District of Columbia vs. Heller (opinion) is in the books, and the Second Amendment now protects a elementary individual right to keep and bear ordinary firearms for self defense without federal interference. The decision leaves open the question of whether the Second Amendment is “incorporated against the states” (DC being a federal enclave). I logged some background earlier, here and here.

DC’s gun ban permitted no hand guns (pistols) in the District, nor any “long guns” (rifles, shotguns) unless kept disassembled and unloaded or trigger-locked. The 5-4 decision in Heller threw out these restrictions as violative of the Second Amendment’s command that:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Justice Scalia wrote for the majority, joined by crucial swing voter Kennedy and fellow conservatives Alito, Thomas and Chief Justice Roberts. Opposed were the more liberal Justices Stevens, Breyer, Ginsburg and Souter, with Stevens and Breyer writing separate dissenting opinions joined in by all dissenters.

The opinions are exquisitely lawyered arguments. Both sides go into minute detail crafting their justifications and expend considerable ink refuting the opposing position and rebutting those refutations. This isn’t necessarily unusual in Supreme Court opinions, but in reading these I was struck that this must be the finest example of the genre. I was left with the strong impression that it’s impossible, objectively, to tell who is right.

Scalia treats the “Militia” portion (the first half) as an irrelevant ”preamble”:

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

…

‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’

…

[I]n America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.”

Then he argues that according to the documents of the time, “people” meant all able men. And ”Timothy Cunningham’s important 1771 legal dictionary defined “arms” as”:

“any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

“Useth in wrath.” Gotta love that.

Scalia dwelt at length upon what seems to me to be the very Lockean, liberal (rather than Hobbesian ultra-conservative, subjection to sovereign authority, rejection of checks and balances, tolerance of abuses of power) idea (ideal?) of armed rebellion against government tyranny quoting many fine thoughts:

“This may be considered as the true palladium of liberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

…

It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

…

There are many reasons why the militia [ie: an armed populace, according to Scalia’s view] was thought to be “necessary to the security of a free state” … when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

An interesting choice of support by this particular Justice in the current political climate. In a hypothetical scenario one wonders if millions of armed citizens marching on Washington D.C. to “resist tyranny” would be hailed by Scalia as heroes or snubbed as traitors. Sign Scalia up for the rebellion!

Of course, the idea of widespread armed rebellion in the United States is so far beyond the pale as to be laughable - which begs the question as to why Scalia repeatedly cites it. The answer is his reliance on “originalism” as his chief interpretation tool. Trying to give effect to what the Founders meant at the time, regardless of changes wrought in the following 2+ centuries. However, Justice Stevens also takes an originalist approach in his opinion, and comes to an opposite conclusion. In the vast amount of heady commentary written on Heller at Balkinization, I noted one scholar’s opinion that Stevens did this on purpose to contest Scalia’s philosophy that only originalism could lead to a correct view of our Constitution.

It’s funny to me that the Ninth Amendment isn’t specifically used to support an individual right to self defense:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Scalia repeats several times that self defense is a right that predates the Constitution. I agree, and I think the right of self defense is the most basic and fundamental human right - a natural right from which all other rights flow. Arms are necessary for self defense because without adequate arms, we would be at the mercy of the physically strong in a confrontation. Our minds have been the key to our success as a species, and the technology (firearms) that is a product of our minds and extension of ourselves ought to be reasonably available to anyone in order to “level the playing-field” when self defense is necessary.

So I agree with the decision, but on Ninth Amendment rather than Second Amendment grounds. It still bears repeating (because it’s funny) that the late Mr. Conservative Strict Constructionist Chief Justice Burger said of an “individual right to bear arms”:

In 1991, former Chief Justice Warren Burger even described the “individual rights” view of the Second Amendment as “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups [the National Rifle Association] that I have ever seen in my lifetime.”

Must be the ”living Constitution” in action, the strict constructionists of today seeing things so differently. I can enjoy the irony while appreciating that the conservative justices ”discovered” a “new right” for us that I approve of. They will of course protest that the right has been there all along. But Burger would disagree.

Suit has been filed in Chicago to overturn that city’s gun regulations similar to the ones thrown out in Heller. This will be the next big battleground in the ongoing Second Amendment litigation. Will watch this one and update as information comes out.

B

Forgive the Frankensteinian headline. Three items caught my eye today:

LATimes.com reports the Supreme Court will hear an appeal by Major League Baseball from a loss to a ”fantasy” baseball league. The for-profit fantasy league says it is just disseminating publicly available statistics (in line with First Amendment Free Speech), but MLB says that when linked to the names of players — who have a right to control their own publicity — the statistics are proprietary. The Circuit Courts are split on the issue.

[I]t could disrupt “billions of dollars” of licensing deals in pro-sports, lawyers for Major League Baseball said in their appeal to the Supreme Court. “Celebrities and athletes have enforceable publicity rights,” they argued, and the 1st Amendment has never been understood to give other companies a right “to exploit players’ identities for commercial gain.”

A lawyer for the St. Louis-based fantasy league countered that baseball and its daily box scores were available to the public. “The mere dissemination of facts or statistics is protected. And all our clients are doing is disseminating the same information that newspapers put in the sports pages every day,” said Rudolph Telscher, a lawyer who won the ruling in St. Louis.

Not so, replies Major Baseball League. The dispute involves famous names, not mere statistics, the league argues. Though the names of players such as Albert Pujols or Derek Jeter may be published or broadcast every day, “those names may not be incorporated without the famous persons’ consent primarily for commercial purposes into a product — be it a coffee mug, a poster, a board game or an Internet game — without consent,” the league said.

Washingtonpost.com reports that “Footprints in the Sand,” a famous “anonymous” religious poem, now has multiple competing claims of authorship resulting in a federal lawsuit for copyright infringement. Millions have been made printing the poem on various paraphernalia, and the newest claimant wants a piece.

At least a dozen people have insisted that the lines of “Footprints in the Sand” came to them alone, usually by divine spark, differing only by a few words here and there. The stanzas all tell a similar story: Narrator dreams he is walking on a beach with the Lord (sometimes God, sometimes Jesus). After a while, narrator turns around and sees only one set of footprints. What gives? the narrator asks the Lord — You promised You would walk with me, even in the bad times, but I see from my lone set of footprints that You weren’t there! Ah, but, the Lord replies : The single set of footprints are when I carried you through the bad times. (Cue the gulls, the gentle sound of waves and the warmth of insight.)

The only problem is one of nagging details: proof of authorship, original publication, copyright, notarization, that sort of thing. “Footprints” has been adapted into different languages, and worse, a pop song co-produced by Simon Cowell. As a sure sign of its familiarity, it has also been wickedly parodied. (”Bull-[bleep], Jesus, Those Are Obviously My Footprints,” joked an Onion headline 10 years ago.)

Finally, nysun.com has a story on Justice Scalia’s speech to a Jewish group on his views of the Establishment Clause of the First Amendment.

The justice didn’t make any radical departures from positions he has taken on the high bench, echoing language in his dissent in a 2005 case involving the displays of the Ten Commandments that two counties in Kentucky had installed in their courthouses. But his remarks appeared intended to inspirit and encourage the largest grass roots organization of fervently religious Jews in America, an organization that is engaged in the constitutional debate in the country on such issues as gay marriage, parochial schools, and civil rights for religious individuals.

Justice Scalia began speech last night, as he did his dissent in the Kentucky case, McCreary County v ACLU, by recalling President Bush’s valediction in a speech delivered shortly after the terrorist attacks of September 11, 2001: “God bless America.” Such a statement, Justice Scalia said, would be “absolutely forbidden” in many countries in Europe. Justice Scalia was in Rome at the time of the attacks, attending a conference of judges and lawyers.

Speaking last night, Justice Scalia cautioned the audience against being “so quick to believe” that the Jeffersonian principle of separation between church and state is represented by the “type of separation found in Europe.” Justice Scalia noted approvingly that in America the Supreme Court has upheld tax exemptions for houses of worship as well as the constitutionality of allowing ministers to open legislative hearings with a prayer.

I thought “the power to tax is the power to destroy” and it follows that tax exemptions for churches are allowed, indeed demanded, by the Free Exercise clause of the First Amendment (rather than by a “traditionally proper bending” of the Establishment Clause as Scalia implies), but I’m not a supreme court justice. Yet.

B

One big story and a couple of notes:

Biggest legal news is the California Supreme Court’s 4-3 decision allowing gay marriage on equal protection grounds (172 pg. opinion). Called “revolutionary,” this was a double ”first” - the first time a court used “strict scrutiny” to examine a law aimed at gays (an earlier Massachusetts decision had used only a “rational basis” test, but ruled for gay marriage anyway) AND the first time sexual orientation has been deemed a “suspect classification” like race and gender. Much was made of the fact that six of the seven judges were Republican appointees, three of whom voted in the majority. Conservative groups promised a November referendum for a constitutional amendment to overthrow the decision (raising the fun legal thicket of a potentially unconstitutional constitutional amendment) but Gov. Schwarzenegger said he’d oppose the referendum. Lots of analysis here.

* * * 

In a story I discussed here, the feds have stepped in to prosecute Lori Drew in the MySpace Hoax Suicide. Missouri authorities had determined that Drew had broken no Missouri laws and declined to prosecute, but the feds will try to use a law primarily directed toward computer hacking. From the AP story:

The indictment alleges one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl [Megan Meier], who hanged herself.

U.S. Attorney Thomas P. O’Brien said this was the first time the federal statute on accessing protected computers has been used in a social-networking case. It has been used in the past to address hacking.

“This was a tragedy that did not have to happen,” O’Brien said at a Los Angeles press conference.

Both the girl and MySpace are named as victims in the case, he said.

Rebecca Lonergan, a former federal prosecutor who now teaches law at the University of Southern California, said use of the federal cyber crime statute may be open to challenge.

Lonergan, who used the statute in the past to file charges in computer hacking and trademark theft cases, said the crimes covered by the law involve obtaining information from a computer, not sending messages out to harass someone.

“Here it is the flow of information away from the computer,” she said. “It’s a very creative, aggressive use of the statute. But they may have a legally tough time meeting the elements.”

Will try to follow this and report.

 * * *

Finally, eBay vs. craigslist is underway in California state court. With facts and personal animosity reminiscent of the Papa Johns vs. Pizza Hut classic, this should be fun to watch.

B

Indiana had impressive turnout at its Democratic primary this week despite the April 28th US Supreme Court ruling that upheld the state’s voter photo identification requirement. (See US Legal Reporter April 28th entry at  http://reporter.uslegal.com/). As the new law was applied on Tuesday, persons without state or federal identification that included a photograph were not allowed to vote.

Interestingly, among those turned away were a group of Roman Catholic nuns of St. Mary’s Convent in South Bend, Indiana. Their expired passports were not accepted by a fellow nun who served as a polling inspector. These 12 nuns, all elderly and most of whom had been faithful voters during their lifetime, do not drive, and therefore, do not have driver’s licenses. The convent claims that the nuns knew of the photo requirement, and it will ensure that each nun that wishes to vote in the general election in November obtains proper identification. Indiana’s Secretary of State, Todd Rokita was not particularly compassionate towards those who were turned away, including the nuns, when he issued a statement emphasizing that the law is applicable to everyone and that voters over the age of 65 could vote by absentee ballot.

One purpose of the law is to prevent voter fraud, but opponents had argued that it negatively affected certain groups, such as minorities and, as is the case with the nuns, the elderly– two groups that are not as likely to possess such identification. (By the way, Indiana does not have a substantial record of voter fraud as it purportedly has never prosecuted a person for impersonating another voter). The law does allow for a voter without identification to cast a provisional vote and obtain the needed identification within ten days, but whether poll workers conveyed that message to all persons without identification is unclear. While the nuns were told of this option, at least one person, a student at Notre Dame, who presented her school ID and her out-of-state driver’s license, alleges she was not told about the provisional vote. Additionally, the nuns either refused the provisional ballots or were never given them due to the impossibility and impracticality of actually transporting these elderly persons, many of whom are wheelchair or walker-bound, to a motor vehicle branch and back within the allotted ten day period. (FYI: the voting Tuesday took place at the convent itself).

Jonah Goldman, who directs the Lawyers Committee’s Campaign for Fair Elections stated that the nuns and another person who was prevented from voting under the new law are “the face of the Supreme Court case” and many persons across the nation in states with voter identification laws were “being disenfranchised by a perceived, incorrect or illegal restrictive identification requirement” partly due to poll workers demanding more identification than the law requires.

As conveyed by John Borkowski, a lawyer who volunteered for the Lawyers Committee for Civil Rights Under Law, who stated “[h]ere you have a bunch of nuns whose votes can’t be accepted by a bunch of nuns … who live with them in the polling place in their convent because they don’t have an ID,” isn’t this ironic? 

Source: http://www.sacbee.com/111/story/918857.html; http://news.findlaw.com/ap/a/p/1130//05-08-2008/20080508035002_4.html; http://www.msnbc.msn.com/id/24490932/

DS

Two interesting matters that have been dormant for some time, worthy of an update.

Odyssey Marine v. Spain update:

A report in El País newspaper has revealed that the 500,000 coins which the Odyssey Marine Exploration company found off the coast of the Algarve last April and May are Spanish coinage. …

The revelation was made by the company itself when if [sic] completed customs forms in Gibraltar on April 10 and May 16, the dates that they took their haul out of the colony and back to their base in Florida. …

The fact that the Odyssey company has admitted the coinage found is Spanish, does not, the company claims, mean it was found on a Spanish ship. On that point they insist that they still have not been able to establish the nationality of the vessel, a point key as to which nation or nations might later claim part of the treasure. (emphasis mine - the nationality of the ship is crucial to Spain’s claim to ownership) …

One theory is that the ship concerned is the ‘Nuestra Señora de la Mercedes’ which sunk in 1804 in the battle of Cape Santa María during an attack from British ships, although this has been dismissed by the Odyssey director Gerg Stemm.

He told the EFE news agency that his company invited the Spanish Ministry of Culture to take part in his expedition last year. ‘At first’, he said, ‘they did not show any interest, now they do. They have tried to force us to give information which we consider could put the site where we found the treasure in danger’.

Louis “Outraged Octogenarian” Montgomery update:

The 81-year-old man accused of hitting a Sheriff’s deputy over the head with a paint roller is suing the county and the deputy involved in the case.
Louis Montgomery has filed a claim for personal injuries he says he sustained as a result of excessive use of force. Montgomery also claims his arrest in March was illegal.

He says the arrest by Deputy Steven Williams was not made with a warrant or based on probable cause. The claim was filed with the County on Sept. 4. According to the Sheriff’s Department, Montgomery became violent with Deputy Williams after Williams asked Montgomery to stop painting a neighbor’s fence.*

Montgomery claims he didn’t hit the deputy with the paint roller, it fell on his head. The 81-year-old man faces charges of assault with a deadly weapon.

If you haven’t been keeping up, let me point out the crucial point that Montgomery was painting his own fence, NOT his neighbor’s as reported in the article. Montgomery had build a concrete block fence under a court order related to his neighbor’s irritation with Montgomery’s mini pig farm. To annoy his neighbor, Montgomery was perched upon his wall painting the side facing the neighbor in the tradition of tasty, but unlovely Neapolitan ice cream. It is debatable as to whether this otherwise legal activity represented a breach of the peace in which the responding deputy could lawfully interfere, or whether it was merely a “so sue me” nuisance properly dealt by filing suit.

B

The District of Columbia is appealing the cancellation of its handgun ban by the D.C. Circuit Court of Appeals (opinion, background). If the Supreme Court agrees to hear the case (deemed likely), it will be the High Court’s first statement on the Second Amendment since 1939, the Washington Post reports.

The Second Amendment states:

“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

A split in interpreting the Amendment’s meaning has developed among the federal Circuit Courts of Appeal, with the 5th Circuit, and now the D.C. Circuit focusing on the second clause (right of the People to keep and bear arms) and various other Circuits focusing on the first clause (well regulated militia). This conflict among the Circuits makes it more likely that the Supremes will take the case.

We may know by next summer whether the government (the Feds, at least) may ban the possession of certain “arms” by citizens. It is interesting to note that per a 1876 Supreme Court decision (U.S. v. Cruikshank - opinion text), the Second Amendment was not “incorporated against the States” by the Fourteenth Amendment - a matter of some debate in Constitutional Law circles. There is a good summary of this interesting case at BillofRightsInstitute.org: 

In Cruikshank, the Court acknowledged the right to keep and bear arms, and explained that the right was older than the Constitution. “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

However, the Court declined to force Louisiana to protect that right to keep and bear arms, because the Bill of Rights only served to limit the actions of the federal government and not the state government. Although the Fourteenth Amendment has been interpreted many times since its passage to apply parts of the Bill of Rights to actions of state governments, Cruikshank did not make this determination. In fact, the Second Amendment remains one of the few portions of the Bill of Rights that the Supreme Court has not applied (or “incorporated”) to state governments.

Will be watching this case, hoping SCOTUS grants cert.

B

Seattle School District will widely (and correctly) be viewed as a substantial weakening of the desegregation famously mandated by Brown v. Board of Education’s denunciation of the “separate but equal” doctrine. It is not the most complex set of opinions I’ve ever seen, but it is definitely in the lower reaches of that category qualifying as both “intimidating” and “historic.”

I struggled with subtitling this piece. “The Gordian Knot Tied Anew,” … “Trains Passing in the Night,” … “de jure vs de facto.” But “Brown Turned Upside Down” seems most appropriate, expressing the irony of the Court’s conservatives lambasting its liberals with the very case the liberals seek to preserve. To avoid influence, I’ve read no commentary on this opinion. I’ll be interested to see how my take squares with others.

185 (!) .pdf pages make up the slip opinion. Roberts writes an opinion that constitutes both the Opinion of the Court (in part - the part agreed with by ultimate-arbiter Kennedy in his own solo “controlling” opinion) and his own opinion (joined by the other three conservatives Scalia, Thomas, and Alito. Thomas writes a separate concurring opinion. On the liberal side, Stevens writes separately with a unique venom, and joins the main dissent authored by Breyer cosigned by Ginsburg and Souter (and characterized by Stevens as “unanswerable”).

Roberts’ opinion names race as an unacceptable consideration in assigning students to public schools for K-12. (In the twin cases considered by the court (in essence) whites had been denied entry into the school of their choice due to their race, and sued.) Roberts writes that the central principle of Brown is that Fourteenth Amendment Equal Protection ”prevents states from according differential treatment to American children on the basis of their color or race,” (Slip Opinion .pdf, p.47) thus flogging the liberals with Brown by asserting the Seattle and Jefferson Co. schools may not use a racial criteria - and standing Brown on its head.

How is Brown turned upside down? Roberts writes: “Government action dividing people by race is inherently suspect because such classifications … endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” (Slip Opinion .pdf, p.46) (internal citations and quotations omitted). I’d argue he’s right on the principle, the ideal, the de jure end-state aspiration. But in Roberts’ opinion is the gasoline exacerbating the very conflagration he (purportedly) hopes to avoid: “a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict” - the very segregated, “separate-but-equal” America that Brown attempted to remold into a racially integrated composite. When Roberts’ strikes down race as a consideration, the well-established de facto segregation of housing in neighborhoods across the country will naturally result in de facto segregation of the races in neighborhood public schools. (Note to legal eagles: I am not discussing the two “de’s” in quite the same context as does Kennedy.)

Thus two trains pass in the night, the hoped-for collision and interface of the de jure and the de facto once again prove beyond the combinative capabilities of our judiciary, our Constitution, our society, our own natures. The Gordian Knot of Race in America is tied anew for future generations to ponder and grapple under whatever future circumstances they experience as the result of this new articulation of the law. 

Kennedy limits Roberts’ opinion to some opaque but important extent stating:

[P]arts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” ante, at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U. S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. (Slip Opinion .pdf, p.91)

The extent of Kennedy’s moderation of Roberts’ plurality opinion will not be known until further cases wind their way to the Supreme Court in the coming years, but Kennedy sides with Roberts in large part and his limiting of the conservative position should not be overestimated: Breyer’s dissent characterizes the Opinion of the Court (necessarily the parts joined by Kennedy) as a “decision that the Court and the Nation will come to regret.”

The usual ”respectfully dissent[ing]” Justices are absent from these opinions. Stevens joins Breyer but also writes separately to excoriate the plurality:

The Court has changed significantly … It was then [in past decisions] more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision. (Slip Opinion .pdf, p. 107-108)

This ends the text of his dissent, with no “I respectfully dissent,” or even “I dissent” traditional tagline. Notice he accuses the plurality of disrespecting the Court’s precedent.

Breyer ends his dissent with this admonition:

Three years after that decision [Brown] was handed down, the Governor of Arkansas ordered state militia to block the doors of a white schoolhouse so that black children could not enter. The President of the United States dispatched the 101st Airborne Division to Little Rock, Arkansas, and federal troops were needed to enforce a desegregation decree. See Cooper v. Aaron, 358 U. S. 1 (1958). Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

I must dissent.

According to a report on NPR’s “All Things Considered” as I conclude this piece, Stevens stated this dissent was twice as long as any he’d ever written (he includes two appendices of charted data). He read a 20 page summary of it from the bench, an act of emphasis symbolic of the strongest possible objection, and a frequent feature of this term’s decisions.

Truly, our society is a long way from resolving this issue.

I will look forward to reading Slate’s Supreme Court Conversation discussing this case tonight.

B

It’s the final week of this term of the Supreme Court, and some big decisions have come down the pipe this week with the last batch to follow tomorrow.

I looked at Morse v. Frederick (“BONG HiTS 4 JESUS” - First Amendment: school speech) trying to make sense of the fractured spate of opinions…

In Morse, students were allowed out of Juneau, Alaska high school to view a leg of the Olympic Torch Relay passing through town in 2002, purportedly as a school field trip. On the sidewalk opposite school property, some students unrolled a large banner containing the message “BONG HiTS 4 JESUS.” Principle Morse intervened, demanding the banner be taken down. One student, plaintiff Frederick, refused. Morse tore down the banner and Frederick was subsequently suspended for 8 days.

The Ninth Circuit reversed Frederick’s failure at the District Court level, finding a First Amendment violation (because the school had not shown the “threat of a substantial disruption”), and disallowing a claim of qualified immunity by the principal on the grounds that a reasonable principal should have known tearing down the sign was a First Amendment violation.The Supreme Court granted cert for Morse’s appeal. The Justices split five ways, with the controlling opinion dictated by two Justices (a fact ignored, glossed over or missed entirely by many commentators).

Here is the breakdown:

Roberts authored the purported Opinion of the Court, “fully” joined by Scalia. The thrust of the opinion is the carving out of a new category of proscribable speech in a school setting: speech advocating drug use. Hinted at (and subsequently rejected by Alito and Kennedy’s limitation) is that any message contrary to the school’s educational mission can be prohibited. Roberts justifies the departure from the standards of Tinker v. Des Moines (1969) by relying on another school speech case, Bethel School District v. Fraser (1986), which implies the Tinker principles are not absolute. 

Thomas joined the Opinion of the Court, but wrote separately to advocate a strict, old-fashioned in loco parentis view of school authority over students, and claiming that the modern First Amendment principles set out in Tinker v. Des Moines (Vietnam armband case) had no basis in the Constitution. He lists old, pre-Tinker cases that, while supporting his argument, are beyond the pale by modern standards. Most damning is Wooster v. Sunderland (1915):

[T]he California Court of Appeal upheld the expulsion of a student who gave a speech before the student body that criticized the administration for having an unsafe building “because of the possibility of fire.” Wooster v. Sunderland, 27 Cal. App. 51, 52, 148 P. 959, (1915). The punishment was appropriate, the court stated, because the speech “was intended to discredit and humiliate the board in the eyes of the students, and tended to impair the discipline of the school.”

By today’s standards, the expelled student would clearly be vindicated in his First Amendment complaint, and rightly so by any understanding of free speech and its impact on good public policy.

Alito authored a separate opinion joined by Kennedy, which is actually the controlling opinion in the case. Therein, Alito and Kennedy condition their joining of the Opinion of the Court on the limiting of that decision:

[We] join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” [rejecting any broader “educational mission” justification]

Alito also pauses to beat up Thomas’s in loco parentis argument:

When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State.

Breyer writes separately and technically numbers among the dissenters. In Breyer’s opinion the Court should rule that the principal (Morse) had qualified immunity and no money damages to Frederick were justified.  Breyer would not reach the merits of the free speech issue, and from parsing his opinion, it is reasonably clear he would reject the logic of Alito’s controlling opinion:

[W]hile the holding is theoretically limited to speech promoting the use of illegal drugs, it could in fact authorize further viewpoint-based restrictions. … [I]t is unclear how far the Court’s rule regarding drug advocacy extends. What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an antidrug film shown in school? And what about drug messages mixed with other, more expressly political, content? If, for example, Frederick’s banner had read “LEGALIZE BONG HiTS,” he might be thought to receive protection from the majority’s rule, which goes to speech “encouraging illegal drug use.” Ante, at 2 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws. [emphasis mine]

I have to agree with Breyer that the qualified immunity angle seems reasonable, as does putting off a decision on the merits in such a weird [the Court’s word, not mine] scenario. For a principal seeing the subject banner, I cannot myself fathom how he or she could reach the conclusion that removing said banner – drug themed in a school setting – would be unconstitutional. There is some technical glitch with the immunity argument. Breyer states his case for wiggling around it, and Alito isn’t satisfied with Breyer’s argument – but if you’re really interested in this coma-inducing tidbit you’ll have to read the opinion.

Finally, Stevens authors the compelling dissent, joined by fellow liberals Souter and Ginsburg. Stevens main point is that “punishing someone for advocating illegal conduct [if the banner does such, which he disputes] is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid.” Mere advocacy has never been equated with incitement to imminent lawless action.

“[P]romoting illegal drug use,” … comes nowhere close to proscribable “incitement to imminent lawless action.” Brandenburg, 395 U. S., at 447. Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship:

“Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. . . Advocacy of law-breaking heightens it still further. But even advocacy of violation, however rep-rehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.” Whitney v. California, 274 U. S. 357, 376 (1927) (Brandeis, J., concurring).

No one seriously maintains that drug advocacy (much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, “ha[s] no chance of starting a present conflagration.” Gitlow v. New York, 268 U. S. 652, 673 (1925) (dissenting opinion).
…

[J]ust as we insisted in Tinker that the school establish some likely connection between the armbands and their feared consequences, so too JDHS must show that Frederick’s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.

But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it punts is tricky…. On occasion, the Court suggests it is deferring to the principal’s “reasonable” judgment that Frederick’s sign qualified as drug advocacy. At other times, the Court seems to say that it thinks the banner’s message constitutes express advocacy. Either way, its approach is indefensible.

To the extent the Court defers to the principal’s ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct, see Brandenburg, 395 U. S., at 447–448, yet would permit a listener’s perceptions to determine which speech deserved constitutional protection.

Such a peculiar doctrine is alien to our case law.

Two other important First Amendment cases came down on Monday:

Federal Election Comm’n v. Wisconsin Right to Life, Inc. (Political speech, campaign finance reform – loosening restrictions on issue-based “attack” ads) 

Hein v. Freedom From Religion Foundation, Inc. (executive branch expenditures on faith-based organizations, no standing for taxpayers to sue.)

Along with these two:

National Assn. of Home Builders v. Defenders of Wildlife (trumping the Endangered Species Act.)

Wilkie v. Robbins (federal harassment - no viable federal causes of action)

I might discuss Wilkie later, since every commentator has ignored it and it has fun facts.

A discussion of the end-of-term cases I’ve enjoyed reading between Dahlia Lithwick and Walter Dellinger can be found on Slate, here.

More on Thursday’s cases soon.

B

Good article and excellent video from Jason Kotowski writing for The Bakersfield Californian showing the painted wall and more.

I am coming around to the understanding that the subject wall is actually on/at/near the property line, but of course this becomes a very precise concept and requires a survey at some point. It was built by Montgomery, under a court order related to his pigs, and when you build a fence it is supposed to be on your side of the property line (if only barely). If it was entirely on his land, then it still seems “it was his to paint” - though that would explain why he actually seems to have sat or stood atop the wall to paint it (so as not to trespass on the other side).

I’m not sure how that’s a police matter assuming no breach of the peace. If the neighbor has a problem with it, go to court. If the neighbor was instigating a breach of the peace, it should’ve been the neighbor being warned off by the deputy. Until I learn different, I’ll continue to feel this way.

The next hearing in the case is on June 18.

B

This story has some legs in California. Any of these three links should work for the video:

http://www.kget.com/mostpopular/story.aspx?content_id=69d2f9b3-ac17-4472-9fb7-09d351703540
http://www.kget.com/mediacenter/local.aspx?videoId=17879
http://www.kget.com/mediacenter/?videoId=17879

The video accompanies a brief report that the accused, Louis Montgomery, will be held for trial - the hearing at which this video was taped established that there was sufficient evidence for a trial. I assume there will be a bail hearing, but it wasn’t mentioned.

One BIG twist. In my previous post, all the quotes and info stated directly that Montgomery was painting HIS OWN fence, on HIS land.  Now, in the report accompanying the video, there is an unsourced remark that Montgomery was painting HIS NEIGHBOR’S FENCE, and he was asked to stop by the Deputy.

Investigators said Montgomery became violent with Deputy Steve Williams after he asked Montgomery to stop painting his neighbor’s fence.

IF TRUE, that would be a breach-of-the-peace/destruction of property type situation where the Deputy would be (more) justified in trying to stop Montgomery - though his chosen tactics still seem highly questionable.

So which is it? Was the fence on Montgomery’s land or was it his neighbor’s fence - or was it a shared fence or a disputed property line? The earlier report seemed very clear on this point, but now we don’t know.

At least Montgomery has a lawyer, Kyle Humphrey, who said on the video:

“I don’t believe we pay our law enforcement to bust up old men … The evidence will be substantially different than what has been testified to [today] … We’ll let a jury sort it out.”

B