Blog Updates
Kimberly Guilfoyle has this notable new Hill commentary under the headline “Avoid the slippery slope of ‘soft-on-crime’ policies that progressives want.” Much of the piece is focused on immigration policy, but other domestic crime and punishment issues are covered, as revealed by these excerpts:
Perhaps unsurprisingly, this commentary does not mention that, according to Philadelphia Police Department data, violent crime in Philly reportedly went down by five percent in 2018 (though homicides were up 10%), and violent crime has remained at that lower rate so far in 2019 (though with homicide still moving up). This commentary also, notably, makes no mention of the Trump Administration’s support for the FIRST STEP Act. In this context, I know I am happy to “stand with President Trump” when he stressed at the White House this important point earlier this month : “Americans from across the political spectrum can unite around prison reform legislation that will reduce crime while giving our fellow citizens a chance at redemption.” Specifics aside, I highlight this commentary because it provide a useful reminder of how readily we might slide back into the tired-old “soft-on-crime” rhetoric that defined domestic discourse on crime and punishment for decades in the United States. Though there are no shortage of wedge issues in our current political discussions, crime and punishment has a dangerously classic character. via Tumblr Notable new advocacy against a "soft-on-crime prosecutorial agenda"
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The title of this post is the title of this notable new article now available via SSRN authored by Sandra Mayson and Megan Stevenson. Here is its abstract:
via Tumblr "Misdemeanors by the Numbers" Mehros Nassersharifi is being charged with making “a telecommunication” “with purpose to harass, intimidate, or abuse a person at the premises to which the telecommunication was made” (Ohio Rev. Code § 2917.21(A)(1)), by
The Twitter account apparently had at least 15 posts, which
Now this is obviously nasty behavior. While I think that even it is constitutionally protected (there’s no established First Amendment exception that covers it), I have to agree that little would be lost to public debate if people couldn’t publicly insult high school students’ appearance, and say that they ought to have been killed. But nothing in the statute that the prosecutor is using is limited to such speech. Instead, the statute applies to a vast range of speech—at least if one accepts the prosecutor’s theory that a Twitter message is “made … to” “the premises” of everyone who might read it:
Tweeting about government officials is a crime, if a prosecutor and jury decide they were sent “with purpose to … abuse” the officials (or “to harass” them, whatever that means). Same for messages (or Facebook posts or blog posts) about activists, businesspeople, and others. Same for messages that “abuse” by condemning people’s actions or ideologies, and not just their looks. Nor is the law limited to anti-Semitic or otherwise bigoted speech; indeed, R.A.V. v. City of St. Paul (1992) makes clear that it would be unconstitutional for the law to be so limited. Online newspaper articles would be covered, too, if the prosecutor and jury decide they were posted “with purpose to … abuse” the people being written about. Ohio Rev. Code § 2917.21(F) does provide an exception for employees or contractors of various media outlets, but that exception applies only to certain other provisions of the law, not to (A)(1), which is the provision being used here. To be sure, most prosecutors will likely use the law sparingly, and might perhaps try to limit it, for instance, just to nonpolitical personal insults of private citizens (and perhaps especially of teenagers). But that is precisely the same argument the Supreme Court expressly rejected in U.S. v. Stevens (2010) (the animal cruelty video case):
Last year, I lost a Sixth Circuit case (Plunderbund Media, LLC v. DeWine) in which my clients and I challenged a related provision of the same statute, § 2917.21(B)(2); that provision expressly applied to “post[ing] a text or audio statement or an image on [the web] … for the purpose of abusing, threatening, or harassing another person,” which is how the prosecutor in Nassersharifi is interpreting (A)(1) as well. We lost that case on the grounds that the court didn’t think that our clients (political organizations) faced a sufficient threat of prosecution for their usual speech; the court therefore concluded that we lacked standing to bring our challenge. But Nassersharifi, if he chooses to fight this, would have standing to challenge the law on its face, and to argue that—even if his own speech might be restrictable on some theory—the law is substantially overbroad, because it covers a substantial amount of constitutionally protected speech. That challenge should, I think, prevail. (It’s possible that Nassersharifi could be disciplined by the school, or even expelled, for his speech; that’s a separate and complicated matter that I’ll leave aside for this post.) See also this post by Hans Bader (Liberty Unyielding) analyzing the First Amendment issue here further. via Tumblr [Eugene Volokh] Crime to Tweet About People Intending to “Abuse” Them? A good line from Louis Henkin, writing in 1971. His “something more” is “a workable accommodation of competing values properly achieved and reasonably justified”; others might say “an understanding of the original meaning of the Constitution, both those parts that secure freedoms and those that secure government power”; others might say “a focus on the traditions of the American people, and on the precedents that embody those tradition.” But in any event, he is surely right that not all restraints on liberty, even all foolish or immoral ones, are unconstitutional, and that the Constitution is aimed at securing not only liberty from governmental excesses but also other “competing values” as well. via Tumblr [Eugene Volokh] “Friends of Liberty are Warmly Disposed … The New York Times magazine has this week’s must read under the headline “Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind." The piece is a profile of a noted prison abolitionist along with a broader discussion of prison history and prison abolitionism. I heartily recommend the terrific lengthy piece in full, and here is an extended excerpt:
via Tumblr Thoughtful look into prison abolitionism (and prison history) in theory and practice Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice. Last month, federal auditors revealed the DEA had secretly spied on Americans who bought money counters. With a reach so expansive it alarmed even the FBI, this sweeping surveillance program helped the DEA seize over $50 million in cash and real estate. Yet auditors found “the vast majority” of those under surveillance “were never shown to be connected to illicit drug-related activities.” Over at Forbes.com, IJ’s Nick Sibilla has more.
Friends, this week IJ’s Center for Judicial Engagement released Episode 5 of the Bound By Oath podcast, which dives tolerably deeply into the history and meaning of the Fourteenth Amendment. This episode: the Equal Protection Clause, featuring African-style hair braiders, Georgetown law prof and IJ alum Evan Bernick, and also space aliens in invisible and undetectable craft. Available on iTunes, Spotify, Stitcher, SoundCloud, Google Podcasts, Google Play, TuneIn, and other fine podcasting apps. via Tumblr [John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions Not something you hear often. First, the legal backstory, from Chief Judge Frances M Tydingco-Gatewood (D. Guam) in Davis v. Guam:
After plaintiff’s substantive win (which is on appeal), plaintiff sought attorney fees under statutes that authorize such fee awards to prevailing voting rights plaintiffs and to prevailing § 1983 civil rights plaintiffs more broadly; here was the judge’s summary:
Disclosure: I’ve known Michael Rosman for about 20 years, and I’m an occasional advisor to the Center for Individual Rights. via Tumblr [Eugene Volokh] Lawyers’ “Billing Judgment … Demonstrates an Extraordinary Dedication to Containment of Cost …” [You might also read my earlier posts on the subject,
Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.] So far, I’ve said virtually nothing about speaker mens rea, though that’s normally quite important in libel damages actions (and in criminal libel prosecutions). This is because the Court’s mens rea decisions aimed to solve a problem that is largely absent in hybrid injunction cases: the “chilling” of speakers caused by the risk of liability where the facts are uncertain. Say that I’m contemplating writing about Bob Builder, because I think he has cut corners in making his building earthquake-safe. I think this is true, but I can’t be completely certain, and, even if I’m certain of the facts, I can’t be certain that the jury will agree. I may therefore be deterred from making my allegations, because I’m afraid of a massive damages verdict or even of a criminal verdict in those states that have criminal libel statutes. Mens rea requirements (sometimes actual malice, sometimes negligence) are meant to diminish this chilling effect of civil and criminal liability. But hybrid anti-libel injunctions don’t create this hazard. First, I’m unlikely to be deterred from speaking up front by the mere risk that my speech will lead to an injunction; the injunction itself won’t send me to jail or cost me money. To be sure, few people are enthusiastic about being enjoined, and fighting an injunction does cost money. But that prospect is not as likely to be chilling as the prospect of jail or ruinous damages. Second, once the court finds that my allegations were false and defamatory, and issues the injunction, I will indeed face jail or fines if I keep making the allegations. But at that point, the court will already have found that the statements were false. I would know they were false, or at least very likely false. The injunction itself would thus come pretty close to assuring that that I have “actual malice” (in the sense of knowledge or recklessness as to falsehood). More importantly, the injunction will only chill statements that have indeed been found to be false.[1] Indeed, recall that liability based on “actual malice” is tolerated even though it has some chilling effect on true speech (since a speaker might fear that the jury will misjudge both the truth of the statement and the speaker’s mental state).[2] The much smaller potential chilling effect on true speech from injunctions should be tolerable too. It might thus be constitutional to allow specific anti-libel injunctions based on a finding of falsehood, even without a showing of culpable mental state—just as some have suggested that a declaratory judgment should be allowable in such cases. And the principles of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. shouldn’t necessarily require a showing of mens rea as to falsehood in any contempt proceeding for violating the injunction. But a showing of a culpable mental state might in any event be required by criminal contempt law principles, at least if I’m right that (as Part V.A argues) any anti-libel injunction must by its terms ban only libelous statements. To be guilty of criminal contempt for violating a court order, the defendant generally has to have acted “with knowledge that the act was in violation of the court order, as distinguished from an accidental, inadvertent or negligent violation of an order.” If the injunction expressly bars only libelous statements, which is to say only false, defamatory, and unprivileged statements, then a defendant shouldn’t be criminally punished for violating the injunction unless he knows the statements were false. And that showing should usually be easy to make, given that the injunction places the speaker on notice that the judge or jury has found the speech to be false. In principle, the speaker might be able to evade punishment by persuading the criminal contempt jury that he was sincerely certain the statement was true, even despite that earlier finding. But in practice that is a claim that many juries will be unlikely to believe. [1] It’s possible, of course, that, despite the court’s finding that the statement was false, I would still lack knowledge or recklessness as to the falsehood—whether because I delusionally believe that the statement is true (or almost certainly true) even though the court rightly found that it was false, or because I know that it’s true, perhaps from personal experience, and that the court erred. But from the perspective of the legal system, and its desire to minimize the chilling effect on true statements while still imposing liability on false statements, it should be adequate to treat the judicial finding of falsehood as a substitute for a finding of actual malice. [2] This continuing chilling effect is one reason why Justices Black, Douglas, and Goldberg would have imposed a rule of absolute immunity in public concern libel cases. See New York Times Co. v. Sullivan, 376 U.S. 254, 293, 295 (1964) (Black, J., concurring in the judgment); id. at 300 (Goldberg, J., concurring in the judgment). But the majority was willing to tolerate this danger. via Tumblr [Eugene Volokh] The Limited Role of Mens Rea in Hybrid Anti-Libel Injunctions The title of this post is the title of this interesting new empirical paper now on SSRN authored by David Abrams, Roberto Galbiati, Emeric Henry and Arnaud Philippe. Here is its abstract:
via Tumblr "When in Rome... on Local Norms and Sentencing Decisions" Earlier today, the US Court of Appeals for the Ninth Circuit ruled against the Trump Administration on nearly all the disputed issues in the California “sanctuary state” case. The ruling is an important victory for federalism in the ongoing legal struggle between Trump and various “blue” sanctuary jurisdictions. This case is the latest in a long line of Trump administration defeats in sanctuary cases that have helped make constitutional federalism great again. The implications go well beyond the specific context of immigration. Like the earlier trial court ruling in the same case, the Ninth Circuit decision emphasizes the important constitutional principle that the federal government cannot compel states to help it enforce federal law. It also adopts an appropriately narrow view of the doctrine that forbids state policies “discriminating” against the federal government and those who deal with it. The administration filed a lawsuit challenging three recent California laws: Senate Bill 54, which restricts state and local officials from sharing information about immigrants within the state, with federal agencies; Assembly Bill 103, which requires the state attorney general to inspect any facility in the state where immigrants are detained by federal agents while awaiting immigration court dates or deportation; and Assembly Bill 450, which forbids private employers from cooperation with federal Immigration and Customs Enforcement raids and audits unless such cooperation is mandated by a court order or a specific federal law, and requires employers to give notice to employees of any federal immigration-related inspections of employment records. The federal government claimed that all three bills conflict with federal law and are therefore “preempted,” and that many parts of them also violate the doctrine of “intergovernmental immunity,” which bars states from “discriminating” against the federal government or “those with whom it deals.” In July 2018, a federal district judge ruled in favor of California on two of the three laws in question. Today’s ruling largely follows the reasoning of the district court decision. It too upholds Senate Bill 54 because it does not actually conflict with any federal law. The Trump administration claims that SB 54 violates federal law because it conflicts with 8 U.S.C. Section 1373, a controversial federal law mandating that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” The Ninth Circuit, like the district court, concludes that SB 54 does not violate Section 1373. Thus, it does not reach the question of whether Section 1373 is unconstitutional because it violates Supreme Court precedent ruling that the Tenth Amendment bans federal “commandeering” of state governments to help enforce federal law. Numerous other recent court decisions have concluded that Section 1373 is unconstitutional on that basis, particularly since the Supreme Court’s May 2018 ruling in Murphy v. NCAA strengthened the case against Section 1373. The Ninth Circuit ruling does emphasize that the anti-commandeering rule is an important factor in its relatively narrow interpretation of federal immigration law, so as to uphold SB 54:
This reasoning has obvious implications for other situations where states might wish to refuse to help the federal government enforce federal law. The Ninth Circuit also upholds AB 103 state inspections of federal immigration detention facilities on much the same basis as the district court: the inspections do not “discriminate” against the federal government because they are much the same as those that California requires for other prisons within the state. On SB 450, the Court of Appeals did not consider the one issue where the district court ruled in favor of the federal government: instituting an injunction against the part of the law that bars employers from voluntarily consenting to ICE raids. The case before the Ninth Circuit was an appeal by the United States against those parts of the district court ruling that went against it, so it does not raise the one issue on which the federal government won in the trial court. The Ninth Circuit did reaffirm the district court’s ruling that SB 450’s worker notification requirement is constitutional. It emphasized that the requirement does not “discriminate” against the federal government because it does not treat its agents less favorably than similarly situated private parties:
I would add that the same reasoning should eventually lead the Ninth Circuit to overrule the District Court on the issue of SB 450’s bar on voluntary employer cooperation with ICE raids. There is no discrimination here because there is no private-sector analogue to ICE that California treats better. The Ninth Circuit did rule against California on one small issue where the trial court went the other way. It struck down a provision of AB 103 that required inspections of the circumstances of the detainees apprehension and transfer to the facility in question. Unlike the rest of AB 103, “[t]his is a novel requirement, apparently distinct from any other inspection requirements imposed by California law,” and therefore qualifies as discrimination against the federal government, violating the doctrine of “intergovernmental immunity.” I think this part of the Ninth Circuit’s ruling is wrong because ICE apprehension and detention of immigrants is not truly analogous to the detention of other kinds of prisoners, including those arrested by state law enforcement. The criticism I made against the district court’s ruling on AB 450 applies here too. There is no meaningful state (or private) analogue to federal-government detention of suspected illegal immigrants for deportation, because no private or state agency has the power to deport people with only minimal due process, often so little that the government routinely detains and deports large numbers of people who are actually US citizens. Like the district court decision this case largely upholds, the Ninth Circuit ruling only addresses the federal government’s motion for a preliminary injunction against the three state laws. But, in both cases, the court’s ruling prefigures the likely outcome of a final judgment on the merits. The Ninth Circuit sanctuary state ruling is the latest in a long line of federal court decisions ruling against the Trump administration’s efforts to force sanctuary jurisdictions to cooperate with federal enforcement priorities. I review those cases and their significance in my forthcoming Texas Law Review article on Trump-era sanctuary state litigation, and its broader significance. Some experts, myself included, initially believed that the sanctuary state case presented the most difficult issues of all the Trump-era sanctuary cases, and could well wind up in the Supreme Court. I still think it is the closest of the lot, but I think it is less likely to get taken up by the Supreme Court than before. The fact that an ideologically disparate group of judges have all ruled against the administration on most of the issues in the case suggests that there may be less disagreement on these issues in the judiciary than I expected. It is significant that Trump’s repeated defeats in sanctuary cases have come at the hands of both Republican and Democratic federal judges. Today’s ruling is no exception. Judge Milan Smith, Jr. author of the Ninth Circuit opinion, is a Republican George W. Bush appointee. The district court judge who ruled against the administration on most issues in this case is also a GOP appointee. The other two judges on the Ninth Circuit panel are Democratic Obama appointees. When it comes to sanctuary cities, if not some other issues, Chief Justice John Roberts was right to say “[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges.” via Tumblr [Ilya Somin] Federal Appellate Court Rules Against Trump Administration on Most Issues in California “Sanctuary State” Case |
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