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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, April 29, 2019

Various Bits

Recent article and the linked article (with video) of Obama giving Biden the Presidential Medal of Freedom both were interesting and suggests the charms of Biden. But, this doesn't suddenly make him good presidential timber. Charming isn't necessarily marriage material. Needs to be cheaper, but comfort and environmentally friendly? Nice idea for a shoe. Good to see Justice Souter is still chucking (on court of appeals panel upholding gun regulations).

ETA: Veep continues to be disappointing. Some appear to disagree but to me even when the action is there (like last Sunday), it lacks the same energy as the first five seasons. Doesn't "click" the same way. And, still don't buy Amy suddenly jumping to Jonah. No, it's not like -- as one person told me on Twitter -- Kellyanne (a lifetime conservative) joining the winner she previously (and probably still does) thought was a boob.

Rev. Joe: Prayer

I had some "Rev. Joe" posts (I am an ULC Church self-ordained minister after all) over the years.  Religion is one thing that has intrigued me over the years in its various complexities.  I came from a Christian background and that is the general religious sentiment of this country at least as a sort of a default.  Thus, Christianity is the religion that I'm most familiar with and the Bible (including non-canonical works related to it) the sacred book that I have most read about and studied. But, religion overall as well as related things such as morality and conscience interests me a lot. 

There are various requests to "keep us in your prayers." I saw this recently in relation to someone on Twitter who had a family member killed. We also have the whole "thoughts and prayers" bit for shootings.  For those who don't believe in God, and even those who do, that might seem empty. But, I think prayer shouldn't be seen in a simplistic matter. Moving past, to be clear, the need for not merely prayer but works (slip in quotation from James) here.  A set response should not just include a respectful comment sending the message that you are thinking of the people but also something tied to action.  The phrasing can go various ways but various politicians are using that sort of thing these days too.

The broad nature of "prayer" was seen in the recent court of appeals ruling that upheld blocking a secular invocation to Congress. It was not that "prayer" could not include secular statements: "(defining “prayer” as “an earnest request, desire, or petition put up to God, or  some  other  person  or  persons” (emphasis added)." This is seen in the various usages of "prayer," including in legal contexts.  Putting that aside, there is something special about "prayer" here that need not involve an appeal to God.

The "thoughts and prayers" line has a stale nature to it but works best if done in a honest and forceful way.  Actually taking the time to think about things, including people, can matter. Once you think about someone, it is harder to avoid them and their interests. It's quite possible, obviously, but it is harder. We try not to think about certain things for that very reason. Thoughts can result in actions. Same with "prayers" -- it "earnest request" and so forth is taken seriously.  Doing so to a deity has special implications, obviously, but again that is not the only way prayer can work.

Prayer is related to the sacred, which is an important factor in religion. The sacred is something given a certain special quality to it, often having some sort of taboo. So, a marriage ceremony can be sacred with or without a minister.  There is something to a special ceremony here as compared to just getting a license and doing it at City Hall in front of the relevant witnesses.  Prayer in this context is a form of respect for the person or persons died and their survivors. The request for prayers is a prayer in itself. It is a petition to give said respect and meaning.

Prayer has various purposes and often is a request for a specific thing, including having the ability to deal with some trauma.  It also can be, though this comes off as in bad taste to some, a request for certain actions or goods.  A common prayer is that someone is safe.  This is not merely a belief that God is listening and hopeful that said God will keep the person safe.  It is an individual emotional act and can be a sort of catharsis, addressing an a basic human need.  How one carries out this act is the thing, obviously, and I don't agree with the beliefs of many on let's say God's place in all of this.  God as an existing deity as such etc.

Nonetheless, the basic core thing involved is something I deeply respect and does seem valuable.  People can handle this in their own way such as via meditation or contemplation.  Prayer can factor in there. Again, prayer includes a request for action, which can and should be the case in this context.  A request to keep a person or people in your prayers factors in all of these things.  It need not be an empty cliche. 

SCOTUS Watch: Orders/Opinion Day

Justice Breyer's recent interview on C-SPAN gave the usual answers to televised hearings, the question not noting all the other courts that have them. This is a good article on the "shadow docket" phenomenon. Maybe, ask justices about that. Nothing really of note in orders and single opinion. Possible mooting of 2A case out of NY to hold briefing briefed here; without comment it was rejected with others. Let's see it rule change occurs.

And Also: Very good completion of the second season of The Orville with a nice cameo by an old friend. Good summary of the Mueller Report findings. Come on, people!

Sunday, April 28, 2019

Porn Again (It's my blog so I can belabor the point)

But why is freedom of the press and expression denied them? Are they to be barred from communicating in symbolisms important to them? When the Court today speaks of "social value," does it mean a "value" to the majority? Why is not a minority "value" cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the "written word" forbidden? If we were wise enough, we might know that communication may have greater therapeutical value than any sermon that those of the "normal" community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be "utterly without redeeming social importance"? "Redeeming" to whom? "Importance" to whom?
This is a portion of Justice Douglas' dissent that includes a response to the majority opinion (written by Brennan) upholding a conviction involving fetish magazines.  After over fifteen years of lots of split decisions that involved them repeatedly deciding if specific works were obscene, Brennan basically decided in his Paris Adult Theatre v. Slaton dissent that the laws were just too vague. Even then, he didn't want to simply say anything goes since history and concern for minors and unwilling viewers (stretched out to mean "pandering" as I say in the post covering that excerpt). Brennan did, after concurring separately earlier, agree with the Stanley v. Georgia privacy opinion, so vagueness was specifically problematic here. As I said earlier, no rule was going to be crystal clear.  Some shades of gray. So, e.g., the law could protect the privacy of the home more than glancing views of "Fuck the Draft" on a jacket in a courthouse (Cohen v. California).

The dissent rejected the somewhat modified (though he questioned how much it mattered) test that allowed more material to be declared obscene. For instance, the old test required "utterly" no value, now it was "no serious" value. Whatever that means, some degree of borderline value communication would be barred.  A skim didn't seem to suggest he was that upset the new test required local as compared to national standards for what is prurient and patently offensive though fellow dissenter is said to have found that absurd (we have one First Amendment).

And, Brennan does reference privacy cases protecting an individual's right to decide moral questions but mostly rests on worrying about some valuable materials on First Amendment grounds being blocked.  As Justice Douglas noted in that dissent, a basic question here is what is it about these sorts of low brow sexual materials that make them not valuable in the right way?  Some find rape fantasies disgusting; others enjoy them with or without talk about how they provide a sort of safe release akin to sports being an alternative to war. This sort of "hard core" (penetration) pornography might have been blocked, but why?  As I said five years ago, it is appreciated that Justice Douglas took the time to give such stuff their due, so to speak, though the majority did nicely give us a reading list.

I have a book on a few obscenity cases in the 1960s on the "to read" pile and that case is referenced as an example of what "prurient" material with little value might be in comparison to let's say Tropic of Cancer, a serious work of literature. The publisher did push for more explicit material, and as to line drawing, it is a less blatant case on some level (e.g., the knowledge to realize it is at best borderline material) but on a basic point is so what?   Not all stories have deep meaning, and even if it is mainly for some sort of release, why is not that the right sort of "value"?  There is some concern that pornography is harmful to women though women do enjoy it in various respects, especially romance novels that can get pretty hot and heavy.  But, other than line drawing problems (vagueness is an issue), the ultimate problem is why is obscenity an exception?  We know why the likes of libel (wrongful information that is generally harmful both emotionally and often financially and otherwise) or true threats or perjury is.  Basically, it amounts to not the right sort of sexual speech.

[ETA: Justice Clark put forth an extended argument on just what is wrong with obscenity in his dissenting opinion in the Fanny Hill case.  There was some evidence that the "exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person."  "Antisocial" here is rather open-ended.  Why is this different from some hateful or potentially dangerous political thoughts?  Only so much, especially if you look at the sort of thing that was once banned.

Or, some connection with sex crimes and prostitution (sure).  As compared to other material, including non-sexual violent themed material and non-obscene sexual related content? As Douglas says in his concurrence, "However florid its cover, whatever the pitch of its advertisements, the contents remain the same."  So, the whole pandering concern also seems dubious to me.  I can see how it matters if "appeals to the prurient interest" is a factor here. But, that seems like a thought crime anyhow. Again, a verbal attack (threat) or something is quite different.  As Stanley v. Georgia noted, even if speech might in some fashion lead to conduct, you address the conduct by means other than banning the speech.]

It is telling that Brennan while referencing history cites laws against blasphemy (found unconstitutional years before as blocking speech related to ideas) and profanity (generally protected in the context in question; face to face, "fighting words" is an exception, but that isn't mere profanity; some profanity could be banned, but even there -- such as the "Seven Dirty Words" Case regarding a radio broadcast -- Brennan dissented in a key case or repeatedly found the restriction vague).  Obscenity is a form of blasphemy, a violation of good morals in the area of sexual expression.  But, granting public morality can be a thing, the First Amendment draws a line here.  As does privacy rights in general, which can involve use of sexual materials in various respects.

The material often is going to be badly made (what else is new?) but that is not grounds to ban it. Ditto it not having that much high brow value. A lot of political speech doesn't. Just check out Twitter daily.  And, like other types of expression, some better material very well might be nice (fwiw the voice work in that video is pretty good).  Again, so what?  Other than special cases involving children (laws against "crush videos" might be comparable though we can target the animal abuse itself) and unwilling viewers (and modern blocking technology etc. makes this much less an issue; worrying about people saying "fuck" on television is dubious at this point) and perhaps concerns about allowing sex for money in general, why are obscenity laws still a thing?  Consensual sexual material should be protected.  

But, prosecutions are still possible as seen as split judgments in the last decade or so regarding sex toys. So silly.


* Defining "public morality" in a way separate from harm to third parties specifically can be tricky. Justice Brennan noted:
And much legislation -- compulsory public education laws, civil rights laws, even the abolition of capital punishment -- is grounded, at least in part, on a concern with the morality of the community. But the State's interest in regulating morality by suppressing obscenity, while often asserted, remains essentially unfocused and ill-defined. And, since the attempt to curtail unprotected speech necessarily spills over into the area of protected speech, the effort to serve this speculative interest through the suppression of obscene material must tread heavily on rights protected by the First Amendment.
I'm not sure if those things couldn't be justified in some other fashion such as training people to be citizens (including members of juries, militia and voters) being a reason for education and civil rights laws being required to uphold constitutional rights and so forth.  "Morality" has a broad meaning.

Saturday, April 27, 2019

"In Historic Ruling, Kansas Supreme Court Declares Abortion Rights ‘Fundamental’"

[This is done while abortion rights are threatened nationally especially since that was a motivating factor for some in supporting Trump.  This recently corrupted international relations by forcing watering down a measure to deal with war crimes because the resolution was deemed too pro-abortion.]
“Section 1 of the Kansas Constitution Bill of Rights provides: ‘All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,'” the opinion states. “We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, ‘Yes.’”
As we wait to see how the Supreme Court post-Kennedy will handle things, the news in the states (beyond New York) isn't all bad.  As noted here with links to other state opinions (put at 10 in the first link), multiple states have held their state constitutions protect rights that include abortion choices.

As here, the states at times go beyond the federal Constitution. For instance, some have held the right to choose covers not discriminating in state funding.  This has not been the policy, even when necessary for women's health, in the U.S. Supreme Court.  Maher v. Roe started the ball running there and had this passage:
Roe did not declare an unqualified "constitutional right to an abortion," as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.
That's a cheap shot at any rate. Free speech rights aren't "unqualified" either.  "Seemed to think" is one of those red flags; no they didn't.  You can read the lower court opinion here.  Notable here is the use of a form of "undue burden," which later became the rule, one weaker than strict scrutiny.  Why wouldn't a Medicaid program that selectively denies coverage for abortions (again, even if a pregnancy more than usual even negatively burdens the pregnant person's health) be "unduly burdensome interference"?  In First Amendment contexts, this would come off as an unconstitutional condition and the dissent there said so.

Three justices in that opinion also signed on to Roe v. Wade, but even Justice Blackmun at least once used "undue burden," which especially for a term applying substantive due process is not necessarily a bad thing:
"We do not accept appellees' assertion that the Supreme Judicial Court of Massachusetts inevitably will interpret the statute so as to create a "parental veto," require the superior court to act other than in the best interests of the minor, or impose undue burdens upon a minor capable of giving an informed consent."
And, again pre-Casey, Justice Stevens repeatedly spoke of "undue" interference and the like as well as quoting the lower court referencing "undue burden" in a parental consent case.  Justice O'Connor (with cites) had some grounds to appeal to an "undue burden" standard though using it to weaken the test.  When it eventually became the rule of the Court, she used a stronger version, if one that still invited a lot more regulation.  Such was the basic goal here and will affect application of the test, even if in theory it need not be that way. The Kansas Supreme Court and others favored the old strict scrutiny rule.

The Slate article on today's ruling (the court website shows that it also has video) references a 1990s Montana ruling that is also worth a reference. First, I saw one scholar on Twitter reference the Supreme Court opinion (6-3) as important as a case where abortion restrictions were upheld. It blocked physician assistants (after allowing them for years) under the direct control of physicians from performing abortions, which ultimately affected one person here. Unlike the U.S. Supreme Court, the Montana Supreme Court found bad faith in the passage of the law, showing it selectively targeted abortion rights. Not only did the opinion provide a strong defense of privacy under the state constitution (it also protected same sex rights before Lawrence v. Texas), but warned against sectarian restrictions in that field.* [Case is interesting enough to expand a bit.]

The Kansas Supreme Court here in a 6-1 ruling relied on a state constitutional right to "natural rights" to note that this was more than a substantive due process case.  Roe v. Wade was though it also was seen in time as an equal protection matter with other things arising at times too. Early on, there was some reliance on the Ninth Amendment and Planned Parenthood v. Casey also referenced that to remind that the "liberty" protected by the Constitution is not merely reliant on explicit enumerated rights such as free speech. A look at the background of the Ninth Amendment would suggest there was some natural law (human rights based on their nature, referenced by the Declaration of Independence) implications there.  But, in some state constitutions it's more explicit.

The dissent had some an anti-abortion conservative tone while one judge wanted to use the undue burden test.  Like the Montana Supreme Court, the majority here (per curiam) fleshed out the theory and history behind the rights at issue here. One good touch is to reject an original understanding argument by noting that 19th Century abortion provisions were not carefully crafted and anyway women were not treated as equal citizens.  But, the opinion did not avoid history. Like many opinions with a liberal result, there is a lot of history here that argues that a correct respect of original understanding does not merely bring with it ideological conservative results. The corrective involving women here -- and even today women don't have an equal role in public life -- shows that it could be done while factoring in other things including lessons learned.

Note the Montana constitutional provisions considered in the case here was a result of a post-Griswold state constitution. State constitutions are ultimately more open to amendment or even replacement than the federal version.  It is unclear that the Founders really thought the Constitution would stand for two hundred plus years, with somewhat limited amendment, but overall it being so much harder to change factors in here. This and their more limited reach (specific states) makes judicial review somewhat less controversial in that context.  Prudentially, I am somewhat sympathetic with using "undue burden" as the national floor though agree it has been applied in a problematic way.  As Justice Stevens noted at the time, the results of usage of any test would only be seen in practice.

(As long as there are no absolutes, and it will not be here, there will be some balancing. Part of the problem is a matter of what will be allowed there as "compelling."  Or, the full nature of the right in general. Selectively funding Medicaid here is a blatant case, which fell under the old regime, where a sectarian promotion of one view of "life" led to serious burdens on the rights in question.  Merely using "strict scrutiny," therefore will not solve everything.) 

The protection of abortion rights in various states like this makes me opposed to total horror predictions on the reach of Roberts Court treatment of abortion rights.  I do not foresee Congress passing a national law that across the board burdens abortion rights, superseding these protections (at issue here was a restriction of a second trimester method used in most cases). But, it will burden women in certain states, especially as applied in certain areas of regulations. We already saw the Supreme Court make it harder for even liberal states to regulate "crisis pregnancy centers" on shoddy First Amendment grounds. And, like in Hawaii in the 1990s regarding same sex marriage, wins are often easier to defeat in state battles.

You take the wins you can though.


The SCOTUS dissent was not part of the Casey plurality -- Stevens dissented with new justices RBG and Breyer. The majority rejected concerns of the law being not neutral, noting long time requirements that a physician perform abortions. But, as Blackmun noted separately in Casey regarding fulfilling informed consent requirements, that can be taken too far. And, long time practice here was to allow assistants under supervision to perform abortions; after the new law, they still could perform births.
Although this is not apparent on the face of the statute, the parties agree that because Cahill is the only physician assistant who performs abortions in the State of Montana, she is the only person affected by the ban. Furthermore, the legislative hearings preceding the enactment of the statute contain numerous references to Cahill by name, and the injunction against enforcement of this provision of the statute pending the appeal applies only to Cahill.
As Stevens noted, taking everything into consideration, this looked like a TRAP (targeted regulations of abortion providers) law. This is particularly problematic in a place like Montana, where you have isolated patients that would benefit from such an assistant. The person I referenced on Twitter noted that such a requirement also would prevent more private usage of abortion pills. Likewise, limits on telemedicine. Such methods can help lessen the problems of waiting periods and so forth. 

The state court opinion's use of stricter scrutiny gave less leeway for this sort of thing and more firmly opposed selectively targeting abortion, including for alleged neutral medical reasons. Strict scrutiny was opposed by some justices since it seemed like the justices had to be a sort of medical board, examining the soundness of various medical regulations.  But, as is the case for free exercise of religion, general laws should be required here. In part quoting Dworkin's Life's Dominion and other works, the state opinion here shows how there is an overlap here, personal conscientious beliefs at issue. This was referenced in Casey, but not to this breadth.

And, the state opinion emphasizes this. Yes, the state is allowed to regulate medicine, but it must be done in a neutral way, not a way that selectively singles out matters left to personal choice. The state opinion (so much a concurrence did not sign on to all of it) was forceful here:
Worse, when, as in the case at bar, the legislature thrusts itself into this protected zone of individual privacy under the guide of protecting the patient's health, but, in reality, does so because of prevailing political ideology and the unrelenting pressure from individuals and organizations promoting their own beliefs and values, then the state's infringement of personal autonomy is not only constitutionally impermissible, it is, as well, intellectually and morally indefensible.
The Supreme Court even under the new regime drew a line in the sand there a few years ago. It will remain to be seen what the new post-Kennedy Court will do. Again, the state ruling from 1999 had it right:
legal standards for medical practice and procedure cannot be based on political ideology, but, rather, must be grounded in the methods and procedures of science and in the collective professional judgment, knowledge and experience of the medical community acting through the states' medical examining and licensing authorities.
 This might be a bit much but the sentiment is right. 

Friday, April 26, 2019

"Majority of Americans oppose impeaching Trump, though most say he lied to U.S. public"

When people opine about the current conventional wisdom (Newsweek has a feature ... at least back when I read news magazines), it often amounts to rough guesswork. Sometimes, there is some reference to polls, but even there, we get snapshots that only tell us so much.  But, a recent Washington Post poll with the subject tagline is of some passing interest.

I'm not sure how we can judge things at this point, especially since many people (including myself -- the darn thing is hundreds of pages long; plan to wait to a printed volume is available in the library) have not read the report and/or only have a limited sense of what is inside it.  Time seems particularly relative during the Trump years, but the darn thing was released to the public less than a month ago.  Another factor is the makeup of the sample -- over a third are self-labelled "independent" (often leaning conservative) while a shade under 30% are labelled Democrat.

If anything, this might make the results on a certain level more impressive. 37% (40% would be a safe round-off) still accept beginning impeachment proceeds, which means (since probably a few of the Democrats are wary) at least 10% who aren't "Democrats" (self-labelled, not scare quotes) still support it.  I think that is a significant number at this stage. Given the negative findings (doesn't clear, lying, obstruction; not unfair by a large margin if with a major "no opinion" portion there), it is hard to see there is much of a problem with merely starting proceedings.

Preliminaries will take months, including hearings Democrats already are on record supporting. Plus, hearings are the bare minimum they are COMPELLED to do to be credible here.  The overlap to me is clear. Still, "impeachment" proceedings matter. They are not merely run of the mill hearings that will receive limited attention.  It is a constitutional line that might even matter in the courts when subpoenas are challenged.  The poll is focused on a limited thing as well; impeachment as Dahlia Lithwick in a pre-release article and others noted could cover a helluva more ground.  And, it is a statement of public principle and institutional action, one that the Republicans also will be forced to vote on. Overall, it can be seen as matter of "high alert" that is somewhat hard to quantify but matters. If Trump's own people, per the Report, said "no" to him, would impeachment really serve no practical value long term?  I'm not so cynical to say "nope."

It is hard to tell how soft these numbers. But, if leadership is going to be all negative about everything, surely the opposition will grow.  At some point, and at times I'm a bit disdainful at the "they are all pathetic" sentiment of some, this gets nauseating. Lead, don't follow.  BTW, it is not surprising a majority says the Mueller Report doesn't change their opinion of the Administration.  It largely clarifies what people already knew and those who denied the truth weren't going to be convinced too much by a group their side repeatedly tarred.  The 23% number that said it made them view them worse matters though.  It's a significant push. 

This result can be spun to be another "Democrats in Disarray" bit and the I saw repeatedly criticism of Democrats for not moving fast enough and being hesitant on impeachment. After all, they knew it would come up; the basics of the release is not really a shock.  But, at some point, that's one-sided. What about the Republicans? I guess we basically assume nothing from them so their actions (other than a few unpleased noises) are granted.

And, it is a general wrong-minded one sided view.  We can't impeach! It will divide us and unite the Trumpites!  We heard that about voting against Gorsuch and Kavanaugh, but don't think that went badly.  There was even a report that the latter energized Democrats and might have pushed the needle a bit among Republican women.  It also provided a response to norm violation, put the party on record in a matter of principle, wasn't a "fu" to the base and avoided the Democrats (even a few here will do it) in effect "owning" those guys. The "what is the point, they will be confirmed anyway" talk was put off as realism but really was misguided. Patronizing cynicism is at times a dubious game.

We are at a moment of crisis here and a formal start of impeachment proceedings is both the right and practical thing to do.  Back in the day, I actually thought Clinton deserved to be investigated for what he was eventually impeached for though opposed removed. In hindsight, it does seem trivial, and not a national wrong meriting impeachment. At the time, it did seem wrong enough and the strong opposition to even admitting that ("just a bj") bothered me.  I wanted at least a majority to vote on one count, at least to symbolically show he was wrong.

This might have been naive or whatever, but this is much much worse. It definitely warrants impeachment and the opposition from the right side is mainly prudential.  He won't be removed, so what value will it be; it might even be dangerous to defeating him.  I find that defeatist.  I still retain a bit of my idealism though my faith in the Constitution isn't quite "whole" ala Barbara Jordan. But, it is enough to support starting impeachment hearings. A sane process would toss in some other people who would be removed and denied a chance to haunt us decades later ala Attorney General Barr in another federal office. 

(A threat of impeachment of a Cabinet officer very well might be a sound idea. I don't see it happening, but it very well might go down fairly easily.)

Start the process!

Thursday, April 25, 2019

"The Perfect Candidate Who’s Totally Ill-Suited to the Times" (Not Really)

And Also: I used to have a photo on the book panel for "uneasy peace" that discussed the improvement of cities in the last couple decades. Charged by Emily Bazelon (using two true life stories as frames of the criminal justice system and room to improve it) is also a good read. Her book on school bullying was good as well as her other writings and appearances.

The TPM editor entitled comments on Joe Biden's announcement thusly but it's an oxymoron. Being a man of the past (concerns can be put in context, but the piece overcorrects, adding to its heart v. mind nature) is a core problem. Add his age, people being pissed off about certain things (like the sort of bias where media saying he's the one who really went after Trump, after Gillibrand announced outside Trump Tower and called him a "coward" and multiple candidates say he should be impeached) and some great competition.  And, past failed campaigns suggesting his problems.

[More stuff: media talk about he is "the" grown-up in the race and how Elizabeth Warren owes her position to Obama (whose appointment of her was a major step in her career but reflects his respect of her long experience) and Biden (who Warren strongly opposed in the past regarding his role in the bankruptcy bill alone); otherwise, she would just be a professor.  This sort of thing must at least in part be a result of Biden's people spreading talking points. It also underlines how upsetting, and I'm not even a woman here, these takes are.  He's not "perfect" and in the process you are diminishing other candidates.]

If anything, aside from the lack of gravitas, maybe a guy like O'Rourke can be seen as a "perfect" candidate without being really ideal. He doesn't have Biden's baggage, avoids the racism and sexism (though maybe advances it) problems of a Warren/Harris or Booker/Castro, and comes off as a uniter. Biden brings Obama nostalgia, but again, with baggage, and it isn't 2008 or 2016.  I think the uniting talk of Obama that received some criticism from liberals as naive fit the times there as well as the competition.

There was more room for optimism there and running against McCain required some of that sort of "we aren't republicans, we aren't federalists" talk too. McCain himself was labeled a "maverick."  Romney governed Massachusetts. Anyway, it was dying down by then, and Obama was an incumbent simply defending his ground.  Like Sanders winning the primary in 2016, you also have to look at the times there too. The uniting sentiment here (to me, the message is that Trump, not Trumpism, is the problem, but Republicans went all in; they are Trump now)  is a harder sell.

It also is a BAD sell.  We need to move on. My opposition is in part based on worrying he would actually win (that plus him taking oxygen from others and the media giving him special favors is why I opposed him even running).  We need to move on from what Biden represents. This is not about badmouthing the guy as horrible.  But, the fact you sort of like someone is not grounds to marry them.  How would someone totally ill-suited to the times actually be a good President ala that article?  Isn't a fit for the time necessary there?  The fact certain Republicans like the guy is pretty telling there. Biden is the sort that will go out of his way to compliment the "loyal opposition" and that rightly turns people off.

Don't know when the campaign will start in earnest though last time seemed to suggest it was sometime in the summer or fall before the first primaries and caucuses. So, we aren't there yet, I guess.  But, I do worry and the editor's comments show how there is some serious Biden sentiment here.  Do think at some point it matters who runs and on that front do worry about the full bore Warren.  Putting aside that I think her skill at policy makes the Senate the ideal place for her, to me the general election candidate has to be less left leaning. The level of love by some on the left there (though someone like Jennifer Rubin, an actual Never Trump type, voiced some respect) is telling.

But, there needs to be a happy medium there. Someone like Kamala Harris or as noted Beto O'Rourke (though I think him weak as to experience and at times sentiment).  Someone like Amy K. is a longshot but seems like someone who might sneak in if everything went right as a sort of compromise candidate. She's younger, a woman* and has less Biden baggage.  Baggage that can be a real threat as a nominee.


* Yes, I want a woman candidate, thinking it's damn time we follow the likes of loads of other countries and have a woman leader.  Imagine the hard feelings if Biden, who the women pointing out him having a problem are already made out to be imagining things, is the nominee. AGAIN, the woman candidate is supposed to step aside (or is corruptly beaten by or apparently "stole" things from) for an old white guy.

We are already sanctimoniously (when some notable portion of them are likely to need to be pushed in fact to support another nominee) told we have to be loyal if Sanders is the nominee.  No one that I can see is ready to refuse to support a Sanders leading the ticket. They do think it a horrid idea.  That happens though.  Not being Trump, we will be stuck with it and have no good reason not to go along. Let's not test it.

GLBT Civil Right Cases Grant Process

And Also: A question was posed in recent town halls about convicted inmates voting in prison, perhaps originally because Sanders' Vermont is one of three places (Maine and Puerto Rico) that allow it here. The phrasing ("even the Boston Marathon bomber") was a bit asinine, but it is a serious question writ large, especially given the breadth of felony disenfranchisement. Plus, as shown by a link here, foreign practice is rather welcoming, especially for some inmates. 

William Baude has written about the "shadow docket" on the Supreme Court, including their decision to summarily decide certain types of cases by per curiam and handling of stays. It has been long argued that "merits" cases (that receive full argument and so forth) aren't treated in a totally aboveboard matter as is.  The opinions, e.g., often are compromises and/or ideological affairs that are not fully honest about what they are doing. Orders are even more thinly transparent.  Many, like last night's execution matter, simply refuse to take the case or reject what is requested. At most, we get a brief statement.*

Some accounts provide a peak behind the scenes. Justice Breyer's dissent to a recent order rejecting a stay to an execution (covered on this blog) was a rare case of the justices themselves doing so.  Justice Thomas in one dissent from denial complained the justices weren't taking seriously Second Amendment cases.  He laid it on thick, but going on for about a decade (except in a narrow instance) without doing so (until Kennedy left the Court) is telling.  SCOTUSBlog also has a "relist" feature that looks at cases held back for multiple conferences.  These cases seem to interest one or more justices but for some reason a final decision is not made.

The transgender and sexual orientation civil rights cases just taken (referenced earlier in the week) was "relisted" ten times.  Or, as Linda Greenhouse noted in a column more optimistic than a couple liberal court watchers (cited): "The court had the three petitions under active review beginning in early January, and the cases were taken up 11 times at the justices’ weekly private conference."  Noting one of the cert grants was done back in May 2018, one law professor cried foul at the delay.

But, the final grant was done without comment. This as Greenhouse convincingly noted suggests negotiation.  Citing Justice Souter's move to lower the temperature in the question presented in the Casey abortion case, it also to her seems promising.  Up to a point, I would tend to agree with her.  I think it appropriate for more clarity in the "shadow docket" in various instances, hints and selective usage of per curiams to me seems a bit shady.  Also, at least in death penalty cases, and probably certain other very important matters, more clarity should be given to orders. Ditto "DIGs." Still, there is room for some behind the scenes negotiation, including for prudential reasons impolitic to say aloud.  Yes, courts are political actors too.

Greenhouse argues the energy was spent on the trans case and again what is public (the tip of the iceberg) can be used to make reasonable hypothesizes on what was done behind the scenes.  She compares the challenger's requested questions and the actual questions presented:
“1. Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.

“2. Whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employee’s sex rather than their gender identity.”

And here is the single question that the justices have chosen to answer instead:

“Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”
Price Waterhouse turned on sexual stereotyping, there a woman claimed that she was deemed not to be feminine enough.  There is reason to be somewhat hopeful Roberts or Kavanaugh (those who despise him will at times be driven to hope for his vote) would apply that to transgender people, at least in some cases. The key difference here is the absence of "gender identity," probably a more open category.  Note even the reference to the case originally was tied to "gender identity" and "sex-specific policies," now changed to "sex stereotyping," full stop.

The sexual orientation questions were left unchanged:

“Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of … sex’ within the meaning of Title VII. …” The Altitude Express petition’s question is only slightly different: “Whether the prohibition in Title VII of the Civil Rights Act of 1964 … against employment discrimination ‘because of … sex’ encompasses discrimination based on an individual’s sexual orientation.”
[two cases]  This suggests the power of the justices to frame the questions they decide (you know, like umpires do) and not just rely on what is provided by the litigants.  The census question case, e.g., was expanded to cover more ground, apparently to settle the issue before the government has to start the 2020 census procedure.  A "privileges or immunities" question that only Justice Thomas seemed to care about was included in the incorporation of the Second Amendment case.  OTOH, when the Supreme Court (5-4) upheld (on a facial challenge; as applied challenges left open) a federal abortion procedure ban, the question of its legitimacy under the Commerce Clause was not covered. Scalia/Thomas noted this in a concurrence, avoiding a need to face up to their federalist principles.

Time will tell how right Greenhouse is, but it was an insightful piece.


* In my discussion of last night's execution, I referenced briefing done by the inmate's lawyers. It is amazing really how much "last minute" briefing in done on both sides here.  The docket number provided even for the stream of rejected grants provides a means to look into the claims made. For instance, the Supreme Court journalist Kimberly Robinson -- a good Twitter follow -- at times summarizes the cases not granted.

Wednesday, April 24, 2019

John William King Executed

And Also:  Fifty pages of opinions -- This Supreme Court favors short opinions -- divided by an ideological 5-4 vote with strong dissents (each liberal had their own with some agreement among them on core points; Roberts for majority, Thomas concurred) suggests the importance given to arbitration matters like handed down today. More here. Case where membership matters.
The details were gruesome: using a logging chain, the three killers had tied [James] Byrd’s ankles to the bumper of the pick-up and dragged him along Huff Creek Road for more than three miles, leaving a trail of blood and clothes along the roadway. Byrd’s severed head, neck and arm fell in a driveway near a culvert. Experts later testified that he would have still been alive when his body was ripped apart.
When examining the details of the people scheduled to die this year, I have repeatedly found some issue. For instance, the person has been on death row for like three decades. Serious chance of problems with a lethal injection protocol. Some credible due process concern (King himself made some.) And, even disputes over the religious officiant to allow in the death chamber.

This might be more of a pure against the death penalty matter.*  Other gruesome deaths don't result in execution.  A select few do.  Plus, even here, a few close relatives are against it.  "What about the victims" during delays etc. are not about those victims though.  Finally, if you allow the death penalty, problem cases will arise.  Put aside the basic principle that the state executing people is wrong.  Even here, two were sentenced to die (one executed in 2011), one deemed worthy of life imprisonment for taking a lesser part in the proceedings. And, in his early 60s, he will be eligible for parole. Would over thirty years in prison be wrong even for King? He has been on death row for about twenty years now.

[I wrote the rest of this before the Supreme Court, without comment, refused a stay, King then -- without the same extended drama of recent times  -- executed.  Looked up the briefing (note the numbers on the order page and the"docket search" tab), it actually was close. The Texas court below split 5-4 on denying the say, a key issue the proper application of a recent case. There was also some concern about seriously addressing the innocence claim.  Basically, the dissent thought discretion was the better part of valor, even if King eventually lost.

That's troubling -- an execution shouldn't go on by a narrow vote like that.  And, I think some justice should have flagged the issue, again since it isn't trivial. I will leave the rest unedited, including the footnote, since it is informative  Plus, I'm not sure how strong the bottom line claim is.  Still, bit more open to the idea there was a due process problem here too.]

Pairing him up with the victim of a gay hate crime (though one account argued it was not), the federal government eventually passed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. The law provided money and resources to help states investigate and prosecute hate crimes.  But, also a means to federally prosecute. A lower court held -- in a case involving a racial hate crime -- this was acceptable under the Thirteenth Amendment.  National origin and even religion (at least Jews and Muslims) have been understood to be originally seen as "racial" in origin. A federalist challenge, at least these days, might be stronger without a "federal hook" in cases of  gender, sexual orientation, gender identity, or disability.

It looks like Congress used the Commerce Clause to defend that aspect of the statute.  The main argument for hate crimes is that the crimes are as much against a group as an individual.  A person who is gay, e.g., has reason to fear specifically for that reason, not merely as an individual.  Line drawing and controversy makes me wary about these things.  They seem best as a means to protect a community and provide additional penalties for lesser crimes.  The crime here is so horrible that racism appears to have been involved does not really add much to things.  With or without the legislation, two people were sentenced to die, one to life.

The handing out of the death penalty for the murder of a black man by a white man is fairly atypical though the horrible nature of this crime is significant.  As noted, the crime took place in 1998, so it has been about twenty years.  There have been more blatant cases of people spending an extended time in prison. Not seeing a concern for the lethal injection protocol.  Again, the bottom line is that the death penalty is not good policy and in practice it has deep constitutional problems.  Even in this case.


I saw on Twitter (again a helpful resource to get updates) there is a claim that too much was granted at trial of his criminality (trying to fit things into a Supreme Court case on the matter). This would makes sense since the news articles highlight that King never admitted guilt.  Of course, there are various due process claims made.  There might be something significant. But, I think this -- more than most -- is a "pure" death penalty case. 

Two Religion Related Tidbits

A couple somewhat related subjects (bit of a reach). First, a lesbian has heard the call of her faith, but her sect (shades of Pauli Murray [women] when she first studied for the priesthood) isn't supporting her yet. Good West Wing excerpt. Meanwhile, "The UN has backed a resolution on combating rape in conflict but excluded references in the text to sexual and reproductive health, after vehement opposition from the US." Conservative Christian b.s. polluting international human rights law. The "U.S." part is nauseating. In our names.

Monday, April 22, 2019

SCOTUS Watch: Order List

A significant week at SCOTUS starts off with grants regarding applying federal civil rights cases guarding against sex discrimination to sexual orientation and transgender claims. Of course, we aren't told why they hung on to the cases so long. Ultimately, this will be decided by control of the federal government; short term, election year will have some big cases. The other grants do not appear to be as significant. It might be notable that the DOJ opposed cert. in the immigration case. Order Day again is interesting.

ETA: Case heard last week was "DIGGED" for some reason (never tell us why), talk of the Trump Court ready to uphold the census question and maybe help businesses in a FOIA case I referenced back last summer. Blood draw cases heard today too.

Saturday, April 20, 2019

DC Circuit: House Can Exclude Secular Invocations

Other than noting trivia question (the "marijuana guy" after Bork was defeated -- happy 420 -- is only 72; he was on the panel), what stands out is the gratuitousness here. As noted in the opinion, "Conroy [House Chaplain] has clarified that the House interprets its rules to require a religious prayer." So, a secular invocation was refused. Gratuitous, even if (it is not on all fours probably) would be upheld per current doctrine. Many local secular invocations have occurred, respecting conscientious diversity. So, this is pretty avoidable.

Friday, April 19, 2019

Happy Passover & Easter

Passover and Easter Weekend are occurring. The first has a specific Jewish identity quality while Easter perhaps has more of a mixed one. For those who fully honor the religious aspects, familiarity to the rest of us probably clouds the fact the basic concept is rather pagan in nature. A sacrifice of a "son" of a deity. For others, it all has a more symbolic aspect as well as honoring the life and death of Jesus. Regardless, enjoy your holiday.

Privacy Again: Poe

A good place to begin to understand a constitutional right of privacy are the dissenting opinions in Poe v. Ullman, Douglas referencing his own dissent in Griswold and the core of Harlan's dissent in effect becoming the law of the land (shades of Brandeis' dissent in Olmstead; see, e.g., Planned Parenthood v. Casey).

Over the years, there were multiple cases that reached the Supreme Court addressing contraceptives, but until Griswold, the Court basically avoided deciding the core constitutional claim.  Poe was of that character -- it held that there was not really a credible case of prosecution though the law did prevent openings of public clinics and during oral argument reference to actual prosecutions were cited. But, it was 5-4, with two justices specifically addressing the merits. Those who find Griswold as too thin (though I think it is not as thin as some say), those dissents are useful.

I will not expansively comment on this yet again (see past comments) but will note a few things here. First, the Justice Harlan dissent in particular defends substantive due process -- a constitutional liberty beyond specific enumerated rights.  And, the application is a "living thing" that is not limited by appeal to mere text or original understanding or whatever but traditional case by case judicial process that respects history and shows modesty.  Partially since it is a dissent, it also is fascinating reading with lots of quotable portions such as:
The secular state is not an examiner of consciences: it must operate in the realm of behavior, of overt actions, and where it does so operate, not only the underlying, moral purpose of its operations, but also the choice of means becomes relevant to any Constitutional judgment on what is done.
The "choice of means" also reflects the limited range of the opinion; it is specifically concerned about private use of contraceptives by married couples.  Marriage specifically a "liberty" respected over the years.  Nonetheless, it also provides a broad examination, in various contexts, the protection of privacy as a whole. Viewing things from a substantive due process lens, specific text such as the Fourth Amendment was not the only concern. The wider principles, such as protection of the privacy of family life, was also respected.  Again, history backed this up.

Justice Douglas infamously relied on "penumbras" and "emanations" in his later opinion but this time around spoke of  constitutional liberty (per the Due Process Clause) obtaining "content from the emanations of other specific guarantees or from experience with the requirements of a free society."  So, the two justices' overall approaches overlapped. He also added some more philosophical discussion regarding the value of privacy to our constitutional republic, including in comparison to a regime lacking it.  Privacy here like federalism is a structural protection not only tied to specific provisions. Finally, again this deserved more attention in later cases, he had a section tying the dispute to the First Amendment since a core aspect of the matter here was clinics advising people regarding birth control.

To jump ahead, Whalen v. Roe also is helpful, though the case regarding regulating drug prescriptions is generally not well known.  The charming thing about this unanimous mid-1970s opinion that upheld the statute is that it summarized the principles of the privacy cases.  It clarified the two threads (though others crafted more categories**): "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions."  Privacy is not merely secrecy. When someone tries to control one's life, "that is a private matter" is a common refrain even if it is not a secret.  Such as who one marries or what church one chooses.

[The proper lines in regulating religious liberty comes to mind here: something tied to belief as such is the core, a private matter, while public matters can be regulated more. A physical church, e.g., is clearly something that deserves some respect as a 1A matter but even that is allowed to be regulated in various respects such as to prevent public nuisances. Note that beliefs do affect third parties, for good and bad.  Again, "private" and "public" are not simplistic terms but require some degree of nuance.]

Finally, note Justice Stewart's pushback [no, that's a word, spellcheck] to Justice Brennan's concurrence. He argues that Brennan advanced a too open-ended view but recognizes that the Court has protected certain zones of privacy (more than he supported at times).  He helpfully cites the zone honored by the provision against forcing people to testify against oneself in criminal trials: "reflects the Constitution's concern for the right of each individual to a private enclave where he may lead a private life."  This is not absolute (especially if someone is given immunity), but (see, e.g., Douglas' concurrence in Doe v. Bolton, the companion to Roe) was also applied in non-criminal contexts such as limits on congressional testimony.

The Fifth Amendment provision is an example of specific enumeration of what was seen as the most concerning threat to broader liberties. It is not a  reason to merely protect just that, but provides a means to help flesh out other protections. As noted in past discussions, this also is an assist when setting government policy such as what sort of regulations are appropriate to protect personal privacy.***  This also is reflected in Harlan's earlier dissent, which guides constitutional law today.

Finally, reading First, the Justice O'Connor biography, there was a good summary of her limited view of judicial power.  She wished to decide the case at hand, but provide as much discretion to the government as possible, providing a sort of back and forth communication between the courts and other branches. The particular means might be problematic but the goals might be acceptable.  The moderate sense of judicial review is sensible as well as realistic. It provides an answer to claims of "judicial supremacy." To cite the passage in question:

Breyer is the "O'Connor" justice on today's Court.


* Olmstead was a 1920s case that upheld electronic eavesdropping with multiple interesting dissents though Justice Brandeis' paean to privacy is the one most remembered.  It was eventually overruled.  Casey was the 1990s case that upheld the core of Roe v. Wade (abortion) though allowed for more regulations. A good aspect of the main opinion is that it provided more analysis to the constitutional liberty at issue while Roe was in large part a matter of setting up doctrine while summarizing past cases to in effect assume as granted said liberty.  I think that was misguided.

** The opinion itself cited one three part inquiry:
The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.
Privacy torts also have various components.

***  One example of such privacy enhancing legislation that was held to meet First Amendment scrutiny was cited in the O'Connor bio. It involves a limit on direct mail solicitation and the opinion cites other cases where privacy interests arose. 

For instance, here Justice Black (a First Amendment absolutist) wrote a strong concurrence (joined by Justice Douglas) that honors the privacy of the home. Black dissented in Griswold, but this shows how respect for the importance of privacy would still have constitutional relevance.  And, relevance as a whole. 

Thursday, April 18, 2019

Redacted Mueller Report Released

Undaunted: Surviving Jonestown, Summoning Courage, and Fighting Back is Congresswoman Jackie Speier's account of her life, her surviving being shot multiple times at Jonestown only a short portion. It is a straightforward down to earth account that is under two hundred pages. She spells out her life in public service and her personal life, which had many personal tragedies.

It is probably a good read for these times. The new Sandra Day O'Connor (half-way through it) is pretty good too.  In effect, it's an authorized version since she provided a lot of key materials etc.

[AOC supports this impeachment resolution.]
The issue before us is not just whether Barr eventually lets us know whether Mueller ultimately determined that the president unlawfully conspired with Russian agents to sway the 2016 election, or whether he attempted to obstruct inquiries into related investigations. The issue before us is (or at least, includes): whether Donald Trump has dangled pardons to obtain illegal outcomes, removed officials for their refusal to break the law, rewarded or pardoned others for breaking the law, threatened judges for legal conclusions they have made, violated campaign finance laws, violated tax laws, punished and threatened the free press, incited violence against Muslims, misused his charitable foundation, incited violence against political opponents, violated the Emoluments Clause, directed others to make illegal campaign payments, declined to seek redress for the brutal murder of a journalist by a foreign power, forced family separations at the border, attempted to change the asylum law at the border, banned trans service members, attempted to revoke Dreamers’ status, had conflicts of interest with Russia and other oligarchs worldwide, persistently lied about his conflicts of interest during the campaign and thereafter, used his twitter feed to incite retributive acts against critics … this list could go on and on. And on.
Dahlia Lithwick before today's release of the redacted form of the Mueller Report reminded us that there is so much else beyond that.  On a basic level, waiting for it (and Democrats did begin to investigate things now that they control the House)  to release was foolhardy. It was but a limited part of the problem, Trump's wrongs were out there in the open and this holds true even if Mueller wasn't going to prosecute Trump (and certain others) given the high standard of proof, their own corruption of the investigation and so forth. And, the basic idea a sitting POTUS can be prosecuted. The ball is in your court, Congress!

First, I'm sickened (and usually temperate people like Rick Hasen, who thinks Mueller flubbed the campaign crime portion, at least involving Don Jr., not even interviewing the guy!, agree) by Attorney General Barr.  His pre-release spin job, which had it's intended function, started things. The NYT website at the time (about two weeks ago) references the belief that when the release of the report was announced that it was a good day for Trump. This basically based on a sham short summary.  His testimony afterwards to Congress has a few charming aspects including talk of Trump being "spied" upon. Today, Barr had pre-release press conference this morning.  This really pissed people off even before the report showed how much of a sham it was.  Hasen, e.g., said there is no reason why we should trust Barr's redactions were honestly applied.  Given Barr's past actions back to the Iran-Contra days, this is all unsurprising. Still, harder in real time.

Second, the report has a lot of stuff that damns Trump et. al.  See, e.g., an article spelling out how Trump obstructed justice.  The report also is not only limited in scope as to subject matter (see excerpt) but approach. See, e.g., here noting the prosecutor lens (which helps explains, not without some reason for pushback, certain prosecution related choices). There is also supposed to be an intel briefing to Congress.  Suffice to say that this should not rely merely on Barr providing it.  Mueller in fact appears to be a future witness in front of Congress, which will help clarify some things. And, the public deserves to be informed of this aspect.

And, the full picture has to be kept in mind. Trump et. al. were not exonerated, even to the degree the report spells out a case for prosecution beyond a reasonable doubt was deemed to be a problem. Trump himself is a special problem given current policy (there is some dissent to this but it seems a reasonable take) that the special prosecutor can not indict a sitting POTUS (or whatever Trump is). This led Mueller to determine even accusing him of crimes was problematic though not only did the facts not make a full exoneration impossible (even the Barr spin job let that slip out) but has so many details that a good case against Trump. And, that is without further details, which the report says might come out. 

Russia's interference with our elections is clear the Mueller investigating helping to clarify some details and  bring prosecution to various Trump campaign officials and related individuals.  Knowing what happened there is very important and provides a means to protect our national security.  Trump et. al. acted repeatedly in plain sight here.  The fact that some of the behavior, including aiding and abetting the overall process, might not be criminal or at least open to prosecution doesn't change the horrible nature of it all.  The fact one political party wants this guy to be in power until 2025 (at least publicly) is horrendous.  The Republicans deserve to die as a party with a credible one arises from its ashes. This is not hyperbole. It is my firm belief while watching the events proceed in front of my eyes. Instead, it is seen as acceptable (if perhaps a tad unfortunate) if they retain the Senate after 2020.

We have yet to hear the full story and there are even ongoing prosecutions (a key reason for many of the redactions, at least allegedly).  So, that is part of the next steps. The final is the infamous "i" word.  The release of the report is a key moment, even if it perhaps was given more weight than it deserved.  OTOH, we now are seeking the whole unredacted report, which can run out the clock even more. The attorney general aiding in the obstruction of justice only worsens the situation here.  The House Judiciary chair himself did not take impeachment off the table.  All of this far from surprising, it underlines my anger at Pelosi pro-actively putting a thumb on the scales against impeachment before the process barely begun.

If impeachment is not appropriate in this case, including for lesser officials [e.g., Barr was a Bush41 guy; removal by impeachment can block future federal employment], I'm not really sure why it is there.  Know the arguments. I think he should be impeached.

Monday, April 15, 2019

More on Stanley v. Georgia

And Also: The Collected Schizophrenias was highlighted on the Strand Book Store website and used my $15 gift card from an event there to buy it. Esmé Weijun Wang (in her 30s) discusses her own experiences in a personal way. She also wrote a novel about a family affected by mental illness. Overall, a good read though the last chapter ended things on a spiritual note that I found a bit off. Meanwhile, three episodes in, Veep: eh.

[There are some oral arguments this week including the power of the feds to bar a trademark of "fuct" with today's orders not really adding much.]

Let's focus a bit more on Stanley v. Georgia specifically.

The facts pop up in multiple cases: the police for some reason (here alleged bookmaking) enter a home (or seize a person/thing) and some other invasion of privacy arises. Both Bowers v. Hardwick and Lawrence v. Texas, e.g., involved police coming into a residence for some reason (mistake arising from a warrant to appear or some complaint that appears to be false in some fashion) and seeing (or maybe, per one book, seeing) two men involved in sexual acts. The seminal case that applied the exclusionary rule for search warrants to the states (Mapp v. Ohio) ultimately involved possession of obscenity obtained while police were there for another reason.  Ditto here: the police viewed some movies found while there for another reason.

Justice Stewart in Mapp would have held that mere possession of the material would have violated the First Amendment and an actual majority of the state lower court did too (but a supermajority was necessary).  In Stanley, a few justices (led by Stewart) would have relied on the Fourth Amendment (the warrant was for gambling materials; they seized and watched film).  But, taking a back-up argument some justices felt was not properly briefed, Mapp v. Ohio relied on the police violating her privacy, some "right to privacy" repeatedly referenced. It cited an earlier case that did not apply the exclusionary rule to the states:
The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in "the concept of ordered liberty" and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.
The limited rule here is that the 4A sets forth certain rules that must be followed but the opening sets forth a broader rule. Mapp also broadly spoke of "the enforceability of the right to privacy against the States" and served as a logical bridge to Griswold v. Connecticut. The sole footnote referenced an earlier case that cited a 18th Century case deemed the basic core of the Fourth Amendment.  The "essence" of the principles of the case "apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life."  Thus, protecting use of contraceptives by married couples in one's own home fell under the constitutional right to privacy even if police in that case did not specifically invade the home without a warrant.

Griswold argues that various constitutional amendments involve a right to privacy (e.g., a right to association growing out of First Amendment provisions was held to include some zone of privacy).  It provides various citations to show how the Supreme Court recognized different aspects of some right to privacy.  Two that also pop up in Stanley were Breard v. Alexandria (limits to door to door sales upheld) and  Public Utilities Comm'n v. Pollak (radio broadcasts on public transportation upheld).  In both cases, some right to privacy of the home was at least assumed for sake of argument. Breard, e.g., cited a top free speech advocate arguing that one reason to regulate free speech was to protect the "freedom of the home." Justice Douglas' dissent in the second case fleshes out a constitutional right to privacy, but even the majority assumed (as compared to a streetcar), there was some right to privacy protecting against nvasion of the home. The seeds were planted.
Moreover, in the context of this case - a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home - that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.
Again, Stanley v. Georgia ultimately relied on some right to possess obscenity in the home, limiting the previously accepted idea that the government had some power to criminalize or civilly seize obscenity.  The case did not merely rest on the First Amendment and (as discussed last time) its "right to receive" language in particular was basically limited to its facts.  Merely carrying material in your luggage could get you in trouble, even though the Fourth Amendment protects personal effects too.  In fact, the Supreme Court in Katz v. U.S. shortly before our case here held a right to privacy over communication in a public phone booth.*

"He is asserting the right to read or observe what he pleases - the right to satisfy his intellectual and emotional needs in the privacy of his own home." A famous dissent, now in effect the law of the land, honoring of a constitutional right to privacy was cited.  The specific application here was "a right to read or observe" (a stag film basically at issue here) but a broader principle is also cited, "the right to satisfy his intellectual and emotional needs."  Some form of this survived Miller v. California, which in effect drew the line between the home and the public sector.

A broader protection is warranted if we truly protect the full breadth of the principles involved.  A "right to receive" should entail what amounts to private mail order for personal viewing.  As noted last time, Griswold was applied to the sale of contraceptives. And, in Lawrence v. Texas, which broadly protected sexual intimacy, started this way:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
Discussions of the Bowers, which in the 1980s went the other way 5-4, show the importance of Stanley v. Georgia there too. Justice Marshall behind the scenes thought the protection of the home there applied in this case as well.  Justice Blackmun's dissent recognized the point. The majority made it a First Amendment case, but the principle set forth was more open-ended as suggested by it citing a dissent from a Fourth Amendment case and the privacy language itself cited in Eisenstadt v. Baird, involving contraceptives.  There is basically a broad right to privacy, the flipside of a public sector that is open to much more regulation.

The case here does specifically have an express First Amendment dimension but privacy rights repeatedly do, if sometimes more tangentially.  As I said, sometimes the term "sexual expression" is used. And, sexual materials are more broadly used for a range of reasons, including in relationships with other people.  There is sometimes a concern for some open-ended term not expressly found in the Constitution, but privacy hits upon a key component.  There is a reason I have spoken so much about it, including Griswold specifically, over the years here.

Privacy is a broader "liberty" that arises in various contexts. 


*  Justice Stewart wrote Katz, but he continuously rejected some general constitutional right to privacy (he concurred in Roe v. Wade, accepting it on precedent though dissented in Griswold).  He recognized zones of privacy as well as the general power of the government to protect it, including by tort suits in libel and invasion of privacy cases. A few justices that joined Griswold in fact balanced things in privacy's favor in Time v. Hill.

The various ways the law can protect privacy, including by affirmative protections such as "do not call" lists and the like, is important to understand to get a full sense of the matter. 

Sunday, April 14, 2019

Let's Talk About Sex (Supreme Court style)

[I will generally reference the cases as a whole here but excerpts will not include citations, ellipses or so forth.]

Trying to find some interesting Supreme Court audio over at Oyez.com, found a few related cases from c. 1970 with the basic question of the rights to receive obscene (granted for the sake of argument) materials in the mails and/or import them (at least for personal use).  This was a bridge period between the end of the Warren Court (which at the end seemed to accept everything) and the opening years of the Burger Court (eventually saying "sorry no" in Miller v. California).  Let's cover that and think bigger.

The word "no" is in the First Amendment, but as a practical matter, there are going to be limits.  Roth v. U.S. (1957) is the modern case that established basic rules in the area of obscenity though they were edited some over time.  The "absolutist" justices of the time were Black and Douglas, but in their dissent still noted: "Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it."  Justice Black found more ways to do that than Douglas (e.g., Black dissented in a case involving allowing students to wear black armbands as a form of symbolic speech).  Nonetheless, even Douglas would admit perjury or some trademark violation is actionable, even though both in some fashion involve speech.

There are lines and "freedom of speech" is not the same as an absolute right to speak.  Someone strongly libertarian will push back on many limits now in place, but at some point some line is going to be drawn realistically speaking.  And, the line is not going to be totally clear; no line drawing in the area of constitutional principles is likely to be. As the Roth noted:  "it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system."  Is obscenity not a good application of this principle?  Granting it is not, it is not merely because it is speech where hazy lines must be drawn to some degree.

The current guidelines for obscenity is found in Miller v. California (1973) and  it correctly noted:
In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.
Yes, speech is involved here, but matters of life and death are left to juries, including such questions of insanity, and the particulars are variable depending on who does the deciding. There is some overall basic limit placed using rules of vagueness and so forth.  But, discretion remains, and a basic protection in our system is the trial and appeals system as a whole, not merely the Supreme Court setting forth a firm bar against something.

Nonetheless, there are broad limits to governmental discretion (and a matter of good policy for many private actors) set forth by the protections of freedom of expression.  For instance, some countries still in effect criminalize blasphemy. But, in a 1952 case involving a film, the U.S. Supreme Court said: "the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views." A few years before, the Court flagged a New York law that targeted "true crime" magazines as too vague (leaving open obscenity prosecutions), noting:
We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.
A rough guide to our law is to determine if the expression fits within certain areas that have traditionally been deemed unprotected speech. There was a long history by the time the Supreme Court decided Roth that obscenity was one such category.  But, even those two cases suggested things were moving in a liberal direction.  Years earlier, motion pictures were basically held not to be protected. In a contemporary case (Butler v. Michigan), a British rule that allowed the more sensitive (including children) potential viewers to be the test of acceptance was rejected.  And, though a law accepted in the 1870s as constitutional (cited in ex parte Jackson) was cited, this surely wouldn't be allowed in all of its particulars by the 1950s:
no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement, or notice of any kind, giving information, directly or indirectly, where, or how, or of whom, or by what means, either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail.
But, people like Margaret Sanger got in trouble earlier promoting birth control.  The Supreme Court upheld in the late 19th Century multiple prosecutions that involved not only what would now be generally seen as fairly benign erotic works, but publications talking about sexual matters even in the context of marriage guides and the like.  Justice Stewart in the 1960s made a famous quip (though he also added detail to it) about knowing obscenity when he sees it and a certain film not being it.  I saw the film in question (The Lovers) and few would deem it as even "dirty" these days.  But, three justices still would have upheld prosecution.

Roth assumed obscenity was not protected so a basic "clear and present danger" type test need not be applied -- so, e.g., even horrible ideas can be spread, except if there is a chance of imminent incitement of violence.  But, even if it had the "slightest redeeming social importance" it would be acceptable.  A decade later, Stanley v. Georgia tightened this test:
It is true that, in Roth, this Court rejected the necessity of proving that exposure to obscene material would create a clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, or that it might intrude upon the sensibilities or privacy of the general public.
Such a test does not stop sale of all types of speech that might offend or which one might not wish to sell to children (the Supreme Court allowed more material to not be sold to minors but later did not apply such a rule to violent video games, violent materials not traditionally seen an exception). So, and all but two justices accepted this, there was that special wrinkle. Still, even if something was deemed "obscene," a person had a constitutional right to at least have it in the privacy of one's own home. Years later, Osborne v. Ohio did not apply this to child pornography (a film like Pretty Baby shows the lines there aren't totally clear).

(The wrinkle suggests there is something "private" about sexual matters and this is reflected by public nudity rules. A libertarian might press there, especially given current styles -- New York even struck down a topless ban as gender specific -- but the "right to privacy" that provides personal choice in matters of sex does have a component that guards against unwilling viewing.  OTOH, and Barnes v. Glen Theatre (1991) narrowly divided here even in regard to striptease acts, "private" here shouldn't mean "public accommodations" where willing adults view things in what amount to private viewings.  Such is not the current federal rule though with states allowed to block viewings of films deemed obscene.)

Just what is "obscenity"?  Put aside that something like "lewd" was also covered by some of the language of the early cases.  Roth centered on prurience with an extended footnote (20) fleshing out what that means. Basically, "shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters." This wasn't to be decided by isolated passages but taking the work as a whole.  After all, the Bible has various verses that would meet that test.  Still, on a basic level, why is sacrilegious speech protected, but not what amounts to the same thing in another context?  That is, not respecting nudity or sex etc. the right way?  And, traditionally, obscenity was often classified with blasphemy.

[By the 1960s, the Supreme Court also generally treated -- with a few exceptions -- the states and federal governments the same way in respect to the Bill of Rights. Justice Harlan was a basic exception to this trend and in Roth would have put the federal government to a strict test since states traditionally had the duty to regulate morals.  If obscenity regulated the "social interest in order and morality," that was a state duty.  The postal power wasn't enough to broadly block from the whole country something like Peyton Place though maybe individual states can do so.  Note that even this was stricter than the old rules, which stopped the mailing of birth control pamphlets.]

The 1960s was basically a decade when the Supreme Court received a bunch of material and had to decide if it was obscene or not. There was material like Tropic of Cancer and the like that was clearly sexual but what many (but not all, for sure) would deem protected.  The Supreme Court even had to in the early 1970s make sure people knew that the Jack Nicholson film Carnal Knowledge (oral sex) was protected.  But, also various cases had basically what can honestly be deemed standard pornography of the Hustler variety or the like.  They basically eventually said (Redrup v. NY) that if you don't expose it to unwilling viewers or children, it's acceptable, though never firmly said "no limits."

This post-Stanley period is basically where we stepped in. Chief Justice Burger wanted to allow some regulations of sexual materials and had some support (Blackmun replaced more liberal Fortas and Harlan and White already was more open than the liberals on this question).  This was seen by the Court splitting 4-4 (Douglas not taking part because the publisher put out his own writings)  in GROVE PRESS, v. MARYLAND STATE BOARD OF CENSORS (1971) involving the film I am Curious (Yellow), a film I myself saw years ago, the New York Public Library having it available. It is a foreign film that definitely has some sexual scenes and full nudity, but saying it lacked any social value is rather dubious.  It is not just an excuse for sex scenes, having a lot of exposition (tediously so).

We again can push back to the idea obscenity should be an exception here. Why doesn't it have "social value" and (as cited in the true crime case) why is that even an issue?  Justice Stevens basically said this in a post-Miller case (Smith v. U.S.), noting not only do people find the material interesting but there tends to be some people who argue it has social value. There is also a general line drawing problem. Why is a patently stupid and shoddily film that covers the basic ground suddenly a problem if it is deemed as too prurient? Yes, we draw lines all the time, but unlike a threat, we allow people to willingly choose their sexual desires.

Anyway, Stanley protected private ownership (a rule that was never applied to "privately" downloading it at home from online sources).  Griswold v. Connecticut protected private use of contraceptives. Later on, sale was also protected because the specific protection was deemed to involve choosing whether or not to have children. Stanley also referenced the right "to receive" information.  Not wanting to overturn Roth suggested a limit there, but how far? United States v. Reidel (1971) said not any absolute right to receive them in the mail.  Justice Harlan concurred to say the "right to receive" meant in private. The liberal author (Thurgood Marshall) of the Stanley decision noted "the validity of regulatory action taken to protect children and unwilling adults from exposure to materials deemed to be obscene."  That could not totally be guarded against by mail order.

The majority reminded -- as should always be kept in mind here -- that a federal floor does not block more liberal options (including by state constitutional limits):
It is urged that there is developing sentiment that adults should have complete freedom to produce, deal in, possess, and consume whatever communicative materials may appeal to them, and that the law's involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age. The concepts involved are said to be so elusive, and the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers and the courts, that basic reassessment is not only wise, but essential. This may prove to be the desirable and eventual legislative course. But if it is, the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances. Roth and like cases pose no obstacle to such developments.

What about blocking something as limited as carrying an admittedly obscene book or film home in your luggage for private use?  In a companion case, four justices (including Marshall and Stewart) would not go that far.  A fifth (Harlan) said the matter was not really at issue. The four, however, thought the privacy rights honored by Stanley applied here. A concern about distribution was flagged there too, after all, but was deemed not a strong enough interest to violate the private right to view materials. Material in luggage doesn't threaten unwilling viewers or children.  The Supreme Court however in United States v. 12 200-ft. Reels of Super 8MM. Film (1973) clearly held otherwise.

A clear majority also settled on a test:
(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
As Justice Stevens noted in his dissenting opinion referenced above, Miller v. California set the state of California as the "community" here, a rather diverse collection of individuals. Why should freedom of expression depend on what location you lived in?  Did rules regarding other First Amendment rights work that way?  Other than perhaps the special rules applied to Native Americans (a special category) in regard to religious matters, think not.   Also, the opinion was sure to add that even here only "hard core" materials could be banned. Again, much less than what traditionally was so covered.  A taste in Smith v. U.S.:
The mailings consisted of (1) issues of "Intrigue" magazine, depicting nude males and females engaged in masturbation, fellatio, cunnilingus, and sexual intercourse; (2) a film entitled "Lovelace," depicting a nude male and a nude female engaged in masturbation and simulated acts of fellatio, cunnilingus, and sexual intercourse; and (3) a film entitled "Terrorized Virgin," depicting two nude males and a nude female engaged in fellatio, cunnilingus, and sexual intercourse.
But, again, merely talking about oral sex or some implication it was happening isn't enough (Carnal Knowledge).  It is ultimately to me a silly matter, even if the average case is not going to involve what most people deem serious material. But, why should we allow any number of romance novels with pretty racy scenes (if not as explicit as some of these works) but draw the line at something of the sort there?  Online, you can find some rather graphic sexual fantasies, but why is that a problem for willing adults?  I'm not providing links to all these things, but I covered this in a past entry where Justice Douglas dissented in a case involving a bunch of bondage magazines and the like. Why isn't that "valuable" to willing viewers carrying out their own sexual desires?

The alternative view was seen in a 5-4 case (Kaplan v. California) handed down at around the same time as the Miller settlement. It involved a book and even here we are told that: "A book seems to have a different and preferred place in our hierarchy of values, and so it should be. But this generalization, like so many, is qualified by the book's content." The earlier case that brought within the First Amendment's ambit films did not bring forth a clear understanding that films should be treated the same way as books.  The old view that films had a sort of immediacy a book did not, requiring less contemplation, plus subject to viewings with mixed audiences [women going to sports events seemed problematic early on] continued to some degree.  Nonetheless:
For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact. A State could reasonably regard the "hard core" conduct described by Suite 69 as capable of encouraging or causing antisocial behavior, especially in its impact on young people. States need not wait until behavioral experts or educators can provide empirical data before enacting controls of commerce in obscene materials unprotected by the First Amendment or by a constitutional right to privacy. We have noted the power of a legislative body to enact such regulatory laws on the basis of unprovable assumptions.
The distaste such material had for some also comes out:
It is made up entirely of repetitive descriptions of physical, sexual conduct, "clinically" explicit and offensive to the point of being nauseous; there is only the most tenuous "plot." Almost every conceivable variety of sexual contact, homosexual and heterosexual, is described. Whether one samples every 5th, 10th, or 20th page, beginning at any point or page at random, the content is unvarying.
Nonetheless, even though the old "utterly no" test was weakened to "no serious" value, that itself was not to be based on the state involved. As reaffirmed in Pope v. Illinois (1987): "
The Court then observed that, unlike prurient appeal and patent offensiveness, literary, artistic, political, or scientific value is not discussed in Miller in terms of contemporary community standards.
So, something can be "prurient" and "patently offensive" by state guidelines, but the judge or jury still needs to take everything into consideration for that third category.  It is somehow hard to tell how much all these tests actually limit juries though analysis over the years do suggest they do in a rough sense try to limit their discretion and judges do as well. So, e.g., in police shooting cases, authors have noted that even if juries wish to convict, they have repeatedly said that they felt compelled not to do so given stricter guidelines in current case law.  All the same, at least along the edges, local taste will influence value determinations.

These days, the rules are fairly well in place, and the courts tend to flesh out details. The Supreme Court does not really handle obscenity cases these days, rejecting in the early 21st Century applying a national test to downloading sexual materials online. One issue that might come up eventually is the question of allowing even "fleeting obscenity" (such as a passing "fuck" in an awards show) on broadcast channels.  Such channels would raise the exposure to children concern though in the "seven dirty words" case (involving the radio), the Court was closely divided.

There are various special questions here but a general rule also that most material will be allowed. Even sexual related material is covered by freedom of expression and at this point any obscenity exception really should be deemed obsolete (if animal crush videos can raise vagueness challenges all but one justice finds compelling, U.S. v. Stevens (2010), let's just seat the deal).  The usual concerns of minors and unwilling viewers remain as concerns.  Also, a basic acceptance of a right to private choice, especially in the home. OTOH, limits might be drawn to guard against publication of selfies deemed private. Close cases can be imagined, including involving public employees felt to have more limits.

Finally, "sexual expression" might be seen as protected as a whole. The oral argument in Lawrence v. Texas spoke in just that terms. Not all stuff depicted should be allowed -- that is part of the point, to examine some forbidden behavior -- in literature and film should be allowed.  But, part of why obscenity is a bad category is that it repeatedly involves legitimate sexual behavior we allow in general.  [We might be concerned about public health when porn is involved but even that is not an issue in book form.]