The Volokh Conspiracy

The Daily Times Herald (Iowa) reports:

District Judge James Richardson forbade a Daily Times Herald reporter from taking notes at a vehicular homicide trial Tuesday in Audubon, a rare courtroom rule that some say is unconstitutional.

Richardson said a reporter’s scrawls could “influence the jury in that they might think something is important if they see me writing,” reporter Jared Raney said....

Raney said judge Richardson told him to file an expanded media request — which is commonly required to use cameras, camcorders and other electronic devices in Iowa courtrooms — if Raney wanted to take notes on paper. Such requests often take more than a week to gain approval, which would likely happen after the Audubon trial concludes for Kendall Ware, 57, of Lineville, who is accused of killing a boy in a 2011 drunken-driving crash.

Seems like an odd rule, though it is one that the Supreme Court enforced until 2003 as to public spectators (not, to my knowledge, those in the special press area). Coco v. Richardson (N.D. Ill. 2006) suggested that a similar rule was unconstitutional, and I think the analysis there makes sense:

Judge Coco’s main argument is that her inherent power to maintain the order and decorum necessary to insure the proper administration of justice authorizes her to forbid an observer from taking notes while court is in session. Her rule presents a serious constitutional issue.

A sweeping prohibition of all note-taking by any outside party seems unlikely to withstand a challenge under the First Amendment. In the closest analogous case, United States v. Columbia Broadcasting System, Inc., 497 F.2d 102, 107 (5th Cir.1974), the court of appeals struck down a ban on courtroom sketching, saying “[w]e are unwilling to condone a sweeping prohibition of in-court sketching when there has been no showing whatsoever that sketching is in any way obtrusive or disruptive.”. Taking notes is undoubtedly less obtrusive than sketching. While the Seventh Circuit has never had the need to address the issue directly, in upholding a prohibition on cameras in the courtroom the court noted that “cameras are qualitatively different from reporters’ notetaking and sketching.” United States v. Kerley, 753 F.2d 617, 621 (7th Cir.1985).

Continue reading ‘Ban on Note-Taking by Spectators in Court’ »

Eugene has a somewhat different take on Justice Scalia’s now-infamous footnote than I did . . . He writes

[M]y sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

Well, I certainly agree with that “useful rule” — always decode abbreviations just in case you’re reader doesn’t know them.  If you’re talking about the DMCA, or ISPs, or SOPA, or the VAT, or NSAID drugs, or the POSITA, or . . . tell the reader what you mean.

But I do think that an abbreviation in a party’s name calls for relaxing that rule – unless for some reason it actually matters for the case.  WRKO, Inc. v. FCC — would we expect the lawyers to tell the court that “RKO” was chosen because it stands for “Radio Kingdom of Ohio,” or “Rachel Kelleher O’Brian,” or “Random Kowtowing Operaphiles”?  And would it be appropriate for the court drop a footnote like Scalia’s if the lawyers didn’t  explain its origins?   Does Exxon, Inc. have to explain where its name came from?  [And, to satisfy the judges, how to pronounce it?!**]

Though I don’t want to make more of this than one should make of it, I do think there’s a point of some importance here.  The rule that trumps Eugene’s “useful rule” is: you can call yourself whatever you  please,  for reasons you want to make public or for reasons you don’t want to make public or for no reason at all.  It’s just none of the court’s business – unless it has some relevance to the issues raised in the case.

has been published at Reason.com.

It’s not a favorable review–I argue that Katznelson grossly exaggerates the extent to which FDR was stymied from pursuing a progressive agenda by the power of southern Congressmen, and that he is unpersuasive in excusing some of Roosevelt’s worst policies on the grounds that the alternative was to put democracy in grave peril.

But the book is even worse than the review lets on. First, there are many times when the subject at issue cries out for the author to display at least a rudimentary understanding of economics, but he never does.

Second, and more important, while Katznelson’s prose is fine, the book is both a disorganized mess, with little apparent rhyme or reason as to which topics the author covers and in how much detail, and way too long. To take just one very minor but telling example of unnecessary detail that clogs the narrative, we learn that Sen. Theodore Bilbo favored “loud check suits and brash ties.” That would be relevant information for a biography of Bilbo, but what does it tell us about “the New Deal and the Origins of Our Times” (the subtitle of the book)? Overall, the book reads as if Katznelson and/or his research assistants gathered lots of information on a bunch of different topics from a particular historical period, and then basically dumped the information into the book, regardless of whether and to what extent it formed a consistent narrative. As long-time readers know, I think most books written by academics are too long, and this one, in particular, could easily have been cut by at least 40%.

On the other hand, for favorable reviews here is Kevin Boyle in the New York Times, and Robert Kaiser in the Washington Post.

Congratulations to Sri Srinivasan for being confirmed today to a judgeship on the DC Circuit. The final vote was a squeaker — 97-0.

There is going to be a lot of speculation that Srinivasan may be nominated to the Supreme Court someday, so it’s perhaps worth noting that Justice Ginsburg has indicated that she is not going to retire this coming year. If Ginsburg announces her retirement at the end of the next Supreme Court term in late June 2014, however, Srivinasan would have served slightly over a year on the DC Circuit. By comparison, Justice Thomas served 16 months on that court before being nominated to the Supremes.

In his speech on drones and the War on Terror today President Obama made many valid points. But he also continued to elide some key issues. On the plus side, Obama correctly emphasized that the use of drones against terrorists is not inherently illegal nor immoral, that drones are often more discriminating and less likely to inflict civilian casualties than other military tactics, and that US citizens can be legitimate targets when they become enemy combatants.

Unfortunately, Obama also continued to dance around the more problematic aspects of his drone policy: who decides whether a particular individual being considered as a potential target is really a member of Al Qaeda and how much evidence is needed to back up such a determination. I emphasized these issues in my recent Senate Judiciary Subcommittee testimony on drones and here. Here are the most relevant parts of Obama’s speech on these questions:

In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.

Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty.

America does not take strikes to punish individuals; we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

All of the above strikes me as entirely defensible so far as it goes. But it leaves unanswered the crucial question of how we determine that a given individual really is a member of “al Qaeda and its associated forces.” It also ignores the issue of how we decide which groups qualify as associated forces of al Qaeda – another difficult definitional issue that I noted in my testimony. The 2001 Authorization for the Use of Military Force that constitutes the legal basis for the War on Terror only authorizes military action against “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” North Africa and the Middle East are full of Islamist groups whose ideology is in at least some ways similar to that of al Qaeda and who support its goals to at least some degree. We are not and should not be at war with all of them. At the same time, the president is surely right that our military efforts cannot be limited to the narrowest possible definition of al Qaeda.

For reasons outlined by the president and co-blogger Ken Anderson, among others, I think it would be a serious mistake to abjure the use of drone strikes entirely. At the same time, we cannot allow boundless executive discretion in this area either. There must be tighter and clearer legal limits on presidential power in this field.

As President Obama himself puts it, there should be “strong oversight of all lethal action.” But it is not yet clear exactly what kinds of measures Obama has in mind or would accept. In a later part of the speech, Obama lists several possibilities, but does not actually endorse any of them:

Going forward, I’ve asked my administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested — the establishment of an independent oversight board in the executive branch — avoids those problems, but may introduce a layer of bureaucracy into national security decision-making, without inspiring additional public confidence in the process. But despite these challenges, I look forward to actively engaging Congress to explore these and other options for increased oversight.

It is certainly true that no oversight system is going to be perfect. But unconstrained executive discretion also poses severe problems. In the long run, moreover, such unconstrained power is likely to undermine the legitimacy of the use of drones altogether, just as the Bush administration’s advocacy of unlimited executive power undermined confidence in its detention and interrogation policies.

The case is State v. MPHJ Technology Investments Corp. (Vt. Super. Ct. filed May 8, 2013); GigaOM reports:

In a complaint filed in Vermont’s Superior Court, the state accuses MPHJ Technology — which operates 40 shell companies through a UPS store in Delaware — of violating consumer protection law by demanding small businesses buy a license or face a patent lawsuit.

“Hopefully would-be patent trolls will see this and realize that if you want to prey on Vermont businesses large and small they’re going to have a fight on their hands,” Attorney General, William Sorrell, said by phone on Wednesday.

The patents in question date from the year 2001 and involve technology for scanning documents and attaching them to an email. Despite being around for more than a decade, no one tried to enforce the patents until 2012 when ... [attorney] Jay Mac Rust began brandishing them.

The Vermont complaint explains that Mr. Rust and his friends have been sending letters to hundreds of businesses in Vermont, including non-profit groups that help the disabled, and telling them to pay $900-$1200 per employee or face a federal lawsuit....

Vermont’s lawsuit, which demands the troll pay $10,000 for each letter it sent out, is based on consumer protection laws that forbid deceitful communications....

Thanks to the Media Law Resource Center’s Media Law Daily for the pointer.

Ian Millhiser speculates about future Democratic Supreme Court nominees over at ThinkProgress, naming names. Some of the names Ian mentions strike me as very very plausible; others strike me as very very implausible. But I’m not privy to the thinking of either current or future Democratic administrations, so who knows.

Today between 4:30 and 5 PM, I will be participating in a Huffington Post Live discussion on the use of political profiling by the IRS. You can watch it live here. I will also be drawing connections between this issue and the question of racial profiling, a parallel I discussed in this post.

UPDATE: You can now watch the video of the HuffPost discussion here.

Tags: IRS

The bill is HB8, though there’s a Senate amendment; apparently, the Legislature plans to enact the bill as amended. The bill bars the government from releasing information about who has applied for or gotten a concealed carry permit, and the Legislature certainly can impose such restrictions on the government itself. But then it also criminalizes speech by everyone else (I merge the House Bill and the adopted Senate amendment):

Absent a valid court order requiring the release of information or unless a recipient of a concealed handgun permit is charged with a felony offense involving the use of a handgun, it shall be [a misdemeanor] ... to release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit issued pursuant to this Section.

So blogging that you happen to know that a gun control advocate actually has a concealed carry permit himself would be a crime. Or say that you know someone has a concealed carry permit, and that person is sued for supposedly making death threats, or is criminally prosecuted for a felony offense involving a shotgun, or otherwise seems dangerous and unstable — mentioning the permit in publicly discussing the situation would be a crime. Mentioning applicants’ names in giving examples of cases where you think a concealed handgun permit was wrongly issued, or wrongly denied, would be a crime, too. So would talking about a person’s concealed carry permit in a biography of the person, or in a newspaper or magazine story that is trying to give a sense of the kind of person he is.

This is a clear First Amendment violation. Florida Star v. B.J.F. (1989) struck down a law banning the publication of the names of rape victims, once the information was released by the police (even when it was released in violation of department policy). This statute is thus unconstitutionally overbroad, because it has no exception for these kinds of erroneous-release situations. But even if the statute were limited to exclude information gleaned from public records, it would still be unconstitutional: It would be a content-based restriction on speech. It would apply to speech about crime, lawsuits, threats to public safety, and other matters of public concern.

And while in theory even such content-based speech restrictions might be constitutional if they are “narrowly tailored” to a “compelling government interest,” this test has rightly been extremely hard to satisfy (consider Florida Star itself). Indeed, one reason our free speech protections are so strong is that courts have been extremely hesitant to uphold speech restrictions under this test. They are thus very likely to strike down the statute — and if they do uphold it, the precedent would risk undermining free speech protection more broadly. The Second Amendment (or, to be precise, the desire to keep confidential people’s exercise of their gun rights) shouldn’t be a basis for undermining the First Amendment.

Thanks to the Media Law Resource Center’s Media Law Daily for the pointer. UPDATE: I initially wrote that the Senate plans to pass the bill as amended; I now realize that the Senate did so pass the bill, but the expectation is that the House will concur in the amendments. I revised the opening sentence accordingly.

There has been a lot of outrage expressed recently over the contents of an affidavit filed in support of a search warrant to search the e-mail accounts of reporter James Rosen. The government’s affidavit offered the view that Rosen violated the law by aiding and abetting the alleged violations of laws prohibiting the disclosure of classified national security information. Specifically, the affidavit stated, “there is probable cause to believe that the Reporter . . . has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter.” To some, the fact that the government would make this argument shows that the Obama Administration is engaging in a War on Journalism. According to this thinking, the Obama Administration is not only trampling on the rights of a free press by going after its sources. Incredibly, they even think of a reporter as a criminal — and are willing to say so in court.

I think you get a different sense of this affidavit if you understand the privacy laws, however, and in particular a federal law called the Privacy Protection Act, 42 U.S.C. 2000aa. It’s a pretty complicated law, so it will take me a minute to explain. But I think I can explain why the affidavit filed in the Rosen search had this language, and why claims that this language reveals a “war on journalism” are based on a misunderstanding.

Here’s the background. The Privacy Protection Act was a response to a Supreme Court decision called Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, the Supreme Court held that the Fourth Amendment permits the government to execute a search warrant at a newspaper to recover evidence of a crime that reporters had gathered in the course of investigating the news. The Supreme Court reasoned that warrants can be issued when there is probable cause to believe evidence of a crime is located in the place to be searched, and there is no Fourth Amendment principle that third-parties are exempt from such searches.

You can see the major problem created by Zurcher. If the government is allowed to execute warrants wherever the evidence is, and reporters often have to gather evidence of crime in the course of gathering news, then the government can get lazy and just raid reporters’ homes and offices to find out what the reporters have learned rather than conduct the government’s own investigation.

That problem hadn’t arisen historically because the Supreme Court had earlier adopted the “mere evidence” rule, by which the government was prohibited from obtaining warrants to collect mere evidence; the government only had the power to collect contraband, stolen goods, or the fruits of crime, which necessarily excluded searches of the offices of reporters for evidence of crime. But the Supreme Court had overturned the mere evidence rule in 1967 in Warden v. Hayden, setting up the question in Zurcher eleven years later. So the combination of Hayden and Zurcher meant that the Fourth Amendment allowed the government to target innocent reporters who just happened to to have gathered evidence of crime in the course of gathering the news.

Congress enacted the Privacy Protection Act just two years after Zurcher. The Privacy Protection Act is pretty complicated, and its exceptions have exceptions to its exceptions. But it contains pretty specific guidance for when the government can conduct searches to gather evidence from reporters made in the course of gathering the news in cases involving the disclosure of classified information. The rule is that the government can only do that when “there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. 2000aa(a). The idea is that the government can’t gather evidence from journalists who happen to have evidence of that crime in their possession except in the rare cases in which there is probable cause to believe that the journalist is involved in the crime, too. In other words, investigators generally can’t take the short-cut of going to the press for the evidence — but when there is probable cause that the press is involved in the crime, the usual Fourth Amendment rules apply.

That brings us to the affidavit filed in the Rosen case. If you read the affidavit, it is pretty clear that the part discussing Rosen’s own potential criminality is designed to show compliance with the Privacy Protection Act. Here’s paragraph 46, the key paragraph that has caused so much concern:

Based on the above, there is probable cause to believe that the Reporter (along with Mr. Kim) has committed a violation of 18 U.S.C. 793(d) either as Mr. Kim’s co-conspirator and/or aider and abetter, and that the evidence of crime is likely to be contained in the [ ]@gmail.com account. Accordingly, the FBI’s request to search the contents of that account falls squarely within section 2000aa(a)’s exception permitting searches of media-related work product materials, even when possessed by a national news reporter because there is “probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate.” 42 U.S.C. 2000aa(a).

The first sentence in that paragraph has caused a lot of anxiety among reporters. But the first sentence is just the set-up for the second sentence, in which the affidavit explains that this matters because it triggers the exception under the Privacy Protection Act. (For a discussion of the underlying criminal law, and in particular the interesting question of whether the laws on disclosing national security information can apply to reporters under the First Amendment, see this excellent post by Eugene.)

I am only making a narrow point, I should stress. I am not arguing that investigators made a good decision when it obtained Rosen’s e-mail. I am not expressing a view about whether the Privacy Protection Act’s exception is too broad, or what the law or policy of criminal investigations involving the media should be. My point is just that the controversial language in the affidavit shouldn’t be read out of context. That language was necessary to demonstrate compliance with a privacy law Congress enacted to provide safeguards for the press.

UPDATE: I tried to stress the narrowness of the post, but it seems I have failed. Let me try again. Different people have voiced different objections to the investigation of Rosen’s e-mails. Some have argued that the investigation is wrong because the government should not obtain evidence from journalists — or at least e-mails — at all. Others have argued that the affidavit is troubling because it reveals DOJ’s apparent view about substantive law that a journalist who asks a source to disclose classified information with the goal of publishing it has committed a federal crime.

This post is responding to a different argument: That the fact of labeling a journalist a criminal in a court filing demonstrates an effort to intimidate the press and further a “war on journalism” by treating journalists like criminals. See, for example, this CBS News story today from Jan Crawford. The argument I’m responding to (as seen in Crawford’s piece) is that labeling a journalist a criminal reflects a hidden motive to intimidate reporters. My sense is that an awareness of the relevant law puts a different perspective on the language, as the motives behind developing a point in an affidavit that is required under the law may be different from developing a point gratuitously when it is not required by law. When a point required by law is developed in an affidavit, it may have been added with the relatively simple motive of complying with the law.

Respondent in NLRB v. Noel Canning, 12-1281, the case seeking review of the D.C. Circuit’s judgment invalidating the President’s recess appointments of several NLRB members, has filed its brief respecting certiorari–five days early, no less, probably to ensure the Court has time to consider the case before leaving for summer recess.  As anticipated, respondent does not oppose certiorari, noting  the case “presents a constitutional question of extreme importance” (Noel Canning Br. 9) that warrants Supreme Court review.  That position is not a surprise: The Noel Canning case was brought by the U.S. Chamber of Commerce, which has an interest in not simply preserving its victory in the D.C. Circuit, but in achieving definitive nationwide resolution.

Noel Canning proposes that in addition to the two questions presented by the government’s petition, to wit:

1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.
2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during the recess.

the Court should consider a third question, which the D.C. Circuit did not reach because it invalidated the appointments on other grounds:

3. Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

Noel Canning argues that addressing only the questions posed by the government “could potentially leave the validity of the ‘recess’ appointments at issue unresolved.”  Noel Canning Br. 9.

It will be interesting to see what the Government says in its reply brief (which we’ll be seeing no later than June 4) about the proposed third question. The Court frequently says it is a “court of review, not of first view,” and the government may argue that question should be left for the D.C. Circuit on remand; but then again, given how much litigation the NLRB recess appointments have spawned, it may be happy to have the Court resolve the validity of the appointments once and for all.
Continue reading ‘Noel Canning Recess-Appointments Case: Battle Is Joined’ »

Interesting commentary in The Atlantic Monthly on the rising cost and decreasing quality of higher education:

HIGHER education has long been
growing more rational. Yet there is
a widespread feeling of discontent with
the present ideal of academic culture
which sometimes degenerates into down-
right pessimism. It must be conceded
that education costs too much time and
too much money for the kind. The col-
lege curriculum should be still further
transformed in order to bring it into
harmony with the requirements of mod-
ern life. Our average standard of at-
tainment is very low, and the reason is
plain, we have wasted our resources.

George E. Howard, “The State University in America,” The Atlantic Monthly (March 1891).

According to Bloomberg the Chippewa-Cree tribe in Montana has refused to comply with a CID from the CFPB based on the illegality of the non-recess appointment of Richard Cordray as Bureau director:

Under Dodd-Frank, the bulk of the bureau’s authority to supervise banks with assets above $10 billion, a group of about 110 that includesJPMorgan Chase & Co. (JPM) and Lafayette, Louisiana-based Iberiabank Corp., doesn’t require that a director be in place. Without a director, though, the agency couldn’t extend its supervision to non-bank financial firms, including online payday lenders.

The uncertainty has helped slow the bureau’s attempts to scrutinize online lending businesses operated by Native American tribes, according to two people briefed on the probe who spoke on condition of anonymity because the matter isn’t public.

Companies operated by the Chippewa-Cree tribe in Montana, the Tunica-Biloxi tribe of Louisiana and the Otoe-Missouria tribe of Oklahoma last year were sent civil investigative demands, a kind of subpoena for business data, the people said.

Tribal Challenge

“The purpose of this investigation is to determine whether small-dollar online lenders or other unnamed persons have engaged or are engaging in unlawful acts or practices relating to the advertising, marketing, provision, or collection of small-dollar loan products,” according to a copy of one of the documents obtained by Bloomberg News.

The Chippewa-Cree challenged the request in part on grounds Cordray’s appointment was illegal. Cordray hasn’t acted on the petition, which could require him to address the constitutional question, the people said. By contrast, when three other companies filed similar petitions, Cordray published responses within 90 days, records show.

James Hopper of the Otoe-Missouria company, Billi Anne Raining Bird-Morsette of the Chippewa-Cree firm and Marshal Pierite of the Tunica-Biloxi lender didn’t respond to requests for comment. Vahey, the bureau spokeswoman, declined to comment on an ongoing enforcement matter.

One expects that as some CFPB targets begin to challenge CFPB’s authority on the basis of the invalid appointment of the Director that this will embolden others to also say that the emperor has no clothes.  This is important for the important constitutional principles at stake, of course, and the importance of structural constitutional protections for individual liberty.  But it also potentially important in the event that if the circuit court opinions eventually are affirmed by the Supreme Court (as I expect they will) a consistent pattern of objection and resistance by private parties is an important element of the de facto office doctrine (this is a useful summary) that might be used to try to ratify the acts that CFPB has taken.  In this vein, Congressman Hensarling’s consistent public challenges to the validity of the CFPB’s powers without a confirmed director would seem to be relevant to the application of the doctrine as well.

David Post faulted Justice Scalia’s footnote 1 in Monday’s City of Arlington v. FCC (see also this follow-up), so I thought I’d mention my own thought on the subject, because I think there’s actually a useful lesson to law students there.

The footnote, which accompanied a sentence that began, “In July 2008, CTIA—The Wireless Association,” stated:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

And my sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

I’m not sure why Justice Scalia thought it necessary to make such a point in this case; maybe he’d seen similar things in other briefs and hadn’t mentioned them then, but this time he thought he ought to say something. But my sense of his point is simply, “Counsel, make things easy on us — if you use a term we don’t know, define it.”

UPDATE: For a related complaint about overuse of abbreviations, see this Legal Times item quoting Judge Laurence Silberman.

Today Lois Lerner was called to testify before a House Committee about the recent scandal involving the IRS targeting conservative groups for extra scrutiny. Before the Committee, Lerner was invited to make an opening statement. Her opening statement included the following:

On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.

On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report. In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

And while I would very much like to answer the committee’s questions today, I’ve been advised by my counselto assert my Constitutional right not to testify or answer questions related to the subject matter of this hearing.

After very careful consideration, I’ve decided to follow my counsel’s advice, and not testify or answer any of the questions today.

Because I’m asserting my right not to testify, I know that some people will assume that I’ve done something wrong. I have not.

Under questioning, Lerner then authenticated answers she gave I.G. investigators about what had happened during the investigation. But she refused to make additional statements.

The Chairman of the committee, Darrell Issa, has argued that Lerner’s statement and her authentication of her earlier statements waived her Fifth Amendment right and that he can call her to testify again without Fifth Amendment protection. A lot of people are wondering, is Issa right? Did Lerner waive her rights so she could not then assert them?

I don’t think the answer is clear, as there are no cases quite like it. The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999):

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

The tricky part is how to characterize Lerner’s testimony before she invoked the Fifth Amendment. On one hand, if you say that Lerner merely expressed her view that she is innocent but did not actually testify as to any facts, then you could say she did not waive her rights with her statement. Questioning would not be about the details of facts she already testified to, but rather would require her testimony on a subject she declined to testify about. On the other hand, if you say that Lerner’s reciting the allegations and then denying them effectively testified about the allegations, then you could say that she did testify and did waive her rights. From that perspective, she already testified about “the subject” by saying that she did not violate any IRS rules or submit false testimony, and further questioning would be about the details of why she thinks that.

I’m not enough of a Fifth Amendment nerd to have strong views on which side is right. So I posed the question earlier today (based on press reports of what Lerner said, not the full transcript) to a listserv of criminal procedure professors that includes some serious Fifth Amendment experts. Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened. If that view is right, Lerner successfully invoked her Fifth Amendment rights and cannot be called again. But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point. So it’s at least a somewhat open question.

UPDATE: I have updated the post to include more from the transcript of the hearing.