The Volokh Conspiracy

As I expected, the media has paid very little attention to Monday’s Supreme Court decision in Salinas v. Texas, the “right to remain silent” case. On the other hand, I was glad to see VC readers so engaged with the case in the comment threads: 349 comments and counting. I hope to get more of a chance to write on Salinas, too, as there’s still a lot more ground to cover (or at least ground to cover better than I did in that first post). But in the meantime, thanks for the interesting discussion.

From People v. Barbosa (N.Y. Justice Ct. Mar. 22, 2013):

The government had argued in state court that the prosecution was constitutionally proper; you can see Barboza’s motion to dismiss, which seemed to me quite well done, and the state’s opposition, which struck me as quite weak.

Barboza is now suing in federal court, arguing that his arrest violated the First Amendment and the Fourth Amendment. (The Fourth Amendment argument turns on the First Amendment argument, since the theory is that, because the statute couldn’t constitutionally be applied to the speech, the arrest for violating the statute lacked a sufficient basis.) From his Complaint:

8. On May 4, 2012, plaintiff was driving his vehicle on State Route 17 through the Town of Liberty. He was pulled over for speeding.

9. In early June 2012, plaintiff pled guilty by mail to the speeding ticket.

10. In August 2012, the Town of Liberty Court sent plaintiff a letter that accepted his guilty plea and provided information for payment of the fine. The letter also contained a payment form for plaintiff to complete in connection with his guilty plea.

11. On or about August 20, 2012, plaintiff filled out the payment form that accompanied the Town Court’s letter. Expressing frustration at the Village of Liberty, in sending in the paperwork in connection with his guilty plea, plaintiff wrote on the form, “FUCK YOUR SHITTY TOWN BITCHES.” He also crossed out the Town’s name, “Liberty” from the form, and wrote “TYRANNY” instead. Plaintiff then mailed in the form....

13. On September 26, 2012, Town of Liberty Justice Brian P. Rourke advised plaintiff in writing that his payment by mail was rejected and that he was ordered to appear in Town Court on October 18, 2012.

14. As directed, plaintiff appeared in the Town of Liberty Court in the early afternoon on October 18, 2012, driving approximately two hours from his home in Connecticut in order to make the appearance. In open court, Justice Rourke held up plaintiff’s payment letter and lectured him about plaintiff’s language. At this time, defendants Steven D’Agata and Melvin Gorr arrested plaintiff for aggravated harassment and placed him in handcuffs inside the courtroom, in full view of the approximately 30 to 40 individuals who had to appear in court that day.

15. Defendants D’ Agata and Gorr next escorted plaintiff from the courtroom and brought him to the Village of Liberty police station, where he was booked and fingerprinted and handcuffed to a bench.

16. After processing the plaintiff, defendant Gorr took plaintiff back to Town of Liberty Court where Justice Rourke told plaintiff that he was recusing himself from the case since he was party to it. Defendant Gorr then drove a handcuffed plaintiff to the Town of Fallsburg Court for arraignment. While driving plaintiff to the Town of Fallsburg Court, defendant Gorr told plaintiff that he did not engage in free speech because his written comment on the payment form had offended employees in the clerk’s office.

It seems to me that letters to government offices must be protected by the First Amendment, even if they are rude and offensive (at least unless they fall within the “true threat” exception to the First Amendment); for cases so holding, see United States v. Popa (D.C. Cir. 1999) (a case involving racist voice-mail left for then-U.S. Attorney Eric Holder) and State v. Drahota (Neb. 2010) (a case involving rude e-mail sent to a candidate for office). For my article on criminal harassment laws and the First Amendment generally, see here.

A while ago I posted about a brief that I filed in Bond v. United States on behalf of the Cato Institute et al., arguing that a treaty cannot increase the legislative power of Congress. Over at Cato, Ilya Shapiro reports that the National Law Journal recently featured our brief as its “brief of the week” and ran a nice story about it, here.

“Splitting the atom,” it turns out, is what one might call an etymological oxymoron — “atom” comes from the Greek “a-,” meaning “not,” and “tomos,” meaning cut. The atom was that which couldn’t be split, at least through chemical processes, but it turns out that it can be split through nuclear processes (whether generated by humans or stemming from natural radioactivity).

Likewise with “gym clothes,” since “gymnasium” comes from the Greek verb meaning “to train in the nude.” And “jumbo shrimp” indeed qualifies, since shrimp seems to come from an Old English term meaning “to shrink.”

What other examples are there? Please note them in the comments, and quote the relevant etymology from some credible source (preferably a dictionary).

This morning the Supreme Court decided a very important criminal procedure case, Salinas v. Texas, by a 5-4 vote. I’m guessing that you haven’t heard of Salinas. And it probably won’t get much attention in the press. But it should: Salinas is likely to have a significant impact on police practices. And it’s a fascinating case for legal nerds, too. So I thought I would explain the issue in Salinas and offer some thoughts on why it matters and what it might mean.

I. A Brief History of Fifth Amendment Protections

To understand Salinas, you need to know a little bit of Fifth Amendment history. Before 1965, the Fifth Amendment right against self-incrimination had been interpreted pretty consistently to provide only a relatively narrow right. Under the pre-1965 cases, the Fifth Amendment only gave you a right to decline to answer the government’s questions when asked a question under the threat of judicially-imposed punishment and when you formally asserted the right. Imagine you’re a witness called to the stand in a criminal case. If you don’t answer the prosecutor’s questions, you can be held in contempt of court and jailed. Under the Fifth Amendment, if you have a reasonable belief that the answers to the prosecutor’s questions will implicate you in a crime, you can “plead the Fifth” and not have to answer the questions. Under that pre-1965 view, all the Fifth Amendment does is let you assert your right ex ante to get out of answering a question when otherwise the law would force you to answer it under threat of legal penalty. (The thinking as to why you need to assert the privilege is that only the suspect knows when his answer would be self-incriminating; the suspect needs to assert the privilege so a judge can step in at that point and assess whether the privilege applies.)

Two cases in the mid-1960s made important cracks in that doctrinal edifice. First, in Griffin v. California, 380 U. S. 609 (1965), the Supreme Court held that the Fifth Amendment did not permit the government to comment on the defendant’s failure to testify at trial. Pre-Griffin, if the defendant chose not to testify, the prosecutor could argue that the defendant’s silence showed his guilt. (After all, an innocent person wrongly charged with a crime surely would want to explain his innocence to the jury, right?) Griffin reasoned that it would gut the Fifth Amendment if the prosecutor could argue that silence was guilt; the defendant would in effect be forced to testify to avoid that adverse inference. So the “spirit” of the Fifth Amendment barred commenting on the failure to testify even though the defendant did not formally plead the Fifth and was not compelled to speak by force of law.

The second case that cut against the traditional understanding of the Fifth Amendment was Miranda v. Arizona, 384 U.S. 436 (1966), just a year after Griffin. Miranda is the famous “right to remain silent” case, and it held that before the police can admit a defendant’s statement during a custodial interrogation, the police must first inform him of his rights and then obtain a waiver of his rights. The reasoning of Miranda was that custodial interrogation was special. When a person was in custody and was questioned by the police, the environment was so coercive that the Court needed a set of special protections (the warnings and waiver) to ensure that the answers to police questions were voluntary and not coerced.

The complex set of rules announced in Miranda was justified as a way of protecting the Fifth Amendment right. But the fit has always been awkward. Indeed, Miranda was actually argued as a Sixth Amendment case, not a Fifth Amendment case; it was a surprise to everyone when the Court announced that the Miranda rules were part of the Fifth Amendment. And the Court has struggled to find the right place for Miranda in constitutional caselaw ever since. Miranda was a strange fit for the Fifth Amendment because it didn’t fit the classic requirements of a Fifth Amendment right. It applied to police interrogation when there was no threat of judicially-enforced punishment, and it didn’t require a defendant to assert his right. To the contrary, the rights automatically existed in custodial interrogation unless they were formally waived. Nonetheless, the Court announced the Miranda rules as a prophylactic set of protections for “real” Fifth Amendment rights (a characterization the Court stayed with in Dickerson v. United States, 530 U.S. 428 (2000)). And in Footnote 37 of Miranda, the Court included dicta extending the Griffin rule to custodial interrogation:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U.S. 609 (1965)

So after 1966, we have essentially two ways of thinking about the Fifth Amendment right against self-incrimination. The first way is the classic pre-1965 approach, in which a defendant must formally plead the Fifth and has a right only when facing the threat of judicially imposed punishment. The second way is the Griffin/Miranda approach, which takes a broader view of the right and considers that would undermine a person’s ability to control when they speak in ways that might incriminate themselves.

II. What Is the Right to Remain Silent?

You can see the tension between these two views if you think carefully about Miranda‘s famous requirement that the police must tell a suspect that he has a right to remain silent. The right to remain silent sounds like a bedrock principle, and everyone knows about it. And the Court was clear that this right was supposed to be a way of expressing the Fifth Amendment privilege. See Miranda, 384 U.S. at 467-68. But it has always been a bit of a puzzle as to exactly what this warning was supposed to mean. What does it mean to say that a person has a “right to remain silent”?

In particular, “right” in what sense? In the narrow sense that the law cannot hold you liable for a crime if you plead the Fifth, as the Fifth Amendment had traditionally been interpreted? Or “right” in the broader sense that your silence can’t be used against you by the prosecution to gain any advantage, which was the gist of Griffin and was extended to interrogations in Miranda? Miranda doesn’t say. It requires the police to tell people that they have a right to remain silent, but it doesn’t tell us what that right means or when it is triggered.

III. Salinas v. Texas

That brings us (finally) to the new case, Salinas v. Texas. Salinas agreed to accompany the police to the stationhouse to be interviewed about a murder. Once there, he answered a lot of the officer’s questions. But then Salinas was asked a particularly incriminating question: Would the shells from his shotgun match the shells found at the murder scene? Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” After a few seconds of silence, the officer moved on to other questions. At trial, the government argued that Salinas had committed the murder based in part on his response to the question about the shotgun shells. The prosecutor argued to the jury that an innocent person would have said, “What are you talking about? I didn’t do that. I wasn’t there.” But Salinas didn’t do that; he remained silent. And that suggested guilt. Notably, Miranda‘s footnote 37 didn’t apply because Salinas was not in “custody” for Miranda purposes. He was at the stationhouse voluntarily, not by force, so Miranda didn’t apply. The question before the Court was whether the government was allowed to argue about the significance of the defendant’s pre-arrest silence to the jury.

The Supreme Court divided 5-4 on the question, with the majority dividing 3-2. The controlling opinion under a Marks analysis is the plurality opinion by Justice Alito joined by Chief Justice Roberts and Justice Kennedy. Justice Alito concluded that it did not violate Salinas’s Fifth Amendment right to comment on his silence because he never formally asserted his Fifth Amendment right. In Alito’s view, the pre-1965 approach to the Fifth Amendment was the standard approach to the Fifth Amendment, and Griffin and Miranda were two exceptions from this norm. Thus the issue was whether pre-Miranda silence should be governed by the usual rule that the defendant must formally assert his Fifth Amendment right to have that right or the Griffin/Miranda rule that he does not need to do so. In the majority’s view, the usual rule applied because Griffin and Miranda dealt only with specific contexts. At trial, the defendant has an absolute right not to testify, which explains Griffin, and the coerceiveness of custodial interrogation “makes his forfeiture of the privilege involuntary,” explaining Miranda. No such special circumstances existed in the non-custodial non-trial interview of Salinas.

According to the plurality, then, the defendant was required to formally assert his Fifth Amendment privilege. When the officer asked Salinas whether the shot gun shells would match those at the crime scene, Salinas shouldn’t have paused and shuffled his feet. Rather, if he wanted to rely on his right to remain silent, he had to say something that clearly asserted his right. The plurality isn’t clear on exactly how clear is clear enough to formally assert a Fifth Amendment right in the informal context of a police interview. I gather something like “I plead the Fifth” or “I assert my right to remain silent” would do it, but the opinion isn’t clear.

Justice Thomas penned a short 2-page concurrence joined by Justice Scalia. Justices Thomas and Scalia think that Griffin was wrongly decided. When a prosecutor comments on a defendant’s failure to speak, Thomas reasoned, the government is not actually forcing him to be a witness against himself. Thus the Fifth Amendment shouldn’t apply. (As an aside, Justices Scalia and Thomas would overturn Miranda entirely.)

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor and Kagan. Justice Breyer’s basic argument uses the basic reasoning of Griffin and Miranda:

To permit a prosecutor to comment on a defendant’s constitutionally protected silence would put that defendant in an impossible predicament. He must either answer the question or remain silent. If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent. See, e.g., Griffin, supra, at 613; Kassin, Inside Interrogation: Why Innocent People Confess, 32 Am. J. Trial Advoc. 525, 537 (2009). If he remains silent, the prosecutor may well use that silence to suggest a consciousness of guilt. And if the defendant then takes the witness stand in order to explain either his speech or his silence, the prosecution may introduce, say for impeachment purposes, a prior conviction that the law would otherwise make inadmissible. Thus, where the Fifth Amendment is at issue, to allow comment on silence directly or indirectly can compel an individual to act as “a witness against himself ”—very much what the Fifth Amendment forbids.

Under Breyer’s view, commenting on Salinas’s silence violated his Fifth Amendment right because the circumstances “give rise to a reasonable inference that Salinas’ silence derived from an exercise of his Fifth Amendment rights.”

IV. Why Salinas Matters

Salinas resolves a very deep circuit split involving a long-fuzzy area in the law of police investigations. I suspect that its green light to comment on pre-arrest silence impact will have a significant impact. That’s true for a few reasons.

First, it is relatively easy for the government to claim that a suspect’s reaction to an incriminating question suggests guilt — and very hard for a defendant to challenge that characterization. Over the course of a long interview, the investigator might ask dozens or hundreds of incriminating questions. If the case goes to trial, a smart prosecutor will ask the investigator if he thought that any of the ways the defendant reacted to the questions was a non-answer or pause that seemed to reflect an awareness of guilt. If the prosecutor can comment on a non-answer, presumably the prosecutor can also comment on a pause before an answer. The prosecutor will then ask about that during the direct examination, and the investigator will give his view that the defendant paused or looked nervous or declined to answer particular questions. The prosecutor can then focus on that before the jury, and there’s not much a defendant can do in response. Taking the stand would require the defendant to testify and let in adverse facts like prior crimes, which most defendants won’t want to do. So the government’s characterization will be tough to challenge, even if the investigator is being unfair in his characterization of the defendant’s acts.

Second, as a practical matter, it seems unlikely that a person questioned by a police officer outside of custody is going to formally assert his Fifth Amendment right. Most people are not lawyers, and they don’t think in terms of legal formalities. And outside of custody, the police don’t have to give warnings or talk about the law. They don’t have to mention the right to remain silent and ask a suspect to waive it, knowing that the suspect can later change his mind. They don’t need to bring it up at all. And that means that they can construct the conversation in the kind of way that makes it extraordinarily awkward for a person to play lawyer and assert his Fifth Amendment privilege. Of course, a really smart suspect will just say that they’re busy so they don’t have time to talk to the police at all. (“I just can’t schedule you in anytime soon. How is 2017 for you?”) But the suspect who mistakenly thinks he can talk his way out of trouble may be in for a surprise.

V. How Will Salinas Work in Practice?

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be? In Berghuis v. Thompkins, the Supreme Court said that a suspect who has been told about his right to remain silent during questioning needs to unambiguously assert that right for it to trigger the “downstream” Miranda rules that require the police to stop questioning and leave the suspect alone. But at least the suspect who has been told he has a right to silence may remember that right he has been told about and may invoke it. It’s somewhat less clear what will count as a successful invocation under the Fifth Amendment pre-arrest sans Miranda. Pre-arrest, the person has not been told that they have any rights. How clearly do they need to identify them to count?

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege. Recall that under the pre-1965 caselaw, a suspect only has a Fifth Amendment right against self-incrimination when 1) he asserts his right formally and 2) a failure to answer would subject him to punishment under the law. A judge then is called in to rule on the assertion, and the judge either rules that the suspect has to answer the question or not. Salinas deals with part (1); it tells us that the Fifth Amendment privilege in the pre-arrest questioning has to be asserted. But I wonder, why does that even matter given that the second requirement won’t be met? And why does it matter when a judge isn’t going to be called on to review the assertion of the privilege and the suspect isn’t going to be compelled to answer the question?

A comparison with Miranda is instructive. The theory of Miranda was that in custodial interrogation, the coercive pressures of interrogation are so great that they’re akin to a threat of legal punishment. The puzzling line from Miranda was this: “As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.” And to deal with the fact that there is no judge present, Miranda had to create a set of rules for what happens when a suspect asserts his right: In lieu of a judge stepping in and evaluating the assertion, the questioning has to stop. Whether you think these Miranda rules are sensible or conjured out of thin air — or both — presumably the same won’t be true outside of custody. And that creates a puzzle. If the defendant doesn’t actually have a Fifth Amendment right not to answer a question because an answer would not be “compelled” as it is understood in Fifth Amendment caselaw, what difference does it make if the defendant asserts his Fifth Amendment privilege? The classic reasoning of the pre-1965 caselaw tells us that the defendant has no Fifth Amendment privilege to assert at that point. What are courts supposed to do when a suspect asserts a privilege he doesn’t actually have? And what are the police supposed to do when that happens?

I can imagine a few different answers to these questions. First, courts might create some sort of Griffin-like rule just for pre-arrest questioning. That is, they might say that the police can’t comment on an assertion of Fifth Amendment privilege in that setting (even though there is no traditional Fifth Amendment privilege to assert) in order to ensure that the Fifth Amendment right is fully respected. Maybe they’ll throw in a bit of Miranda-like reasoning, too, and hold that a formal assertion of the Fifth Amendment right requires the police to stop questioning. Perhaps. But on the other end, the courts might say that an assertion of the Fifth Amendment right when there is no actual Fifth Amendment right at stake is entitled to no special treatment. In that case, the defendant would be allowed to formally assert his Fifth Amendment right but the prosecution would be free to comment on it as indicating guilt.

Lloyd v. Hardesty (Cal. Ct. App. May 31, 2013) (nonprecedential); for more on the factual backstory, see an earlier opinion in the case:

The trial court entered a ... restraining order prohibiting Wax from harassing Lloyd or her daughter. In particular, the court’s order provided that “(1) Wax ‘shall not make direct contact with [] Lloyd under any circumstances or conditions regarding [] Lloyd’s daughter and the use of the property at [] Lloyd’s residence unless done by written instrument’; (2) Wax ‘may not water her plants so as to cause any water to spill over on to the property where [] Lloyd resides’; (3) Wax ‘may not follow [] Lloyd or her daughter to any location’; (4) Wax ‘may not use terms such as “nigger,” while in earshot of [] Lloyd’; and (5) Wax ‘shall not refer to the “KKK,” under any circumstances, whether she is speaking directly to [] Lloyd or musing to herself, when within earshot of [] Lloyd or her daughter.’” ...

Wax appeals, contending that the court’s order lacks an evaluation of the factors for the issuance of a restraining order and is not based on clear and convincing evidence. We agree, and therefore again remand the matter to the trial court to hold a hearing, to make the requisite evaluation of the evidence, provide any reasoning for its ruling including any relevant authority, and set forth any findings made on clear and convincing evidence. As section 527.6, subdivision (i) provides, “[a]t the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.” ...

In addition, we note that the ... [order] is vague and overbroad in reference to Wax’s speech. The order prohibits Wax from “us[ing] the term ‘nigger’ when referring to Plaintiff or her daughter.” A prior restraint on speech is highly disfavored and presumptively violates the First Amendment. Hence, any injunction on speech must be narrowly drafted and sufficiently precise to meet constitutional requirements.

The order is reversed and the matter is remanded for proceedings consistent with this opinion.... On our own motion and in the interests of justice, all further proceedings shall be heard before a judicial officer other than the judicial officer who issued the order we have just reversed [for the second time in this case, and based on much the same analysis both times -EV].

The court doesn’t discuss the “KKK” prohibition (which seems to have been related to defendant’s allegedly threatening “to have [the] KKK get” plaintiff), but it too has been vacated — at least for now — given that the entire order has been vacated.

Why should foreign law ever be applied in American courts?, some people ask. Why should foreigners get the benefit of this law when they come to America? There are many answers to this, but I thought I’d offer a helpful illustration.

The broad point is that, when American courts apply foreign law, they apply it because American law calls for the application of foreign law. It’s not that American courts are somehow using foreign law to trump American law; rather, they are trying to follow American law. But why would American law consider foreign law? Here’s one example.

Say that Mahmoud (age 30) and Wafa (age 16) come on a visit to California, and have sex here. Having sex with an under-18-year-old is generally a crime in California:

Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is [under the age of 18 years].

If Mahmoud raises the defense, “I’m from France and it’s OK to have sex with under-18-year-olds there,” his defense will go nowhere. Likewise if his defense is “I’m from Washington State and it’s OK to have sex with under-18-year-olds there.” Foreign law, and out-of-state law, is in that context irrelevant.

But say Mahmoud raises the defense, “I’m from Pakistan, and Wafa and I were married there.” Then under California law Mahmoud wouldn’t be guilty (since the law refers to sex “with a person who is not the spouse of the perpetrator”), assuming his marriage is valid. Convicting him would be a denial of his rights under California law.

Now as it happens, in California, under-18-year-olds may not marry without a court order (and, generally, parental consent). But California law only says that these items are required to marry, and by the normal rules of statutory construction this applies only in California. (It might or might not be seen as applying also to Californians who leave California briefly to marry elsewhere, but we set aside here; cf. McDonald v. McDonald (Cal. 1936).) California doesn’t purport to regulate marriages in Pakistan, or to retroactively require California court approval for people married in Pakistan to have the rights of married couples in California. One can imagine a California law so providing (e.g., barring sex in California even among married couples when one spouse is under 18, unless a California court approves the marriage), but there is no such law, and I’ve never heard of any such law in an American state.

So indeed foreigners (or even people from outside the state) coming to California might have, in a sense, rights that Californians in California don’t possess: The visitors may have sex with their under-18-year-old spouses without any court approval of the marriage. But that’s just what California law calls for.

How, though, can California courts tell whether Mahmoud and Wafa are actually married? California courts can’t ask for a California marriage certificate, since Mahmoud and Wafa were married outside the state (and indeed outside the country). Instead, following the well-established American rule for determining whether a marriage is valid — which is embodied in a California statute — they ask whether the marriage was “valid by the laws of the jurisdiction in which the marriage was contracted” (here, Pakistan). If it complied with all the relevant formalities and substantive preconditions under Pakistani law, then it is valid for California law purposes, and Mahmoud isn’t guilty of statutory rape. But if the marriage was invalid under Pakistani law, then Mahmoud isn’t married, and he probably is guilty. (I say “probably” because it might be that, if Mahmoud sincerely believed he was married, or especially if he reasonably believed he was married, he wouldn’t be criminally punishable, since he wouldn’t have had the requisite “mens rea,” or culpable mental state, as to one element of the crime: the “person who is not the spouse” element. But if the marriage is valid under Pakistani law, then all that is irrelevant.)

Of course, some marriages are invalid under California law even if they are valid under Pakistani law; polygamous marriages would probably qualify, as would, say, father-daughter marriages, or perhaps marriages with 8-year-olds. They would be rejected under an exception to the general rule that marriages are valid in California if they are valid in the place where they were entered into: the exception for marriages that are “contrary to public policy.” But generally the fact that California formalities weren’t complied with in the foreign marriage (which is inevitable), or even that the marriage would be substantively invalid in California but not in a way that would shock California courts — e.g., when the age of marriageability is 16 rather than 18 — doesn’t render the foreign marriage invalid for California purposes. (Of course, this leaves some interesting and difficult line-drawing questions, but that’s what courts are supposed to do in applying the “contrary to public policy” standard. In our legal system, founded on the common law, courts are often asked to make these sorts of policy judgments when a statute doesn’t preclude the judgments.)

So to determine whether Mahmoud is guilty of statutory rape for having sex with Wafa, we need to look to Pakistani law to determine if their marriage is valid, and if Mahmoud is married to Wafa under Pakistani law, he is probably not guilty of the crime. As a result, he is free to have sex with this 16-year-old in California even though Californians generally aren’t, at least in the absence of a court order authorizing the marriage. But, again, that’s not because Pakistani law somehow trumps California law. It’s because, in this particular scenario, this is the result that California law demands — and, I think, quite reasonably so.

So reports Daily News Egypt:

Coptic lawyer Naguib Gabriel had filed a complaint against Abu Islam, accusing the preacher of insulting the Christian faith and Egyptian women, specifically Christian women.

Abu Islam, who owns Al-Omma satellite channel, tore a Bible apart on 11 September 2012 at a protest outside the US Embassy in Cairo against the Innocence of Muslims, a film that caused widespread demonstrations across the Muslim world.

During a programme on his channel, he said that 90% of the female protesters in Tahrir Square were Christian, saying they attend the demonstrations “half naked” with the purpose of getting sexually harassed.

The cleric’s son was likewise sentenced to eight years in prison for his participation in the same act. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Daily News Egypt reports:

Demiana Abdel Nour, a 24-year-old social studies teacher in Luxor, was summoned by the public prosecutor on 8 May after parents of three students at Sheikh Sultan Primary School filed complaints claiming that Abdel Nour insulted Islam and the Prophet Muhammad by saying that the late [Coptic] Pope Shenouda III performed more miracles than the Prophet. They added that she placed her hand on her stomach to convey nausea when mentioning the Prophet.

However, according to [defense lawyer] Ahmed Ezzat, ... a large number of students denied that any such attacks on religion had taken place.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: I initially erroneously said the fine was $100,000, but it’s actually 100,000 Egyptian pounds, which is about $14,000p; thanks to commenter SykesFive for correcting me on this.

Foreign Policy has published my article on how attribution can be used to deter foreign governments’cyberespionage.  Excerpts below:

The Obama-Xi summit in Sunnylands ended without any Chinese concessions on cyber-espionage. This came as no surprise; cyber spying has been an indispensable accelerant for China’s military and economic rise. And though Beijing may someday agree that international law governs cyberspace, that won’t help the victims of espionage, which is not regulated by international law. So if negotiation won’t work, what will? Not a strategy that relies entirely on defense. That’s like trying to end street crime by requiring pedestrians to wear body armor.

The good news is that there has been a revolution in our ability to identify cyberspies. It turns out that the same human flaws that make it nearly impossible to completely secure our networks are at work in our attackers too. And, in the end, those flaws will compromise the anonymity of cyberspies...

But attribution is only half the battle if we want to deter cyber-espionage. The other half is retribution. Once we identify the attackers, we need to persuade them to choose another line of work. If we’re serious about stopping cyberespionage, there are plenty of tools at our disposal ...

The government already uses classified information to label terrorist supporters and drug kingpins as “specially designated nationals” and to impose sanctions on them — seizing their bank accounts and assets, for example, and prohibiting U.S. citizens from doing business with them. The United States even has such programs for sanctioning Belarusian kleptocrats and conflict diamond purveyors. Maybe it makes sense for Washington to use sanctions to punish misdeeds in Belarus or West Africa, but shouldn’t it first use these measures to punish people who are invading homes and offices in, you know, the United States?

It’s unclear why the president hasn’t done this already — he’s already got all the authority he needs to impose sanctions on cyber spies and their enablers. Under the International Emergency Economic Powers Act, the president could determine that cyber spying poses “an unusual and extraordinary threat” to the United States and declare it a “national emergency.” He could then publish a list of hackers who would be subject to sanctions. In keeping with past practice, he could rely heavily on classified data to make the designations — without disclosing any of it....

But punishing individual hackers is only part of the story. What if the United States applied all of these measures not just to the hackers themselves but to companies that benefit from the data they filch from U.S. networks? There’s no difference in criminal responsibility between a thief and the customer he’s stealing for. But there could be all the difference in the world between hackers who do their work from the safe environs of a protective government and the hackers’ customers, who can’t be truly successful in today’s world if they aren’t part of the global marketplace. And going global means exposing their companies, executives, and assets to the legal systems of the United States, Europe, and a host of other countries that are furious at the wholesale espionage aimed at their companies. If a few big companies in China find that having a cozy relationship with hackers means criminal prosecutions and asset seizures, they’re a lot more likely to say “Thanks, but no thanks” to offers of stolen data.

Of course, to bring those cases, the government will have to have those companies dead to rights, and so far it doesn’t. U.S. security researchers have done a great job of tracking the thieves back home. But they’ve had trouble identifying the companies who ultimately benefit from cyberspying.

That too is an attribution problem — the next one we have to solve if we want to really discourage commercial cyber-espionage. It will be difficult, but no harder than the first attribution problem looked five years ago. Given the stakes, improving cyber-attribution should be at the top of U.S. intelligence priorities. And now that private researchers have demonstrated how much attribution can be accomplished without all the resources and authorities of the CIA and NSA, those agencies should be embarrassed by their poor record to date. And they may not have much time before someone — Iran, North Korea, Hezbollah — causes a power outage or other control system failure in the United States. If they can’t tell the president who did that, the heads of those agencies will be looking for new jobs. As part of the attribution effort the United States needs for defense, it shouldn’t be that hard to identify the customers who benefit from cyber-espionage....

In recent months, the Hill has been buzzing with new ideas for identifying and punishing cyberspies and the companies that benefit from them.

At a recent hearing before the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism, I testified about some of these ideas. Senators Sheldon Whitehouse (D-RI) and Lindsey Graham (R-SC) expressed particular interest in measures to impose sanctions on countries that support hackers as well as potential visa restrictions.

Another example is the Deter Cyber Theft Act (S. 884), which has been sponsored by a bipartisan group of senators, that includes Senators Carl Levin (D-MI), John McCain (R-AZ), Tom Coburn (R-OK), and Jay Rockefeller (D-WV). This bill would require intelligence agencies to annually report to Congress on countries and entities that engage in cyber-espionage as well as to identify intellectual property that has been stolen as a result of hacking. It further permits the president to prevent the importation into the United States of products that are linked to foreign cyber-espionage activities, such as articles that have been manufactured using stolen IP or that have been produced by companies that have benefited from it. In short, the bill would nudge the government towards broader attribution, greater naming and shaming, and some efforts to deny companies the fruits of using stolen information.

If these measures result in the punishment of Chinese companies, there is no doubt but that China will seek to reciprocate. But once again, asymmetry is likely to complicate their task. U.S. intelligence agencies do not steal commercial secrets for U.S. companies so it will be hard for China to mirror these measures without faking the evidence. In short, a focus on the beneficiaries of commercial espionage could cause real pain for cyber spies and their customers.

 

 

 

In this recent article, conservative columnist John Fund highlights some interesting comments by former Vice President Dick Cheney:

On Sunday, former vice president Dick Cheney addressed the dilemma many conservatives face in assessing the revelations about the National Security Agency’s data collection. On the one hand, they are suspicious of the federal government. On the other, they often mute such concerns when it comes to anything touching on national security.

Cheney captured the tension perfectly in defending the NSA’s activities. Fox News Sunday’s Chris Wallace first asked him: “What right do you think the American people have to know what the government is doing?” After a pause, Cheney said: “Well, they get to choose, they get to vote for senior officials, like the president of the United States or like the senior officials in Congress. And you have to have some trust in them....”

Later in the interview, Wallace asked Cheney for his opinion of President Obama. “I don’t think he has credibility,” he said. “I think one of the biggest problems we have is, we have got an important point where the president of the United States ought to be able to stand up and say, ‘This is a righteous program, it is a good program, it is saving American lives, and I support it.’ And the problem is the guy has failed to be forthright and honest and credible on things like Benghazi and the IRS. So he’s got no credibility.” If we are to rely on the people elected to high office not to abuse their authority, what do we do when they do exactly that — as Cheney thinks Obama has?

So Cheney’s view is that the NSA program is justified because we should trust “senior officials, like the president of the United States.” But we can’t trust the current president because he isn’t “fortright and honest” about events that might prove embarrassing to his administration. This view might be defensible if Obama’s flaws were an aberration. In fact, however, many successful politicians are power-seekers willing to bend the truth in order to get into high political office and stay there.

Thomas Jefferson’s approach to such questions strikes me as more defensible than Cheney’s:

[I]t would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights... [F]ree government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power...

In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

I realize, of course, that Jefferson didn’t always live up to his own principles. He was a power-seeking politician too. In this case, however, his shortcomings actually bolster his argument.

Last week, the House Judiciary Committee passed the Private Property Rights Protection Act, which would prevent local governments that engage in Kelo-style economic development takings from receiving federal economic development funds. As I explained in a post last year (which explains the bill in more detail), this legislation has been kicking around Congress since 2005. At various times, it has passed the House only to die in the Senate. If it finally passes both houses this time around, it will be a useful, though limited step towards disincentivizing abusive takings that transfer property to powerful private interests, often without actually producing the promised economic benefits for the region.

Why has the PRPA failed to pass for so long, despite overwhelming public opposition to Kelo-style takings? Various factors play a role. But a big one is political ignorance, of the same type that has led to enactment of many ineffective “reforms” at the state level. Most voters are unaware of the PRPA and don’t keep track of its legislative fortunes.Most voters are rationally ignorant and and devote only a very limited amount of time and effort to following political issues. Since the PRPA is not one of the top handful of issues on the political agenda, the public knows little about it and Congress can sit on it for years with little fear of punishment at the ballot box. Meanwhile, many local governments go on taking property for the benefit of private interest groups, while at the same time also collecting federal economic development funds. This is just one relatively small example of the broader problem of political ignorance discussed in my forthcoming book Democracy and Political Ignorance.

So allege the plaintiffs in Freedom From Religious Foundation v. Orange County School Board (M.D. Fla.), filed last week, and the letter from the school board — Exhibit A — bears this out.

First, a bit of background. Some public schools have allowed religious groups to distribute Bibles at the school. This led to Establishment Clause lawsuits, on the theory that schools’ allowing such distribution (and not other distribution of other works) involved favoritism for religion. So a Florida school board in Collier County tried to deal with the objections — and with the requests from religious groups to continue the distribution — by setting up a “limited public forum” program in which any group is allowed to periodically bring material that students may pick up, except for material that

(i) promotes the use of alcohol, tobacco or illegal drugs; (ii) advertises products or services for sale; (iii) is not appropriate for the age and maturity of high school students; (iv) is pornographic, obscene or libelous; (v) violates intellectual property or privacy rights; (vi) advocates or is likely to incite imminent lawless action; or (vii) is likely to cause substantial disruption at the school despite the application of available discipline rules and procedures.

The material is supposed to be placed on tables, so that students can pick it up if they want to; the representatives of the donor organizations aren’t allowed to urge students to take the material, or to discuss the material with students. The defendant school board in this new case, Orange County School Board, has apparently implemented in a similar policy for high schools.

Now when the government opens up a “limited public forum” on its own property for speech, it may of course exclude (1) generally constitutionally unprotected material (such as the “obscene or libelous”) and (2) material that is unprotected given the context in which it’s distributed, such as material in K-12 schools that “is likely to cause substantial disruption at the school,” see Tinker v. Des Moines Indep. School Dist. likely the alcohol/tobacco/drug-promoting material, see Morse v. Frederick, and material that is seen as vulgar or inappropriately sexual, see Bethel School Dist. No. 403 v. Fraser. (More on all that here.) The government as operator of a limited public forum may also implement (3) content-based but viewpoint-neutral restrictions, which generally wouldn’t be allowed in a traditional public forum such as on a sidewalk or in a park (or on private property used with the property owner’s permission). So even if the policy quoted above does indeed satisfy the limited public forum requirements — I’ll assume for this post that it does — it has to be implemented in a viewpoint-neutral way.

FFRF applied to participate in the “limited public forum,” and the school board allowed some of its literature; but it also rejected other material, on various grounds. In particular, it claims that certain material may cause “substantial disruption,” invariably because it may offend high school students who hold certain beliefs.

2. Letter to a Christian Nation by Sam Harris: This book may not be distributed for the following reasons:

B. On page 30, the book speaks about human blastocysts which are utilized for embryonic stem cell research. The author posits that killing a fly “should present one with greater moral difficulty than killing a human blastocyst.” This argument could lead to a substantial disruption at school by those students who believe life begins at conception.

D. On page 38, when describing the natural process of miscarriage, the author described God as the “most prolific abortionist of all.” This material is not appropriate for the age and maturity of high school students and calling God an abortionist is likely to cause a substantial disruption at the school, especially if read by those students who believe that God condemns abortion.

3. Jesus is Dead by Robert Price: This book may not be distributed. The District has determined this book will cause a substantial disruption. The District’s administration will not permit the distribution of materials which insult the leaders of other religions. The claim that Jesus was not crucified or resurrected is age inappropriate for the maturity levels of many of the students in high school.

4. What on Earth is an Atheist by Madalyn Murray OHair: This book may not be distributed. The District has determined this book will cause a substantial disruption. The Book discusses what it views to be the shortcomings of the Mormon Church and the Roman Catholic Church. The atheist materials may support the reasons why atheists feel atheism or free thought is proper, but the District’s administration will not permit the distribution of materials insulting religions....

5. Why I am Not a Muslim by Ibn Warraq: This book may not be distributed for the following reasons:

A. Page 92: When describing the Prophet Muhammad’s treatment of Jewish people, the author described raiding parties and stated “Muhammad began sending out raiding parties; in effect; he was no more than the head of a robber community, unwilling to earn an honest living.” This will cause a substantial disruption to those students who practice the Islamic faith.

Miniature Brochures ...

2. Dear Believer: This brochure will not be allowed to be distributed as it will cause a substantial disruption. This brochure asserts that God is hateful, arrogant, sexist and cruel....

7. Why Jesus?: This brochure may not be distributed. This brochure will cause a substantial disruption because it argues that Jesus did not promote equality and social justice, was not compassionate, was not reliable and was not a good example.

8. What Does the Bible Say About Abortion?: This brochure may not be distributed. The discussion of what the Bible does or does not say about abortion will cause a substantial disruption in school and is not age appropriate for high school students.

These rejections strike me as pretty clearly unsound. The Tinker test can’t be satisfied simply by the possibility that some students will be offended and therefore “a substantial disruption” would result — after all, in Tinker itself the wearing of black armbands might have theoretically caused some disruption, and in practice did cause some modest disruption. If viewpoints could be suppressed in a K-12 school simply because of the possibility that some people may disagree with them, then Tinker would have to be reversed.

What’s more, recall the context of this distribution: Literature is being placed on tables, for students to pick up and read, likely at their own leisure. No-one is supposed to be talking directly to the students. This should diminish the risk that even controversial literature will lead to a substantial disruption — not eliminate it to be sure, but diminish it to the point that the risk of disruption should be considerably less than that in Tinker.

And of course the Bible itself could in theory lead to disruption. Non-Christians (there must be some in the school, whether they belong to other religions or are irreligious) may disapprove of much the Bible says. High school students with gay or lesbian relatives or friends may be as upset by distribution of the Bible as “students who believe life begins at conception” are by the claim that “killing a fly ‘should present one with greater moral difficulty than killing a human blastocyst.’” If “disruption” means massive fights, then such disruption may be unlikely from people who are offended by the Bible (partly because it seems pretty clear that they would lose such fights); but it also seems unlikely from the distribution of books that oppose the view that life begins at conception, or even books that deny that Jesus was resurrected. But if disruption means simply upset or arguments, that could happen as to pretty much any book that makes broad moral, ideological, or theological assertions, including the Bible.

It thus becomes hard to see the school board’s actions here as a faithful and evenhanded application of Tinker, and makes it much likelier that the school board is simply discriminating against viewpoints that it thinks are wrong or offensive, whether because they “insult the leaders of other religions,” oppose the view that life begins at conception, express the view that God (if he exists) “is hateful, arrogant, sexist and cruel,” or argue that “Jesus did not promote equality and social justice, was not compassionate, was not reliable and was not a good example.” Even in a limited public forum — government property or a government program that the government needn’t set up in the first place, but does set up as a means of promoting private speech — such viewpoint discrimination is forbidden. If one group is entitled to promote a viewpoint (Christianity or religiosity generally is right and good), others are entitled to use the same forum to promote opposing viewpoints (such as that Christianity or religiosity is wrong and evil), unless the speech falls within some exception or (in K-12 schools) fits the Tinker standard.

The school board also objects to some material being “age inappropriate,” which in principle could be a permissible viewpoint-neutral standard. But most of the board’s objections seem hard to justify, especially when it comes to books distributed in a high school, and when using as a benchmark the Bible itself, which contains many references to violence and to sex, such as prostitution, incest, homosexuality, and rape. (I’m not claiming that the Bible is age inappropriate; rather, I’m claiming that many of the age inappropriateness objections to the Foundation’s books are unsound, using the Bible as a benchmark.) Here are the objections:

2. Letter to a Christian Nation ....

A. On page 26, the book described how those students who pledge to abstain from sex by taking “virginity pledges” are “more likely than their peers to engage in oral and anal sex.” This material is not appropriate for the age and maturity of high school students.

C. On page 37, the book describes back-alley abortions in El Salvador with perforated uteruses. This material is not appropriate for the age and maturity of high school students.

E. On page 94, when describing the religious rituals of many ancient societies, the book described the sacrifice of virgins, killing and eating of children in order to ensure the future fertility of mothers, feeding infants to sharks, and the burning of widows so they can follow their husbands to the next world. These concepts are not appropriate for the age and maturity of high school students.

4. What on Earth is an Atheist.... On page 178 the author describes what she refers to as “ritual prostitution” of nuns who then become the brides of Jesus Christ when they enter heaven. This material is not age appropriate for high school students.

5. Why I am Not a Muslim ....

B. Page 93: The author recites a poem written by an opponent of Muhammad which utilizes the phrase “fucked men” twice. This material is not age appropriate.

C. Page 145: When speaking about Jesus in the Koran, the author recites a virgin birth legend of the Greco-Roman civilization and describes how the virgin in the Greco-Roman legend “was impregnated by a shower of gold.” This material is not age appropriate.

D. Page 290: The author describes how Muslims believe that sexuality flows from the vagina and how “Satan makes the juices flow from [a woman's] vagina.” This material is not age appropriate.

E. Page 291: The author discusses the “Islamic fantasies of the ‘infinite orgasm’ and ‘the perpetual erection.” This material is not age appropriate.

F. Page 298: The author discusses how a wife “should never refuse herself to her husband even if it is on the saddle of a camel.” This material is not age appropriate.

G. Page 304: When discussing issues of sodomy, the author argues that Muhammad’s entourage “enjoyed their women from front and from behind.” The author also argued that Muslim theologians concluded “that a man could take his wife when he wanted and how he wanted, from the front or from the back, as long as he ejaculated in the woman’s vagina.” This material is not age appropriate.

H. Page 305 has a graphic description of female circumcision and speaks of “clitoris cutters.” This material is not age appropriate.

I. Page 308 describes how “major impurity results from sexual contact” and described how this occurs as a result of sexual intercourse, anal intercourse, bestiality, and menstruation. This material is not age appropriate.

9. An X-Rated Book. This brochure will may not be distributed. This brochure will cause substantial disruption and is age inappropriate. There is a picture on the cover of a Bible book given human features sticking its hand up the dress of a woman....

Here too it seems likely that the board was treating material with an atheist viewpoint less favorably than it treats the Bible. In any event, it will be interesting to see how the litigation comes out.

With today’s decisions, there are three opinions left from the Supreme Court’s March argument sitting: Hollingsworth v. Perry (the Prop 8 case); United States v. Windsor (the DOMA case); and Mutual Pharmaceutical v. Bartlett (this Term’s pharma preemption case).  There are three Justices who haven’t yet had opinion assignments from that sitting: the Chief Justice, Justice Kennedy, and Justice Alito.

Predictions are hard–especially about the future.  But it looks like Justice Alito probably was assigned the Bartlett opinion, and the Chief Justice and Kennedy are splitting DOMA and Prop 8.  Now who has which, and what are they writing?

Last week, Roger Pilon of the Cato Institute and famed libertarian law professor Richard Epstein published an op ed defending the NSA policy of collecting data on millions of Americans’ electronic communications. Pilon and Epstein may be the only prominent libertarian defenders of the NSA on this issue; though, obviously, that doesn’t necessarily mean they are wrong.

Pilon’s Cato Institute colleague Julian Sanchez recently posted a thorough and compelling critique of Pilon and Epstein’s argument. I think this part does a great job of capturing the main danger posed by the program:

[T]he crucial question is not really whether the short term-benefit of a particular government search outweighs its immediate harm or inconvenience—though I note that the marginal benefit of the NSA program over narrower methods remains as yet asserted rather than demonstrated. By that standard, surely many warrantless searches would pass muster....

Rather, the appropriate question is whether the creation of a system of surveillance perilously alters that balance too far in the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who—whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good—would seek to use it against us.

Among other things, Sanchez’s post includes a good critique of Smith v. Maryland, the 1979 Supreme Court decision cited by both Pilon and Epstein and many other defenders of the NSA program. Like Sanchez, I am a big fan of Epstein and Pilon’s work on many other issues. But I think they have gone wrong in this case.

NOTE: I am a Cato Institute adjunct scholar, an unpaid affiliation that does not give me any authority over Cato policy. But, from what I can tell, I think Sanchez is correct in stating that most Cato scholars are closer to his position on this issue than Pilon’s and Epstein’s. The Pilon-Epstein op ed was not an official Cato publication.

UPDATE: I have made a few minor stylistic corrections to this post.