Judge Posner’s troubling explanation for his shift on same-sex marriage

Back in 1997, Judge Richard Posner wrote a book review in which he rejected the idea that there is a constitutional right to same-sex marriage. Last year, however, he wrote a prominent judicial opinion striking down laws banning same-sex marriage, holding that they violate the Fourteenth Amendment. In this recent Yale Law Journal essay, Posner explains the reasons for his change of heart. The key factor he cites is not any legal argument, but rather the evolution of public opinion:

[A] decision by the Supreme Court in 1997 establishing a right to homosexual marriage in all states would have been a mistake. A change in public opinion was required to make the judicial creation of such a right acceptable. The change occurred. By 2011 a majority of Americans supported authorizing same-sex marriage. On the eve of the Obergefell decision [which struck down all state laws banning same-sex marriage in June], thirty-five states and the District of Columbia recognized same-sex marriage, though mainly as a result of lower-court decisions based on implications of the United States v. Windsor decision… By 2015 the time was ripe for the Supreme Court to lay the issue to rest….

The arguments against same-sex marriage were never strong. They didn’t need to be when there was overwhelming passionate objection to such marriage. When the objection faded (not completely, but to a great extent, and with remarkable speed), the absence of strong arguments against same-sex marriage, and the presence of strong arguments in favor of it, became the decisive factors guiding judicial action.

Posner is the most influential federal judge below the level of the Supreme Court, and is also probably our most distinguished living legal scholar. In my view, he was absolutely right to change his mind on this issue. Unfortunately, however, he did it for the wrong reasons. But the justification he offers for the switch should trouble even those of us who agree with Posner’s new position on same-sex marriage more than the old one.

Posner’s argument suggests that courts should only enforce constitutional rights when majority opinion is on their side, or at least not too strongly opposed. In 1997, as Posner put it in his earlier article, “[a]n overwhelming majority of the American people [were] strongly opposed to” same-sex marriage. But if this is a justification for refusing to strike down an otherwise unconstitutional law, it turns on its head the notion that one of the main functions of judicial review is precisely to protect individual rights against majority public opinion. Under Posner’s approach, judicial enforcement of constitutional rights would only occur when it is least needed – when public opinion supports it and there is at least a decent chance that the political process will protect the right on its own. If anything, judges should be especially careful to enforce constitutional rights that are unpopular, since those are the ones that are least likely to be protected otherwise. If it is indeed true that “[t]he arguments against same-sex marriage were never strong,” then gays and lesbians should not have had to wait until they became unpopular for judges to rule against them.

It may be that Posner does not mean to apply this rationale to all constitutional rights, but only to same-sex marriage and, perhaps, a limited range of other cases. If so, we need a theory of how to distinguish those rights that should be enforced regardless of public opinion from those that the courts should only protect when the public is on their side. Unfortunately, Posner does not give us much of one, except perhaps the suggestion [which he quotes from his 1997 review] that “[a] complex and by no means airtight line of argument would be necessary plausibly to derive a right to homosexual marriage from the text of the Constitution.” But if hostile public opinion is enough to justify nonenforcement of a constitutional right in cases where the argument for the right is complex and not completely airtight, that would cut a wide swath through numerous other constitutional rights. The argument that the Fourteenth Amendment bans school segregation and laws forbidding interracial marriage also rests on fairly complex reasoning, and can’t easily be derived from the text of the Constitution alone.

Critics of the Supreme Court’s ruling in Obergefell might argue that Posner’s deference public opinion was a good thing, at least so long as it led him to avoid striking down what they think are constitutional laws. But such deference could just as easily lead judges to abjure enforcement of unpopular constitutional rights that the opponents of same-sex marriage themselves value. In the currently emerging political environment, those may well soon include the rights of people who oppose homosexuality and same-sex marriage on moral or religious grounds.

There is no question that judicial decisions are often influenced by changes in public opinion. That is an inescapable reality of a system in which federal judges are appointed and confirmed through a political process and often depend on the other branches of government to enforce their rulings. But recognizing that empirical reality is very different from offering a normative justification for judicial nonenforcement of unpopular rights. At least as a general rule, judges should not base their decisions on same-sex marriage or other constitutional rights on the vagaries of majority public opinion.

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Halloween law: Haunted house surprise leads customer to run away and fall

(Gerald Herbert/Associated Press)

From Griffin v. Haunted Hotel, Inc. (Cal. Ct. App. published Nov. 20):

Scott Griffin purchased a ticket to experience The Haunted Trail, an outdoor haunted house type of attraction where actors jump out of dark spaces often inches away from patrons, holding prop knives, axes, chainsaws, or severed body parts. After passing what he believed was the exit and “giggling and laughing” with his friends about how much fun they had, Griffin unexpectedly was confronted by a final scare known as the “Carrie” effect — so named because, like the horror film Carrie, patrons are led to believe the attraction is over, only to be met by one more extreme fright. This was delivered by an actor wielding a gas powered chainsaw (the chain had been removed), who approached Griffin, frightened him, and gave chase when Griffin ran away. Griffin was injured when he fell while fleeing. Griffin sued The Haunted Hotel, Inc. …, which operates The Haunted Trail, alleging negligence and assault.

“Under the primary assumption of risk doctrine, there is no duty to eliminate or protect a plaintiff against risks that are inherent in a sport or [recreational] activity.” … The risk that a patron will be frightened, run, and fall is inherent in the fundamental nature of a haunted house attraction like The Haunted Trail. Moreover, on this record there is no evidence creating a triable issue [that] Haunted Hotel unreasonably increased the risk of injury beyond those inherent risks or acted recklessly….

A basic part of the scares at The Haunted Trial is the startling, frightening, menacing and chasing of patrons by actors in ghoulish costumes, some carrying chainsaws with the chain removed. There is an inherent risk that a patron may decide to run and fall. Because there is no evidence that anyone associated with The Haunted Trail intentionally injured Griffin, and because being chased in the Carrie effect scene is neither reckless nor outside the range of ordinary activity involved in a scare attraction, the trial court properly determined that as a matter of law, Haunted Hotel breached no duty to Griffin.

Being chased within the physical confines of The Haunted Trail by a chainsaw carrying maniac is a fundamental part and inherent risk of this amusement. Griffin voluntarily paid money to experience it. “It is not the function of tort law to police such conduct.”

Seems quite right to me.

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Sheriff’s letters to Visa and MasterCard demanding that they stop doing business with Backpage.com violate the First Amendment

Cook County Sheriff Tom Dart speaks to lawmakers in Springfield, Ill., on Sept. 24. (Associated Press Photo/Seth Perlman)

From Monday’s 7th Circuit decision in Backpage.com v. Dart (some paragraph breaks added):

Backpage.com … provides an online forum for classified ads sectioned by subject matter, such as rentals, real estate, jobs, and, among still others, “adult.” The adult section in turn is subdivided into escorts, body rubs, strippers and strip clubs, dom[ination] and fetish, ts (transsexual escorts), male escorts, phone [sex], and adult jobs (jobs related to services offered in other adult categories, whether or not the jobs are sexual — not every employee of a brothel is a sex worker).

The Sheriff of Cook County, Tom Dart, has embarked on a campaign intended to crush Backpage’s adult section — crush Backpage, period, it seems — by demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage, since the ads might be for illegal sex-related products or services, such as prostitution. Visa and MasterCard bowed to pressure from Sheriff Dart and others by refusing to process transactions in which their credit cards are used to purchase any ads on Backpage, even those that advertise indisputably legal activities. …

Backpage … contend[s] that the sheriff is curtailing freedom of expression, in violation of the First Amendment. The sheriff ripostes that he’s not using his office to organize a boycott of Backpage by threatening legal sanctions, but merely expressing his disgust with Backpage’s sex-related ads and the illegal activities that they facilitate. That’s not true, and while he has a First Amendment right to express his views about Backpage, a public official who tries to shut down an avenue of expression of ideas and opinions through “actual or threatened imposition of government power or sanction” is violating the First Amendment.

The difference between government expression and intimidation — the first permitted by the First Amendment, the latter forbidden by it — is well explained in Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003) (per curiam): “the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive …. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.” …

It may seem odd, though it certainly does not exonerate Sheriff Dart, that he should be going after the credit-card companies rather than after Backpage itself. If Backpage is violating the law by accepting classified ads for “adult” services, which may include illegal services, such as prostitution, you’d think the sheriff would sue Backpage. But no; he tried that against Craigslist, a classified-ads website that had an adult section similar to Backpage’s, and he failed. District Judge Grady, in a thorough opinion, threw out the sheriff’s case. Dart v. Craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009). Craigslist, perhaps anticipating Dart’s campaign against Backpage, shut down its adult section the following year, though adult ads can be found elsewhere on its website. …

The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers…. [The sheriff] is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment unless there is no constitutionally protected speech in the ads on Backpage’s website — and no one is claiming that. The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands. E.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64–72 (1963); Okwedy v. Molinari, supra, 333 F.3d at 342–44. …

Section 230© of the Communications Decency Act of 1996 states, as Judge Grady had noted in the Craigslist case, that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” As our court has explained, interpreting section 230©, “an intermediary … normally is indifferent to the content of what it transmits.

Even entities that know the information’s content do not become liable for the sponsor’s deeds. Does a newspaper that carries an advertisement for ‘escort services’ or ‘massage parlors’ aid and abet the crime of prostitution, if it turns out that some (or many) of the advertisers make money from that activity?” Sounds like our case. Backpage is an intermediary between the advertisers of adult services and visitors to Backpage’s website. The credit card companies are more remote intermediaries.

It’s true that the Communications Decency Act does not immunize the credit card companies or Backpage from federal criminal liability, and remember that in the June letter Dart made ominous reference to the federal money-laundering statute. It’s unlikely that credit card companies would be prosecuted as aiders and abettors of Backpage, any more than the landlord of premises occupied by Backpage would be; but obviously credit card companies don’t like being threatened by a law-enforcement official that he will sic the feds on them, even if the threat may be empty. …

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.” A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say — but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens…. In his public capacity as a sheriff of a major county (Cook County has a population of more than 5.2 million), Sheriff Dart is not permitted to issue and publicize dire threats against credit card companies that process payments made through Backpage’s website, including threats of prosecution (albeit not by him, but by other enforcement agencies that he urges to proceed against them), in an effort to throttle Backpage. See Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 67.

For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or “plug the band” (a listing of music performances that includes such dubious offerings as “SUPERCELL Rocks Halloween at The Matchbox Bar & Grill”), or men dating men or women dating women — but ads for all these things can be found in non-adult sections of Backpage and it would be a clear abuse of power for public officials to try to eliminate them not by expressing an opinion but by threatening credit card companies or other suppliers of payment services utilized by customers of Backpage, or other third parties, with legal or other coercive governmental action. …

[We direct the district judge to] issue the following injunction (which supersedes the temporary injunction, pending decision of the appeal, issued by this court on November 16):

Sheriff Dart, his office, and all employees, agents, or others who are acting or have acted for or on behalf of him, shall take no actions, formal or informal, to coerce or threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to Backpage.com. Sheriff Dart shall immediately upon receipt of this order transmit a copy electronically to Visa and MasterCard and all other recipients of his June 29, 2015, letter (including therefore the directors of and investors in Visa and MasterCard), as well as to the Chief Inspector of the United States Postal Service….

For more details on the sheriff’s letter, and why the 7th Circuit panel viewed it as a threat of government action and not just an exhortation to do what the sheriff thinks is morally right, see the rest of the opinion.

Thanks to Howard Bashman (How Appealing) for the pointer.

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Spanking a small child with a hand or sandal need not be child abuse, California court rules

From In re D.M. v. Jessica G., decided last week by the California Court of Appeal:

A mother used her hand or a sandal to spank her two children on the buttocks on those “rare” occasions when lesser disciplinary measures proved ineffective, but never hard enough to leave bruises or marks. May a juvenile court conclude mother has inflicted “serious physical harm” within the meaning of Welfare and Institutions Code section 300 without first examining whether her conduct falls outside the right of parents, which exists elsewhere in California civil and criminal law, to discipline their children as long as the discipline is genuinely disciplinary, is warranted by the circumstances, and is reasonable (rather than excessive) in severity?

We conclude that the juvenile court may not. Because the juvenile court’s ruling in this case relied on its categorical view that “hitting children with shoes” is “physical abuse” and “not a proper form of discipline,” we vacate the court’s jurisdictional finding as to mother and remand so that the court may in the first instance apply the reasonable parental discipline doctrine….

In May 2014, the Los Angeles County Department of Children and Family Services (Department) received a report that mother was yelling at and beating the children. When talking to Department investigators, mother admitted that she would discipline her children by making them do chores, by scolding them verbally, by denying them privileges (such as watching television), and by threatening to spank them.

On the “rare” occasions when these techniques did not work, she would spank the children on the buttocks with her bare hand or with a sandal. The children confirmed that mother would occasionally spank them. The spankings were not hard enough to leave marks or bruises: The Department’s investigators observed no marks, bruises, welts or scars, and no one the investigator spoke with — from the boys’ primary doctor, to their maternal grandmother, babysitter, and school teacher — had ever observed any marks or bruises. Consistent with these reports, D.M. reported that a spanking “[did not] hurt too much.” …

The Department … filed a petition asking the juvenile court to assert dependency jurisdiction over D.M. [born 2007] and J.M. [born 2010] pursuant to section 300, subdivisions (a), (b), and (j), on [the grounds that, among other things,] mother had intentionally inflicted serious physical harm on J.M. by spanking him and thereby put D.M. at substantial risk of similar abuse….

The court … sustained the allegation based on mother’s discipline, finding that mother had spanked the children “on repeat occasions” and reasoning that “hitting children with shoes is not a proper form of discipline, and it’s physical abuse.” As pertinent to this appeal, the court’s dispositional order required mother to attend a support group for victims of domestic violence, to attend parenting classes, and to attend individual counseling….

The question presented in this case is whether a parent’s spanking of her children on the buttocks with her bare hand and with a sandal categorically constitutes “serious physical harm” sufficient to invoke dependency jurisdiction under section 300, subdivisions (a), (b) and (j), irrespective of whether the spankings qualify as reasonable parental discipline. As explained below, we conclude that the answer to this question is “no.” …

[T]he text of section 300, subdivision (a), specifically and expressly provides that “‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.” Although this proviso limits itself to the “purposes of [ ] subdivision [ (a) ],” the exception to dependency jurisdiction for reasonable discipline applies across the board to all of section 300’s jurisdictional grounds for two reasons. First, the Legislature chose to use the term “serious physical harm” throughout section 300. “‘When a word or phrase is repeated in a statute, it is normally presumed to have the same meaning throughout.’“Second, the Legislature provided, in the paragraph of section 300 following the enumeration of the last statutory basis for dependency jurisdiction, that “[i]t is the intent of the Legislature that nothing in this section … prohibit the use of reasonable methods of parental discipline, or prescribe a particular method of parenting.”

What is more, these Legislative declarations in section 300 are consistent with the longstanding principle of California law that “‘a parent has a right to reasonably discipline his or her child and may administer reasonable punishment….’” A parent acting within the boundaries of this right cannot be found liable for a tort; guilty of a crime; or subject to registration as a child abuser.

Whether a parent’s use of discipline on a particular occasion falls within (or instead exceeds) the scope of this parental right to discipline turns on three considerations: (1) whether the parent’s conduct is genuinely disciplinary; (2) whether the punishment is “necess[ary]” (that is, whether the discipline was “warranted by the circumstances”); and (3) “whether the amount of punishment was reasonable or excessive.” …

The juvenile court asserted dependency jurisdiction in this case on the ground that “hitting children with shoes” on “repeat occasions” “is not a proper form of discipline, and it’s physical abuse.” Because the court did not consider the genuineness, necessity or reasonableness of mother’s use of spanking as a disciplinary measure, the juvenile court’s seemingly blanket rule is inconsistent with the law described above. It also treats the implement of punishment (a sandal rather than a hand) as dispositive, which is also not consistent with the law. (Accord, 80 Ops.Cal.Atty.Gen. 203 (1997) [“It is not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand”]; Gonzalez, supra, 223 Cal.App.4th at p. 92 [“We cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline”].)

The Department defends the juvenile court’s categorical ruling. The Department first contends that some of the authority we cite involved the parental right to physically discipline children in the context of child abuse registration (as Gonzalez does) or criminal law (as the Attorney General’s opinion does), and thereby suggests that this right does not apply in the context of juvenile dependency proceedings.

But, as we explained above, the text of section 300 explicitly preserves the right of parents to administer “reasonable” and “reasonable and age-appropriate” discipline. What is more, we adopt for section 300 the same three-part definition of “reasonable” parental discipline that courts have been consistently applying for decades in every other context in which it arises. Dependency law undoubtedly rests on a unique cluster of policy concerns, but the policy that prompts courts to balance a parent’s right in deciding how to raise his or her child against the child’s right not to be subjected to unreasonable discipline is not unique to the dependency system.

Relatedly, the Department notes that dependency courts “need not wait until a child is seriously abused or injured to assume jurisdiction,” and reasons that the juvenile courts should be empowered to exercise dependency jurisdiction, even when parental discipline is reasonable, because it might later become unreasonable. However, because this reasoning would apply in every case of parental discipline, reasonable or not, it would effectively write the language preserving the right to engage in reasonable discipline right out of section 300. Rewriting statutes is beyond our purview.

Where, as here, the juvenile court applies the incorrect legal standard, we may decline to engage in substantial evidence review and instead remand to allow the juvenile court to apply the correct legal standard. Such a remand is appropriate in this case, where the parties did not adduce — and the juvenile court did not consider — evidence relevant to the genuineness of mother’s disciplinary motive, the necessity of her punishment or the reasonableness of its severity. These issues likely turn on questions of credibility (of both mother and Guillermo) and competency to testify (as to the children), and these are questions the juvenile court is in a far better position to assess in the first instance….

Justice Victoria M. Chavez dissented:

Under the substantial evidence standard of review we review the entire record, drawing all reasonable inferences in favor of the trial court ruling. … When viewed in [this light], … the evidence support[s] the conclusion that repeated striking of a child three years old and younger, with a shoe, while screaming and yelling at the child, is not reasonable or age-appropriate? …

The evidence before the juvenile court from Guillermo, D.M., J.M. and mother herself, was that mother on repeated occasions over a period of years, used a shoe to strike her young children as a form of discipline. It is axiomatic that small children should not be hit with hard objects, especially to the point of bruising. While there was no evidence of bruising or other physical injury, D.M. did express fear of mother when she hit him. It is also clear that “[t]he court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.”

I further dissent from the majority’s effort to create a new standard for asserting jurisdiction (§ 300) over a child in the juvenile court by grafting onto dependency proceedings considerations applicable elsewhere in the law. “The goal of dependency proceedings, both trial and appellate, is to safeguard the welfare of California’s children. … These proceedings are ‘“designed not to prosecute a parent, but to protect the child.”‘ …”

The cases relied on by the majority are distinguishable in that they involve not issues of dependency, but the proper recordation of information in the state’s Child Abuse Central Index or the duty to instruct a jury of the standard of justifiable force as a defense to a criminal defendant-parent claiming the right to physically punish a child. It is my position that the focus of these cases is far removed from the concerns of safeguarding a child at risk of potential harm, and should not be used as a means of adding another evaluation to the many tasks required of the dependency courts.

The juvenile court was in the best position to evaluate the parties who were present in court with their counsel and to make findings of fact based on that assessment. The weight that the juvenile court gave to Guillermo’s statement and to the statements of all the others is entitled to deference and respect.

The juvenile court, in what can fairly be described as a close case, reached the conclusion that these young children were at risk of serious physical harm at the hands of their overworked, single mother who had demonstrated a lengthy pattern of inappropriate discipline of them. Substantial evidence supports that conclusion whether or not it is one that we might have reached if we were deciding the case at the trial court level.

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The 6th Circuit gets away with one

This morning the Supreme Court denied certiorari in Rapelje v. Blackstona habeas case from the U.S. Court of Appeals for the 6th Circuit arising under the Antiterrorism & Effective Death Penalty Act (AEDPA). There’s usually nothing notable about a denial of certiorari, as cert is denied in the vast majority of cases. The court’s refusal to hear Rapelje, however, prompted a dissent from thee justices.

As the dissent from denial of certiorari by Justice Scalia (joined by Justices Thomas and Alito) notes, the lower court decision was quite clearly wrong under existing precedent and it’s the sort of case that the Supreme Court has often taken in the past.

A criminal defendant “shall enjoy the right … to be confronted with the witnesses against him.” U. S. Const., Amdt. 6. We have held that this right entitles the accused to cross-examine witnesses who testify at trial, and to exclude certain out-of-court statements that the defendant did not have a prior opportunity to cross-examine. Crawford v. Washington, 541 U. S. 36, 50–51 (2004); Davis v. Alaska, 415 U. S. 308, 315–317 (1974). We have never held—nor would the verb “to confront” support the holding—that confrontation includes the right to admit out-of court statements into evidence. Nevertheless, the Sixth Circuit held not only that the Confrontation Clause guarantees the right to admit such evidence but that our cases have “clearly established” as muuch. We should grant certiorari and summarily reverse… .

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits federal courts from granting habeas relief unless the state court’s decision “involved an unreasonable application of … clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1) (emphasis added). As the dissenting judge below pointed out, no case of ours establishes, clearly or otherwise, that the Confrontation Clause bestows a right to admit this kind of evidence. 780 F. 3d, at 363–364 (opinion of Kethledge, J.). In fact we long ago suggested just the opposite. Mattox v. United States, 156 U. S. 237, 245–250 (1895)… .

There may well be a plausible argument why the recantations ought to have been admitted under state law… . But nothing in our precedents clearly establishes their admissibility as a matter of federal constitutional law. AEDPA “provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 572 U. S. ___, ___ (2014) (slip op., at 11). By framing the confrontation right at a high level of generality (making it the right “to impeach the credibility of an adverse witness”), the Sixth Circuit in effect “transform[ed] … [an] imaginative extension of existing case law into ‘clearly established’” law. Jackson, supra, at ___ (slip op., at 7). That will not do.

The Sixth Circuit seems to have acquired a taste for disregarding AEDPA. E.g., Woods v. Donald, 575 U. S. ___ (2015) (per curiam); White v. Woodall, supra; Burt v. Titlow, 571 U. S. ___ (2013); Metrish v. Lancaster, 569 U. S. ___ (2013); Howes v. Fields, 565 U. S. ___ (2012). We should grant certiorari to discourage this appetite.

As Scalia’s opinion suggests, the 6th Circuit has developed something of a reputation for its, shall we say, creative approach to habeas cases under AEDPA. In recent years the court has developed a habit of finding new ways to claim that “clearly established” law requires the grant of habeas petitions. And in recent years the Supreme Court has granted cert and reversed in a large number of these cases — so much so that the 6th Circuit developed a reputation as “the new 9th.” Taken as a whole, this string of cases suggests that some judges on the 6th Circuit are intent upon reaching certain outcomes without regard for precedent.

I should add that the wayward 6th Circuit judges may be correct as a policy matter. It’s entirely possible that existing Supreme Court precedent is not sufficiently sympathetic to claims brought by habeas petitioners under AEDPA. It is also possible that the standard imposed by AEDPA is too onerous and makes it too difficult for individuals convicted in state court to raise successful habeas claims. Yet even if this is true, it’s not the job of judges — and lower court judges in particular — to substitute their views for those of Congress or the Supreme Court. Whether or not the high court has gotten these cases right, it’s become fairly clear that at least some judges on the 6th Circuit are reluctant to comply.  But the Supreme Court is not generally in the business of error correction, some of the 6th Circuit’s outlier decisions will slip through — and it seems that one did here.

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Free showing of “The Man in the High Castle,” followed by a panel discussion

On Thursday, December 3, at the Newseum, in Washington, DC, I will be participating in a discussion panel following a free showing of the first two episodes of the new TV series “The Man in the High Castle,” based on Philip K. Dick’s famous alternate history novel of the same name.

The reception begins at 6:15 PM, and the show starts at 7:30. It will be followed by a panel discussion, in which I will participate along with Bob Cusack, editor in chief of The Hill, Kevin S. Bankston, Director of New America’s Open Technology Institute, Morgan Wandell, Head of Drama at Amazon (which produced the show). The address is The Walter and Leonore Annenberg Theatre, 555 Pennsylvania Ave., NW, Washington DC.

Although the event is free, space is limited. If you want to come, please RSVP to the following e-mail address: highcastlersvp@gpg.com. Please put “Volokh” in the subject heading of your e-mail, so that the organizers will know you found out about the event through the Volokh Conspiracy.

I have previously written a number of book chapters, articles, and blog posts, about the politics of fantasy and science fiction literature. I very much look forward to discussing this interesting new series, based on a classic in the field.

I hope to see you there!

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The ‘speech integral to criminal conduct’ exception

I have an article with the above title coming out in several months in the Cornell Law Review — an early draft is available here. The Introduction is below:

Since 2006, the Supreme Court has been reviving a long-dormant and little-defined First Amendment exception: the exception for “speech integral to criminal [or tortious] conduct.” The leading case cited as support for that exception, Giboney v. Empire Storage & Ice Co. (1949), hadn’t been cited by the Court at all from 1991 to 2005. Since 2006, the Court has cited Giboney six times. “Speech integral to criminal conduct” is now a standard item on lists of First Amendment exceptions.

The Court has used this exception to justify prohibitions on distributing and possessing child pornography, on soliciting crime, and on announcing discriminatory policies. Lower courts have used it to justify restrictions on speech that informs people how crimes can be committed; on doctor speech that recommends medical marijuana to their clients; on union speech that “retaliates” against union members by publicly criticizing them for their complaints; on intentionally distressing speech about people; and more. Government agencies have used the exception to justify restrictions on, among other things, the publication of bomb-making instructions, speech by tour guides, and offensive speech by protesters near a highway.

The Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well-defined and narrowly limited, courts need to explain and cabin its scope. This Article — the first, to my knowledge, to consider the exception in depth — aims to help with that task.

In the process, the Article observes several things, both about the current state of the law and how it evolved:

1. The “speech integral to [illegal] conduct” exception, though largely dormant during the late Burger Court and the Rehnquist Court, was very important in the early decades of free speech law, and had roots going back to the 1910s. The Court saw it as connected not just with the law of solicitation and conspiracy, but also the law of fighting words and threats. The limits on what constitutes punishable incitement, from the Holmes and Brandeis post-World War I dissents to Brandenburg v. Ohio and NAACP v. Claiborne Hardware, were attempts to chart the boundaries of this doctrine.

2. This exception was also central to Justice Black’s (and, to some extent, Justice Douglas’s) supposedly “absolutist” vision of the First Amendment. Justice Black’s distinction between conduct and speech was closely linked to the view that some speech that causes or threatens illegal conduct should itself be treated as a form of conduct.

Indeed, though Justices Black and Douglas famously rejected First Amendment exceptions for obscenity, libel, and incitement, they had no problems with exceptions for fighting words, solicitation, and threats. The “integral to [illegal] conduct” exception helps explain that position.

3. And the history of the exception also helps explain its revival during the Roberts Court. Over several cases, Chief Justice Roberts and Justice Scalia have been articulating a vision of the First Amendment in which the exceptions to protection are not the product of “categorical balancing” by the Court, but are rather supposed to be found in history and tradition.

Given this, the Justices have to answer a question: how to explain existing exceptions that the Justices do not reject, but that (unlike, say, libel, obscenity, fighting words, and incitement) lack a solid historical provenance? This is a similar question to the one that Justices Black and Douglas had to answer: how to explain existing exceptions that those Justices did not reject, but that look like they should be rejected under their absolutist test? The answer Justice Black gave is that the “speech integral to illegal conduct” doctrine left room for such exceptions.

The Court is now returning to that same doctrine, armed with that doctrine’s historical provenance, and seeking the same thing: an umbrella that can cover restrictions on speech such as child pornography, solicitation, threats of discrimination, and the like. Labeling such speech “conduct” — or, as Justice Douglas tended to call it, speech “brigaded” with conduct — helps avoid (or, in the view of cynics, conceal) more thoroughgoing balancing.

4. But the “speech integral to illegal conduct” doctrine — together with its links to the threats and fighting words exceptions — was not just a convenient safety valve to protect what would otherwise be an excessive absolutism. Rather, it is consistent with a particular understanding of free speech, which one might call a “rule-of-law” model of speech.

Under this model, people have to be free to advocate for changes in the law, the economy, and society, and to use social and economic pressure to push for such changes. But people must comply with valid laws that regulate nonspeech conduct. And they must also avoid speech that helps cause illegal conduct, or that threatens to commit illegal conduct.

Given that speech sometimes both constitutes advocacy of social change and helps cause illegal conduct, the question is where the rule of law calls for the line to be drawn. In many ways, that was the question that the Court during Justice Black’s tenure was facing, and that Justice Holmes was struggling with in his shifting free speech votes from 1911 to 1927.

5. The Giboney opinion and the ones that followed it, especially in the 1950s, were not clear in their scope. That is unsurprising, since the Court was just beginning to develop free speech doctrine then, and since the more libertarian Justice Black wing of the Court was struggling at the time with the more pro-restriction Justice Frankfurter wing. And precedents since the 1960s have cut back on some of the broader implications of Giboney and its earlier progeny.

6. Given all these precedents, the best understanding of the “integral to illegal conduct” exception is this:

  • When speech tends to cause, attempts to cause, or makes a threat to cause some illegal conduct (illegal conduct other than the prohibited speech itself) — such as murder, fights, restraint of trade, child sexual abuse, discriminatory refusal to hire, and the like — this opens the door to possible restrictions on such speech.
  • But the scope of such restrictions must still be narrowly defined, in order to protect speech that persuades or informs people who will not engage in illegal conduct. That some category of speech was historically unprotected, because it causes or threatens illegal conduct, does not tell us where the boundaries of the exception should be drawn. The history of the incitement and fighting words doctrines, for instance, shows the Court’s narrowing the historically unprotected zone (as the Court has done with regard to some of the historical exceptions that aren’t tied to other illegal conduct, such as the obscenity and libel exceptions).

In a sense, then, the Giboney doctrine should be seen less as a single exception than as a guide to generating other exceptions. For instance, Giboney cited cases authorizing punishment for advocacy of illegal conduct and for insulting speech as involving speech integral to illegal conduct. But while the risk of illegal conduct posed by such speech has indeed led the Court to recognize First Amendment exceptions (for incitement and fighting words), the Court has been careful to define those exceptions narrowly, to protect potentially valuable speech.

Likewise, the child pornography exception has been explained as an application of the Giboney principle, because distribution and possession of child pornography helps cause criminal production of child pornography. But there too the Court has made clear that not all speech that creates a market for criminally obtained speech (for instance, for unlawful interception of cell phone calls) is constitutionally unprotected.

7. On the other hand, the Giboney doctrine can’t justify treating speech as “integral to illegal conduct” simply because the speech violates the law that is being challenged. That should be obvious, since the whole point of modern First Amendment doctrine is to protect speech against many laws that prohibit such speech. Yet many lower courts have indeed used Giboney that way, for instance to uphold laws restricting professionals’ (such as psychotherapists’) speech to their clients.

Giboney has thus become, at times, a tool for avoiding serious First Amendment analysis — a way to uphold speech restrictions as supposedly fitting within an established exception, without a real explanation of how the upheld restrictions differ from other restrictions that would be struck down. Understanding the limitations on the Giboney doctrine is critical to avoiding such misuse of Giboney.

8. Relatedly, Giboney can’t justify treating speech as “integral to illegal conduct,” even when the speech violates a law that equally forbids both conduct and speech (usually a law that bars conduct that produces, is intended to produce, or is likely to produce a certain result). The Court has recently made clear, in Holder v. Humanitarian Law Project, that even generally applicable laws are subject to strict scrutiny when they apply to speech because of the harm assertedly caused by its content. Moreover, when Giboney was decided, the Court had already so held in several other leading cases — and continued to do so in many leading cases between Giboney and Holder.

I am not a fan of the “speech integral to illegal conduct” exception, but it seems to be here to stay. The question is what it does, and should, cover.

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