Articles Posted in Constitutional Law

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.

Justia columnist and Hofstra law professor Joanna Grossman comments on some troubling aspects of the federal regulations regarding single-sex public schools and public-school classes, and how those regulations have often been distorted in practice. These developments, Grossman notes, have led to a current nationwide ACLU investigation, from which preliminary findings have been made; and to a lawsuit, with more suits possibly to come. Grossman first explains the law and regulations that govern single-sex public schools and public-school classes, some of which derive from George W. Bush Administration regulatory changes that took effect in 2006. Detailing the content of the regulations, Grossman then argues that they not only run afoul of the law, but are also likely damaging the very children whom they are supposed to be helping. She also questions the decision to have schools self-enforce the very rules that are supposed to bind them. In addition, Grossman cites other baleful aspects of the 2006 changes, including their tendency to invite gender stereotyping, along with gender segregation, and the fact that they were based on what is clearly now-discredited science. Grossman argues that the Obama Administration’s Department of Education’s Office of Civil Rights (OCR) should now take the opportunity to correct and update the regulations at issue.

Justia columnist and attorney Julie Hilden comments on a recent decision by a Minnesota-based federal court, regarding a student whose school punished her for two postings she had made on Facebook, after forcing her to give over to the school her personal Facebook and email passwords. The court, as Hilden explains, refused to dismiss the student’s complaint, and offered in its opinion an excellent summary of the existing law regarding schools’ ability—or, in some cases, their lack thereof—to punish students’ off-campus, after-hours speech.

Justia columnist and U.C., Davis law professor Vikram Amar comments on an upcoming Supreme Court case that raises a Takings Clause issue. (The Takings Clause, as Amar explains, is that part of the Fifth Amendment that forbids the federal government from taking private property for public use without just compensation.) In the case before the Court, Amar explains, the key question is as follows: In the context of the facts at issue, does temporary incremental flooding, caused by the federal government, onto other lands (which are subject to some flooding in any event) amount to a taking for which compensation is required under the Fifth Amendment’s Takings Clause? Amar explains the competing arguments, and notes the reasons why it will be very interesting to see what law the Supreme Court chooses to make in this case.

Justia columnist and former counsel to the president John Dean comments on current and past efforts by the Republican Party to suppress non-white Americans from voting in Southern states. Dean reports that these kinds of efforts have been escalating since 2010, and that they now encompass some Northern states as well. Dean covers specific, highly credible reports of such tactics being used; notes how voting laws can play into that underhanded effort; charges some Republican judges with being unwilling to enforce the amended Voting Rights Act of 1965 (VRA); and explains why these dirty tactics are a stain on the history of the Republican Party. Dean also notes his own role, in the Nixon Administration, in conveying Nixon’s decision not to veto a VRA extension that gave 18-year-olds the vote, and explains how that decision ultimately led, indirectly, to 18-year-olds getting the vote. Dean also notes that Mitt Romney could never make the same decision to let 18-year-olds vote today, as so many young people are Democrats or Independents. Finally, Dean cites a number of reasons for which we should all be thankful for the VRA.

Justia columnist and U.C., Davis law professor Vikram David Amar considers whether one common justification for affirmative action in education—to allow white (and other) students to have a more diverse educational experience—is improperly using, instrumentalizing, and commodifying minority students. The challenge to this justification, Amar notes, has lately been the subject of academic commentary. Amar discusses the Supreme Court’s seminal Bakke case, which concerned affirmative action; the later Supreme Court Grutter and Gratz affirmative action decisions; and the upcoming Fisher case on the same topic. In addition, Amar explains three reasons why he isn't as concerned about the instrumentalization/commodification issue in affirmative action as some other law professors are.

Justia columnist and attorney Julie Hilden comments on a fair-use case that one judge on the Ninth Circuit panel compared to a telenovela. When a thief stole wedding and wedding-night photos from two Latin American celebrities that revealed that they were secretly married, and had been for several years, a gossip magazine published the photos. The two celebrities then registered their copyrights in the photos, and went to court to enforce them. The magazine, however, mounted a “fair use” defense, in order to try to avoid liability. Hilden describes and comments on the Ninth Circuit decision in the case, which sparked a dissent. Going through the four key fair-use factors one by one, the majority opinion suggests that the magazine has a steep uphill battle in proving fair use, as Hilden notes. Hilden also takes issue with the panel majority’s view that only “pictorial” photographs and those “factual” photographs that depict events should be protected, in this context. She argues that, to the contrary, even mechanical photo-booth photos ought to be protected in such situations.

Justia columnist and Cornell law professor Michael Dorf comments on a recent decision from the U.S. Court of Appeals for the Eighth Circuit. As Dorf explains, the decision upheld a provision of a South Dakota law mandating that women seeking an abortion be informed that, with the abortion procedure, comes “an increased risk of suicidal ideation and suicide.” Although the medical literature shows only a correlation, and not a causal relationship, between abortion and suicide, and although that correlation likely stems entirely from some of the underlying factors that lead women to seek abortions in the first place, the Eighth Circuit still upheld the law at issue. Although the Eighth Circuit’s decision was quite plainly the wrong one, Dorf notes, he also predicts that it’s very unlikely that the U.S. Supreme Court will take the case. He then explains why the Court is likely to decline review and why, if it does grant review, it might uphold the law, even though it ought to be struck down.

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss the Supreme Court’s decision in United States v. Alvarez. As they explain, the case concerned the Stolen Valor Act, which imposes criminal penalties on those who falsely claimed to have been awarded the Congressional Medal of Honor or another medal granted by the United States. The Court had to decide whether the Act violated the First Amendment. Amar and Brownstein offer a subtle analysis of the various doctrinal moves that were made, in the case, by the Justices who joined the plurality opinion, the concurrence, and the dissent in the case, respectively. They focus especially on a search for a limiting principle that goes just far enough, but not too far, in the case, and target their analysis especially toward law professors who seek to teach the case, and students who seek to better understand it.

In Part Two of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of two controversial rulings issued at the end of June and the beginning of July, respectively, by two panels of a New York State appeals court (the Appellate Division, First Department). Each ruling concluded that police had violated a suspect’s state constitutional rights against unreasonable searches and seizures, and that as a result, the trial judges should have “suppressed” the weapons found on the suspects—that is, held that the weapons could not be introduced against the suspects if and when they became defendants at a criminal trial. Colb explains the logic behind the rulings, which is related to New York’s “Stop and Frisk” laws. She also contrasts New York and federal law in this area, and contends that the differences between them may have contributed to the New York controversy.

Justia columnist and U. Washington law professor Anita Ramasastry comments on instances of usage-based insurance (UBI), and warns of the risk of using this kind of technology until and unless it is carefully regulated. UBI programs use up-to-the-minute data on drivers, and safe drivers get discounts as a result, but UBI systems may also raise privacy concerns. Ramasastry focuses especially on Progressive Insurance’s “Snapshot” program, which showed that actual driving behavior is the best predictor of all of driver risk. Ramasastry suggests that UBI programs need to be closely regulated in order to ensure that the information they glean about drivers is not put to other uses, to which drivers did not specifically and carefully consent. While Progressive itself does not use GPS, but instead depends on other driving-related information, Ramasastry notes that other companies may well require GPS tracking in the future, or may offer it in exchange for lower rates.