The Volokh Conspiracy

Leaks to reporters — and investigations of the leaks that included subpoenas of reporters’ e-mail logs and searches of reporters’ e-mail — have been in the news; see this post by Orin about the AP story and this post by Conor Friedersdorf (The Atlantic) about the Fox News story. I thought I’d say a few things about the First Amendment issues involved in such matters, especially in response to the Friedersdorf post.

1. To begin with, let me define the problem, and define it broadly: A wide range of laws that bars certain people from revealing certain information that they themselves learned in confidence, having given a promise of confidentiality. To give just a few examples,

1. Federal law (18 U.S.C. § 793) does this (among other things) for secret defense information.
2. Federal law does it for confidential income tax information, and many other matters.
3. Trade secret law does it for certain kinds of business information (some trade secret claims are civil and some are criminal, but this doesn’t matter for First Amendment purposes).
4. Nondisclosure agreements do the same for other kinds.
5. Professional regulations and related statutes do this for attorney-client, psychotherapist-patient, and doctor-patient confidences.
6. Court orders do this for information gathered through discovery in legal cases.

Relatedly, federal law bars people from electronic eavesdropping on cell phone calls, and also prohibits the illegal eavesdroppers from communicating this information to others. This isn’t exactly the same, because the original misconduct here consists not of illegally leaking information to which one has legal access, but illegally accessing the information in the first place. Still, downstream publication of illegally leaked information and publication of illegally accessed information are quite similar in many ways — they all involve information that by law ought not be communicatable, that the original leaker (or illegal gatherer) has no right to communicate, but that he does communicate to third parties who did not themselves illegally leak or illegally gather the information.

2. These laws are generally seen as constitutional, mostly on the theory that they enforce promises of confidentiality, express or implied, that were legitimately extracted as a condition of access to the information (see Cohen v. Cowles Media (1991) and Seattle Times Co v. Rhinehart (1984)), or, in the case of the cell phone interception law, that the underlying acquisition of the information was illegal. That’s an oversimplification, but it’s a reasonable first approximation.

And in any event, I think it’s pretty clear that it’s constitutional to outlaw leaks of government information by those who have promised to keep it secret. I know there are arguments that the government classifies too much information as secret. But for the government to be trusted, whether by taxpayers, sources of information, foreign governments, or other government employees, it has to be able to punish those government employees who promised to keep a secret (whether a tax return or a defense-related document) but then broke that promise.

3. But what about people who never promised confidentiality, and who just receive — without soliciting or prearranging this — information that they know was illegally leaked (or illegally gathered)? Say you’re a reporter, and you get an unsolicited e-mail revealing something important gleaned from a prominent person’s tax return, a copy of an important secret government document, a business plan to create a controversial product or close a plant or engage in a particular marketing strategy, or a tape of an illegal intercepted conversation in which union members are discussing what sounds like a possible plan to engage in violent crime against management. (“If they’re not gonna move for three percent, we’re gonna have to go to their, their homes .... To blow off their front porches, we’ll have to do some work on some of those guys. Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).”) May the law bar even such disclosures by downstream recipients, who never promised confidentiality, never themselves engaged in illegal interception of information, and never solicited the breach of a confidence or illegal interception, or conspired in such an action?

There, the matter is not entirely clear. Bartnicki v. Vopper (2001), the illegal interception case from which the quote above is drawn, holds that revelation of the information by these downstream recipients would be protected by the First Amendment, at least if the released information is important enough and if the initial illegality consisted of illegal interception of cell phone calls. But United States v. Rosen (D.D.C. 2006) holds otherwise as to revelation by downstream recipients of classified defense information. Still, there are very serious First Amendment arguments in favor of protecting such further disclosures by these sorts of downstream recipients.

4. There is, though, an intermediate category of speakers. Part of it consists of those who actively solicit criminal or tortious leaks or information gathering, knowing that what they are seeking is information that the leaker has no right to reveal or to gather. “Could you send me this classified document / tax return / secret about your client? I’ll write a story about it that will promote truth and justice / help advance your ideological agenda / get back at your enemies / make you feel important.” “You know, if you illegally taped that phone call and passed it along to me, there could be a great story in it.” “I like the story idea you’re pitching to me, but I need more proof. Your boss probably has documents that demonstrate this; can you rifle through his desk, and send me a copy of whatever you find?” And part consists of those who actively conspire with the leaker to promote the leak, for instance by working out specific plans that would keep the leaker from getting caught, or by providing tools (physical or electronic) that can help the leaker get the information in the first place.

This is what the government is saying James Rosen of Fox News of did — soliciting the leak of classified documents, aiding and abetting the leak by working out means by which the leaker could leak the documents more safely, and generally conspiring with the leaker. (The government isn’t prosecuting Rosen for this, at least at this point, but it is alleging that he did this, since allegation of such criminal conduct by a newsgatherer allows the government to search the newsgatherer’s papers under 42 U.S.C. § 2000aa, the federal statute limiting searches of newsgatherers.)

And it seems to me that this behavior is rightly treated as criminal. Solicitation of crime (see United States v. Williams (2008)), aiding and abetting crime by providing instrumentalities for the crime, and conspiracy to commit a crime are rightly punishable, and I don’t think that the answer should be different when the crime is an illegal leak of information (however newsworthy that information might be).

Glenn Greenwald (The Guardian) argues the contrary, pointing out that publications of leaked information can be valuable to the public, and are a staple of investigative journalism. But I don’t think this suffices to provide constitutional protection to actively soliciting, aiding, or conspiring with someone who is committing a crime. Perhaps the underlying leak shouldn’t be a crime, or perhaps Congress should limit the criminality just to the leaker. But I don’t see that this is constitutionally mandated, given the longstanding understanding that actively participating in criminal conduct can be prohibited as much as the underlying conduct can be. And note that Bartnicki specifically stressed that, in that case, “respondents played no part in the illegal interception” but rather “found out about the interception only after it occurred” and “their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else,” so Bartnicki doesn’t dispose of the aider/solicitor/conspirator case.

I think this distinction between publication by an unconnected downstream recipient and an aider/solicitor/conspirator responds to Conor Friedersdorf’s argument in The Atlantic that Justices Douglas and Black in the Pentagon Papers case “directly addressed and discredited” the government’s theory in the Rosen/Fox News matter, and that “the Obama Justice Department is using a WWI-era espionage law” in the Rosen/Fox News matter “to criminalize journalism in a way that its authors never intended.” It’s true that Justice Douglas’s opinion, joined by Justice Black, took the view that the federal classified defense information statute, 18 U.S.C. § 793(d), didn’t generally apply to downstream publishers:

There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S.C. § 793 (e) provides that “[w]hoever having unauthorized possession of, access to, or control over any document, writing ... or information relating to the national defense which information the possessor has reason to believe could be used to the injury of theUnited States or to the advantage of any foreign nation, willfully communicates ... the same to any person not entitled to receive it ... [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.”

The Government suggests that the word “communicates” is broad enough to encompass publication.

There are eight sections in the chapter on espionage and censorship, §§ 792-799. In three of those eight “publish” is specifically mentioned: § 794 (b) applies to “Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates ... [the disposition of armed forces].”

Section 797 applies to whoever “reproduces, publishes, sells, or gives away” photographs of defense installations.

Section 798 relating to cryptography applies to whoever: “communicates, furnishes, transmits, or otherwise makes available ... or publishes” the described material. (Emphasis added.)

Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.

The other evidence that § 793 does not apply to the press is a rejected version of § 793. That version read: “During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy.” 55 Cong. Rec. 1763. During the debates in the Senate the First Amendment was specifically cited and that provision was defeated. 55 Cong. Rec. 2167.

Judge Gurfein’s holding in the Times case that this Act does not apply to this case was therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1 (b) that:

“Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.” 64 Stat. 987.

Thus Congress has been faithful to the command of the First Amendment in this area.

But beyond the obvious point that this was just the opinion of the two most-speech-protective Justices on the Court at the time (or perhaps at any time), I think the argument only applies to the “unconnected downstream recipient” publications discussed in item 3. As to the publications by a recipient who solicited, aided, or conspired in the underlying criminal leak, the Douglas/Black statutory argument doesn’t apply, because federal law does cover such behavior: 18 U.S.C. § 2 specifically criminalizes aiding or soliciting a crime, and 18 U.S.C. § 371 specifically criminalizes conspiring to commit a crime. Perhaps there ought to be a First Amendment defense even when those statutes are violated, though I’m skeptical about that. But I don’t see the Douglas/Black statutory argument as relevant here.

5. Finally, just to return to item 1, note that the constitutional question is similar (though not identical) for a wide range of disclosures — and solicitations or conspiracies. If there’s a First Amendment right to solicit, aid, and conspire in leaks of classified defense information, then there’d be such a right to solicit, aid, and conspire in leaks of tax return information, leaks of attorney-client confidences, leaks of psychotherapist-patient confidences, illegal interception of cell phone conversation, illegal breakins into people’s computers, illegal rifling through people’s desks, and so on.

I’m testifying today on supply chain vulnerabilities and cybersecurity. The testimony is in a hearing held by the House Commerce Committee’s Subcommittee on Communications and Technology. Here’s my quick diagnosis of the issue:

Intrusions on our networks have reached new heights.  They have moved from penetration of government and military systems to wholesale compromises of companies, trade associations, think tanks, and law firms.  Most of these attacks have been carried out for espionage purposes – stealing commercial, diplomatic, and military secrets on a massive scale. 

 This espionage campaign has paid dividends for our adversaries, and it’s likely to pay more, because any network that can be compromised for the purpose of espionage can be compromised for the purpose of sabotage.  The next time we face the prospect of a serious military conflict, we can expect our adversaries to threaten the destruction of computer networks – and the civilian infrastructure they support – inside the United States, probably before we have fired a shot.  From the American point of view, this is a new and profoundly destabilizing vulnerability. From our adversaries’ point of view, it is an exciting new weapon with enormous potential to neutralize many of our traditional military advantages.

 To make things worse, one of the countries that the Obama administration has criticized most often for cyberattacks, China, is also a major supplier of increasingly sophisticated electronic equipment to the United States.  Given the value of cyberespionage for waging both war and peace, it’s only reasonable to assume that every potential adversary asks itself whether it can make the job of its cyberwarriors easier by tinkering with electronic gear before it’s shipped to the United States. Or, as I put it in Skating on Stilts, a book about technology challenges to policymakers, if the “countries that [view] us as an intelligence target … could get their companies to compromise U.S. networks, they’d do it in a heartbeat.”

The remainder of the testimony discusses the limited legal authority that government has to deal with the risk of “intrusion-friendly” technology from abroad:

CFIUS is an inadequate tool for this job.  It gives the government only haphazard insight and leverage over the security of telecommunications and information technology.  That’s because CFIUS has jurisdiction only over corporate acquisitions.  Team Telecom, which I also oversaw from a DHS perspective, adds a bit to that authority, giving national security agencies an ability to impose conditions on foreign telecommunications carriers seeking Federal Communications Commission licenses to operate in the United States.  But Team Telecom has no explicit authority in law; its reach is no greater than the FCC’s.  As a result, even the most dangerous and unreliable suppliers of commercial telecom and IT equipment are free to sell their products in the United States without an inquiry into the security risks the products may pose.

I close with a look at new measures emerging from the government’s recent focus on this risk, from the executive order on cybersecurity to various provisions adopted under the defense authorization or the appropriations process.

Full testimony is here: Baker testimony to House Commerce on supply chain security.

PHOTO: Mschel

Patrick Allen Foster of the Pub Editor blog has an interesting round-up of commentary generated by Matthew Yglesias’ recent Slate article on Star Trek, including my own post on the subject.

Stuart and Jonathan have both commented on the legal analysis in today’s City of Arlington v. FCC opinion from the Supreme Court, about which I have nothing to say.  I want to direct your attention to footnote 1 in Justice Scalia’s opinion for the majority.  He has just introduced one of the parties, “CTIA-The Wireless Association,” and in the footnote he continues:

“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 itstands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.”

This is a really embarrassing bit of nonsense — smarmy and snarky and extraordinarily stupid.

First:  0.45 seconds of work reveals that CTIA originally stood for the “Cellular Telephone Industry Association.”  It’s not a big mystery, “known only to wireless-service-provider insiders”: that’s what it says on the organization’s Wikipedia page.  So Scalia’s footnote communicates, to me, that he has never heard of “the Internet” and the very amazing things called “search engines” that let you “retrieve information” very, very quickly

And why that snarky remark about how it’s unpronounceable?  Let’s see ... can Justice Scalia pronounce “FBI”?  (here’s a hint: “eff-bee-eye”).  DHS?    KLM Airlines?

If this were a student paper, I’d circle this and write something like:  “Really bad footnote – why highlight your own cluelessness in the very first footnote.”  From the Supreme Court, it’s really a bit embarrassing.  Reminds me, again, of what Justice Jackson said many years ago:  We’re not final because we’re infallible, we’re infallible because we’re final.

[Thanks to Peter Shane for the pointer]

I’m told that such arrests and charges are very rare, so I thought this was noteworthy, from the Austin American-Statesman, April 19, 2013 (thanks to Lawrence Goldman [White Collar Crim Prof Blog] for the pointer):

Former Williamson County District Attorney Ken Anderson was arrested ... after a specially convened court found that he intentionally hid evidence to secure Michael Morton’s 1987 conviction for murder.

In a blunt and scathing ruling, District Judge Louis Sturns said Anderson acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison.

“This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence,” Sturns said.

Sturns, presiding over a court of inquiry that examined the Morton prosecution, found probable cause to believe that Anderson broke two state laws and committed criminal contempt of court for lying to Morton’s trial judge. He then signed a warrant for Anderson’s arrest as required under state law governing courts of inquiry....

Sturns’ ruling is the first step in a potential criminal case against Anderson, who was Williamson County’s celebrated law-and-order district attorney for 16 years before he became a district judge in 2002. His current term as judge will end in 2014. State law does not require him to step down as the case against him progresses....

Morton was sentenced to life in prison for the murder of his first wife, Christine, in their Williamson County home. He was freed and declared innocent in 2011 after DNA tests pointed to another man as the killer....
Sturns told the standing-room-only courtroom that the evidence showed that Anderson improperly concealed two pieces of evidence that could have helped Morton fight the murder charge:

• The transcript of a police interview revealing that the Mortons’ 3-year-old son, Eric, witnessed the murder and said Michael Morton wasn’t home at the time.

• A police report about a suspicious man who had parked a green van near the Morton home and, on several occasions, walked into the wooded area behind the house.

Anderson also improperly concealed the documents from District Judge William Lott, who presided over Morton’s trial, Sturns said.

“Judge Lott specifically asked Mr. Anderson in open court whether the state had any evidence that was favorable to the accused,” Sturns said. “To which Anderson replied, ‘No, sir.’ ” ...

Judge Sturns’ report is here (thanks to Grits for Breakfast for the pointer).

A comment reminded me of this passage from Justice Stevens’ opinion in County of Allegheny v. ACLU:

It is also significant that the final draft [of the Establishment Clause] contains the word “respecting.” Like “touching,” “respecting” means concerning, or with reference to. But it also means with respect — that is, “reverence,” “good will,” “regard” — to. [Footnote: "Respect," as defined in T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). See S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Oxford English Dictionary 733-734 (1989); Webster's Ninth New Collegiate Dictionary 1004 (1988).] Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion.

This seems to be a very weak argument — more a play on words than legal analysis.

First, the Clause doesn’t ban laws respecting religion. It bans laws respecting an establishment of religion.

Second, the fact that an English word has multiple meanings doesn’t mean all those meanings are applicable in each context. Indeed, any usage of a word in a legal document (rather than in a joke or in a poem) is usually understood as triggering just one meaning, at least when the meanings are relatively far removed from each other.

For instance, one can debate what “common law” means in the Seventh Amendment protection of a jury trial in suits “at common law,” since at various times (and even at the time of the Framing) “common law” has meant several things: (1) judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes, (2) a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature, (3) Anglo-American law as opposed to European civil law, which is derived from Roman law, and (4) law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity. But once courts conclude — and rightly so, I think — that “common law” in the Seventh Amendment is rightly understood using definition 4, they don’t then also bring in the other definitions.

“Congress shall make no law respecting an establishment of religion” has long been understood to mean “no law with reference to establishment of religion” [UPDATE: i.e., either an establishment of a national religion or an interference with state establishments of religion] and this understanding of the word “respecting” was pretty clearly the understanding at the time of the Framing (as well as the Fourteenth Amendment). Compare, for instance, article IV, sec. 3, cl. 2 (emphasis added): “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Or compare the uses of the word “respecting” in the Federalist. That doesn’t tell us just what qualifies as a law that is with reference to establishment of religion [UPDATE: nor does it tell us how the Fourteenth Amendment should affect all this]; but it does give us a general sense of the meaning of “respecting,” though not the meaning of “establishment of religion.”

What reason is there to then read “no law respecting an establishment of religion” as also having the “richer” meaning of “no law that expresses reverence for religion” (omitting the phrase “establishment of” before “religion”)? I see none, other than an interpreter’s preference for the particular result.

The Huffington Post has an article titled, “Kaitlyn Hunt, Florida Teen, Faces Felony Charges Over Same-Sex Relationship”; Opposing Views picks it up as, “Florida Teen Kaitlyn Hunt Arrested, Expelled Over Same-Sex Relationship”; Examiner.com, which is linked to by the Huffington Post piece, has the headline, “Florida teen fights expulsion and criminal charges for same sex relationship”; Think Progress has the headline, “What’s Next For Kaitlyn Hunt, The Teen Charged With A Felony For Same-Sex Relationship With Classmate.”

Except that, as the bodies of the articles indicate, the charge isn’t “same-sex relationship” — it’s the non-sexual-orientation-specific statutory rape statute, Fla. Stats. § 800.04, which says, in relevant part,

A person who:

(a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age ...

commits lewd or lascivious battery, a felony of the second degree ....

Kaitlyn Hunt, who is now 18, is continuing a sexual relationship with a 15-year-old girl; that seems to me to be a pretty clear violation of the statute. And while statutory rape laws are notoriously underenforced, I would imagine that it would be hardly unheard of for an 18-year-old boy in Florida to be arrested and expelled for having sex with a 15-year-old girl. The ThinkProgress article states, “Kaitlyn’s father suggests his daughters arrest — and the substantial sentence sought by the prosecutor — are motivated by anti-gay bias.” (The proposed deal from the prosecutor was, “She could plead guilty to child abuse, a felony, and spend two years under house arrest. The judge would determine if she would have to register as a sex offender.”) But are Florida prosecutors really materially more lenient when the parents of 15-year-old girls complain about 18-year-old men having sex with those girls? I’ve heard nothing suggesting that this is so.

The story alleges that the 15-year-old girl’s parents are upset about the same-sex nature of the relationship, so it’s possible that their motivation in complaining to the police relates to that. (I’m not certain that this is so, since it’s quite possible that the parents would also be upset about their 15-year-old daughter having an opposite-sex relationship with an 18-year-old man, so the same-sex nature of the relationship may not even be a but-for cause of the complaint; but let’s set that aside for now.) But the police and the school can’t just say, “Your motivation for the complaint is hostility against lesbianism, so we’ll refuse to act on the complaint, even though this is a crime that we’d take seriously if we thought your complaint was motivated by general disapproval of sex between 15- and 18-year-olds.” And absent some evidence that Florida authorities turn a blind eye on parental complaints about 18-year-old men having sex with 15-year-old girls, I don’t really see this as a case about “same-sex relationship[s]” as such.

Now this having been said, one can actually make a rational argument for treating lesbian relationships less severely than opposite-sex relationships. Lesbian relationships can’t lead to unwanted pregnancy, and, to my knowledge, are much less likely to spread the most serious sexually transmitted diseases. And while they can involve lies, lead to heartbreak, leave one or both members with a sense that one has been emotionally mistreated and taken advantage of, and so on, one can imagine a parent who can reasonably think “Phew, better that my daughter is having sex with a woman than with a man.”

One can even imagine legal rules that draw this distinction, and constitutional rules that uphold such a distinction. Michael M. v. Superior Court (1980) upheld a sex-specific statutory rape law, which punished only males and not females, on the grounds that the law reflects real sex differences, including differential susceptibility to pregnancy. That argument would be even stronger as to a distinction between women-women relationships and other relationships, even given that sex classifications are subjected to heightened constitutional scrutiny (see Michael M. itself), and even if sexual orientation classifications come to be subjected to heightened constitutional scrutiny as well.

But such an approach, while not irrational, is certainly not the law in Florida, and it’s far from clear that it is correct. The risk of emotional harm to 15-year-olds — harm that they may be even less prepared to deal with than older people are, and harm that they can’t reasonably be seen as consenting to, given their immaturity — remains in lesbian relationships even if the risk of pregnancy is removed and the risk of disease is very low. And in any event this is not, I take it, the argument being made by the articles I cite.

City of Arlington v. FCC has some interesting nuggets.  For instance, Scalia’s majority flatly states: “Make no mistake—the ultimate target here is Chevron itself,” though the dissent disclaims any such intent.  But I want to flag here another iteration of debates over how to characterize agencies’ power.  Roberts’ dissent says that

Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.

Scalia’s majority opinion responds that

the dissent overstates when it claims that agencies exercise “legislative power” and “judicial power.” The former is vested exclusively in Congress, U. S. Const., Art. I, §1, the latter in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1. Agencies make rules (“Private cattle may be grazed on public lands X, Y, and Z subject to certain conditions”) and conduct adjudications (“This rancher’s grazing permit is revoked for violation of the conditions”) and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.” Art. II, §1, cl. 1.

Note that Roberts is saying that “as a practical matter” they exercise legislative and judicial power, and Scalia is saying that as a constitutional matter they don’t. But perhaps Roberts has come to the conclusion that, as a constitutional matter, agencies exercise these powers as well. Justice Stevens, after all, said as much in his concurrence in Whitman v. American Trucking Associations, Inc.

Today, in Arlington v. FCC, the Supreme Court held 6-3 that courts should confer Chevron deference to agency interpretations of ambiguous statutory provisions concerning the scope of agency jurisdiction.  Justice Scalia wrote for the majority.  Justice Breyer filed an opinion concurring in part and concurring in the judgment.  The Chief Justice dissented, joined by Justices Kennedy and Alito.

I participated in an amicus brief in this case, largely based on an article I co-authored with Nathan Sales. Alas, we were on the losing side.  My prior posts on this case are here and here, and earlier posts on the issue are here and here.

I hope to have more to say about the decision later today.

The U.S. Court of Appeals for the Sixth Circuit has been on quite a losing streak in the High Court, particularly when it comes to habeas cases.  This morning, the Sixth Circuit was reversed again by a unanimous court in Metrish v. Lancaster, vindicating Judge Batchelder who had dissented from the original panel opinion.  As has been the norm, the Supreme Court concluded that the Sixth Circuit was too quick to grant a habeas petition.  SCOTUSBlog has more background on the case here.

The Court just agreed to hear Town of Greece v. Galloway, a case involving legislative prayer. In Marsh v. Chambers (1983), the Supreme Court upheld legislative prayers against an Establishment Clause challenge, based on the very long American tradition of such prayers (dating back to the same First Congress that proposed the Establishment Clause); nonetheless, the scope of Marsh is unclear, and in particular it’s unclear to what extent legislative prayers might be seen as unconstitutionally preferring a particular religion or denomination.

Or that at least is the narrow question raised by the case. But I think it’s also possible that the Court may use the case as a means of reconsidering the “endorsement test,” under which the Establishment Clause is read as barring government speech (or even government action) that a “reasonable observer” would see as “endorsing or disapproving” of religion (either a particular religion or religion generally). The test has long been controversial; it was relied on by the decision below, so it’s very much in play in this case; and I suspect that there are five votes to overrule it. (Justices Kennedy, Scalia, and Thomas are on the record as rejecting it, and I suspect Chief Justice Roberts and Justice Alito take a similar view.) Should be a very interesting decision, which will be out in the first half of next year.

My review of Vern McKinley’s book Financing Failure: A Century of Bailouts has been posted at the Law & Liberty blog.

The Case Western Reserve Law Review has published its fall symposium on “The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom.”  I blogged about the symposium here.  The full issue is available onilne in PDF, and I’ve posted links to the articles below.

On Friday, Jonathan pointed out United States v. Blewett, the new Sixth Circuit decision on the 100-1 crack-cocaine sentencing disparity. Jonathan described the issue in that case as being whether the 2010 Fair Sentencing Act applied retroactively. But the most remarkable part of Blewett actually decides a different question that was neither briefed nor argued: Whether the 100-1 disparity in effect before 2010 was constitutional. And the majority’s argument for why the 100-1 disparity was unconstitutional strikes me as not just wrong but obviously so.

According to the majority opinion signed by Judges Merritt and joined by Judge Martin, the Equal Protection Clause requires judges to disregard bodies of law that have known racially discriminatory effects. That’s the case because applying law that has a known discriminatory impact would be an intentional act of discrimination by judges that the Equal Protection clause forbids. Here’s the key part of the opinion:

In view of the statistical facts and the widespread congressional consensus leading to the adoption of the Fair Sentencing Act’s remedial provisions [replacing the 100-1 ratio in 2010 with an 18-1 ratio], there can be no doubt that the old crack law was racially discriminatory in effect. As a matter of legal doctrine, there is no equal protection violation without discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976). When the old 100-to-1 crack cocaine statute was adopted, it presumably did not violate the Equal Protection Clause because there was no intent or design to discriminate on a racial basis. Its adoption was simply a mistake. Since 1986, however, we have gained knowledge of the old statute’s devastating effect on blacks. Congress itself acknowledged this problem by enacting the Fair Sentencing Act.

The Fair Sentencing Act was a step forward, but it did not finish the job. The racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and court cases that maintain the harsh provisions for those defendants sentenced before the Fair Sentencing Act. If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional. The discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

As I understand the reasoning, Judges Merritt and Martin work around the requirement of invidious purpose to discriminate by saying that judicial application of laws with known discriminatory effect forces the judges to have invidious purpose to discriminate when they apply the law. In other words, discriminatory effect plus awareness of it amounts to intentional discrimination in the act of applying the law. And the need to avoid discrimination not only trumps the law but also trumps binding precedents saying that the law is constitutional. The argument doesn’t work on its face, as a judge who applies binding law that may have a discriminatory effect does so not because she wants to achieve a discriminatory result but because that result is what the controlling law requires. But in any event, Judge Gilman’s dissent nicely points out the binding precedent to the contrary. The majority doesn’t even bother with much of a response to Judge Gilman’s dissent: See Footnote 6, which for the most part doesn’t even track forms of legal argument.

I agree that the 100-1 disparity was terrible policy. But the majority’s constitutional analysis strikes me as not just wrong but obviously so.

Over at MotherJones, Kevin Drum has an interesting post on the AP leak investigation: Here’s Why the Government Went Ballistic Over the AP Leak.

Also, over at Slate, Emily Bazelon and former VC blogger Eric Posner debate whether the subpoenas of the AP records were justified. Eric gets the better of the argument, I think, but it’s a helpful exchange either way.