The Volokh Conspiracy

Today’s New York Times has an article by Adam Liptak about Scott v. Saint John’s Church in the Wilderness, the case in which I filed a cert petition recently. In that case, as many readers may recall, the Colorado Court of Appeals upheld an injunction that bars my clients from (among other things) displaying “gruesome images” of aborted fetuses outside a church. The court acknowledged that this was a content-based speech restriction, but said that the injunction passed the “strict scrutiny” required for such restrictions, because it was supposedly narrowly tailored to a compelling government interest in shielding children from such speech. Our petition argues that the Supreme Court should consider the case, because lower courts disagree on whether such content-based restrictions are constitutional.

The briefing is now done — just yesterday I filed the reply brief — and we expect the Court to consider the case in late May or early June. [UPDATE: Today the clerk's office noted in the docket that the petition would be first considered at the Court's conference on May 30.] Here is where you can get the material, if you’re interested in the case:

1. The decision below.
2. The petition for certiorari.
3. The amicus brief of free speech scholars (Profs. Floyd Abrams, Amy Adler, Jack Balkin, Vince Blasi, David Cole, Ronald Collins, Alan Dershowitz, Norman Dorsen, Daniel Farber, Kent Greenfield, Seth Kreimer, Sanford Levinson, Robert O’Neil, Martin Redish, Suzanna Sherry, Geoffrey Stone, Nadine Strossen, Jonathan Varat, and James Weinstein).
4. The amicus brief of Religion Clauses scholars (Salam Al-Marayti and Profs. Michael Ariens, Thomas Berg, Zachary Calo, Bob Destro, Carl Esbeck, Marie Failinger, Edward Gaffney, Richard Garnett, Douglas Kmiec, Faisal Kutty, Michael Stokes Paulsen, Michael Perry, Richard Stith, and Lynn Wardle).
5. The amicus brief of historians of art and photography (Profs. Dora Apel, Stephen Eisenman, Renée C. Hoogland, Paul Jaskot, William J. Thomas Mitchell, Terence Smith, John Tagg, and Rebecca Zorach).
6. The amicus brief of the Center for Bio-Ethical Reform.
7. Respondents’ Brief in Opposition.
8. Our Reply Brief.

That’s very unusual. A bit of background: If a litigant loses below, and petitions for certiorari (i.e., Supreme Court review), he is labeled the “petitioner,” and the winner the “respondent.” When respondents see a petition filed, they sometimes file a brief in opposition (called a BIO), but often waive their right to respond. If the respondents waive that right, and a Justice thinks there might be something to the petition, that Justice can “call for a response” (CFR), and the respondents will almost always respond. The Court never grants review without having either gotten a response at the outset, or having CFR’d, because it’s generally helpful for the Court to hear both sides’ views before granting.

But in Burnside v. Walters, which the Court granted today, the Court CFR’d — technically, “Requested” a “Response” — but did not get a response. The Court then considered just the petition, together with an amicus curiae brief from the American Friends Service Committee supporting the petition (now there are some Friends of the Court for you, though, as it happens, not in Pennsylvania), and agreed to hear the case.

What happened to the respondents? Well, for starters, they apparently never got a lawyer. This is probably because of the procedural posture of the case, which relates to the question presented by the case: Under the federal “in forma pauperis” statute (the one that allows people who can’t afford filing fees to have those fees waived), as amended in 1995, federal courts act as gatekeepers for in forma pauperis claims, and dismiss them without the other side even being served if they fail to state a legally sufficient claim. This is what happened to plaintiff-petitioner’s claim against the defendant police officers (and the local YMCA, where he lived). But then the district court also read the statute as barring the plaintiff from amending his complaint and refiling, and the Sixth Circuit (unlike most other circuits to consider the claim) agreed.

Because of this, defendants were never served below — since the federal courts thought the case against them was frivolous — and never got a lawyer. The Court must have sent them the request for a response (at their businesses addresses), but they either didn’t properly understand its significance or chose not to get a lawyer, though I assume that the city would likely have gotten a lawyer to represent them. Presumably at this point they will remedy that condition.

“A revised version of David Bowie’s Space Oddity, recorded by Commander Chris Hadfield on board the International Space Station.” Way cool.

The bill, HB1317, provides that an agency must set rules

Requiring that magazines whose primary focus is marijuana or marijuana businesses are only sold in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present.

Uh, no, you can’t do that. That the government may regulate marijuana doesn’t mean that it may regulate magazines that are about marijuana or marijuana businesses. Thanks to the Media Law Resource Center MediaLawDaily.

The Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights is telling universities to institute speech codes. And not just any old speech codes: Under these speech codes, universities would be required to prohibit students from, for instance,

1. saying “unwelcome” “sexual or dirty jokes”
2. spreading “unwelcome” “sexual rumors” (without any limitation to false rumors”
3. engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
4. engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, picture,s or written materials”
5. making “unwelcome” sexual invitations.

This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be banned.

Why do I say this? The explanation has quite a few moving parts, because of how the government has articulated its theory. But here’s a brief summary.

Continue reading ‘The Administration Says Universities Must Implement Broad Speech Codes’ »

From RLI Insurance Co v. JDJ Marine (2d Cir. May 10, 2013):

John F. Karpousis, Freehill, Hogan & Mahar, LLP, New York, New York, for Movant–Defendant–Counter–Claimant–Appellant....

PER CURIAM:

Appellant JDJ Marine, Inc., moves to reinstate an appeal dismissed after its failure to comply with this court’s second scheduling order for filing a brief. The motion is denied.

BACKGROUND
On September 28, 2012, appellant filed its notice of appeal. It filed a scheduling letter on November 13, 2012 pursuant to Local Rule 31.2(a)(1) selecting a date of January 15, 2013 on which its opening brief and appendix would be due. The court so ordered the deadline. [Footnote: Local Rule 31.2(a) establishes the court's brief scheduling procedure. Under this rule, parties set their own deadlines within a period of 91 days of the applicable “ready date” -- typically, for appellants, the date on which the last transcript is received, and, for appellees, the date on which an appellant's brief is filed.]

On January 10, 2013, five days before the brief was due, appellant filed a motion for an extension of time. In the papers accompanying the motion, appellant stated that counsel had been unable to complete the brief because his offices were significantly affected by the October 28, 2012 storm Hurricane Sandy.

On January 17, 2013, we granted the motion for an extension giving counsel an additional month and one-half, as requested, to file a brief. This extension was considerably longer than those normally granted but was believed by the court to be justified by the storm. However, the order stated,

[T]he appeal is dismissed effective March 1, 2013 unless a brief is filed by that date. A motion for reconsideration or other relief will not stay the effectiveness of this order.

On February 26, 2013, three days before the extended due date, appellant moved for another extension, this time for thirty days. Counsel’s supporting affidavit stated that preparation for other cases, out-of-state business travel, and responsibilities as a mediator precluded him from submitting the brief by the due date.

Because this court’s order of January 17, 2013, directed that the appeal “is dismissed effective March 1 unless a brief is filed by that date” and that “a motion for reconsideration or other relief will not stay the effectiveness of this order,” the second motion for an extension, decided on March 8, 2013, was denied as moot in light of the dismissal of the appeal.

On March 8, 2013, appellant filed the present motion to reinstate the appeal. In the accompanying affidavit, counsel stated that he was “prejudiced” because, rather than “decide [his motion] on a timely basis,” this court left the motion “open and undecided ... seven ... full days after the filing deadline.” Counsel outlined again in the affidavit the press of other business as the reason for the failure to file a brief....

A brief discussion is necessary to understand our decision to deny the motion. About ten years ago, the court faced a caseload crisis. The number of cases briefed and ready to be calendared for argument was at an historic low, so low that calendars sometimes could not be filled. This was not the result of a diminished caseload; in fact, pending cases numbered in the thousands above historic levels because of a huge influx of immigration matters.

The problem of so few cases ready for argument was determined to be the result of a culture in which the bar had come to believe that the 40– (for appellant) and 30–(for appellee) day time periods set out in Federal Rule of Appellate Procedure 31(a)(1) were meaningless and that motions for extensions of time, usually for 30 days, to file briefs would be routinely granted time after time. This belief existed in spite of the fact that the orders granting the extensions would just as routinely state, in boldface type no less, that only “EXTRAORDINARY CIRCUMSTANCES” would justify another extension. The cause of the failure of the “EXTRAORDINARY CIRCUMSTANCES” warnings was that the Clerk’s Office, which ruled on the motions, was reluctant to resort to coercive measures — and was so perceived by the bar. It was, therefore, decided that motions for extensions would be sent to a judge for decision and that, with warnings appropriate to the particular case, coercive measures, including dismissal, would be used when the warnings failed to produce a brief.

Continue reading ‘Lawyers Beware’ »

I’m delighted to say that Ronald Collins and, briefly, Floyd Abrams will be guest-blogging this week here at the Conspiracy. Prof. Collins, the Harold S. Shefelman Scholar at the University of Washington Law School, is the author of many articles and books, including On Dissent: Its Meaning in America (2013, with David Skover) and Nuanced Absolutism: Floyd Abrams & the First Amendment (2013). He will be blogging this week about the second of these books.

Floyd Abrams is a partner at Cahill Gordon & Reindel, and one of the leading First Amendment lawyers of our time; he argued in, among other cases, Citizens United v. FEC, McConnell v. FEC, Harper & Row, Inc. v. Nation Enterprises, Metromedia, Inc. v. City of San Diego, CBS v. FCC, Smith v. Daily Mail Publishing Co., Herbert v. Lando, Landmark Communications, Inc. v. Virginia, and Nebraska Press Ass’n v. Stuart. For 15 years, he was the William J. Brennan, Jr. Visiting Professor of First Amendment Law at the Columbia Graduate School of Journalism, and he has also been Visiting Lecturer at Yale Law School and Columbia Law School. He has written many articles, as well as the books Speaking Freely: Trials of the First Amendment, published by Viking Press (2005) and Friend of the Court: On the Front Lines with the First Amendment (2013). He will be blogging one day this week about the second of these books.

I much look forward to both of the cobloggers’ posts!

TribLive (Pittsurgh) reports:

Carnegie Mellon University police on Friday filed charges of indecent exposure against two art students accused of public nudity during a campus parade sponsored by the College of Fine Arts.

Police identified the female student accused of parodying the pope as she paraded nude from the waist down as Katherine B. O’Connor, 19 ..., a sophomore art major ....

University President Jared Cohon, who has publicly apologized for the April 18 papal parody, announced the charges in an email on Friday. He said the university will not discipline the students.

Police charged Robb S. Godshaw, 22, of Wilmette, Ill., accusing him of dressing as an astronaut and disrobing atop a float during the parade. Photographs on Godshaw’s Facebook page show him disrobing and riding the float naked, police said in court documents....

The criminal charges capped a university review triggered by an inquiry from Bishop David Zubik of the Pittsburgh Catholic Diocese. Zubik asked the university to take a stand on the papal parody, which he found offensive....

“As I have said over these last few weeks, this is an opportunity for all of us to be reminded that freedom of speech and freedom of expression do not constitute a freedom to dismiss or disrespect the beauty of anyone’s race, the sacredness of anyone’s religious belief or the uniqueness of anyone’s nationality,” Zubik said.

“The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial,” Cohon said.

“While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action.”

Some thoughts:

1. Public nudity is indeed illegal in Pennsylvania, and if the facts show that the defendants’ genitalia were indeed visible, that’s a crime. Nor do I think that there is a defense for public nudity — or public sex — when engaged in for artistic or political purposes, though I recognize that there are interesting questions about how constitutional doctrine has developed in this area (with publicly visible displays of moving pictures of nudity, for instance, being generally protected by the First Amendment, Erznoznik v. City of Jacksonville (1975), but live nudity being unprotected).

And I doubt that this is a case of selective prosecution, in which people whose expression is blasphemous are punished for violating a law that others routinely violate with impunity: My sense is that people who go around naked in public in Pittsburgh are going to be prosecuted regardless of their message. So I doubt there is a First Amendment problem here, though there might have been if this indeed involved a law that is otherwise unenforced.

2. The Bishop’s view of free speech is, however, quite constrained. “As I have said over these last few weeks, this is an opportunity for all of us to be reminded that freedom of speech and freedom of expression do not constitute a freedom to dismiss or disrespect the beauty of anyone’s race, the sacredness of anyone’s religious belief or the uniqueness of anyone’s nationality.” Religious beliefs are beliefs, and others may quite plausibly not have respect for what the beliefs say, or how they were arrived at; and of course they may doubt that those beliefs are “sacred.”

It is often counterproductive, juvenile, and ill-mannered to express disrespect for others’ religious beliefs in certain ways, but under First Amendment law — which I think is exactly right on this score — dismissing and disrespecting the sacredness of others’ religious beliefs is very much a part of one’s freedom of speech and religious freedom. (Nor should there be any exception from the First Amendment for speech that dismisses “the beauty” of races or “the uniqueness” of nationalities.)

3. The CMU President, Dr. Cohon, issued a statement, saying, in relevant part:

Let me begin by quoting the university’s freedom of expression policy ... [:]“Carnegie Mellon University values the freedoms of speech, thought, expression and assembly — in themselves and as part of our core educational and intellectual mission. The university must be a place where all ideas may be expressed freely and where no alternative is withheld from consideration. The only limits on these freedoms are those dictated by law and those necessary to protect the rights of other members of the university community and to ensure the normal functioning of the university.”

Our policy makes it clear that Carnegie Mellon is committed to the rights of its students to express controversial views, while recognizing some key restrictions on that expression — including those dictated by law.... The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial. While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action....

There are competing values at issue here: Carnegie Mellon aims to be a place where ideas can be expressed and debated openly, but also where people of all backgrounds, faiths, and beliefs feel welcomed and supported. Unavoidably, the expression of some views will offend some people; that is the price of this freedom. However, if in the expression of these views, people in our community come to feel that the campus is intolerant, then the other of our cherished values is challenged. In such a situation, the institution may find it necessary to reassure those offended of its commitment to tolerance and inclusion. In doing so, I do not believe that the institution is compromising freedom of expression. Similarly, it is reasonable to expect individuals to consider the impact on others in expressing their views and how they choose to express them. This is responsibility, not censorship, and something that our students, especially, should learn while they are members of our community.

It is our practice in controversial situations such as this one to provide opportunities for discussion, where all sides have a chance to express their views. This has already begun on the campus. Members of our community are asking themselves the difficult questions about what happened here, and embracing their responsibility to create a context in which events like these can continue to be held in a manner which is consistent with the full range of our values. These values include, certainly, freedom of expression, but also the cultivation of an inclusive, mutually respectful environment, and respect for the law....

On balance, this seems quite reasonable, if taken literally — as I think the University has — to mean that the response for speech that makes groups reasonably feel offended (but doesn’t violate the law) might include public statements of support for the targeted groups, but would not include suppression of the speech. And I also agree teaching students, without punishing the speech, “to consider the impact on others in expressing their views and how they choose to express them,” is a pretty reasonable goal on the university’s part, especially since the habit of considering such things will serve the students in good stead in their future lives.

Agence France Press reports:

A Saudi court jailed a Lebanese man for six years and sentenced him to 300 lashes after convicting him of encouraging a Saudi woman to convert to Christianity, Saudi dailies reported Sunday.

The same court sentenced a Saudi man convicted in the same case to two years in prison and 200 lashes for having helped the young woman flee the ultra-conservative, US-backed Sunni kingdom [without her family's permission, which is a crime], local daily Al-Watan said....

The woman, known only as “the girl of Khobar,” was granted refuge in Sweden where she lives under the protection of unspecified NGOs, according to local press reports....

Both men, who could also be prosecuted over other charges including corruption and forging official documents that allowed the woman to leave the country without her family’s agreement, will appeal.

The accused and the young woman were coworkers at an insurance company, so I suspect the woman was an adult. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

I’d like my First Amendment Amicus Brief Clinic students to read some excellent amicus briefs, to see what works, and to see the various kinds of briefs that work. I have some samples, but I’d love to see more, and in particular briefs that are not U.S. Supreme Court merits briefs. [UPDATE: I at first neglected to mention that it helps if the briefs were influential, whether shown by citations to them, the incorporation of their arguments, or otherwise.]

Anything else is helpful — amicus briefs supporting cert petitions (of course, it helps if the petition was granted), amicus briefs in U.S. Court of Appeals cases, amicus briefs supporting en banc review, amicus briefs in state appellate cases (whether supporting discretionary review or on regular appeal), amicus briefs in state and federal trial courts, amicus briefs before administrative agencies, and anything else I might have missed. Naturally, I’d especially like to hear feedback from judges, either in the comments or by email (to volokh at law.ucla.edu). And of course, amici briefs, amica briefs, and amicae briefs are good too ....

I’m pleased to say that three of the six items in The Post: Good Scholarship from the Internet, vol. 3 — a new journal from the Journal of Law people that reprints blog posts that its editorial board found especially worthy — come from the Conspiracy. Here is a list of all the posts; you can read a copy of the issue here:

The Secret “Kill List” and the President, The Volokh Conspiracy, May 29, 2012, by Kenneth Anderson

Are You Ready for Some . . . Research? Uncertain Diagnoses, Research Data Privacy, & Preference Heterogeneity, The Faculty Lounge, Feb. 3, 2013, Michelle N. Meyer

Debate on the Treaty Power, The Volokh Conspiracy, Jan. 13-Feb. 3, 2013, by Nick Rosenkranz, Eugene Kontorovich, Rick Pildes & Ilya Somin

The Decision to Uphold the Mandate as Tax Represents a Gestalt Shift in Constitutional Law, Legal Theory Blog, June 28, 2012, by Lawrence Solum

Asian-Americans, Affirmative Action, and Fisher v. Texas, The Volokh Conspiracy, May 31, 2012, by Ilya Somin

Law Schools Suffer Loss in Lawsuits, Balkinization, Sept. 19, 2012, by Brian Tamanaha

For journal co-editor Anna Ivey’s explanation of why each post was chosen, see here.

The decision is Righthaven, LLC v. Hoehn (9th Cir. May 9, 2013), and it holds that Righthaven didn’t properly secure the exclusive rights needed to sue various alleged copyright infringers. (In this particular case, Righthaven had sued two people who posted newspaper articles onto Web sites, though it had also sued others in the past.) Congratulations to Kurt Opsahl and Corynne McSherry of EFF, as well as Marc Randazza and J. Malcolm DeVoy, on their victory.

Note that the Ninth Circuit vacated the pro-defendant fair use ruling in Righthaven LLC v. Hoehn (D. Nev. 2011), reasoning that Righthaven’s lack of the exclusive rights needed to sue stripped the district court of jurisdiction to even decide the fair use question.

An Investor’s Business Daily column claims:

Like other states, Delaware originally enacted its unclaimed property laws as a consumer protection mechanism to reunite Delaware residents with dormant bank account balances, uncashed paychecks, and other unclaimed property.... But Delaware is now interpreting those laws against businesses to create a colossal revenue source for the state government.

Today, unclaimed property is Delaware’s third-largest source of revenue after income taxes and franchise fees. Last year alone, Delaware seized $319.5 million from liquidated property while returning only $18.9 million of unclaimed property to its rightful owners.

Delaware does this through an unfair, onerous and expensive audit system that “looks back” to 1981, and contrives unclaimed property if the company doesn’t have records for all those years. This process often costs companies millions of dollars, mires them in years of audits, and forces them to deal with third-party auditors who are motivated by contingent fees to invent unclaimed property where none exists.

Kelmar, which conducts most of the audits for the Delaware Department of Finance and works on a contingent fee, was paid more than $30 million in the second half of 2012 alone.

Others have written about this before, see this BusinessWeek article from 2010. Now there’s a lawsuit, Select Medical Corp. v. Cook. Several years ago, the California escheat scheme was struck down on constitutional grounds, though the objections to it differed from the ones here; it will be interesting to see what happens with the Delaware scheme.

Base 10 only, and no funny stuff.

What’s the difference between more pork and a morepork?