Articles Posted in Constitutional Law

Justia columnist and Cornell law professor Sherry Colb comments on instances in which the criminal law punishes people’s thoughts and/or words instead of—or in addition to—their acts, despite the First Amendment’s protections for speech and thought. Colb analyzes the uneasy relationship between criminal and civil litigation, on one hand, and guarantees of free speech, on the other. She also covers the categories of speech that the Supreme Court has deemed unprotected by the First Amendment. Moreover, Colb notes that it is perfectly constitutional to use a person’s words as evidence of what he or she has done, or is planning. In addition, Colb describes the subtle answer to the question of whether limits on free thought can constitutionally be imposed, for thought is the essence of culpability. Finally, she concludes by describing the permissible use of evidence of thoughts in determining what may be deemed a hate crime (as well as what may be deemed a violation of discrimination law).

Justia guest columnist Anjali Dalal, Postdoctoral Associate in Law and Google Fellow, Information Society Project at Yale Law School, comments on the Cyber Intelligence Sharing and Protection Act (CISPA). Dalal argues that while cybersecurity is a very genuine concern for the U.S., CISPA’s approach is not the way to address that concern. Dalal makes four key points to support her thesis, contending that (1) CISPA could reach common, otherwise legal Internet activities; (2) that information received from private companies under CISPA could be used for purposes other than cybersecurity; (3) that CISPA appears to effect an end-run around the Fourth Amendment; and (4) that CISPA subordinates civil-liberties protections to national security concerns. Dalal also describes the next steps that we are likely to see in the battle over CISPA.

Justia columnist and Hofstra law professor Joanna Grossman explains the EEOC ruling that discrimination against a transgender individual is sex discrimination under Title VII and related law. Grossman begins by describing the facts of the case that led to the EEOC ruling, and then goes on to take a close look at the intersection of Title VII, transgenderism, and sexual-orientation discrimination. As Grossman explains, an amendment to Title VII that would directly protect gay and transgender people from discrimination has repeatedly been introduced in Congress, but has never passed. However, gay and transgender people have been able to find some protection against discrimination under Title VII itself, via the courts, including the Supreme Court, that have interpreted Title VII to prohibit gender stereotyping and sexual harassment.

Justia columnist and attorney Julie Hilden argues that the defamation suit that was recently brought by conservative preacher and metal rocker Bradlee Dean against television commentator Rachel Maddow and NBC and MSNBC should be dismissed. Hilden contends that each of Maddow’s comments regarding Dean either was sufficiently accurate for libel-law purposes or fell into libel law’s protection for “rhetorical hyperbole.” Hilden also notes that the fact that Maddow read Dean’s reply to her reportage on the air—although he did not like her tone of voice when she read it—should mitigate some of the damages Dean claims to have suffered from her reportage. Carefully parsing what Dean said on the radio, and what Maddow said about him on television, Hilden contends that Maddow has the better of the legal argument, and ought to prevail.

Justia columnist and U.C., Davis law professor Vikram Amar separates First Amendment fact from First Amendment fiction when it comes to college demonstrations and protests. With campus protest activity highly likely in the Fall, Amar’s guidelines could prove invaluable in keeping protestors from inadvertently courting jail time. In the column, Amar debunks a series of myths about protests—including (1) that the protester’s intent or motive is the most important legal factor; (2) that content-neutral time, place and manner restrictions are pretextual, and need not be enforced; (3) that expressive conduct is treated exactly the same way as pure speech, under the law; (4) that government authorities could constitutionally opt to cut protestors a break when the protestors’ cause is just; and (5) that university campuses are allowed to follow their own special free-speech rules.

Justia columnist and U. Washington law professor Anita Ramasastry comments on the phenomenon of Internet mug shot galleries. Unlike a Megan’s Law database, Ramasastry explains, these galleries show photos of arrestees, who have not yet been, and may never be, convicted of any crime. That raises fairness issues, Ramasastry argues. Moreover, she notes that not only police departments, but also private companies, collect such photos together into mug-shot galleries. Because the private companies’ galleries tend to dominate search results, arrestees have no recourse except to pay the private companies to take down the photos. Because of issues like these, Ramasastry argues that this is an area that is ripe for reform—for you can now be exonerated in court, but not on Google. She also briefly discusses the phenomenon of police departments putting mug shots on their Facebook pages.

Justia columnist and Cornell law professor Michael Dorf comments on two recent Supreme Court decisions that, he argues, may together show that almost the entire Supreme Court is hostile to civil rights claims. The first decision, handed down last week, is Filarsky v. Delia. There, the Court unanimously held that a part-time government employee who is alleged to have committed a federal civil rights violation enjoys qualified immunity. In the second decision, Minneci v. Pollard, which drew only one dissent and was handed down earlier this year, the Court also ruled in favor of a civil rights defendant. Focusing on the juxtaposition of the two rulings, Dorf argues, reveals a Court that selectively invokes principles of judicial restraint in a way that disserves civil rights.

Justia columnist and Cardozo law professor Marci Hamilton takes strong issue with the position of the California Catholic Conference, the lobbyist for the California bishops, on issues relating to child sex abuse. As Hamilton explains, the Conference sent a one-page letter opposing AB1628, a California bill that would effect a short extension of the child-sex-abuse statutes of limitations, and require more rigorous background checks for employees and volunteers who work closely with children. Hamilton argues that the bill should be passed, details the Conference’s objections to the bill, and concludes that those objections are meritless. She also notes that this is just one instance in which the bishops are seeking to block child-sex-abuse statute-of-limitations reform; similar efforts are being made in other states as well.

Today, on Equal Pay Day, Justia columnist and Hofstra law professor Joanna Grossman comments on gender-based pay discrimination and the available remedies for it. Grossman covers the current status of the gender-based wage gap; the reasons why the gap persists and has proved difficult to remedy; and the efforts that have been made to bolster pay equality. Grossman first focuses on the clear evidence that pure discrimination plays a significant role in the wage gap. Then, Grossman discusses the roles that the Equal Pay Act and Title VII play, with respect to gender-based pay discrimination, and the unfortunate limitations of both laws. She also covers the more recent Lily Ledbetter Fair Pay Act, which President Obama signed into law during his first week in office. Finally, Grossman concludes by describing the key legal steps, procedural and substantive, that she argues should be taken in order to close the pay gap.

Justia columnist and attorney Julie Hilden discusses the types of complaints that libraries have received about the books in the Hunger Games trilogy, and argues that libraries should nevertheless keep the books on the shelves. The complaints that Hilden discusses claim that the books contain sex, are anti-ethnic, are anti-family, contain material that is “occult/satanic,” and are too violent. Except for the claim about violence, Hilden argues, these claims are inaccurate on the facts—they either do not accurately describe the books’ content, or they fail to put material from the books in proper context. Finally, regarding the claim about violence, Hilden notes that a number of classic works that are commonly taught in schools contain violent acts—and even, in cases like Lord of the Flies, acts of violence among children.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the official beginning of the military commission proceedings against Khalid Shaikh Mohammad and his four co-defendants. As Mariner notes, the United States is seeking the death penalty against all five men, who are accused of a litany of crimes relating to the 9/11 attacks: terrorism, hijacking, murder, conspiracy, and intentionally causing serious bodily injury. Mohammad, as Mariner explains, has taken responsibility for the attacks, and the other four defendants are alleged to have played key organizational or financial roles in the attacks. Mariner argues that for the verdict in these cases to be seen as just, the defendants must be granted basic procedural guarantees and must face an impartial and independent tribunal. However, Mariner argues, neither the procedures that will be used, nor the tribunal itself, fit these requirements. In particular, Mariner emphasizes the key differences between judicial independence and military discipline, when it comes to the administration of justice, and urges that civilian courts, not courts-martial, should be the tribunals adjudicating these cases. She cites the Zacarias Moussaoui civilian trial as a success in showing that the civilian justice system can work well even in terrorism cases, and suggests that these cases, too, should have gone forward in the civilian justice system.

Justia columnist and Cardozo law professor Marci Hamilton takes very strong issue with Republicans’ current stances on issues that are of importance to women, such as contraception access, equal pay for equal work, violence against women, and child sex abuse. As a politically moderate woman herself, Hamilton notes that she would find it very difficult to support the package of views and proposals that the Party is offering voters this year. Interestingly, Hamilton observes that, had Rick Santorum never run for president, the other candidates and the voters might never have focused on these issues, and the issue of the economy might, instead, have dominated Republican speeches and stances in the run-up to the election. But because Santorum did run, Hamilton predicts that Mitt Romney, too, will face a very significant gender gap at the polls this year as he, too, is forced to address these issues—for female voters will likely be uncomfortable with some of his answers.

Justia columnist and U.C., Davis law professor Vikram David Amar focuses in on a particular—and very significant—aspect of the Supreme Court’s recent oral argument regarding the Affordable Care Act, also known as “Obamacare”: Certain Justices seemed concerned that if Obamacare’s “individual mandate”—that is, its placing responsibility on individuals to purchase health insurance themselves—were to be upheld, then a slippery slope would follow. In particular, numerous conservative Justices asked, If the feds can require each person to buy health insurance, what can’t they force people to purchase? Amar contends that this “slippery slope” doesn’t really slip—pointing out that a very similar danger has existed in Commerce Clause jurisprudence for 50 years, and that the Court has proven more than able to address it. Thus, the individual mandate, he suggests, makes the slope no more slippery than it has been for quite a while now. Amar also cites the tools the Court has for limiting government powers in settings where mandates are already accepted, and contends that similar tools could be used in the context of Obamacare’s individual mandate.

Justia columnist and Cornell law professor Michael Dorf comments on a less often discussed but highly significant issue regarding the Supreme Court’s upcoming decision on Obamacare: If a majority of the Court finds that the minimum coverage provision is unconstitutional, how much of the rest of the law should—and will—also be invalidated by the Court? As Dorf notes, the Court heard from three attorneys who addressed this question, on the third day of oral argument in the case. The plaintiffs in the case contended that none of Obamacare should survive, but Dorf contends to the contrary that, if the minimum coverage provision is struck down, most of Obamacare should still be left standing. Dorf explains the root of the presumption that various parts of a law are severable from each other, and critiques the plaintiffs’ argument that Obamacare should be struck down in its entirety—setting forth three important respects in which he argues that that argument was wrong. One key point Dorf makes is that the statute as issue would work better if the minimum coverage provision were to be left standing, but it would still work if that provision were to be struck down.

Justia columnist and attorney Julie Hilden comments on a student-speech case that was recently decided by a three-judge panel of the U.S. Court of Appeals for the Second Circuit. As Hilden explains, the case raised the question whether a 10-year-old student’s First Amendment rights were violated when he was suspended for six days based on arguably threatening—but possibly merely joking—words that he had written during a classroom assignment. The Second Circuit panel split 2-1, with the majority siding with the school. However, Judge Rosemary Pooler, in dissent, contended that under the central school-speech precedent of Tinker v. Des Moines Indep. Cmty. Sch. Dist., the student should have won. Judge Pooler argued that the young student's words were much more innocuous than the majority seemed to think, and emphasized that the Tinker test focuses on foreseeable disruption—of which, she concluded, there was little evidence in this case.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a Supreme Court case from this Term that involves health care, but does not involve the PPACA (also nicknamed “Obamacare”). The case is Coleman v. Court of Appeals of Maryland, and the Court handed down its decision in that case last week. As Amar explains, in Coleman, the Court, by a 5-4 vote, struck down the provision in the Family and Medical Leave Act (FMLA) that subjects state-level government employers to damage liability if they fail to provide the legally-required unpaid leave to employees for self-care for a serious medical condition. Amar contends that Coleman is noteworthy not only because FMLA is a significant federal statute, but also because the Court’s decision gives us insight regarding the judicial doctrines that govern the scope of federal powers.

Justia columnist and Cornell law professor Michael Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument. As Dorf explains, the first exchange tested whether the government could constitutionally require Americans to buy things other than healthcare, such as burial insurance, mobile phones, or American cars. The second exchange involved a hypothetical regarding the government’s power to institute mandatory inoculation. And finally, the third exchange involved the Constitution's limits on “direct taxes.” Having discussed these important exchanges among the Justices, Dorf also describes what he believes to be the basis for the government’s best hope of winning the case.

In Part Two in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of an important recent Supreme Court decision, Howes v. Fields, regarding the right to be read one’s Miranda rights—the familiar set of rights that begins with “You have the right to remain silent.” In Part One, Colb focused on a set of Supreme Court precedents that are relevant to the Howes case. Here, in Part Two, Colb takes on the case that is arguably the most relevant of all to Howes: Maryland v. Shatzer. Shatzer, as Colb explains, concerns what implications a “break in custody” might have for Miranda purposes, and whether such a “break in custody” can occur while a person is incarcerated. Colb goes on to explain and critique the Howes Court’s approach to related Miranda issues. She takes sharp issue, in particular, with what she characterizes as a deeply unrealistic view of prisoners’ lives in prison, on the part of the Court.

In Part One in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on an important recent Supreme Court decision, Howes v. Fields, regarding the right to be read one’s Miranda rights—the familiar set of rights that begins with “You have the right to remain silent.” As Colb explains, Fields sets forth the law regarding Miranda in the context of the interrogation of persons who are already incarcerated. In this column, Colb explains the facts and outcomes of the prior Supreme Court Miranda precedents that proved relevant in Fields. In both parts of the series, she takes strong issue with the Court’s reasoning in the Fields decision—in part because she argues that the Court has a very unrealistic view of the realities of prison.

Justia columnist and Hofstra law professor Joanna Grossman comments on the law regarding public breastfeeding. She covers both of the potentially applicable types of laws: indecent exposure laws, and public accommodations laws. In addition, Grossman discusses a key New York decision regarding toplessness more generally; a decision based on a Wal-Mart employee’s telling a customer that she needed to either breastfeed her son in the bathroom, or leave the store; a decision based on a mother’s refusal to put a blanket over her baby’s head when she was breastfeeding on a Delta airplane, as it was waiting at the gate; and a Vermont law that establishes the right, in that state, to publicly breastfeed. In addition, Grossman notes the changing social mores regarding breastfeeding—illustrated by protests called “nurse-ins” that are often sparked, with the help of social media, when a woman’s attempt to breastfeed in public is shut down.