Justia columnist and former counsel to the president John Dean comments on a recent Montana Supreme Court (MSC) ruling that purports to find an exception to the U.S. Supreme Court’s ruling in its Citizens United v. FEC decision. (Citizens United held that corporate campaign contributions are protected as political speech under the First Amendment of the U.S. Constitution.) However, the MSC held that Montana’s own statute, the Montana Corrupt Practices Act, with its ban on corporate contributions, was importantly different from the ban on corporate campaign money that had been at issue in Citizens United, in part due to Montana history. In support of its holding, the MSC reasoned that Montana had a compelling state interest in the enforcement of the Act—especially as the evidence showed that the passage of the Act had been spurred by the situation that existed when it was passed, one hundred years ago, when Montana government was deeply corrupted by corporate influence. Dean notes that it is unclear whether the Supreme Court will intervene here—and whether, if it does, Montana’s unique history and special vulnerability to corporate influence, based on a number of factors, might save its longstanding statute.

Justia columnist and Cardozo law professor Marci Hamilton comments on a New York church-and-state case in which the U.S. Supreme Court recently declined to grant review. As Hamilton explains, the case concerned a religious group, the Bronx Household of Faith, which sought to continue to use a public middle school on the weekends for Christian worship services, followed by a “fellowship meal”—without providing payment to the school, and while taking advantage of the free use of the school’s utilities. A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled, 2-1, against the Bronx Household of Faith, on the ground that the group did not have an “all comers” policy. Indeed, Hamilton notes, Bronx Household specifically excludes anyone who is not baptized, who is excommunicated, or who advocates the Islamic religion. Hamilton argues that both the Second Circuit panel’s decision and that of the U.S. Supreme Court were clearly correct as a matter of constitutional law. And yet, she notes, New York City and New York State are now hearing arguments to once again open the public schools to religious groups, including groups that lack “all comers” policies.

Justia columnist and attorney Julie Hilden comments on the Supreme Court’s recent decision in Golan v. Holder, which allowed certain works by foreign authors to be pulled out of the U.S.’s public domain, and put under U.S. copyright protection. The works’ status had been changed by statute, so that the U.S. could comply with an international treaty. Drawing heavily on its prior copyright-extension decision in Eldred v. Ashcroft, the Court allowed the works at issue in Golan to be newly subjected to copyright—despite arguments to the contrary that were based on the Copyright and Patent Clause, and on the First Amendment. In dissent, Justice Breyer, joined by Justice Alito, argued that the public-domain works at issue ought to retain their current status, due in part to First Amendment concerns; in part to practical problems, such as problems with “orphan works,” the copyright status of which is difficult and costly to determine; and in part to a utilitarian reading of the Clause.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, continue their series of columns on the Second Amendment and how courts have recently interpreted it, with a special focus on the Supreme Court’s decision in District of Columbia v. Heller, which—while it left many questions unresolved—did establish that there is an individual right to bear arms in certain circumstances. In this column, Part Two in the series, Amar and Brownstein comment on several recent right-to-bear-arms opinions from the U.S. Courts of Appeals. In a Ninth Circuit opinion, Nordyke, the judges agreed on the proper result, but very significantly disagreed on the analysis that should be applied—with each borrowing analogies from other areas of constitutional doctrine, such as free speech doctrine, to give just one example. But Amar and Brownstein question whether these analogies can really work, especially in light of the diversity of fundamental rights doctrine. In light of that diversity, they contend, the choice, in a gun rights case, among all the possible analogies to other rules relating to other rights must be well justified. To make matters even more complicated, moreover, Amar and Brownstein point out that in a D.C. Circuit opinion, Heller II, a totally different framework for reviewing gun regulations than the one the Ninth Circuit panel used, was employed.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the provisions of the NDAA (National Defense Authorization Act) relating to the detention of citizens and non-citizens. She begins by noting that, last week, the tenth anniversary of the military prison at Guantanamo occurred, and was the subject of comment by the media, but this brief focus on the prison and its prisoners was the exception to the rule. In addition, she points out that the NDAA addresses the very issue that Guantanamo embodies, indefinite detention without charge, and does so in a way that has sparked sharp criticism from conservatives and liberals alike. Mariner focuses here, however, on a less-remarked aspect of the NDAA: Although its provision for indefinite detention for American citizens has been highly controversial, far less attention has been paid to its provision for indefinite detention for non-citizens—of which there are 171 being currently held at Guantanamo; all but five indefinitely (of the five, four were convicted and one faces terrorism and other charges). Mariner calls for more attention to the NDAA’s treatment of non-citizens, reminding readers that indefinite detention for Americans remains theoretical, but indefinite detention for those incarcerated at Guantanamo is very real.

Justia columnist and Cornell law professor Michael Dorf comments on the constitutional law regarding recess appointments—that is, appointments made by the president when Congress is not in session. The topic is timely due to the current controversy over President Obama's recent grant of two recess appointments—for the positions of the head of the Consumer Financial Protection Bureau (CFPB), and the head of the National Labor Relations Board (NLRB). The President and Senate Republicans differ sharply as to whether Congress was, in fact, in recess when the appointments were made—and thus, as to whether the two appointments were valid. Dorf contends that each side makes a plausible case for its own position on this issue, and argues, more generally, that recess-appointment controversies cannot truly be understood without attention to the substantive merits of the appointment that is at issue in a given case.

Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s decision this week in a case that pitted First Amendment religious freedom rights against the rights set forth in federal anti-discrimination law. In the case, a woman who worked for a church as a teacher was fired after taking a medical leave, and sought to invoke her rights under the Americans with Disabilities Act (ADA). But because she was a “called” teacher, with some religious responsibilities, the church argued that her firing was within its discretion, under the First Amendment’s religion clauses. The Supreme Court ultimately agreed, but as Hamilton explains, the Court issued a narrow decision that still leaves a host of related questions unanswered. Hamilton covers the “parade of horribles” that was raised, but that the Court declined to address in its decision. She also identifies the decision’s bottom line: Courts cannot constitutionally establish selection criteria for clergy.

Justia columnist and attorney Julie Hilden comments on a recent decision from the U.S. Court of Appeals for the Eleventh Circuit, rejecting a First Amendment claim by the owner of two pen-pal services, which seek to circulate lists of inmates to persons interested in becoming their pen pals, and vice-versa; and of a website on which inmates may solicit pen-pals via advertisements. The case arose when the Florida Department of Corrections (FDOC) banned inmates from soliciting pen-pals, except through a process of one-to-one matching. Hilden argues that, even under the lax First Amendment test that applies to prison restrictions—under which only a rational relationship to penological purposes is required, for a regulation to be upheld—the prison’s rules still do not hold water. She contends that, without any specific evidence of problems within FDOC relating to inmate pen-pal-solicitation fraud, the Eleventh Circuit should—like the Ninth Circuit before it—have rejected the rule for lacking a proper evidentiary basis.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, begin their series of columns on the Second Amendment and how courts have interpreted it, with a special focus on the Supreme Court’s decision in District of Columbia v. Heller. One of their key points is that Second Amendment doctrine needs to be developed and particularized in a number of ways, but that the Supreme Court has not given lower courts much guidance in this area of constitutional law. Though the Court has twice addressed the Second Amendment in recent years, it has left many questions open. With Election 2012 coming up, moreover, Amar and Brownstein point out that Second Amendment doctrine may become a political, as well as a constitutional-law, issue. In Heller, they explain, the Supreme Court made clear that there is an individual constitutional right to keep and bear arms, at least under some circumstances, but it is quite unclear where the Supreme Court and lower courts will go from there. Describing Second Amendment doctrine as a work in progress, Amar and Brownstein provide guidance on some of the questions that are likely to arise in the future.

In the second of a two-part series of columns on the highly controversial NDAA (National Defense Authorization Act), Justia columnist and Hunter College Human Rights Program Director Joanne Mariner continues to explain and comment upon on the bill, which is now the law. Mariner explains President Obama’s reasons for signing the bill, despite what he called “serious reservations” about its provisions that regulate the detention, interrogation and prosecution of suspected terrorists; and what his signing statement, accompanying the bill, said. Mariner notes that at this point, Obama is responsible for three key steps in America’s entrenchment of indefinite detention without trial: (1) justifying indefinite detention in litigation opposing the release of detainees held at Guantanamo; (2) issuing an executive order on indefinite detention; and (3) signing the NDAA. Mariner chronicles the road that took America to the passage of the NDAA, detailing the contributions of the Bush and Obama Administrations. In addition, she considers the most controversial aspect of the NDAA: its supposed allowance of the indefinite detention even of American citizens. Finally, Mariner notes that any fair reading of the NDAA ought to include a set of basic points, which she explains; and calls for a repeal of the NDAA’s detention provisions, as well as for the closure of Guantanamo.

Justia columnist and Cornell law professor Michael C. Dorf takes strong issue with presidential candidate Newt Gingrich’s comments regarding judicial supremacy. In particular, Dorf explains, Gingrich has suggested that federal judges could be summoned—even by force—to explain their decisions before Congress, and that Supreme Court Justices and lower federal court judges with whose opinions Gingrich disagrees ought to be impeached. Dorf explains that, as Gingrich states, there have indeed been times in American history when judicial supremacy—which holds that all other government actors must act as if bound by the rulings of the Supreme Court—has been controversial. However, Dorf contends, Gingrich—in suggesting that we revert to those times—fails to appreciate how and why the courts’ role has evolved over the course of American history up to the present, and, worse, puts forth a dangerous proposition.

Justia columnist and attorney Julie Hilden comments on a Portland, Oregon-based federal district judge’s ruling in a case where a key question was when—if ever—a blogger can count as a journalist. The judge, addressing a defamation suit that was brought against the blogger, declined to allow her to invoke two Oregon laws that were meant to protect journalists by (1) requiring potential defamation plaintiffs to give journalists who are potential defamation defendants a chance to correct or retract the allegedly defamatory statements, if the plaintiffs want to recover their full damages; and (2) allowing journalists to protect their confidential sources by keeping them anonymous. In addition, the judge—moving on from Oregon-law issues to federal-law issues—refused to grant bloggers the right to invoke favorable U.S. Supreme Court case law regarding damages unless the bloggers qualified as journalists under the judge’s multi-factor test. Hilden takes issue with both of the judge’s Oregon law rulings, and, to some extent, also with his proposed multi-factor test as to who counts as a journalist.

Justia columnist and attorney Julie Hilden comments on an interesting decision, issued this month by a federal judge from the U.S. District Court for the District of Maryland, regarding an indictment alleging the violation of a federal anti-harassment statute. Hilden first provides the factual background of the case—in which federal prosecutors alleged that a well-known Buddhist religious leader was being harassed, in violation of a federal stalking statute that is an amended version of part of the Violence Against Women Act (VAWA). She then discusses some of the key issues the case raises, such as whether blog posts or tweets can count as harassment in violation of the statute, even if it is the alleged victim who opts to view the posts or tweets, rather than merely receiving them. With the Electronic Frontier Foundation (EFF) as an amicus, and the federal government seeking to defend a statute that is meant to protect women from harm, Hilden predicts that we have not heard the last of this dispute. She also notes that, in the age of the search engine, the line between seeking out material and coming across it has been blurred substantially, and in turn, the definition of harassment may also be blurring.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner explains and comments on the highly controversial National Defense Authorization Act (NDAA), which has passed the House and Senate and is now awaiting President Obama’s signature. As Mariner notes, the NDAA’s provisions on indefinite detention earlier caused President Obama to threaten to veto the bill, but now President Obama appears poised to sign the bill’s current version—based on his claim that it affords the president substantial discretion on how the law will be implemented. But, Mariner points out, numerous human rights groups, civil libertarians, and Members of Congress still find the bill extremely objectionable in this current version. In this two-part series of columns, Mariner provides background on the recent history that is relevant to the bill; describes what the often-mischaracterized provisions of the bill actually say, and whom they affect; and focuses, especially, on the sections that have caused human rights groups the greatest concern.

Justia columnist and Cornell law professor Michael C. Dorf, and Justia guest columnist and Duke law and political science professor Neil S. Siegel comment on an interesting but less often discussed aspect of the controversial 2010 federal health care law. As Dorf and Siegel explain, before the Supreme Court reaches the merits of the case involving the health care law, it must first consider the federal Anti-Injunction Act, which became law in 1867. Dorf and Siegel note that the Anti-Injunction Act requires taxpayers who object to the federal government’s assessment or collection of a tax to first pay up, and only then sue for a refund. With respect to the federal health care law, Dorf and Siegel explain, that would delay even the very beginning of federal litigation until 2015. Yet both the law's fans and its detractors want a decision from the Supreme Court much earlier than that. Some would opt to simply ignore the Anti-Injunction Act, but as Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit commented, “There is no ‘early-bird special’ exception to the Anti-Injunction Act.” Fortunately, Dorf and Siegel offer an ingenious solution to this dilemma that combines a reasonable interpretation of the Anti-Injunction Act with the passage of a new federal stature.

Justia columnist and Cornell law professor Sherry Colb comments on two criminal law cases in which the U.S. Supreme Court has granted review. As Colb explains, the two cases together raise the following question: Does the Eighth Amendment’s cruel and unusual punishments ban prohibit mandatory sentences of life imprisonment without the possibility of parole (LWOP) for homicide offenses committed by fourteen-year-olds? In one case, the fourteen-year-old had suffered years of abuse and neglect, as well as severe poverty. In the other case, the fourteen-year-old apparently learned only on the way to a planned robbery that one of his accomplices was carrying a gun, and it was the accomplice who committed murder during the robbery, not the fourteen-year-old. (The fourteen-year-old was thus only charged with murder under the “felony murder” doctrine, based on his participation in a robbery that led to murder.) Colb explains that, in these two cases, the Court will need to consider the relationships among three relevant factors: (1) the capacity of an offender to behave morally; (2) the wrongfulness of the offender’s behavior; and (3) the harmful consequences of the offender’s actions. She describes the relevant prior Supreme Court precedents regarding juvenile offenders and other criminal law topics, and raises intriguing questions such as whether youth itself should be a mitigating factor to be taken into account in sentencing, in light of young teens’ demonstrably poor impulse control and susceptibility to pressure from others. Colb also covers the sentencing concepts of proportionality and discretion, and explains how they relate to these two cases. In addition, she describes—and, to some extent, challenges—the Supreme Court's “Death is different” jurisprudence, which singles out the death penalty for special notice despite the tremendous severity of an LWOP sentence, and the failure of an LWOP sentence to leave the offender hope for the future.

When you post an anonymous message on an Internet message board, how anonymous is it, really? Justia columnist and attorney Julie Hilden comments on a recent Illinois state court appellate decision regarding the First Amendment right to speak anonymously. The dispute at issue arose from a number of anonymous comments posted on a newspaper website's message board, and relating in part to a local election. The target of the comments sued for defamation (via his parent, as he was a minor). However, the Illinois court—after clarifying Illinois law pertaining to defamation cases involving an anonymous defendant—found that the statements at issue were not necessarily defamatory, but rather could, and should, be subject to an innocent interpretation. Hilden argues that while the court’s invocation of the innocent-construction rule here was dubious, the court was right to protect the anonymity of the message-board-poster defendant.

Justia columnist Vikram David Amar, and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the latest ruling in the litigation regarding Proposition 8, the California anti-gay-marriage initiative. Amar and Brownstein begin by noting that this ruling holds that the initiative’s proponents have the authority to defend the initiative in California state court, now that elected representatives have declined to do so. They then summarize all the Prop. 8 litigation that has occurred thus far. In addition, they explain what may happen if this case reaches the U.S Supreme Court based on the standing issue it presents (that is, the issue of whether the parties at issue are legally able to bring this case). They cover a reason why the Supreme Court might decline to find federal standing: until now, initiative proponents have not been elected or specifically deputized by the people. Finally, they briefly discuss some other troubling questions regarding the Prop. 8 litigation that the California ruling did not address.

Justia columnist and attorney Julie Hilden explains why a case regarding the famous 2004 “Nipplegate” incident—involving Janet Jackson, Justin Timberlake, and the Superbowl—has returned to the U.S. Court of Appeals for the Third Circuit: An FCC crackdown led to a whopping fine for CBS, which is still being litigated. The Supreme Court recently sent the case back for reconsideration, in light of the High Court’s recent, related decision in FCC v. Fox Television Stations, Inc. But upon reconsideration, two judges on the three-judge Third Circuit panel reached essentially the same decision that they had reached on the first go-round, despite the High Court’s direction to take into account the Fox ruling. In light of that fact, Hilden suggests that the “Nipplegate” case may end up at the Supreme Court—for the Justices may be unhappy with the Third Circuit panel majority’s approach of reiterating its prior decision, while emphasizing certain points it made earlier even more, in light of Fox, rather than altering its approach with Fox in mind.

Justia columnist and Cornell law professor Michael Dorf comments on the evolution and role of the “scholar brief.” A scholar brief is an amicus (friend-of-the-court) brief submitted to a court—usually, the U.S. Supreme Court—by a law professor acting in his or her role as scholar, rather than advocate. Dorf notes that a column in The New York Times recently pointed to Harvard Law Professor Richard Fallon’s article draft questioning the value of scholar briefs, by suggesting that they are very often not particularly scholarly. In this column, Dorf considers why scholars’ amicus briefs have proliferated recently, and what light that proliferation sheds on the evolving relationship between the bench and the legal academy. In particular, Dorf connects the proliferation of scholar briefs to the increasing divide between legal scholarship in the academy, and the more practical work of the courts, including the Supreme Court. And yet, he notes that the academy’s work—contrary to the claims of some—actually does continue to have relevance to courts, in part by showing how disciplines such as economics and psychology can better illuminate the workings of the law.