Tag: Constitutional Law

Details: Specific Facts and the First Amendment – Article by Ashutosh Bhagwat

From Volume 86, Number 1 (November 2012)
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In an opinion that many would argue gave birth to modern free speech law, Justice Oliver Wendell Holmes, Jr. described the purpose of the First Amendment as protecting the “free trade in ideas [because] the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Thus was born the “marketplace of ideas” metaphor that has heavily influenced the subsequent development of free speech jurisprudence. In another seminal opinion, Justice Louis Brandeis emphasized that “a state is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence” because such prohibitions interfere with the “public discussion,” which is at the heart of deliberative democracy. More recently, the Supreme Court has articulated the view that “[u]nder the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” These three statements constitute some of the most famous declarations of First Amendment liberty in the history of the Supreme Court. What is noteworthy about these opinions, however, is that they all focus on the freedom to articulate ideas, including opinions and doctrine. What they do not address is the treatment of facts in free speech law. It is true that the most recent case quoted above, Gertz v. Robert Welch, Inc., goes on after denying the existence of false ideas to state that “there is no constitutional value in false statements of fact,” but this is a reference only to false facts. What about true facts? What is their role in the pantheon of free speech? Are they equivalent to opinions, or do facts warrant distinct First Amendment analysis? How does factual speech relate to the underlying purposes of the First Amendment? And have the answers to these questions shifted in light of the rise of the Internet as the dominant modern avenue for the dissemination of speech? These are the questions that this Article explores.

 

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Essays: Second Amendment Penumbras: Some Preliminary Observations – Article by Glenn Harlan Reynolds

From Volume 85, Number 2 (January 2012)
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The Second Amendment to the Constitution is now part of “normal constitutional law,” which is to say that the discussion about its meaning has moved from the question of whether it means anything at all, to a well-established position that it protects an individual right, and is enforceable as such against both states and the federal government in United States courts. The extent of that individual right has not yet been fully fleshed out, and, of course, will (like other items of normal constitutional law) occasion disagreement on one issue or another into the foreseeable future.

Nonetheless, now that the right has achieved a measure of concreteness, it has begun, like other parts of the Bill of Rights, to cast its shadow across the law. And if the core of the shadow—or umbra—remains a bit unclear, what of the edge or penumbra? In this brief Essay, I will discuss some possible penumbral aspects of the Second Amendment, as it may be applied in the future. I will also discuss its possible interaction with other (up to now, at least) “underenforced” constitutional rights, and consider whether the normalization of the Second Amendment might imbue those rights with additional force. I will conclude with some guidelines, or at least suggestions, for further research.

 

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Taxing Youth: Health Care Reform Writes a Costly Prescription that Leaves the Young and Healthy Paying the Bill – Note by Charles P. Litchfield

From Volume 85, Number 2 (January 2012)
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With the American health care system facing a looming crisis due to unsustainable rates of medical cost inflation, the government has reacted by passing the Patient Protection and Affordable Care Act. While the present ubiquity of third-party payers in the form of health insurance or government programs spawns inefficiencies and perverse incentives that drive market forces to work against, rather than toward, maximum social welfare, the reform bill threatens to exacerbate the very inefficiencies it seeks to avoid. Rather than focusing on controlling medical cost inflation, the bill seeks to include high-risk groups that are normally priced out of the insurance market, thus placing more stress on the payment model. The individual mandate—making health insurance mandatory—ensures that the low-risk young and healthy demographic will bear the cost of this increased burden on the insurance system. This Note examines how the recent health reform bill proposes to restructure the insurance market itself and analyzes the inadequacies of the individual mandate. Further, it briefly explores the constitutional challenges to the mandate and discusses whether the health reform bill is salvageable in light of its deficiencies.

 

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The Media that Need Citizens: The First Amendment and the Fifth Estate – Article by Adam Cohen

From Volume 85, Number 1 (November 2011)
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The Federal Trade Commission (“FTC”) adopted new disclosure rules in 2009 for “consumer-generated media.” The “Guides Concerning the Use of Endorsements and Testimonials in Advertising” warn bloggers, people who post on social networking sites, and other generators of new media content that they must disclose when they receive payments or free products related to what they write about. Failure to disclose material connections can result in fines of up to $10,000 for each violation.

The FTC endorsement rules do not apply to journalists who work for newspapers, magazines, or television and radio stations. When the guides were released, new media journalists protested that the government was creating a two-tiered regulatory regime that singled them out for unfavorable treatment. Jack Shafer, the media critic for Slate, called the rules “preposterous” and denounced “[t]he FTC’s [m]ad [p]ower [g]rab.”

 

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Inside the Border, Outside the Law: Undocumented Immigrants and the Fourth Amendment – Article by D. Carolina Nuñez

From Volume 85, Number 1 (November 2011)
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 As states enact immigration-related laws requiring local law enforcement officers to identify and detain undocumented immigrants, the Fourth Amendment rights of aliens are becoming critically important. In United States v. Verdugo-Urquidez, a divided Supreme Court suggested that aliens in the United States do not have Fourth Amendment rights unless they have established “substantial connections” to the United States. Lower courts have relied on Verdugo’s holding to categorically deny Fourth Amendment rights to certain classes of undocumented immigrants. Commentators have criticized the “substantial connections” test as an isolated misinterpretation of Court precedent regarding the rights of aliens within the United States.
 

This Article, however, takes a new approach. It analyzes Verdugo in the context of the Supreme Court’s treatment of aliens’ constitutional rights both inside and outside the United States. In doing so, this Article identifies the Supreme Court’s evolving approach to membership and highlights Verdugo’s pivotal role in the development of that approach. This Article suggests that the Court’s increasing extension of membership rights to aliens outside the United States and denial of membership rights to aliens within the United States is evidence of an emerging “post-territorial” approach to membership that rejects territorial presence as an accurate measure of membership. Rather, the post-territorial approach looks to more substantive indicators of membership, including community ties and mutuality of obligation, to afford rights. Ultimately, this Article examines Verdugo’s progeny through a post-territorial lens and concludes that lower courts that categorically deny certain classes of undocumented immigrants Fourth Amendment rights violate Verdugo’s post-territorial mandate by failing to evaluate the claimant’s substantive indicators of membership.

 

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Closing a Loophole: Headley V. Church of Scientology International as an Argument for Placing Limits on the Ministerial Exception from Clergy Disputes – Note by Molly A. Gerratt

From Volume 85, Number 1 (November 2011)
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In 2009, Marc and Claire Headley sued the Church of Scientology International and its affiliate, Religious Technology Center, for violating the Trafficking Victims’ Protection Act (“TVPA”) and for forcing Claire to undergo two abortions. The case was thrown out at the summary judgment phase because the Headleys were considered “ministers” of the Church of Scientology. Under the judicially created “ministerial exception”—an exemption never explicitly endorsed by the U.S. Supreme Court—ministers are barred from suing their religious employer for disputes arising during the course of their employment. Because of the ministerial exception, the Headleys’ accusations have gone uninvestigated, potentially allowing the Church to continue to inflict horrific treatment on other “ministers” in its ranks. This Note begins by analyzing the current state of the exemption and its limits. Utilizing Headley as a case study, this Note concludes that the current limits on the ministerial exception are inadequate and proposes that courts consider the “harm principle” as a limiting doctrine on the exemption. This limiting principle would force the courts to consider physical and societal injuries caused by religious institutional behavior in the ministerial employment relationship in their constitutional inquiries. During the production of this Note, the U.S. Supreme Court heard argument and decided a case concerning the ministerial exception. A brief epilogue addresses the decision and its implications on the limitation set forth in this Note. 

 

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Graffiti and the Constitution: A First Amendment Analysis of the Los Angeles Tagging Crew Injunction – Note by Kelly P. Welch

From Volume 85, Number 1 (November 2011)
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In 2008, a group of taggers known as the Metro Transit Assassins (“MTA”) painted a giant “MTA” tag in the Los Angeles riverbed that was visible from downtown office buildings and freeways. The three-story-high tag extended for half a mile along the riverbed and used an estimated four hundred gallons of paint. The government projected that it would cost $3.7 million to clean up the tag, including taking the necessary precautions to contain the toxic paint and runoff during cleanup. A graffiti historian explained that the tag was “definitely a statement, . . . [t]o do something that big and bold it takes organization.” Seven alleged MTA members were arrested in 2009 for the tag. During the arrests and ensuing searches, law enforcement found specialized tools that enable such large-scale, logistically difficult tagging: high-pressure fire extinguishers filled with paint.

In response to the riverbed tag and a multitude of other MTA graffiti vandalism throughout Los Angeles, the Los Angeles City Attorney filed a complaint in July 2010 seeking a civil injunction against MTA and its members. If granted, the injunction would, among other things, prohibit possession of graffiti tools, prohibit public association with other members of MTA, prohibit profiting from graffiti, and impose a curfew on MTA members. First Amendment challenges to the injunction have already begun: in May 2011, the American Civil Liberties Union (“ACLU”) filed defense motions containing First Amendment challenges to the injunction, but they were denied by the Los Angeles Superior Court. In August 2011, the California Court of Appeals denied defense motions challenging the Superior Court ruling.

 

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Criminal Cookbooks: Proposing a New Categorical Exclusion for the First Amendment – Note by Chelsea Norell

From Volume 84, Number 4 (May 2011)
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This Note will propose a new categorical exclusion from the First Amendment for speech that specifically details how to commit a crime and, –as a whole, lacks serious literary, artistic, political, or scientific value. This exclusion–the crime plans exclusion–may be tailored in various ways to reflect an accommodation of free speech principles and government interests. Ultimately, this Note will advocate a two-plank definition of crime plans speech requiring (1) that the speech be sufficiently specific so that a reasonable person who has never committed the described crime could follow the instructions and expect to carry out the crime or conceal evidence, and (2) that the speech, “as a whole, lacks serious literary, artistic, political, or scientific value,” which will be referred to collectively as “redemption value.”

While this Note will advocate a new categorical exclusion, it will also suggest that crime plans speech can be denied First Amendment protection under traditional strict scrutiny analysis. Moreover, when crime-facilitating speech does not fall into the crime plans exclusion, it still may be denied First Amendment protection under strict scrutiny analysis if the state’s compelling interest in prohibiting that speech outweighs the individual’s free speech interest. Though strict scrutiny analysis can often yield the same result as a categorical exclusion, categorically excluded speech does not have presumptive constitutional protection and is subject only to the minimal rational basis test. Thus, the argument structure of the categorical exclusion conveys a message that specific crime-facilitating speech that has virtually no noncriminal redemptive value is undeserving of First Amendment protection.

In addition to a categorical exclusion, this Note will propose that specific crime-facilitating speech that poses dangers of catastrophic magnitude should be subject to prior restraints. Such restraints are constitutionally permissible so long as they implement procedural safeguards to combat standardless discretion.

Crime-facilitating speech is any speech that abets crime or provides information that may be useful in a criminal endeavor. Such speech can take various forms, ranging from one-on-one conversations to electronic publications disseminated throughout the world. Crime-facilitating speech makes some crimes achievable that would not otherwise be possible, such as divulging social security numbers to facilitate identity theft. This speech also makes some crimes easier to commit or harder to detect and thus harder to deter and punish.

 

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