Landmark Cases: Pentagon Papers Cases

We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy."

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." The District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in the Washington Post case, held that the Government had not met that burden. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.

So ordered.

Removing case cites, and there weren't that many, this is the whole "per curiam" or  "for the court" opinion in NYT v. U.S. and its companion case involving the Washington Post (see also, the film The Post; that paper won below, so there was in fact a split).  The whole affair -- publishing, injunction, three levels of appeals and Supreme Court decision all occurred in June.  The final ruling was 6-3, the split in effect 3-3-3.  Inside the Pentagon Papers, with multiple conversations with the players and an analysis of just how dangerous they were, is a good summary.

The basic floor of the freedom of the press is the prevention of "prior restraints," licensing of what can be published the basic sin historically the concern here.  Near v. Minnesota (1931) (5-4) made this clear, stopping a prior restraint even if it was found that a newspaper was some sort of public nuisance. Go after them after they publish. Exceptions? Well:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.  On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

Justice Douglas in his separate opinion -- there were nine -- noted the Vietnam "War" was not a declared war. But, it is unclear that is the true line since neither was the Korean "War," correct?  A key WWI case involved "recruiting service," but by the 1970s, strong criticism that interfered with that in some fashion surely would not be illegal.  The others are more tricky and the press did stay silent about the Bay of Pigs.  And, on of the cases cited in the Pentagon Papers case involved obscenity, a case that left open the possibility of some sort of licensing law to guard against obscenity. How much was left of that is unclear and obscenity itself isn't protected.

The other case cited by the per curiam regarding the high test before prior restraints could be brought is a fairly interesting one. It involved a real estate broker who was targeted for alleged discriminatory activities, whose very church and neighborhood was targeted. But, this alleged invasion of privacy was not enough to stop the petitions.  A ban on picketing of a home was treated differently.  But, picketing is a type of "speech plus."  And, the materials here were historical information, even thought (see that book I cited for a counter) it was argued diplomatic activity would be threatened and some of the material would give hints about current military matters.

A person involved in the production of the papers himself, Daniel Ellsberg, leaked them, after he could not get Congress to do so. In the midst of the affair, Sen. Gravel found a way to submit them into the record.  Ellsberg had to physically photocopy, using a copy machine in a travel office or something, page by page of thousands of pages (he held back some diplomatic volumes). Cf. Wikileaks that can be released so easily online to the world.  I find the current ability to leak in that fashion very concerning and felt Chelsea Manning, especially as a low level member of the military, was correctly prosecuted.  Put aside the length (the commutation was just) and treatment. Ellsberg honored her actions.

This case reminds me of the travel ban case. There, many think it as a matter of religious bigotry, a "Muslim Ban," so a First Amendment case.  But, the statutory case -- a matter of separation of powers really -- might be the strongest one.  I think both are involved and there is overlap since Congress guarded against discrimination.  The Pentagon Cases involves the press aspect of the First Amendment, but was also a statutory/separation of powers case. And, three justices in particular (Justice Marshall perhaps surprisingly the most) strongly relied on that. The executive claimed an executive power on its own to stop the presses. Statutory law if anything seemed to deny that power. Justice White (joined by Stewart) offered various criminal laws that might be usable.  But, acting on his own, especially with the First Amendment, Nixon didn't meet the test.*

The ruling itself is important since it has a special symbolism. Justices Black and Douglas took the absolutist position, Douglas leaving open a tiny window. Brennan focused on the lack of proof, it was all "surmise or conjecture," and cautioned about doing this again.  But, the others were more guarded, though Stewart (including his bit about over-classification) at times has quotable pro-openness lines.  He still joined White's concurrence that opened this way: "I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system."

Justice Harlan wrote the dissent joined by each of the dissenters, listing the various complications and complaining (as each did) basically "what's the damn rush?" Justices Black and Harlan soon were in the hospital and was not long on this earth.  Harlan argued that the executive had a special role as the voice of the country abroad and interference with diplomatic negotiations was basically a political question.  Burger was particularly upset that the papers retained stolen property.  Blackmun noted the First Amendment was but part of the Constitution and he was no absolutist.

Ellsberg and someone else was prosecuted but the case was dropped in large part because the government was caught breaking into his psychiatrist among other prosecutorial complications. The material as a whole was published in various forms, including by the government itself. The war lasted a few more years.  But, the papers added to the distrust of the govenrment and the lionization of the press.  And, the courts for that matter. Let's also give a nod to Robert McNamara for actually thinking up the idea of examining the Vietnam War to learn some lessons. He has a lot to answer for but this was an impressive move. 

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* The test was at one point cited as "grave and immediate danger." It is unclear, especially with the short time available, how one can determined that very well.  On that, the dissenters had a bit of a point. OTOH, it seems easy here in hindsight, especially when the government's own lawyer later said nothing printed met the test.  Plus, these were historical materials. 

But, how does one judge that? Stewart's famous question to Alexander Bickel during oral argument like "Joe Paulson" noted in a tweet read on air (ditto the Wikileaks point -- I'm amazed they quoted me so much; helps Twitter isn't used that much and I tweeted so much.  #LandmarkCases) is a bit of a trick. Sometimes, what is written very well might somehow lead to harm to others. Where is the line during a war? If an article leads to a battle that saves many lives but a few a lost, should the article not be written?.

Bickel and the other paper's lawyers did not take an absolutist position because they did not have to and because the Court was not filled with Blacks (luckily for them, this wasn't a school or Cohen's jacket).  They also had the statutory argument, which Douglas also touched upon from the press protective side.  He noted in a footnote that maybe one aspect of the statute might apply, but said the government did not used it. OTOH, White in particular gave almost a "how to" on prosecuting leaks.

Svengoolie: Face the Fear of "Mr. Sardonicus"

Good schlock and atmosphere on last night's entry. Ending is a nice touch.

And Also: Read The Novel (1963) by Elizabeth Drew (not that one) and it was worth the $2 ($1, round up to give a donation to Housing Works Bookstore). Seriously, found most of the chapters interesting though only read Emma (she seems to undersell the range of Jane Austen a tad) and Moll Flanders (years back) of the 15 so can't judge her analysis totally.

Chloe Couture

I referenced this late night film and found out the lead/catalyst is a young porn actress with a good Twitter page, especially some of her older mini-vids. The HBO/Showtime/Cinemax/etc. stuff is soft core. She has a weird hairstyle here for some reason. AJ Applegate, as noted, is a guest. I like the attempt at accurate sound over "porn music." Doesn't look cheap. ETA: As noted, Head & Breakfast is an alternative title though it isn't really "head" focused.

Jesuit U.S. Congressional Chaplain Forced to Resign

There are some questions of why and details that should be sought out, but seems to be a political dispute of some sort on Ryan's end. I am wary of legislative chaplains as is and kinda shocked at the 172K salary. But, if they are in place, the process has to be firmly bipartisan and out in the open. This wasn't and yeah doubt Ryan's bona fides. Shocker.

Joy Reid

Joy Reid has received a lot of support after reports she said some crude GLBT related things on her blog a decade or so ago. She apologized in the past for snide comments about Charles Crist, someone many sneered at as a closet case.

Her statement today, including saying though she honestly thought it was a hack but that it can't be back-up up by the evidence available, was a good one. I think it's quite possible she said the things and her current self finds it hard to believe it. Hacking -- recently someone posted a video of Obama saying something outrageous to show the possibility out there to spread disinformation -- surely isn't out of the realm of possibility. But, I'm iffy there.

And, if many on the left are honest, they shared some of the thoughts expressed such as being uncomfortable about men kissing or the like. I think this is a learning exercise about human nature and the ability of people overall worthy of respect evolving and having blind-spots. I surely have done enough to warrant empathy for those who deserve it.

Books

I read a handful of short books and put two -- a good YA book on marijuana and a children's story about an ancient artist and his cat -- on the side panel. The Landmark Cases (Season 2) book is okay enough but a bit thin. Found an enjoyable old paperback thriller at a used book store from the 1960s. Just a nod to the genre. A book of poetry wasn't quite to my liking.

ETA: I watched Alicia Witt -- better known for her television work -- at a nice venue (different performance there) for a reasonable price ($10 + two drinks) and she came out afterwards to meet people and sell her CDs. Talented and pleasant personality.

Ninth Circuit: Monkey satisfies Article III, but lacks statutory standing under Copyright Act

Talking about a monkey owning selfies as a claim sounds silly, but the basic constitutional standing argument the panel finds questionable isn't. Following links, the case cited left open the idea of Congress granting statutory standing to animals (e.g., to protect their rights under law) via their advocates. The subject criteria of Art. III (such as statutory claims) leaves that open. Douglas was right back in the day there. More widely, I think, if a corporation can be a legal "person," a monkey can be. A cat is more of a natural person than Hobby Lobby. Likewise, if ships, property etc. can be "sued" and sue, why not (legally) animals? ETA: Michael Dorf has more here.

Landmark Cases: Tinker v. Des Moines (Armband Case)

First, the Court concludes that the wearing of armbands is "symbolic speech," which is "akin to pure speech,'"and therefore protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an appropriate place to exercise "symbolic speech" as long as normal school functions are not "unreasonably" disrupted. Finally, the Court arrogates to itself, rather than to the State's elected officials charged with running the schools, the decision as to which school disciplinary regulations are "reasonable."

It might be useful to open with a summary by a dissenter (Justice Black, who also dissented in the "Fuck the Draft" jacket case) of the opinion. Black, who thought it unconstitutional to stop sixteen year olds from buying porn magazines drew some questionable lines later in his career. The first part, though Black is wary about accepting it, is fairly uncontroversial.  The Supreme Court recognized flags or being able to refuse to salute them (separate cases) is a free speech matter.  Symbols and expressive conduct (again, the flag salute) count here.

Next, it was repeatedly recognized -- particularly in the flag salute case -- that the First Amendment protects students.  Black is wary about some sort of hazy "reasonableness" test for the First Amendment. But, his dissent is not merely about bright line rules. It broadly would allow the state to ban First Amendment activities, to phrase it that way, even at colleges. This is shown by his reference to a case from 1915 that upheld the ban of Greek letter fraternities.  Black also supported suspending his grandson for his role in creating an underground newspaper that attacked [public] school officials. "No law" apparently doesn't quite mean "no law."

[Black at some points does what amounts to trolling. If you protect students here, do you have to allow them to vote too? No. Stewart concurs briefly to emphasize students don't have equal rights as others and the majority doesn't really seem to say that.]

The majority was clear to say that the case is not about "length of skirts or the type of clothing, to hair style [the subject of loads of lower court opinions into the 1970s], or deportment" but direct, primary First Amendment rights akin to "pure speech."  That is, "a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners."  And, this was not a general ban of "all symbols of political or controversial significance."  The oral argument, e.g., had a back/forth on how an armband took one's mind off a lesson. But, so would any political button for that matter. A general ban would be more complicated. 

[White concurs briefly to say he doesn't agree with all a lower court opinion relied upon to make a core point said. He also noted he assumed that majority treated "communicating by words and acts or conduct which sufficiently impinges on some valid state interest" differently. This touches upon the "pure speech" -- quoting a past case -- aspect. So, e.g., burning a draft card would be somewhat different.]

The majority emphasized the importance of the school in training future adult citizens to underline the rights of freedom of expression. There needs to be a disruption and merely fearing it will happen isn't enough.  "Controversy" isn't enough since freedom of speech will do that. Black cited somewhat more:

While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically "wrecked," chiefly by disputes with Mary Beth Tinker, who wore her armband for her "demonstration."

The majority cites a lower court opinion to formulate a basic test: "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Thus, freedom buttons could be worn, but not if people were starting to be forced to wear them by other students. Here, the majority argued,  armbands "caused discussion outside of the classrooms, but no interference with work and no disorder." Black's comment suggests this a matter of degree. Mere debate among students was not enough.  Merely discussing Vietnam might do that too.  Still, the majority seemed to basically ignore Black's argument here, which is seems a bit too much.  Harlan's whole dissent:

I certainly agree that state public school authorities, in the discharge of their responsibilities, are not wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. At the same time, I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns -- for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.

Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below.

There does seem to be some disagreement on the "widest authority" point. The allowance of controversial political buttons and iron crosses does seem to show a specific "unpopular point of view" was favored.  The statement here, especially given the importance of symbolic speech, is rather conclusionary.  One would hope Harlan offered more detail. In certain cases, including multiple ones in this series, Harlan's separate opinions provided useful commentary. This one is a tad thin.

Meanwhile, the author of the opinion (who was a dead man walking -- he would retire before the end of the term) was no libertarian on '60s protests. He wrote a book the year before entitled: Concerning Dissent and Civil Disobedience - "We Have an Alternative to Violence" drawing the line against certain types of protest. For instance, in another case that turn, a case involving burning the flag was deciding narrowly (in an opinion by Harlan) because pure speech was also involved while four justices (including Fortas and Black) dissented.  

Tinker results in various lower court opinions drawing various lines regarding disruption, but it has limited staying power in the Supreme Court. The Supreme Court if anything seemed to focus on trivial matters such as a school election speech involving crude sexual metaphor (7-2 upholding restriction) and an inane somehow supportive of drugs banner (5-4, fractured majority allowing limits on speech promoting illegal drug use). There were a few cases involving colleges. And, 5-3 upholding limits on a school newspaper, but that added a special "school as messenger" concern.  Meanwhile, a fractured 5-4 majority to some degree also protected school libraries.  The question still is somewhat open, including how much off campus speech can lead to school discipline.  

The case is best seen for drawing a basic line that shows that students have rights at school [non-First Amendment cases later also can be cited], particularly regarding freedom of speech.*  

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* The questions raised therefore can be seen in various areas, but my comment above is focused on the specific issue of controversial speech at public schools, including certain types of t-shirts.  A separate freedom of expression issue arose in various cases that also raised religious clause issues, such as the rights of student religious clubs and so forth. 

420: Now With Support From BOTH NY Senators

I'll just refer to last year's "Marijuana Day" entry with an update regarding Schumer added.

Film and Books

I did not really care for The Death of Stalin though it was well acted -- didn't appreciate its satirical style and it seemed to me rather serious. Expected something different. Scarlet A: The Ethics, Law, and Politics of Ordinary Abortion aims to focus on "ordinary" abortion, not the special cases. But, it basically covers general ground from a bioethics perspective. Nothing revolutionary there, but a good down to earth read covering the bases.

ETA: I enjoyed A Death of No Importance, an historical mystery thru the eyes of a maid until the last twenty or so pages. I wondered at fifty pages left what was left to take that long. What was left was about twenty pages of "isn't this over ... uh" material. The surprise ending doesn't even quite make sense. SPOILER: wouldn't there need to be three bodies?

Brandenburg v. Ohio

Today's Landmark Cases episode is a landmark, if in brief per curiam form that is more clean-up near the end of the Warren Court Era (symbolized by Fortas writing a first draft and being gone when it was handed down). It involved a miscreant KKK leader who comes off as a loser sort, not the type that in the middle of the 1960s (when he was arrested) who actually could do more than rant for the benefit of television camera. Or, today.

It is striking that he was sentenced ten years in prison (and a $1000 fine) under an old criminal syndicalism statute of the sort used against anarchists and the like. Those protests in the late 19th and early 20th Century was not just about ideas, including those that later including support of Stalin. There were also violent street protests, strikes and some actual violent acts. But, and this includes the various famous cases Holmes and Brandeis were involved with, it repeatedly was a matter of mere speech -- often by trivial people with little influence -- that resulted in arrest. 

Slowly, the Supreme Court determined that not only was free speech more than prior restraint, that the First Amendment should be incorporated but that advocacy of even things that in theory might be violent is protected. There was a limit to this liberal viewpoint, particularly during the Red Scare, but a more libertarian viewpoint was clearly the case in the 1960s. Only advocacy was involved here. The test was set, "incitement to imminent lawless action" would be the line.  The facts here did not meet that test though it is conceivable that it might be if some racist instigators that supported violence spoke with counter-protesters nearby.  

The fact this was an easy case is suggested by unanimous vote (cf. Tinker, which will be the next case, where Harlan and Black dissented).  This not having the complication of minors at a school, Justice Black concurred to underline the old "clear and present danger" test was no longer valid. That test in theory could be fairly speech protective, at least as Holmes used it later on, but it often was not.  Justice Douglas emphasized the point in a longer concurrence, noting as well that sometimes symbolic speech (e.g., burning a draft card) is protected unless it is so "brigaded with action" of the the sort that could be regulated,

The opinion of the Court is brief and it is somewhat curious that in hindsight became an important precedent on free speech line drawing. A problem is that it is again something of an easy case. Ugly in nature, but basically ranting in an out of the way place (even if it is filmed and broadcast, no one way likely to take it seriously).  Hate speech of this sort in other places actually had force, instigating violence. What if it was a speech during a time of unrest, which might -- maybe not then and there but shortly thereafter -- egg on some people to break the law? 

Granting it is protected, it is a lot harder to handle. The video is from a scene in Die Hard 3, where our hero is forced to walk in the street in Harlem with a sandwich board with a racist message.  I was reminded of the scene after the govenrment lawyer posed the hypo of the person here speaking the same message in the streets of Harlem. Which he did not. But, what if he did speak at a public park there?  The people here were armed. What if this gang of "deplorables" were too? (Perhaps, that is to be dealt with separately; it is "peaceful assembly" after all.)  Trickier? 

The black delegate to D.C. spoke during the episode, noting her role in the ACLU at the time. She felt that the case in the long run would protect civil rights activists and others who were repeatedly blocked from speaking, at times quite strongly, out against current policy. In fact, Ronald Reagan himself was upset at some of these public protests involving blacks being armed in public. Putting that aside, the right to strongly speak out, including in language that advocates change that might not be quite so peaceful in nature is quite important. And, this case furthers that.

Nobility and "The Crown"

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. ...

No State shall ... grant any Title of Nobility

Titles of nobility were so disfavored that in 1810 (note: before the War of 1812) the Congress passed amendment that held that accepting or merely retaining such a title (or any present etc., but this time without congressional approval) would result in stripping of one's citizenship.  The amendment is technically still pending.  On that front, the ERA remarkably might be one state away (if the last two states ratified count so far after the original time limit passed; which I believe they should not -- see that thread).

Dignities and high sounding names have different effects on different beholders. The lustre of the Star and the title of My Lord, over-awe the superstitious vulgar, and forbid them to inquire into the character of the possessor: Nay more, they are, as it were, bewitched to admire in the great, the vices they would honestly condemn in themselves. This sacrifice of common sense is the certain badge which distinguishes slavery from freedom; for when men yield up the privilege of thinking, the last shadow of liberty quits the horizon.

Thomas Paine, who made a potshot regarding the source of the British monarchy in his Common Sense,  suggests the length of distaste some have (and still have) regarding a special nobility as compared to an equal citizenship. There continues to be various means to differentiate classes of people in this country, de facto "nobilities" still a thing. We also use various labels and ranks (including use of even honorary military ranks in civilian contexts, down to even referring to the Attorney General as "General").

It can be debated how horrible this is, especially if (as is even the case in the UK now in some cases, such a Sir. Paul McCartney) the labels are earned.  The problem involved in the Nobility Clauses concerns traditional nobility, hereditary especially, with special rights and privileges above and beyond what a regular person obtained. Someone elsewhere challenged the idea of a right to "dignity" because he argued this was a violation of our basic understanding of not providing special rights to people. But, this is a misunderstanding. The concept of "dignity" might have traditionally been a privilege of privilege, but in our system, in fact in human rights law generally, it is a basic right of all.

The reason this post directly arose is because I have just finished watching the first season (on DVD) of The Crown.  I have noticed a few things. One, their children rarely pop up -- was this actually what happened, was the queen nearly never around her children once she became a royal? Two, probably a touch of realism regarding the lack of artificial illumination, things seemed pretty dark much of the time. And, the performances on the whole are very good, including an American actor playing Winston Churchill (who did have an American mother, which never came up).

The show suggests that there is some value in having a monarchy to represent the nation as a whole and this aspect is a repeat theme, including the conflicts (sister v. queen, for example) arising for the participants. We need not do it quite like this. The monarchy has baggage with the whole issue of hierarchy being a rather imperfect method (even if a certain family alone is involved, the person chosen from them ala the priest tribe of Israel) as is having a general nobility class. So, e.g., there can be a separate "president" that is largely symbolic with a prime minister.  We have a mixture, the office of president having some special meaning but also "merely" a partisan political role.

A final word. Hallmark Channel has had various movies involving European (per the "white woman lead" rule; they easily could be African -- see, e.g., A United Kingdom, or Asian) royals from some fictional tiny country marrying Americans. Reference to duty are made though some bending done to allow them to marry Americans (after all, traditionally, marriages were done to unite nations!).  It's only a Hallmark movie, so we aren't really talking deep thoughts here, but The Crown shows how some sacrifices are made.  Which occurs in all cases, of course, and sometimes not enough is recognized on that front. 

Libby Again

And Also: The joint effort with the UK/France to bomb Syrian chemical weapons targets is probably illegal.  It very well, at least under current rules, may not be "war" as implicitly required by the Declare War Clause, but a use of force versus a sovereign nature can be illegal regardless. It is also of questionable value. The fact to other nations were involved suggests it is not merely some sort of "Wag the Dog" scenario at least. Tinker tinker.

For perjury and obstruction of justice, [Libby] doesn't deserve a day in prison ... the disgrace to his name (as if these people care) and a $250K (easily paid either by his deep pockets or his pals, including supporters like Fred Thompson) fine is enough. Oh, and probation. Jumping over a turnstile might get you more time. But, hey, that is a quality of life crime. Nothing like helping in the outing of a CIA agent to punish someone for calling your people for lying us into war.

That's me on this blog over ten years ago.  Yes, I disagree with Timothy "reasonable Democrat" Noah on the point.  Perjury and obstruction of justice in the course of an investigation regarding the outing of a CIA agent is worth some prison time. Reference is made to a "double standard" in reference to Bill Clinton. The context of the situation is not the same (I might add -- I'm older and more tired now -- "asshole") and Bush could have waited until he served some time.

Finally, the commutation itself is arguably obstruction of justice, the whole affair blocking finding the whole truth in the Plame Affair, one of the most infamous matters arising in the Bush presidency.  The old gang is kinda back together now with Trump pardoning Libby (who I refuse to give a stupid nickname) though as with Arpaio and somewhat less so the other person (both FOX News troll pardons) it is basically symbolic. The guy got his law license back and unlike various other felons can vote again.

As explained at the link, no, the pardon is likely messaging for others. Either way, yet again, the pardon power has been abused.

Katz v. U.S.

This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare than Stanley v. Georgia was about a fundamental right to watch obscene movies, or Katz v. United States was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States (Brandeis, J., dissenting).

- Justice Blackmun (Bowers v. Hardwick dissent)

I am concerned that Landmark Cases skipped from Plessy to Griswold [about 70 years] and then has a bunch of Warren Court cases (including one with many Warren justices).  This was one case (since Mapp v. Ohio was already handled last time) that I thought might be optional. But, one of the guests (the other came for a law school named after Scalia, but even more so than last week, a conservative flavor was not really felt) -- Jeffrey Rosen of the National Constitution Center -- specifically asked for this one. This is not surprising given he wrote (in 2000) The Unwanted Gaze: The Destruction of Privacy in America. And, it is important in firmly establishing a modern view of Fourth Amendment privacy with some other interesting touches.

The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they 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. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment.

Boyd v. U.S. (1886) provided a broad view of the Fourth Amendment, the case itself involved compelling submission of invoices for plate glass for which import duties were not paid. A broad respect for the spirit of the amendment continued into the early 20th Century with repeated application of the exclusionary rule. A stopping point here was the 5-4 Olmstead [1928] bootlegging case that held electronic surveillance that does not involve physical invasion into a protected area (such as a home) was not covered.

The Amendment itself shows that the search is to be of material things -- the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be searched and the person or things to be seized.  ...

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing, and that only. There was no entry of the houses or offices of the defendants.

Each justice in the minority wrote an opinion (Justice Stone basically said he agreed with the various dissents) with three worthy of note. The famous dissent was Brandeis' with his paean to a right to privacy, not just protection of "material things."  Holmes, after tossing out "penumbra," focused on the criminality of the search under state law.  Butler, a conservative that also dissented in the infamous Buck v. Bell case without opinion agreed a liberal reading should be given though he did not think the fact it broke state law was relevant in the specific case:

Telephones are used generally for transmission of messages concerning official, social, business and personal affairs, including communications that are private and privileged -- those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission, the exclusive use of the wire belongs to the persons served by it. Wiretapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence. As the communications passed, they were heard and taken down.

This is a strong statement that warrants further recognition especially with the so-called "third party doctrine" where sharing information (such as bank records) supposedly limits the privacy protected and obtaining the materials requires a weaker test.  Likewise, the importance of a broad protection of privacy is shown by the nature of the conversations, including with family members, lawyers and so forth. See, e.g., Justice Sotomayor's concurring opinion in U.S. v. Jones.  And, the reach offered here as applied to listening to words and tapping of wires is not as open-ended as Brandeis, but provides a reasonable understanding of the text.

The concerns of the dissent influenced some congressional limits on the collection of electronic information shortly thereafter.  In time, justices started to be concerned about the Olmstead rule itself, particularly Justice Douglas. Silverman v. United States in the early 1960s dealt with a wire that did invade a protected area, but it was granted that intangibles -- words -- could be "seized, " something reaffirmed in a state case (Berger v. New York) written by the often conservative author of Mapp v. Ohio.  Justice Clark spoke about the privacy the amendment protected as well.

What [Katz] sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

The path for a clean break from Olmstead was therefore in hindsight fairly clear though the discussion on the show said that it was not so clear at the time (Justice Marshall, who worked as Solicitor General, did not take part; a 4-4 uphold was early on quite possible).  A lawyer involved in the case provided some input and further written remarks referenced. What we don't learn is what happened to the guy after the ruling,* which made clear to say that he was still liable for prosecution. Also involved in the case is famous criminal lawyer (including in pornography cases) Burton Marks, who missed a typo in the briefing ("a man has as much right to bet [be] alone in a public telephone  booth as in his own home").

The opinion focused on personal privacy even though -- as one guest notes -- it makes the listing ("persons, houses, papers, and effects) somewhat redundant. The framing is helpful when we remember this case involved applying a listening device on the top of a public phone booth.  In U.S. v. Jones, Justice Scalia favored a property based right here and Judge Gorsuch raised that idea in a case this term as well even where it seemed something of a reach (and having somewhat troubling implications).  A property based right can have broad reach in certain ways but might also in other not protect privacy rights in general. Depending on how it's applied; consider Harlan's broad understanding in Poe v. Ullman.

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable."

The article by the lawyer who argued the case describes the crafting of his argument, which provides an interesting wrinkle.  As with Harlan's dissent in that opinion becoming how the right to privacy was understood, his concurrence in Katz had important staying power. There continues to be pushback -- Scalia and Gorsuch saw such a test opaque. And, there is a concern that the public can over time think less privacy is necessary.  In today's world, people readily accept giving up loads of information and have open conversations on their phones on public buses.  I think on some level this is unavoidable -- "reasonable" is right there in the amendment and like other text reflects current understanding.

Note the two aspects of Harlan's test -- the person has a subjective understanding that what they are doing is private and it is protected if it is objectively (this is implied) deemed reasonable by society.  Justice Harlan later on in U.S. v. White emphasized what this means:

The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield "wrongdoers," but to secure a measure of privacy and a sense of personal security throughout our society.

The case referenced involved placing a Dictaphone against a wall and the plurality here accepted that Katz means that something like that can violate the Fourth Amendment. The issue in this specific case, however, was a miked informant. The felt need to obtain a warrant in that case (the special matter of someone with a current right to lawyer, after arrest, was different) was not deemed reasonable. Justice Douglas repeatedly broadly was concerned about electronic eavesdropping, seeing it as a form of "general warrant."  This along with Brennan and Marshall dissenting is not really surprising. Justice Harlan, here near the end of his life, is a bit different.

Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.

He would require the warrant rules to be followed.  The "desirability" here in the context of a judicial opinion would require respecting the overall obligations of the Constitution as a whole. The debate continues.

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* Footnote Three specifically addressed this issue, noting that he had immunity when he testified to a federal grand jury, but that only applied to later prosecutions. The opinion also said there was enough evidence to obtain a proper warrant; the problem being rules requiring judicial approval were not properly followed.  It is not surprising the the author originally was planning to vote the other way. 

A final curious aspect was that Justice Stewart wrote the opinion and said there was no "general right to privacy." This at least partial narrowing of Griswold was ignored by Justice Douglas and the other justices, though Douglas concurred to address another point. The opening quote shows that such a limiting view was not shared by all though it does help explain why the "penumbra" approach was replaced by an individual liberty argument.

Douglas (with Brennan) concurred to make clear he rejected White's own concurrence implying "national security" matters should follow different rules. This matter was never firmly decided though lower courts have assumed so as applied to FISA warrants.

Book and Film Talk

I have written some things online but have less to say here of late. Few things related to books and television will be addressed here.

The 1990s book The Word According To Eve was interesting (women biblical scholars and women in the Bible) and wish for more and an updated version.  I have read a few books of late that were okay but not worthy of comment really.

Once Upon A Prince was a pleasant Hallmark Movie, following the white heterosexual woman lead with a black supporting character somewhere rule (I found a Hallmark mystery with a black woman lead, but the rule generally is followed there too). Multiple movies on that channel involved royals from some fictional postal stamp European country falling in love with Americans; one involved a rancher becoming king and his daughter finding love (a local bar owner was a love interest for him).  Other channels have that angle of sorts -- Disney with a princess protection agency etc.

One theme here is a conflict between tradition (at least two films had a similar "expected noble love interest" in the wings) and love. This being an American film of a certain type, true love wins out. It is not really a total buzzkill if a film or other work recognizes that in real life things turn out a certain way, tradition and what is expected does (if at times with regret) win out. A curious example was in a black lesbian book series in which a supporting character finds lesbian sex exciting (first brought on by basically going in heat, to be blunt, when she meets someone who is destined to be the lead's love interest*) but surrenders it because the alternative would be to lose a relationship with surrogate daughter.

Meanwhile, in late night viewing, we have Head & Breakfast [aka Double Booked**]. This is another "Adam and Eve" production, which provides some degree of quality to your soft core enjoyment. As the link shows, Showtime on Demand is a major place to find this sort of thing, at times also on the channels as you flick thru them.  This includes fairly long sex scenes, half-way credible at least acting on the whole and apparently a decent number of women writing scripts, directing or such (Stormy Daniels is involved in some, on both sides of the camera). 

After a while, you see some familiar faces in these productions, including in one series an older guy who plays some straight role (like a cop). One person that pops up repeatedly of late here is AJ Applegate (Winter Wonderlust, Sex-Life Crisis, Head & Breakfast), all in supporting roles. She is notable for her long blonde hair and a certain "uh huh" look she gives that I find particularly cute.  This stuff is not high art but has some charm, other than the expected (the "sexy" factor there is somewhat mixed though Adam & Eve as a whole provides some quality). There were a few pretty good camera angles in Head & Breakfast, for instance.  I realize one might not expect much from this stuff, but a little porn goes a long away if all you get is some grinding.

I'll make my general sentiment that U.S. film makers as a whole are not great at portraying sex. There is a lot of sex, but rather boring. This made the Fifty Shades series at least promising --  the result was mixed at best but you know, kind of tried at least to show some kink. There are exceptions here concerning really hot sex (the woman in The Notebook finding out how fun it is was a great scene) and providing a complex view of romance. But, the average film here is somewhat lacking.

And, maybe, now that Disney Channel has a gay character, Hallmark will make one of these movies with a GLBTQA angle. So many letters to choose from!

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* There were last I looked three entries in the series and only the first one was that good really -- think it was directly inspired by her life and its success led her to write sequels.  The main character herself had a mixed ending of sorts in the first book by losing out of a relationship with the woman who helped her accept her lesbianism by hesitating too long. She had a safe heterosexual relationship was hesitant to give up and in the end her first love there chose to return to a past love herself.

Overall, it added interest to the plot. She left town and started a new lesbian life. The supporting character in the sequel to me seemed somewhat more depressing. 

**  "Double-booked" describes the plot; the website includes some NSFW images.  Oral sex ("head") does not particularly dominate.

Published Writer Alert

Happy National Poetry Month. I re-read two poems of mine that were chosen above others in my high school and still don't know why. The "love" poem was particularly silly. The English teacher asked me to waive the second place ($20) so someone else would have it. I was fine with that; $30 is the most I received in my life for my writings. My wish is to get something in that department. Did get a few letters printed, including in the NYT (in the 1990s)!

Landmark Cases: Funny Words & the Right to Privacy

Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom.

-- Justice Douglas (dissenting in 1952)

I have discussed Griswold v. Connecticut and the right to privacy a range of times over the years so feel inclined to restrain myself somewhat this week in spelling out the details of the case.  [I will also add that the Landmark Cases episode here provided something new even to a person familiar with the case by finding some video of various people involved.]

A basic concern is that some "right to privacy" did not really simply arise out of whole cloth in 1965 though this case did firmly expressed a freestanding right to privacy with staying power. Consider, e.g., the opinion a few years before protecting privacy in Mapp v. Ohio -- "security of one's privacy against arbitrary intrusion by the police" was addressed there.  And, Griswold did cite such cases as addressing not just some narrow right of search and seizure, but a wider right of privacy over private life.

It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.

The core argument -- which had limited staying power -- by the majority opinion here was that various enumerated rights had "penumbras" and "emanations" (ill advised doubling down on obscure jargon, even though "penumbra" was used at times in opinions)  that were necessary to fully secure them.  A sort of "necessary and proper" concept for rights. A few justices said basically the same thing in another case handed down about this time and did so without the funny sounding words.  Admittedly, some "right to receive" is closer to the text than a right to privacy.

Justice Douglas -- and this is further clarified in his separate opinion in Doe v. Bolton -- was trying to avoid the bugaboo of "substantive due process."* That is, some open-ended power to judge that a law is arbitrary and capricious. This is different, he argued, because the right is but one step beyond the text itself.  It is not an open-ended argument that "liberty" was being violated by some sort of bad law.  Douglas in other cases, including his dissent in Poe v. Ullman (Harlan's dissent was later in effect accepted as the de facto argument of the Court), also argued that privacy is itself necessary for liberty. Three justices, citing the Ninth Amendment, also accepted that something fundamental for liberty was protected as well as express textual limits.  

I think that a full accounting of the opinion would suggest that some combination of methodology is involved here. Do think there is something to the "penumbra" approach and the Fourth Amendment (the home, Justice Harlan aptly noting "family life" itself involved) has particular relevance here.  The commentary on the episode included an argument that personal identity and "sexual expression" ultimately was how it was understood.  This has a certain First Amendment flavor as well as equal protection since dissenting views are honored.  And, just to note it, Justice White's separate opinion noted how the law was unequally applied -- the poor in practice were denied birth control advice and resources while more well off individuals received health care here via private doctors.  And, the state was okay with that.

But, the penumbra approach lacks something, and again it was not really how the Supreme Court in later cases viewed things. Basically, certain things, particularly personal decisions of a certain type, are understood to be individual liberties.  There were cases to cite here, particularly decisions involving marriage and child-rearing.  Ultimately, the idea of some range of unenumerated rights which in some fashion will be protected by the courts (not out of nowhere -- again, rights involving marital sexual relations were historically accepted and the haphazard limitation here was a fairly easy call) was both widely accepted and having existence back to basically the beginning.

Some broad appeal to natural justice might back in the day been more of a property rights affair but a range of "private rights" [cited in The Federalist]  was repeatedly deemed as a given in some fashion.  Marriage again would be an easy call here though more tricky would be just what that would entail. One of the birth control cases not ultimately used, for example, involved a young couple who saw birth control as a means to craft an equal footing between the spouses.  Justice Douglas' original draft rested more on marriage as a sort of protected right to association. Sex and birth control would be important parts of this right here.

There is some concern with limits here but even the two dissenters made that something of an art more than a science. Justice Stewart, e.g., couldn't find a right to privacy among the amendments.** But, in another case, he found a right to travel somehow.  As Justice Harlan noted in his own concurrence, Justice Black's approach in various cases was far from minimalist.  And, does not the Ninth Amendment and open-ended "liberty" (or "privilege or immunity") language suggest a further reach? See, e.g., the various articles Douglas cited in a later dissent.

Justice Douglas was correct to say that privacy is a necessary aspect of various amendments and liberty in our system as a whole.  "Privacy" -- as he recognized in that early dissent that we began with -- is not just seclusion.  First citing various amendments where it arises, he ends:

The right of privacy should include the right to pick and choose from competing entertainments, competing propaganda, competing political philosophies. If people are let alone in those choices, the right of privacy will pay dividends in character and integrity. The strength of our system is in the dignity, the resourcefulness, and the independence of our people. Our confidence is in their ability as individuals to make the wisest choice. That system cannot flourish if regimentation takes hold. The right of privacy, today violated, is a powerful deterrent to any one who would control men's minds.

And, various amendments were involved here. The appeal to "public morals" here invaded private morals, so much that the Catholic Church (at least if so-called "abortifacients" weren't involved)  pretty much accepted the right to choose to use contraceptives as a matter of private conscience. Use does raise the privacy of the home. Marriage is a "privilege" or "liberty" with long acceptance, including choices of this nature.  The real effect was on public clinics, which raised equal protection concerns.  There was a First Amendment aspect there too, including giving advice, which Justice Douglas touched upon in Poe v. Ullman.  And, some right to take care of one's health can be seen here too.

Lots of issues.  Ultimately, and no I was not that brief, what is at issue here is some general understanding of the limits of governmental power. A collection of things can be used to apply that case by case. Like here.

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[I can't help myself -- added some footnotes.] 

* There can be some confusion here because certain enumerated rights (e.g., freedom of speech) "incorporated" into the Due Process Clause without concern by many of the critics here are substantive in nature.

** A few further remarks on Stewart. First, he added one of his quotables by calling this an "uncommonly silly law," as it is particularly regarding its use (limits on sale over the years more familiar). I'm not a big fan of these "see, I'm sane on policy, but sorry, I'm a judge" remarks that come off at times as patting oneself on the back. Still, there is a value to getting a personal aside and dissents/concurrences are for that sort of thing.

But, mere personal sentiment is not why the right to privacy, particularly in the marital context, is protected. If desired, people can not use birth control and have really large families or threaten their well being in the case of one or more of the women here with health problems. As to no claim of vagueness, Justice White in particular touches upon the arbitrary application, which tends to be the nature of these open-ended morals laws which realistically is only going to be selectivity enforced.

I already have touched upon why his argument none of the express rights are involved here is at least somewhat overblown. True that laws in general overlap with religious belief, e.g., but the personal morality involved in a contraceptives ban is still of a different caliber than some general law involving murder or any number of mundane things.  He ignores that the majority in effect incorporated the Ninth Amendment so his somersaults comment is taking past Goldberg's concurrence in particular.

The "current community standards" remark needs to be seen in context. It is true that on some level that can be an open-ended grant of judicial power. But, putting aside that something like this is going to leak into common law judging, there is something to that comment especially when applying public morals laws. The Constitution is applied to current understanding and its open-ended terms do reflect the times to some degree.

Finally, Justice Stewart -- and we will see this next week -- does recognize that privacy is protected in various ways by enumerated rights. He argues there is no "general right to privacy" particularly to be enforced by judicial opinions as compared (e.g., in the area of tort law, even outweighing freedom of expression in the balance at times) state legislation etc. He would in that respect agree with Douglas that privacy is important, but disagree on the means.

The concerns of the dissents are duly noted -- seriously -- but do think there is more there than they note. As is often the case, I also think a somewhat different opinion could have been crafted (Justice White's concurrence  touches various bases there), particularly based on how the law was applied.  Douglas' opinion was a tad thin, like a good draft needing more.

[A caller raised the sexual equality option, noting RBG also said it would make a good one for Roe v. Wade.  The earlier reference to the liberal minded marriage couple has shades of that, having an equality/privacy mixture.  It is anachronistic to think that would have worked well in the mid-1960s, though even as early as Roe the opinion had concerns focused on the women specifically, but there is definitely something there. 

The law banned items used "for the purpose of preventing conception," which left open a loophole for condoms for health reasons. This benefited women some, but gave men special benefits and power, including the decision to use the one item allowed.  This is an equal protection violation and since pregnancy itself has health concerns, the concern for health is selective as well. It adds to the overall problem here.]

Finally, there were First Amendment aspects (barely touched upon in oral argument but a whole section of Douglas' dissent in Poe v. Ullman) that warranted a bit more attention. Handing out of contraceptives is speech with action, but a major aspect of this involved birth control information with associational aspects too (this was touched upon and the right to intimate association was raised in later cases).