Malcolm Stewart, a veteran of the U.S. solicitor general’s office, was already in trouble defending the federal law against corporations’ political spending on TV ads when Chief Justice John G. Roberts Jr. hit him with a gotcha question. Could the government prevent a corporation, the chief justice asked, from publishing a book just because it included a single sentence endorsing a political candidate?
When Stewart said yes back on March 24, 2009, the court’s conservatives flinched. Later, in conference, Justice Anthony M. Kennedy Jr. — who had started the colloquy — apparently used Stewart’s answer to help argue for what eventually emerged in Citizens United v. Federal Election Commission (2010) as a broader-than-expected ruling freeing corporations from any limits on political spending.
So much for the argument that oral argument does not matter at the Supreme Court. In many cases, the justices might rule pretty much the same way if they decided cases solely on the basis of briefs without oral argument. But Citizens United is only one — but surely the most dramatic — example of cases in which oral argument, prompted by the justices’ questions from the bench, has shaped the court’s eventual decision.
Surely that explains why eight of the justices actively participate in oral argument. But not Clarence Thomas, who has now gone eight full years since his last question from the bench (Holmes v. South Carolina, Feb. 22, 2006). Jeffrey Toobin, the outspoken CNN legal analyst and staff writer for The New Yorker, marked the anniversary with a post on the magazine’s web site provocatively entitled “Clarence Thomas’s Disgraceful Silence” [Feb. 21].
Thomas’s behavior on the bench, Toobin wrote in the opening paragraph, “has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.” Toobin went on to describe Thomas, now 65, as “grayer” and “heavier” than when he came to the court 22 years ago and to accuse the justice of distraction and inattention during arguments.
Supreme Court watchers from across the ideological spectrum piled on — not on Thomas, but on Toobin. “Disgraceful,” wrote a pseudonymous blogger on Erick Erickson’s conservative web site Red State. “There is no good argument” for calling Thomas a disgrace, wrote the liberal-leaning University of California-Irvine law professor Rick Hasen on his Election Law Blog. In the Los Angeles Times, centrist editorial writer Michael McGough opined that Toobin “doesn’t make much of a case for outrage over [Thomas’s] admittedly odd behavior.”
In fact, Toobin hurt his case by a factual inaccuracy: Thomas does pay attention during arguments, as University of Baltimore law professor Garrett Epps pointed out in a tweet. Thomas can be seen on the bench asking pages for law books and occasionally talking with seatmates Breyer to his right or Scalia to his left. The hyperbolic headline also detracts from Toobin’s credibility, whether it was his or an editor’s.
Toobin also misdirected his argument by contending that the benefit of the justices’ questions is the information and insights the public gets about the justices’ thinking. On that point, it is true, as Adam Liptak wrote in The New York Times [Feb. 25], that “the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision.”
Yet the work of the Supreme Court is also done in oral argument – in engaging with lawyers from opposing sides on the facts and the law at issue and the implications of a possible ruling one way or the other. Thus, for better or worse, Citizens United could have been a narrower ruling if Kennedy and Roberts had not pressed the beleaguered Stewart on how far the government’s argument could be extended. And courtroom watchers can recall any number of instances when justices will ask a lawyer, in all seriousness, for advice on how to write the eventual opinion.
Thomas’s silence disrespects this part of the judicial process. He has explained his silence in the past by saying that he wants to hear more from the lawyers. But lawyers are told that oral argument is their one best shot to address a justice’s questions about their case. Thomas denies lawyers this opportunity. Perhaps that is because, as he has said about the justices generally, that he has his mind pretty much made up before the arguments begin.
The court’s credibility, however, depends on the legal fiction that the justices’ minds are not completely made up until the case is submitted. Thomas is hiding the ball by giving lawyers no clue as to his thinking about a case until they see how he voted when the decision comes out.
Sometimes, Thomas has a very distinctive to approach to a case. When the court struck down a California law prohibiting violent video games for minors, Thomas argued in a lone dissent that minors have no First Amendment rights whatsoever (Brown v. Entertainment Merchants Association, 2011). If Thomas had that thought before oral argument, it would have been beneficial to say it out loud and hear the lawyers’ responses.
To be clear, Supreme Court oral arguments do not lack for questions from the justices. But Thomas’s willful silence is, if not a disgrace, at least a disservice — and one that gives no respect to the black-robed role he plays.
Sunday, March 2, 2014
Sunday, February 23, 2014
Massachusetts Court's Blow for Cell-Phone Privacy
Can a state court overturn a decision by the U.S. Supreme Court? No, not really, but Massachusetts’ highest court took its best shot last week [Feb. 18] in an important decision giving cell phone users in the Bay State more privacy protections than recognized under Supreme Court precedents. Privacy advocates can hope that the Massachusetts ruling helps prompt the justices to re-interpret past decisions to catch up with the realities of privacy-invasive 21st century technology.
The 5-2 ruling by the Supreme Judicial Court of Massachusetts in Commonwealth v. Augustine requires police to get a search warrant before getting a cell phone provider to turn over customers’ call records. The court’s majority based the decision not on the Fourth Amendment but on a broader reading of the comparable search provision in Massachusetts’ constitution.
Massachusetts state police obtained cell phone records of Shabazz Augustine after he came under suspicion in the August 2004 death of his former girlfriend, Juliane Jules. The Federal Stored Communications Act, enacted in 1986 as part of the Electronic Communications Privacy Act, requires an electronic communications provider to turn over a customer’s records to the government if the government obtains a court order for the records.
The federal law requires only that the government present to a court “specific and articulable facts showing that there are reasonable grounds to believe that the ... records … are relevant and material to an ongoing criminal investigation . . .” That standard is far short of the “probable cause” requirement for search warrants under the Fourth Amendment.
The cell phone records, obtained after a court order issued under that standard, showed Augustine’s general locations in the Boston area during the two-week period after Jules’ disappearance. That information, combined with other evidence, was enough to indict him for murder, seven years later. But a trial-level judge excluded the cell-phone evidence because police had failed to obtain a search warrant for the information.
On appeal, the state relied on a pair of U.S. Supreme Court decisions from the 1970s that allow the government to obtain “business records” from a bank (United States v. Miller, 1976) or an old-style phone company (Smith v. Maryland, 1979). The Supreme Court reasoned — in a true legal fiction — that the bank or phone company customer had voluntarily turned over the information to a third party and thus that no “search” was involved.
In Smith, Maryland police used a pen register — a mechanical device that records the numbers called from a specific phone — to link the defendant to drug-dealing. On the surface, Smith seems to be a controlling precedent. Indeed, as the Massachusetts court conceded, a majority of the federal courts to rule on the issue have relied on Smith in concluding that police can obtain cell-phone records without meeting the Fourth Amendment standard for searches.
The majority of the Massachusetts court, however, found “an enormous difference” between the call logs for a land-line phone and those for a mobile cell phone. A call log for a land line “may indicate whether the subscriber is at home, but no more,” Justice Margot Bostsford wrote for the majority. But for a cellular telephone user, records showing cell site locations “may yield a treasure trove of very detailed and extensive information about the individual’s ‘comings and goings’ in both public and private places.”
Botsford acknowledged that Supreme Court precedents allow the government to track individuals in public areas. But cell-phone technology, she continued, shows a caller’s location whether in a public or private location. “We cannot ignore,” she concluded, “the probability that, as [cell site location information] becomes more precise, cellular telephone users will be tracked in constitutionally protected areas.”
The ruling allows the state to go back to court to try to show that it had adequate information to obtain a search warrant in the first place. But the dissenting justices warned that the decision “will significantly diminish the ability of law enforcement to solve and to prove crimes, which so often depends on proving the whereabouts of a suspect at the time of the crime through his or her cellular telephone location.”
By grounding its decision on the state constitution, the Massachusetts court insulated it from reversal by the U.S. Supreme Court. But this issue will reach The Nine eventually.
The justices were attentive to privacy issues in their first brush with 21st-century tracking technology two years ago. All nine justices agreed in United States v. Jones (2012) that tracking a motorist with a global positioning system (GPS) attached to his vehicle amounts to a search, subject to Fourth Amendment requirements. But they significantly divided into two camps for their reasoning.
The majority, led by Justice Antonin Scalia, viewed the installation of the GPS device as a trespass, amounting to a search. But four other justices — three liberals plus conservative Samuel A. Alito Jr. — analyzed the case instead in terms of an individual’s reasonable expectation of privacy. The month-long tracking of the defendant in the case, Alito concluded, went too far.
As the division on the Massachusetts court indicates, the different approaches could yield a different result regarding cell phone records. A cramped view of the old third-party doctrine — no search — favors the government. In the 21st century, however, modern technology allows the government to go too far unless privacy doctrine is itself updated to the present day.
The 5-2 ruling by the Supreme Judicial Court of Massachusetts in Commonwealth v. Augustine requires police to get a search warrant before getting a cell phone provider to turn over customers’ call records. The court’s majority based the decision not on the Fourth Amendment but on a broader reading of the comparable search provision in Massachusetts’ constitution.
Massachusetts state police obtained cell phone records of Shabazz Augustine after he came under suspicion in the August 2004 death of his former girlfriend, Juliane Jules. The Federal Stored Communications Act, enacted in 1986 as part of the Electronic Communications Privacy Act, requires an electronic communications provider to turn over a customer’s records to the government if the government obtains a court order for the records.
The federal law requires only that the government present to a court “specific and articulable facts showing that there are reasonable grounds to believe that the ... records … are relevant and material to an ongoing criminal investigation . . .” That standard is far short of the “probable cause” requirement for search warrants under the Fourth Amendment.
The cell phone records, obtained after a court order issued under that standard, showed Augustine’s general locations in the Boston area during the two-week period after Jules’ disappearance. That information, combined with other evidence, was enough to indict him for murder, seven years later. But a trial-level judge excluded the cell-phone evidence because police had failed to obtain a search warrant for the information.
On appeal, the state relied on a pair of U.S. Supreme Court decisions from the 1970s that allow the government to obtain “business records” from a bank (United States v. Miller, 1976) or an old-style phone company (Smith v. Maryland, 1979). The Supreme Court reasoned — in a true legal fiction — that the bank or phone company customer had voluntarily turned over the information to a third party and thus that no “search” was involved.
In Smith, Maryland police used a pen register — a mechanical device that records the numbers called from a specific phone — to link the defendant to drug-dealing. On the surface, Smith seems to be a controlling precedent. Indeed, as the Massachusetts court conceded, a majority of the federal courts to rule on the issue have relied on Smith in concluding that police can obtain cell-phone records without meeting the Fourth Amendment standard for searches.
The majority of the Massachusetts court, however, found “an enormous difference” between the call logs for a land-line phone and those for a mobile cell phone. A call log for a land line “may indicate whether the subscriber is at home, but no more,” Justice Margot Bostsford wrote for the majority. But for a cellular telephone user, records showing cell site locations “may yield a treasure trove of very detailed and extensive information about the individual’s ‘comings and goings’ in both public and private places.”
Botsford acknowledged that Supreme Court precedents allow the government to track individuals in public areas. But cell-phone technology, she continued, shows a caller’s location whether in a public or private location. “We cannot ignore,” she concluded, “the probability that, as [cell site location information] becomes more precise, cellular telephone users will be tracked in constitutionally protected areas.”
The ruling allows the state to go back to court to try to show that it had adequate information to obtain a search warrant in the first place. But the dissenting justices warned that the decision “will significantly diminish the ability of law enforcement to solve and to prove crimes, which so often depends on proving the whereabouts of a suspect at the time of the crime through his or her cellular telephone location.”
By grounding its decision on the state constitution, the Massachusetts court insulated it from reversal by the U.S. Supreme Court. But this issue will reach The Nine eventually.
The justices were attentive to privacy issues in their first brush with 21st-century tracking technology two years ago. All nine justices agreed in United States v. Jones (2012) that tracking a motorist with a global positioning system (GPS) attached to his vehicle amounts to a search, subject to Fourth Amendment requirements. But they significantly divided into two camps for their reasoning.
The majority, led by Justice Antonin Scalia, viewed the installation of the GPS device as a trespass, amounting to a search. But four other justices — three liberals plus conservative Samuel A. Alito Jr. — analyzed the case instead in terms of an individual’s reasonable expectation of privacy. The month-long tracking of the defendant in the case, Alito concluded, went too far.
As the division on the Massachusetts court indicates, the different approaches could yield a different result regarding cell phone records. A cramped view of the old third-party doctrine — no search — favors the government. In the 21st century, however, modern technology allows the government to go too far unless privacy doctrine is itself updated to the present day.
Sunday, February 16, 2014
Gun Rights Ruling Risks Danger to Public
Michael Dunn and Curtis Reeves were responsible, law-abiding citizens who used handguns they were legally allowed to carry in public to kill innocent victims who were likewise responsible, law-abiding citizens. Dunn and Reeves — who both ended up facing criminal charges — live in Florida, which makes it easy to get gun-carry permits. Other states do not, but a new federal appeals court ruling casts doubt on how far those states can go in keeping firearms off the streets.
The split decision by the Ninth U.S. Circuit Court of Appeals [Feb. 13] recognizes a Second Amendment right for “responsible, law-abiding citizens” to carry firearms in public. The ruling in Peruta v. San Diego County strikes down the relatively strict policy on granting so-called concealed-carry permits followed in most California jurisdictions.
The ruling is at odds with most federal appeals court to rule on such laws since the Supreme Court’s precedent-setting gun-rights decisions in 2008 and 2010. And it gives no weight to the rationales San Diego County offered for its policy. One of those is directly pertinent to the gun deaths in Florida: “limiting the likelihood that minor altercations in public will escalate into fatal shootings.”
Dunn, a middle-aged software engineer, shot and killed teenager Jordan Davis in a Jacksonville gas station on Nov. 23 after an argument over the rap music being played loudly from the car radio where Davis was a passenger. Dunn, who had a gun permit but allegedly had not fired his weapon in 20 years, claimed he fired 10 shots into the teenagers’ SUV after he saw one of them with a weapon. No weapon was found.
Reeves, a 71-year-old retired police officer, shot and killed Chad Oulson in a movie theater in a Tampa suburb after an argument over Oulson’s texting during the previews. Oulson, a middle-aged father out with his wife, had been texting to the baby sitter back home. He was unarmed.
A jury convicted Dunn on Saturday of three counts of attempted murder but deadlocked on a first-degree murder charge for killing Davis. Reeves is being held without bail awaiting trial for first-degree murder.
Davis and Oulson would be alive today — and Dunn and Reeves would be facing less serious charges if any — but for the weapons that Dunn and Reeves were carrying. Nothing suggests that either had any specific need for self-defense.
California is among a minority of states that allow citizens to go armed on the streets only if they can show “good character” and “good cause” for a permit. Florida led the way in 1987 in enacting laws to the opposite effect. The so-called “shall issue” laws in nearly 40 states generally require local authorities to grant adult citizens gun permits with only a few well-defined exceptions.
Applying the California law, San Diego County adopted a fairly narrow definition of what qualifies as “good cause” for a concealed-carry permit. Specifically, the county allows a citizen to carry a weapon in public for self-defense only based on some specific risk of harm “that distinguish [him or her] from the mainstream.” Concern for “one’s personal safety alone” does not suffice.
The Ninth Circuit’s 77-page majority opinion, written by the veteran conservative jurist Diarmuid O’Scannlain, said the county’s policy was too restrictive. But to reach that point the Reagan-appointed judge first found that the Second Amendment’s right to “keep and bear arms” necessarily includes the right to carry weapons in public.
That conclusion goes beyond the Supreme Court’s 5-4 decisions in Heller v. District of Columbia (2008) and McDonald v. Chicago (2010). In recognizing an individual right to possess firearms, the Heller Court said the right’s “core” purpose was “protection of hearth and home.” But O’Scannlain said the decision “points in a general direction.” And he read 19th century court decisions as pointing in that direction as well.
As Judge Sidney Thomas pointed out in a 48-page dissent, however, O’Scannlain elided over laws prohibiting carrying weapons in public – from the 14th century Statute of Northampton in England to many in the American colonies and the 19th century United States. Thomas, a Clinton appointee, also noted that one of the old cases that O’Scannlain relied on — from Kentucky — was overturned by a constitutional amendment that specifically authorized the state’s legislature to prohibit carrying arms in public.
From his premise, O’Scannlain found no need to balance the county’s interest in controlling firearms against this newfound Second Amendment right to go armed in public. “No amount of interest-balancing . . . can justify” the policy, he writes. In the dissent, Thomas said the county’s rationales survive intermediate constitutional scrutiny even if a Second Amendment right is implicated. He cited five rationales that the county lists, including limiting the dangers to the public.
The judges recognized the importance of the case: they kept it under advisement for more than a year after arguments. Of the four other circuits to issue post-Heller decisions on concealed-carry laws, only one — the Seventh Circuit, ruling on an Illinois law — has struck down the measure at issue. The question is inevitably headed toward the Supreme Court, which some day will have to answer whether its previous decision points in only one direction and, if so, how far.
The split decision by the Ninth U.S. Circuit Court of Appeals [Feb. 13] recognizes a Second Amendment right for “responsible, law-abiding citizens” to carry firearms in public. The ruling in Peruta v. San Diego County strikes down the relatively strict policy on granting so-called concealed-carry permits followed in most California jurisdictions.
The ruling is at odds with most federal appeals court to rule on such laws since the Supreme Court’s precedent-setting gun-rights decisions in 2008 and 2010. And it gives no weight to the rationales San Diego County offered for its policy. One of those is directly pertinent to the gun deaths in Florida: “limiting the likelihood that minor altercations in public will escalate into fatal shootings.”
Dunn, a middle-aged software engineer, shot and killed teenager Jordan Davis in a Jacksonville gas station on Nov. 23 after an argument over the rap music being played loudly from the car radio where Davis was a passenger. Dunn, who had a gun permit but allegedly had not fired his weapon in 20 years, claimed he fired 10 shots into the teenagers’ SUV after he saw one of them with a weapon. No weapon was found.
Reeves, a 71-year-old retired police officer, shot and killed Chad Oulson in a movie theater in a Tampa suburb after an argument over Oulson’s texting during the previews. Oulson, a middle-aged father out with his wife, had been texting to the baby sitter back home. He was unarmed.
A jury convicted Dunn on Saturday of three counts of attempted murder but deadlocked on a first-degree murder charge for killing Davis. Reeves is being held without bail awaiting trial for first-degree murder.
Davis and Oulson would be alive today — and Dunn and Reeves would be facing less serious charges if any — but for the weapons that Dunn and Reeves were carrying. Nothing suggests that either had any specific need for self-defense.
California is among a minority of states that allow citizens to go armed on the streets only if they can show “good character” and “good cause” for a permit. Florida led the way in 1987 in enacting laws to the opposite effect. The so-called “shall issue” laws in nearly 40 states generally require local authorities to grant adult citizens gun permits with only a few well-defined exceptions.
Applying the California law, San Diego County adopted a fairly narrow definition of what qualifies as “good cause” for a concealed-carry permit. Specifically, the county allows a citizen to carry a weapon in public for self-defense only based on some specific risk of harm “that distinguish [him or her] from the mainstream.” Concern for “one’s personal safety alone” does not suffice.
The Ninth Circuit’s 77-page majority opinion, written by the veteran conservative jurist Diarmuid O’Scannlain, said the county’s policy was too restrictive. But to reach that point the Reagan-appointed judge first found that the Second Amendment’s right to “keep and bear arms” necessarily includes the right to carry weapons in public.
That conclusion goes beyond the Supreme Court’s 5-4 decisions in Heller v. District of Columbia (2008) and McDonald v. Chicago (2010). In recognizing an individual right to possess firearms, the Heller Court said the right’s “core” purpose was “protection of hearth and home.” But O’Scannlain said the decision “points in a general direction.” And he read 19th century court decisions as pointing in that direction as well.
As Judge Sidney Thomas pointed out in a 48-page dissent, however, O’Scannlain elided over laws prohibiting carrying weapons in public – from the 14th century Statute of Northampton in England to many in the American colonies and the 19th century United States. Thomas, a Clinton appointee, also noted that one of the old cases that O’Scannlain relied on — from Kentucky — was overturned by a constitutional amendment that specifically authorized the state’s legislature to prohibit carrying arms in public.
From his premise, O’Scannlain found no need to balance the county’s interest in controlling firearms against this newfound Second Amendment right to go armed in public. “No amount of interest-balancing . . . can justify” the policy, he writes. In the dissent, Thomas said the county’s rationales survive intermediate constitutional scrutiny even if a Second Amendment right is implicated. He cited five rationales that the county lists, including limiting the dangers to the public.
The judges recognized the importance of the case: they kept it under advisement for more than a year after arguments. Of the four other circuits to issue post-Heller decisions on concealed-carry laws, only one — the Seventh Circuit, ruling on an Illinois law — has struck down the measure at issue. The question is inevitably headed toward the Supreme Court, which some day will have to answer whether its previous decision points in only one direction and, if so, how far.
Sunday, February 9, 2014
Shoulder to Shoulder for LGBT Rights at the Olympics
Gayfolk in Washington, D.C., gathered at the headquarters of the Human Rights Campaign (HRC) on Friday night [Feb. 7] for the opening ceremonies of the Winter Olympics not just to view the pageantry but also to show solidarity with Russia’s beleaguered LGBT community.
“Our colleagues in Russia cannot do this,” Ty Cobb, HRC’s director of global engagement, told the crowd as NBC’s delayed broadcast of the ceremony was about to begin. Cobb relayed the news that Russian authorities had arrested more than a dozen gay rights protesters in St. Petersburg and Moscow on the very day that Russia was set to bask in the global spotlight.
“My only crime was to hold a sign supporting the principle of non-discrimination,” Anastasia Smirnova, one of the four LGBT activists arrested in St. Petersburg, said in an e-mail read by Cobb. “Thank you for standing with us shoulder to shoulder,” she concluded.
In Moscow, 10 LGBT activists were arrested after a demonstration that included the singing of the Russian national anthem in Red Square, according to an account that one of them, Elena Kostynchenko, gave to a reporter for the Washington Blade. Kostynchenko claimed in the telephone interview with reporter Michael K. Lavers that one of those in the group was beaten, another choked, and another sexually harassed. The allegations could not be verified; all of those arrested appear to have been released after short detentions.
The demonstrations represented a distracting focus for Russia’s strongman president Vladimir Putin as he presided over what he had hoped would be a crowning achievement of his long rule at the Kremlin. Putin invited the international opprobrium the earlier summer by signing a series of anti-gay laws, including one that made it a crime to direct “propaganda of nontraditional sexual orientation” at minors.
The international gay rights community began publicizing the law soon after Putin signed the measure on July 1. As the campaign continued, Putin and other Russian authorities repeatedly sought to minimize the law’s impact. They depicted the law merely as protection for Russia’s youth from corrupting influence and insistently denied any wider discrimination against gays and lesbians.
Some gay rights advocates went so far as to urge the United States to boycott the games, but President Obama shot the idea down. A boycott would be unfair to the athletes who had worked so hard to qualify, Obama said in news conference in August. “One of the things I am looking forward to,” he added, “is maybe some gay or lesbian athletes bringing home the gold, silver or bronze.”
Gay rights advocates kept at the issue, raising concerns whether LGBT athletes themselves could be arrested if, for example, they waved rainbow flags during the games or spoke out in favor of gay rights. As the games drew closer, Putin again tried to allay the concerns. Gay and lesbian visitors could be “relaxed and calm” while in Sochi, Putin said in remarks broadcast by Russian state news media in mid-January. “But, please, leave the children alone,” he added.
Putin also tried to redirect the spotlight by stating, incorrectly, that even though gay sex is legal within Russia, it continues to be criminal within the United States. In fact, the U.S. Supreme Court ruled anti-sodomy laws unconstitutional in 2003. Still, in an op-ed in the Washington Post on Jan. 31, Yale law professors Ian Ayres and William Eskridge suggested Putin might have at least half a point. They likened Russia’s anti-homosexual propaganda law with so-called “no homo” laws on the books in eight states that prohibit promoting or advocating homosexuality. Among those states: Utah, host to the 2002 Winter Olympics.
The controversy over the Russian law was a distraction not just for Putin but also for the International Olympic Committee, which insists on viewing the games as above either politics or nationalism. IOC officials simultaneously reaffirmed support for Principle 6, which prohibits discrimination in the games, while warning that athletes were not to engage in political demonstrations while participating.
For the opening ceremonies, athletes appeared to abide by the admonition, except for the Greek team, who wore gloves with rainbow-colored finger tips. But IOC President Thomas Bach gave the nondiscrimination principle a shout-out in his remarks at the opening ceremonies. In a passage addressed to the athletes, Bach declared: “Yes, it is possible — even as competitors — to live together under one roof in harmony, with tolerance and without any form of discrimination for whatever reason.”
Gay rights advocates tweaked NBC afterward for cutting that paragraph from its broadcast; some of Bach’s other remarks against discrimination, however, were included. During the ceremony itself, some gays could not resist noting that the Russian composer Tchaikovsky — whose Swan Lake brought the paean to Mother Russia to a close — was himself gay.
Americans know full well that sports, however apolitical, can be a vehicle for advancing tolerance. Witness the importance of Jackie Robinson’s breaking the color barrier in major league baseball and the pleas by LGBT advocates today for gay college and professional athletes to come out. In an ironic twist, Russia has helped ensure that the 2014 Winter Olympics will be remembered not just for the games but also for the nondiscrimination principle that the host country itself fails to follow.
“Our colleagues in Russia cannot do this,” Ty Cobb, HRC’s director of global engagement, told the crowd as NBC’s delayed broadcast of the ceremony was about to begin. Cobb relayed the news that Russian authorities had arrested more than a dozen gay rights protesters in St. Petersburg and Moscow on the very day that Russia was set to bask in the global spotlight.
“My only crime was to hold a sign supporting the principle of non-discrimination,” Anastasia Smirnova, one of the four LGBT activists arrested in St. Petersburg, said in an e-mail read by Cobb. “Thank you for standing with us shoulder to shoulder,” she concluded.
In Moscow, 10 LGBT activists were arrested after a demonstration that included the singing of the Russian national anthem in Red Square, according to an account that one of them, Elena Kostynchenko, gave to a reporter for the Washington Blade. Kostynchenko claimed in the telephone interview with reporter Michael K. Lavers that one of those in the group was beaten, another choked, and another sexually harassed. The allegations could not be verified; all of those arrested appear to have been released after short detentions.
The demonstrations represented a distracting focus for Russia’s strongman president Vladimir Putin as he presided over what he had hoped would be a crowning achievement of his long rule at the Kremlin. Putin invited the international opprobrium the earlier summer by signing a series of anti-gay laws, including one that made it a crime to direct “propaganda of nontraditional sexual orientation” at minors.
The international gay rights community began publicizing the law soon after Putin signed the measure on July 1. As the campaign continued, Putin and other Russian authorities repeatedly sought to minimize the law’s impact. They depicted the law merely as protection for Russia’s youth from corrupting influence and insistently denied any wider discrimination against gays and lesbians.
Some gay rights advocates went so far as to urge the United States to boycott the games, but President Obama shot the idea down. A boycott would be unfair to the athletes who had worked so hard to qualify, Obama said in news conference in August. “One of the things I am looking forward to,” he added, “is maybe some gay or lesbian athletes bringing home the gold, silver or bronze.”
Gay rights advocates kept at the issue, raising concerns whether LGBT athletes themselves could be arrested if, for example, they waved rainbow flags during the games or spoke out in favor of gay rights. As the games drew closer, Putin again tried to allay the concerns. Gay and lesbian visitors could be “relaxed and calm” while in Sochi, Putin said in remarks broadcast by Russian state news media in mid-January. “But, please, leave the children alone,” he added.
Putin also tried to redirect the spotlight by stating, incorrectly, that even though gay sex is legal within Russia, it continues to be criminal within the United States. In fact, the U.S. Supreme Court ruled anti-sodomy laws unconstitutional in 2003. Still, in an op-ed in the Washington Post on Jan. 31, Yale law professors Ian Ayres and William Eskridge suggested Putin might have at least half a point. They likened Russia’s anti-homosexual propaganda law with so-called “no homo” laws on the books in eight states that prohibit promoting or advocating homosexuality. Among those states: Utah, host to the 2002 Winter Olympics.
The controversy over the Russian law was a distraction not just for Putin but also for the International Olympic Committee, which insists on viewing the games as above either politics or nationalism. IOC officials simultaneously reaffirmed support for Principle 6, which prohibits discrimination in the games, while warning that athletes were not to engage in political demonstrations while participating.
For the opening ceremonies, athletes appeared to abide by the admonition, except for the Greek team, who wore gloves with rainbow-colored finger tips. But IOC President Thomas Bach gave the nondiscrimination principle a shout-out in his remarks at the opening ceremonies. In a passage addressed to the athletes, Bach declared: “Yes, it is possible — even as competitors — to live together under one roof in harmony, with tolerance and without any form of discrimination for whatever reason.”
Gay rights advocates tweaked NBC afterward for cutting that paragraph from its broadcast; some of Bach’s other remarks against discrimination, however, were included. During the ceremony itself, some gays could not resist noting that the Russian composer Tchaikovsky — whose Swan Lake brought the paean to Mother Russia to a close — was himself gay.
Americans know full well that sports, however apolitical, can be a vehicle for advancing tolerance. Witness the importance of Jackie Robinson’s breaking the color barrier in major league baseball and the pleas by LGBT advocates today for gay college and professional athletes to come out. In an ironic twist, Russia has helped ensure that the 2014 Winter Olympics will be remembered not just for the games but also for the nondiscrimination principle that the host country itself fails to follow.
Sunday, February 2, 2014
Ultimate Penalty for an Ultimate Crime?
When President Kennedy decided to appoint his brother Robert to be attorney general, he joked about possibly announcing the decision by opening the door at 3 o’clock in the morning and whispering, “It’s Bobby.” Attorney General Eric Holder appears to have adopted something of the same, low-key public relations strategy last week [Jan. 30] when he announced the government’s decision to seek the death penalty against Boston Marathon bombing defendant Dzhokhar Tsarnaev.
Holder passed up the chance to appear personally before reporters and cameras to make the announcement. Instead, he issued a terse, two-sentence statement, timed to coincide with the government’s filing of the eight-page notice of intent to seek the death penalty in federal court in Boston. “The nature of the conduct at issue and the resultant harm compel this decision,” Holder said.
Holder may have decided to take the prosecutorial high road by passing up an opportunity to look tough in a high-profile criminal case. But it also possible that Holder, who is personally opposed to the death penalty, had no desire to be so visibly associated with the decision.
Like Holder, I am personally opposed to the death penalty. It is not a deterrent, or at most a weak one. It is still invoked and imposed in an arbitrary and discriminatory manner despite four decades of efforts to rationalize death penalty practices. There remains a greater-than-zero risk of a wrongful execution. And, as seen in last week’s botched execution in Ohio, the lethal injection procedure now regarded as the most humane way to put a convicted murderer to death can go wrong and leave the condemned to a ghoulishly slow and painful death.
With all those reservations, I cannot join in the criticisms being voiced in some quarters of the decision. The eight-page notice of intent lays out a compelling case for seeking the death penalty in this prosecution as long as federal law recognizes capital punishment as an option. As Walter Prince, a former federal prosecutor now practicing white-collar criminal defense in Boston, put it in a rhetorical question to a Wall Street Journal reporter: “If not this case, when?"
Tsarnaev, 19 years old at the time of the Patriot Day bombing last April, faces half a dozen death-eligible charges. Five interrelated charges, including use of a weapon of mass destruction causing death, stem from the three deaths from the bombing itself; the sixth is for the killing of Massachusetts Institute of Technology police officer Sean Collier during the attempted getaway.
The government’s notice of intent details thresholds listed in federal law that make the offenses eligible for the death penalty, including intentional killing, intentional infliction of serious bodily injury, intentional participation in acts resulting in death, and intentional engagement in acts of violence, knowing that the acts created a grave risk of death.
The filing goes on to list five statutory aggravating factors applicable to the bombing, including the “heinous, cruel, and depraved manner of committing the offense.” It notes as well the “substantial planning and premeditation” and the “grave risk of deaths to other persons.” As one final factor, the government lists “vulnerable victim,” a reference to the eight-year-old Martin Richard, who died from the second bomb that day.
The government also lists “non-statutory” aggravating factors, beginning with Tsarnaev’s alleged “betrayal of the United States” after having been granted asylum and citizenship in this country. The filing also charges that Tsarnaev made statements that encouraged others to commit acts of terrorism and chose a site, near the race’s finish line, “especially susceptible to the act and effects of terrorism.” And, the government says, Tsarnaev has shown “a lack of remorse” for his actions.
Critics of Holder’s decision include absolutist opponents of the death penalty, who regret any impact the government may have in delaying what they hope is its eventual abolition in this country. In fact, only the federal government has executed only three people since reinstituting a federal death penalty in 1988, including Timothy McVeigh, the Oklahoma City federal building bomber. Seventeen other federal death sentences are currently on appeal, according to a compilation by the Federal Death Penalty Capital Resource Counsel.
In editorially opposing Holder’s decision, the Boston Globe noted the likelihood of an unnecessarily prolonged trial. It also noted that Massachusetts does not allow capital punishment and that polls in Boston indicate public opposition to the death penalty in this case.
Federal prosecutions are sometimes instituted in capital cases — improperly in my view — to get around states that do not allow the death penalty. But the state’s interest can reasonably be superseded in this case. The Boston bombing, like the Oklahoma City bombing, was no local crime, but an attack on the nation itself.
At trial, Tsarnaev and his lawyers will have the chance to make a case for a lesser sentence. He may cite his relative youth, his record in school, and the influence of his older brother, Tamerlan, who appears to have been the mastermind of the bombing. A jury might find that plea persuasive, just as a jury in Virginia spared the life of the teenaged Washington-area sniper Lee Boyd Malvo in 2003.
That result could represent both justice and mercy. But for now the government cannot be blamed for seeking the ultimate penalty for this ultimate crime.
Holder passed up the chance to appear personally before reporters and cameras to make the announcement. Instead, he issued a terse, two-sentence statement, timed to coincide with the government’s filing of the eight-page notice of intent to seek the death penalty in federal court in Boston. “The nature of the conduct at issue and the resultant harm compel this decision,” Holder said.
Holder may have decided to take the prosecutorial high road by passing up an opportunity to look tough in a high-profile criminal case. But it also possible that Holder, who is personally opposed to the death penalty, had no desire to be so visibly associated with the decision.
Like Holder, I am personally opposed to the death penalty. It is not a deterrent, or at most a weak one. It is still invoked and imposed in an arbitrary and discriminatory manner despite four decades of efforts to rationalize death penalty practices. There remains a greater-than-zero risk of a wrongful execution. And, as seen in last week’s botched execution in Ohio, the lethal injection procedure now regarded as the most humane way to put a convicted murderer to death can go wrong and leave the condemned to a ghoulishly slow and painful death.
With all those reservations, I cannot join in the criticisms being voiced in some quarters of the decision. The eight-page notice of intent lays out a compelling case for seeking the death penalty in this prosecution as long as federal law recognizes capital punishment as an option. As Walter Prince, a former federal prosecutor now practicing white-collar criminal defense in Boston, put it in a rhetorical question to a Wall Street Journal reporter: “If not this case, when?"
Tsarnaev, 19 years old at the time of the Patriot Day bombing last April, faces half a dozen death-eligible charges. Five interrelated charges, including use of a weapon of mass destruction causing death, stem from the three deaths from the bombing itself; the sixth is for the killing of Massachusetts Institute of Technology police officer Sean Collier during the attempted getaway.
The government’s notice of intent details thresholds listed in federal law that make the offenses eligible for the death penalty, including intentional killing, intentional infliction of serious bodily injury, intentional participation in acts resulting in death, and intentional engagement in acts of violence, knowing that the acts created a grave risk of death.
The filing goes on to list five statutory aggravating factors applicable to the bombing, including the “heinous, cruel, and depraved manner of committing the offense.” It notes as well the “substantial planning and premeditation” and the “grave risk of deaths to other persons.” As one final factor, the government lists “vulnerable victim,” a reference to the eight-year-old Martin Richard, who died from the second bomb that day.
The government also lists “non-statutory” aggravating factors, beginning with Tsarnaev’s alleged “betrayal of the United States” after having been granted asylum and citizenship in this country. The filing also charges that Tsarnaev made statements that encouraged others to commit acts of terrorism and chose a site, near the race’s finish line, “especially susceptible to the act and effects of terrorism.” And, the government says, Tsarnaev has shown “a lack of remorse” for his actions.
Critics of Holder’s decision include absolutist opponents of the death penalty, who regret any impact the government may have in delaying what they hope is its eventual abolition in this country. In fact, only the federal government has executed only three people since reinstituting a federal death penalty in 1988, including Timothy McVeigh, the Oklahoma City federal building bomber. Seventeen other federal death sentences are currently on appeal, according to a compilation by the Federal Death Penalty Capital Resource Counsel.
In editorially opposing Holder’s decision, the Boston Globe noted the likelihood of an unnecessarily prolonged trial. It also noted that Massachusetts does not allow capital punishment and that polls in Boston indicate public opposition to the death penalty in this case.
Federal prosecutions are sometimes instituted in capital cases — improperly in my view — to get around states that do not allow the death penalty. But the state’s interest can reasonably be superseded in this case. The Boston bombing, like the Oklahoma City bombing, was no local crime, but an attack on the nation itself.
At trial, Tsarnaev and his lawyers will have the chance to make a case for a lesser sentence. He may cite his relative youth, his record in school, and the influence of his older brother, Tamerlan, who appears to have been the mastermind of the bombing. A jury might find that plea persuasive, just as a jury in Virginia spared the life of the teenaged Washington-area sniper Lee Boyd Malvo in 2003.
That result could represent both justice and mercy. But for now the government cannot be blamed for seeking the ultimate penalty for this ultimate crime.
Sunday, January 26, 2014
No Legal Basis for NSA Telephome Records Program?
Congress moved with crisis-driven speed after 9/11 to enact a law, the USA Patriot Act, to give the government new powers to detect, apprehend, and prosecute would-be terrorists. Among its provisions, section 215 authorized the FBI to seek a court order for the production of “any tangible things (including books, records, papers, documents, and other items” if related to “an investigation to protect against international terrorism or clandestine intelligence activities.”
A few members of Congress along with some civil liberties groups raised concerns about the open-ended investigatory power and the relaxed standard for using the power. In all the debate at the time, however, no one warned that section 215 would allow the government to vacuum up the records of Americans’ telephone calls — numbers called, dates and times of calls — on an ongoing basis with no individualized suspicion whatsoever.
Belatedly, we now know thanks to the whistleblowing ex-government contractor Edward Snowden that the supersecret National Security Agency (NSA) has been doing exactly that for more than a decade. Snowden’s disclosures have touched off a raging debate over, among other issues, the legality of the telephone records program.
Much of the legal debate has focused on the constitutionality of the program, but opponents of the program run into a Supreme Court precedent, Smith v. Maryland (1979). In Smith, the Supreme Court upheld on a 5-3 vote the installation of a “pen register” at a telephone company to record the telephone numbers dialed from a drug suspect’s phone. “No search,” the majority held, because Smith was deemed to have voluntarily disclosed the information to the phone company.
In his opinion for the majority, Justice Harry A. Blackmun noted what he called “the limited capabilities” of the pen register. Surely, he and the other justices at that time would be astonished to learn that technology now allows the phone company to collect and turn over to the government not just Smith’s telephone records, but everybody’s — covering extended periods and on an ongoing basis.
Following Smith’s holding, the NSA’s telephone records program is no search either — and thus untouched by the Fourth Amendment’s prohibition against “unreasonable” searches. Despite the raging debate, only one of more than a dozen judges to consider the issue — Judge Richard Leon of the U.S. District Court in Washington, D.C. — has ruled that the program runs afoul of the Fourth Amendment.
An antecedent argument has drawn less attention: whether the Patriot Act’s section 215 authorizes the mass collection of so-called telephony metadata at all. And in a thorough report issued last week [Jan. 23], the newly established Privacy and Civil Liberties Oversight Board concluded that it does not.
Following the mantra of the Supreme Court’s strict statutory constructionists, the 3-2 majority on the bipartisan board followed section 215’s plain text and found four reasons why it does not authorize what the NSA is doing (see p. 10). First, the board notes, “the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection.” Second, records collected in bulk cannot be regarded as “relevant” to any investigation unless the word is redefined to be “circular” and “unlimited in scope.”
As a third objection, the board says the phone companies’ ongoing provision of call records to the government on a daily basis has no foundation in the statute. And, fourth, the statute authorizes only the FBI to obtain the records; the NSA is nowhere mentioned.
The three Democrats on the board — including a former federal appeals court judge, Patricia Wald — found unpersuasive the argument that Congress has sanctioned the program by reauthorizing section 215 twice after being informed of its operation. In separate statements, the two Republicans on the board — former Bush Justice Department officials Rachel Brand and Elisebeth Collins Cook — voted to continue the program despite what they called the “difficult” statutory issue. But they joined the majority in calling at least for some changes — notably, retaining phone records for three instead of five years and limiting somewhat the scope of searches of the call records.
The board split along partisan lines as well on the value of the program. The majority said it found no single instance in which the program made “a concrete difference in the outcome of an investigation” or “a direct contribution to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” Cook agreed the government had not demonstrated the value of the program, while Brand argued that the program was valuable because the telephone records were immediately available to investigators if needed.
That debate parallels the ongoing argument among experts on advocates about whether the NSA program could have prevented 9/11 if it had been in operation at the time. The best answer to that question appears to be that intelligence agencies would still have missed the clues and policymakers would have ignored the warnings anyway.
In defending the program, President Obama has minimized any risks to privacy: nobody is actually listening to those telephone calls, he stresses. The people he picked for the privacy board are not reassured. The former constitutional law teacher also bats away the Fourth Amendment concerns about the program. Apart from those policy questions, however, the privacy board makes a persuasive case that Congress never authorized this program at all.
A few members of Congress along with some civil liberties groups raised concerns about the open-ended investigatory power and the relaxed standard for using the power. In all the debate at the time, however, no one warned that section 215 would allow the government to vacuum up the records of Americans’ telephone calls — numbers called, dates and times of calls — on an ongoing basis with no individualized suspicion whatsoever.
Belatedly, we now know thanks to the whistleblowing ex-government contractor Edward Snowden that the supersecret National Security Agency (NSA) has been doing exactly that for more than a decade. Snowden’s disclosures have touched off a raging debate over, among other issues, the legality of the telephone records program.
Much of the legal debate has focused on the constitutionality of the program, but opponents of the program run into a Supreme Court precedent, Smith v. Maryland (1979). In Smith, the Supreme Court upheld on a 5-3 vote the installation of a “pen register” at a telephone company to record the telephone numbers dialed from a drug suspect’s phone. “No search,” the majority held, because Smith was deemed to have voluntarily disclosed the information to the phone company.
In his opinion for the majority, Justice Harry A. Blackmun noted what he called “the limited capabilities” of the pen register. Surely, he and the other justices at that time would be astonished to learn that technology now allows the phone company to collect and turn over to the government not just Smith’s telephone records, but everybody’s — covering extended periods and on an ongoing basis.
Following Smith’s holding, the NSA’s telephone records program is no search either — and thus untouched by the Fourth Amendment’s prohibition against “unreasonable” searches. Despite the raging debate, only one of more than a dozen judges to consider the issue — Judge Richard Leon of the U.S. District Court in Washington, D.C. — has ruled that the program runs afoul of the Fourth Amendment.
An antecedent argument has drawn less attention: whether the Patriot Act’s section 215 authorizes the mass collection of so-called telephony metadata at all. And in a thorough report issued last week [Jan. 23], the newly established Privacy and Civil Liberties Oversight Board concluded that it does not.
Following the mantra of the Supreme Court’s strict statutory constructionists, the 3-2 majority on the bipartisan board followed section 215’s plain text and found four reasons why it does not authorize what the NSA is doing (see p. 10). First, the board notes, “the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection.” Second, records collected in bulk cannot be regarded as “relevant” to any investigation unless the word is redefined to be “circular” and “unlimited in scope.”
As a third objection, the board says the phone companies’ ongoing provision of call records to the government on a daily basis has no foundation in the statute. And, fourth, the statute authorizes only the FBI to obtain the records; the NSA is nowhere mentioned.
The three Democrats on the board — including a former federal appeals court judge, Patricia Wald — found unpersuasive the argument that Congress has sanctioned the program by reauthorizing section 215 twice after being informed of its operation. In separate statements, the two Republicans on the board — former Bush Justice Department officials Rachel Brand and Elisebeth Collins Cook — voted to continue the program despite what they called the “difficult” statutory issue. But they joined the majority in calling at least for some changes — notably, retaining phone records for three instead of five years and limiting somewhat the scope of searches of the call records.
The board split along partisan lines as well on the value of the program. The majority said it found no single instance in which the program made “a concrete difference in the outcome of an investigation” or “a direct contribution to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” Cook agreed the government had not demonstrated the value of the program, while Brand argued that the program was valuable because the telephone records were immediately available to investigators if needed.
That debate parallels the ongoing argument among experts on advocates about whether the NSA program could have prevented 9/11 if it had been in operation at the time. The best answer to that question appears to be that intelligence agencies would still have missed the clues and policymakers would have ignored the warnings anyway.
In defending the program, President Obama has minimized any risks to privacy: nobody is actually listening to those telephone calls, he stresses. The people he picked for the privacy board are not reassured. The former constitutional law teacher also bats away the Fourth Amendment concerns about the program. Apart from those policy questions, however, the privacy board makes a persuasive case that Congress never authorized this program at all.
Sunday, January 19, 2014
Striking a Free-Speech Balance at Abortion Clinics
When John Roberts looks into a mirror, he sees the reflection of a chief justice with a solid record of supporting freedom of speech. If he dwells on the subject, he may even congratulate himself for his decision three years ago supporting the rights of hate-filled religious fundamentalists to spew anti-gay venom at the funeral of a fallen military service member.
Roberts may well have been recalling that decision as he sat during the hour-long arguments last week in the court’s latest free-speech case. In the new case, McCullen v. Coakley, self-styled anti-abortion “counselors” are challenging a Massachusetts law establishing a 35-foot “buffer zone” around abortion clinics.
The plaintiffs say the 2007 law prevents them from engaging in constitutionally protected speech in a public setting to try to dissuade women from having an abortion. The state counters that the law is needed to protect abortion clinics, their employees, and their patients from congestion, disruption, harassment, intimidation, and even potential violence.
Roberts, normally an active questioner from the bench, was uncustomarily silent for the entire hour of the oral argument in the Massachusetts case [Jan. 19]. But the consensus among the Supreme Court press corps and other Court watchers is that Roberts is likely to join his four conservative colleagues in striking down the Massachusetts law as going too far in limiting the free-speech rights of abortion opponents.
Those predictions may prove to be right. Eleanor McCullen, the earnest but soft-spoken 77-year-old grandmother chosen as the first named plaintiff, is an appealing candidate for First Amendment protections. And the state’s arguments for a buffer zone larger than the Supreme Court had allowed in its most recent similar case were somewhat shaky.
Roberts may have been keeping his thoughts to himself, however, to steer the court toward a compromise position that protects free-speech rights on one side and women’s rights to access to abortion on the other. That would be a sensible resolution of the case consistent with the court’s precedents that in this and other contexts recognize the need to draw lines that free speech may not cross.
In three earlier cases, the court has upheld buffer zones in abortion-clinic cases despite vigorous dissents from three conservatives: Scalia, Kennedy, and Thomas. In Madsen v. Women’s Health Center (1994), the court upheld a lower court injunction establishing a 36-foot buffer zone at an abortion clinic in Melbourne, Florida. Three years later, the court in Schenck v. Pro-Choice Network of Western New York (1997) upheld a lower court’s injunction creating 15-foot buffer zones around abortion clinics in Buffalo and Rochester. But the court in that case threw out part of the injunction imposing an eight-foot “floating buffer zone” protecting clinic employees and patients as they entered or left the facilities.
In the most recent case, Hill v. Colorado (2000), the court shifted its stance slightly by upholding a Colorado law that established an eight-foot buffer zone for abortion clinics across the board. Anti-abortion protesters were required to stay eight feet away from clinic employees or patients unless they agreed to listen. For the majority, Stevens reasoned that a generally applicable state law avoided the risk of uneven enforcement of buffer zones through court injunctions.
Chief Justice Rehnquist wrote the two earlier decisions and joined in the third; O’Connor was also in the majority in all three. But their successors — Roberts and Alito — came to the court with records of having opposed abortion rights before taking the bench.
Massachusetts tried the floating bubble approach upheld in Hill, but police said it was problematic to enforce. So the state legislature responded in 2007 by mandating the fixed, 35-foot buffer zone. In oral argument, the justices and the lawyers proved to have a poor sense of distance: Kagan wrongly suggested 35 feet was about the length of the courtroom (56 feet actually), while the government’s lawyer equated it with the distance of basketball’s three-point arc (23 feet, 9 inches, in the NBA).
Despite the confusion, Scalia and other conservatives were correct in stressing that the 35-foot buffer prevents the abortion opponents from any interaction with patients once inside the zone. By contrast, Michael Rienzi, the Catholic University law professor representing the plaintiffs, emphasized that the “floating bubble” or what he called the “no approach” requirement at least gives demonstrators a chance to converse if the patients agree.
For the state, assistant attorney general Jennifer Grace Miller said the 35-foot buffer zone was needed to prevent anti-abortion forces from blocking access to the clinics. But she embarrassingly said another rationale was to prevent shoving and shouting matches between abortion-rights advocates themselves and the anti-abortion forces.
The court’s precedents show, however, that speech-free zones are permissible in some circumstances. The court has upheld laws prohibiting electioneering within specified distances of polling places. The court itself is protected by a law that bars demonstrations on the plaza in front of the Supreme Court building. And in the military funeral case, Snyder v. Phelps (2011), Roberts suggested that laws creating buffer zones for such services might pass constitutional muster.
On the plaza after arguments, McCullen said it was “frustrating” for her to be prevented from trying to dissuade women from abortions. On the other side, however, are the unseen women already struggling with a painful decision who equally deserve effective protection of their constitutional rights.
Roberts may well have been recalling that decision as he sat during the hour-long arguments last week in the court’s latest free-speech case. In the new case, McCullen v. Coakley, self-styled anti-abortion “counselors” are challenging a Massachusetts law establishing a 35-foot “buffer zone” around abortion clinics.
The plaintiffs say the 2007 law prevents them from engaging in constitutionally protected speech in a public setting to try to dissuade women from having an abortion. The state counters that the law is needed to protect abortion clinics, their employees, and their patients from congestion, disruption, harassment, intimidation, and even potential violence.
Roberts, normally an active questioner from the bench, was uncustomarily silent for the entire hour of the oral argument in the Massachusetts case [Jan. 19]. But the consensus among the Supreme Court press corps and other Court watchers is that Roberts is likely to join his four conservative colleagues in striking down the Massachusetts law as going too far in limiting the free-speech rights of abortion opponents.
Those predictions may prove to be right. Eleanor McCullen, the earnest but soft-spoken 77-year-old grandmother chosen as the first named plaintiff, is an appealing candidate for First Amendment protections. And the state’s arguments for a buffer zone larger than the Supreme Court had allowed in its most recent similar case were somewhat shaky.
Roberts may have been keeping his thoughts to himself, however, to steer the court toward a compromise position that protects free-speech rights on one side and women’s rights to access to abortion on the other. That would be a sensible resolution of the case consistent with the court’s precedents that in this and other contexts recognize the need to draw lines that free speech may not cross.
In three earlier cases, the court has upheld buffer zones in abortion-clinic cases despite vigorous dissents from three conservatives: Scalia, Kennedy, and Thomas. In Madsen v. Women’s Health Center (1994), the court upheld a lower court injunction establishing a 36-foot buffer zone at an abortion clinic in Melbourne, Florida. Three years later, the court in Schenck v. Pro-Choice Network of Western New York (1997) upheld a lower court’s injunction creating 15-foot buffer zones around abortion clinics in Buffalo and Rochester. But the court in that case threw out part of the injunction imposing an eight-foot “floating buffer zone” protecting clinic employees and patients as they entered or left the facilities.
In the most recent case, Hill v. Colorado (2000), the court shifted its stance slightly by upholding a Colorado law that established an eight-foot buffer zone for abortion clinics across the board. Anti-abortion protesters were required to stay eight feet away from clinic employees or patients unless they agreed to listen. For the majority, Stevens reasoned that a generally applicable state law avoided the risk of uneven enforcement of buffer zones through court injunctions.
Chief Justice Rehnquist wrote the two earlier decisions and joined in the third; O’Connor was also in the majority in all three. But their successors — Roberts and Alito — came to the court with records of having opposed abortion rights before taking the bench.
Massachusetts tried the floating bubble approach upheld in Hill, but police said it was problematic to enforce. So the state legislature responded in 2007 by mandating the fixed, 35-foot buffer zone. In oral argument, the justices and the lawyers proved to have a poor sense of distance: Kagan wrongly suggested 35 feet was about the length of the courtroom (56 feet actually), while the government’s lawyer equated it with the distance of basketball’s three-point arc (23 feet, 9 inches, in the NBA).
Despite the confusion, Scalia and other conservatives were correct in stressing that the 35-foot buffer prevents the abortion opponents from any interaction with patients once inside the zone. By contrast, Michael Rienzi, the Catholic University law professor representing the plaintiffs, emphasized that the “floating bubble” or what he called the “no approach” requirement at least gives demonstrators a chance to converse if the patients agree.
For the state, assistant attorney general Jennifer Grace Miller said the 35-foot buffer zone was needed to prevent anti-abortion forces from blocking access to the clinics. But she embarrassingly said another rationale was to prevent shoving and shouting matches between abortion-rights advocates themselves and the anti-abortion forces.
The court’s precedents show, however, that speech-free zones are permissible in some circumstances. The court has upheld laws prohibiting electioneering within specified distances of polling places. The court itself is protected by a law that bars demonstrations on the plaza in front of the Supreme Court building. And in the military funeral case, Snyder v. Phelps (2011), Roberts suggested that laws creating buffer zones for such services might pass constitutional muster.
On the plaza after arguments, McCullen said it was “frustrating” for her to be prevented from trying to dissuade women from abortions. On the other side, however, are the unseen women already struggling with a painful decision who equally deserve effective protection of their constitutional rights.
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