Amar and Brownstein address the complex constitutional issues that the case presents.

Justia columnist, George Washington law professor, and economist Neil Buchanan connects the election, Hurricane Sandy, and the well-being of our children and the children of future generations of Americans. Analyzing a Romney/Ryan ad that had expressed worry about “saddling our children with debt,” Buchanan warns that what might be truly worrisome would be, conversely, to fail to spend money in ways that will improve the lives of future generations, with infrastructure high on the list. Buchanan cites Hurricane Sandy as an example, arguing that if floodgates are indeed necessary to protect New York City, then even if taking on debt would be necessary, the floodgates should be built. Buchanan also generalizes his point to apply to other infrastructure and other inter-generational government programs.

In the second in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her commentary on the constitutional issues raised by dog sniffs, in light of two cases in which the U.S. Supreme Court will address the issue. As Colb explains, one case asks whether a dog sniff is itself a search, for Fourth Amendment purposes; and the other asks what is the evidentiary significance of a dog’s positively alerting after a drug sniff for narcotics. Here, Colb builds on her prior commentary on the cases, and also addresses related precedents. In addition, she discusses the complexities that may arise because dogs have minds of their own—and are able to sniff not only drugs but, for example, cancer and pregnancy. Moreover, dogs can also sense humans’ feelings, and will want to please humans with whom they have bonded. Colb considers these and other factors as they play into the Fourth Amendment analysis. She also predicts the likely outcomes of the cases before the Court, and describes the issues the Justices seemed to find salient at oral argument. She also predicts which Justices will be the “swing votes” in the case.

Justia columnist and attorney David Kemp comments on the now-notorious false tweets regarding Hurricane Sandy sent by Shashank Tripathi (Tripathi is a hedge fund analyst and was previously the campaign manager for Republican Christopher Wight's Congressional campaign; he has since been fired.) While many have excoriated Tripathi's tweets as unethical, Kemp addresses the separate question whether they can be penalized consistent with the First Amendment. Thus, Kemp covers past and current Supreme Court precedents that relate to other instances of false and/or damaging speech.

In the first in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the constitutional issues raises by dog sniffs, in light of two cases in which the U.S. Supreme Court will address the issue. As Colb explains, one case asks whether a dog sniff is itself a search for Fourth Amendment purposes, and the other asks what is the evidentiary significance of a dog’s positively alerting after a drug sniff for narcotics. Colb examines some of the main factors that may prove important in the cases, and suggests that the Court’s analysis will be significantly improved if it takes into account the differences between a living, breathing dog and a mere evidence-gathering machine.

Justia columnist and Hofstra law professor Joanna Grossman comments on a flagrant case of sexual harassment in a grocery store, which eventually led to litigation that came before the U.S. Court of Appeals for the Second Circuit. The case, as Grossman explains, arose from the store owner’s fiance’s habit of touching sexually, and otherwise sexually harassing, the store’s employees, who were mostly teenage girls. The girls complained, but nothing was done. Ultimately, the store was found liable for sexual harassment. Grossman explains the steps necessary to win such a case, and discusses the question of the scope of the remedy that was imposed upon the store in this case. She also notes that in such cases, both legal remedies (money damages) and equitable remedies (court orders to do or refrain from doing something) are appropriate.

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.