Recently in First Amendment Category

Today the Ninth Circuit decided Doe v. Harris, No. 13-15263.  The opinion by Judge Bybee begins:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation ("CASE") Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide "[a] list of any and all Internet identifiers established or used by the person" and "[a] list of any and all Internet service providers used by the person." Id. § 290.015(a)(4)-(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider ("ISP"). Id. § 290.014(b). Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.
Suppose someone who is angry at you says he is going to hunt you down and kill you.  Suppose further that all of the circumstances of the statement are consistent with him really meaning it.  If the police go and arrest him for making criminal threats, and he says "oh, I was just kidding," is that a defense?  If the jury believes him, or if the prosecution is unable to disprove the claim beyond a reasonable doubt, does he walk?  Does the First Amendment require this result?  That is the issue before the United States Supreme Court in Elonis v. United States, No. 13-983.

Police Prudence or Hecklers' Veto?

| No Comments
One of the tougher issues in First Amendment law is deciding when protected speech turns into unprotected incitement.  Police are often called upon to make that judgment.  In this case, they found incitement, moved the protesters out, and threatened them with arrest for disorderly conduct.  (No charges were actually brought in court, however).

A Sixth Circuit panel found that the district court got it right when it held for the police. On the circumstances of this case, I think the cops got it wrong, for the reasons explained by dissenting Judge Eric Clay (appointed by Bill Clinton).

To allow a menacing mob to trump peaceful (although very annoying) protesters' First Amendment rights is to allow the "heckler's veto," and that in turn will lead us to a place a free country should never go.

Sometimes, You Forget How Bad They Can Be

| 1 Comment
But Ed Whelan of NRO's  Bench Memos reminds us:


2005--A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the "victim") to wear buttons bearing the deceased's photograph. (The panel will later substitute in a slightly different version of its opinion.)

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit.


How far some judges will go to re-invent the Constitution as a cudgel of callousness toward the families of murder victims is mind-bending. 

Academic Robbery

| 1 Comment
Eugene Volokh has this post at his eponymous conspiracy on a bizarre incident at the University of California at Santa Barbara.  Dr. Mireille Miller-Young -- an associate professor with UCSB's Feminist Studies Department -- was offended by an anti-abortion demonstration with graphic images.  (CJLF takes no position on the underlying controversy, BTW.)

According to the police report,

Miller-Young said that she "just grabbed it [the sign] from this girl's hands." Asked if there had been a struggle, Miller-Young stated, "I'm stronger so I was able to take the poster."

Miller-Young said that the poster had been taken back to her office. Once in her office, a "safe space" described by Miller-Young, Miller-Young said that they were still upset by the images on the poster and had destroyed it. Miller-Young said that she was "mainly" responsible for the posters destruction because she was the only one with scissors.

The definition of robbery in California, unchanged since 1872, is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Penal Code § 211.)

Miller-Young confessed to taking the property, and the "I'm stronger" statement effectively confesses the "force" element. (See 2 Witkin & Epstein, California Criminal Law, Crimes Against Property § 99.) This is not only a felony, but a "violent" one. (Penal Code § 667.5(c)(9).)

"Miller-Young said that she did not feel that what she had done was criminal."

In my view, one of the greatest problems in our society today is the extent to which our young people are being taught by persons utterly devoid of common sense. Miller-Young should be convicted of robbery. Whatever direct consequences the court may impose, the collateral consequence should be that she is fired and never teaches in this state (or hopefully any other) again.
The U.S. Supreme Court today took up a case that may be as remarkable for how it got to the high court as it is for the eventual holding.  Arkansas prisoner Gregory Holt, alias Abdul Maalik Muhammad, filed a handwritten certiorari petition on his own.  He claims the State's anti-beard policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Free Exercise Clause of the First Amendment.  The case is Holt v. Hobbs, No. 13-6827.

Back in November, the Court enjoined Ark. DoC from enforcing its policy against Holt, for the first 1/2 inch of beard, until disposition of the case.

Update:  The Court subsequently amended its grant of certiorari to narrow the Question Presented to "Whether the Arkansas Department of Correction's grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs."

Protesting on Military Bases

| No Comments
The U.S. Supreme Court decided one criminal case today, United States v. Apel.

Federal law makes it a crime to reenter a "military . . . installation" after having been ordered not to do so "by any officer or person in command." 18 U. S. C. §1382. The question presented is whether a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as part of a "military installation."
Yes.  Unanimous.  For those keeping score, that is two unanimous reversals of the Ninth Circuit in two days.  The panel that decided this case knew it was flaky but felt it was bound by a Ninth Circuit precedent.  That's what en banc is for, your honors.  Use it to correct these decisions that are so wrong not a single justice thinks they are right.

Hate Crimes

| 1 Comment
French prosecutors have charged a visiting 72-year-old American with "inciting hate" for supposedly comparing Croats with Nazis.

The defendant's name is Bob Dylan.  Yes, that Bob Dylan.  Inti Landauro has this story in the WSJ (subscription).

Opinions vary on hate crime laws, even among those of us who generally agree on criminal law matters.  Some think they should be abolished altogether.  Speaking strictly for myself, I think they have a place when a person is targeted for a crime of violence because of his race.  Broadly defined hate crime laws are a different matter.  As the French example shows, they slip too easily into gross violations of freedom of speech, and such laws should be given the heave-ho.

If convicted, BTW, Dylan will probably get off for a fistful of euros.

Panhandling and the First Amendment

| No Comments
The U.S. Court of Appeals for the Sixth Circuit today struck down Michigan's c.1929 statute against "begging" in Speet v. Schuette, No. 12-2213.  The Supreme Court has held that various forms of solicitation are protected speech.  It has also upheld various restrictions on solicitation.

CJLF did some work in this area 20 years ago.  We filed an amicus brief in International Society of Krishna Consciousness v. Lee (1992).  The Supreme Court allowed the New York airports to forbid solicitation by the Hare Krishnas, although in a parallel case the Court struck down a prohibition against handing out literature.  The latter didn't matter, of course, as it was all really about the money.

The opinion of the Court in that case was based on a conclusion that the airport was not a public forum.  Justice Kennedy thought it was, but he thought that in-person solicitation for the immediate payment of money was not protected speech.  That was also the position of our brief.  To date, however, there still is no Supreme Court precedent on point.

Some of our friends on the other side of the aisle think it is really important to let people confront others on the street and ask for money.  They also think it is awful when people don't want to go downtown and instead go to suburban shopping malls which, as private property, can kick the bums out.  They don't seem to see any connection.

Holder Letter on the Rosen Matter

| 1 Comment
Todd Ruger has this post at BLT on AG Holder's letter of June 19 to the House Judiciary Committee regarding his May 15 testimony and the James Rosen search warrant.  The letter is on the committee website.

Protesting at SCOTUS

| 2 Comments
Well, that was quick.

Congress has long forbidden demonstrations at the Court.  In 1983 the Court held that statute unconstitutional as to the sidewalks in United States v. Grace.  The law has continued to be enforced as to the grounds.  Earlier this week, a federal district judge found it unconstitutional as to the grounds as well.  The Court swiftly reacted with this revised regulation:
Politico tells us that a US Attorney in Tennessee is "vowing to use federal civil rights statutes to clamp down on offensive and inflammatory speech about Islam."

So it's gone beyond targeting conservative groups for "special treatment" by the IRS. It's now that if you say something "offensive and inflammatory" about Muslims, the federal prosecutor is coming for you.

"This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion," [US Attorney Bill] Killian said about the meeting. "This is also to inform the public what federal laws are in effect and what the consequences are."

Oh, OK, Mr. Killian.  Why don't you tell us specifically "what the consequences are?"  And don't we love DOJ's version of "an educational effort?"  Wasn't this sort of "educational effort" most recently used by the Khmer Rouge?

"If a Muslim had posted 'How to Wink at a Christian [with a target picture],' could you imagine what would have happened?" Killian asked, according to the newspaper.

Yes, I can.  Nothing.  

Didn't it used to be liberals who told us that First Amendment protections are most vital precisely when speech was offensive and inflammatory?  Yeah, well, I guess that was when Obama's minions were screaming in the streets that George Bush is Hitler.  How times have changed.

"Beyond Parody"

| No Comments
The Washington Examiner has a report about Eric Holder's off-the-record meeting with several press outlets.  As I noted earlier, the meeting was designed to give reassurance that DOJ really does respect the First Amendment.  Many, probably most, of the press organizations invited declined to attend a gathering whose substance they would be unable to share with their readers and viewers.

The Examiner piece starts with the following two paragraphs, which I repeat without comment  --  not because comment is unwarranted, but because I am left speechless (emphasis in the original Examiner story):

Susan Ferrechio reports Friday [that] most news organizations boycotted on principle Attorney General Eric Holder's offer to join a press conference Thursday  in which he discussed the Obama's White House various efforts to monitor, intimidate and harass journalists. Holder's condition was that the meeting be "off the record," meaning none of the reporters would be allowed to report what was said at the meeting.

Among those who did attend was the Washington Post. Today's Post has an account of the meeting -- sort of. That is, they have a story about what the Justice Department allowed them to say about its efforts to protect press freedom. The result is just beyond parody...

Shield Laws

| No Comments
The WSJ has this editorial denouncing the efforts of the trial judge in the Aurora massacre case to force a Fox News reporter to disclose her source.  Someone in law enforcement, apparently, told her about the shooter's notebook.

The First Amendment is not superior to all other constitutional rights, and there are times when the right to a free press collides with the right to a fair trial. Hard calls then have to be made, especially when a journalist has information that bears on the guilt or innocence of the accused.

Nothing like that is at issue here. Ms. Winter's role is peripheral to the case against Mr. Holmes. The court has access to the notebook and has the authority over whether to admit its contents as evidence in the trial. Her confidential information concerns only who disregarded the judge's order.

The extent of First Amendment protection in this area is fuzzy, but many states, including Colorado, have state laws that go beyond constitutional requirements.  The text of CRS § 13-90-119 follows the jump.

Criminal Blogging

| No Comments
This post is critical of the government of Vietnam.  That is a criminal offense for which I could get a long prison sentence if I were in Vietnam.  Thank God I am not.  James Hookway has this article in the WSJ with contribution by Nguyen Anh Thu.

Although the Cold War is a fading memory, a substantial portion of the Earth's population still lives under communism.  We should never forget how thoroughly evil it is.

Monthly Archives