Jeff Skilling, former Enron CEO, has challenged his conviction for fraud and taken his appeal to the Supreme Court of the United States, raising two constitutional issues.  He contends that one of the laws under which he was convicted is unconstitutionally vague, and that his trial should have been moved out of Houston because of adverse pretrial publicity.  In this post I set forth the facts of the case.

    In their brief to the Supreme Court, federal prosecutors claim that Skilling lied to shareholders, federal regulators, and the investing public about Enron's finanacial condition:

1. Petitioner was the president, chief operating officer, and, for several months in 2001, the chief executive officer of Enron Corporation. Between 1999 and the end of 2001, petitioner orchestrated a massive scheme to deceive Enron's shareholders, federal regulators, and the investing public about the company's financial condition and performance. Pet. App. 1a-18a.

a. Enron was formed by the merger of two natural gas pipeline companies in 1985. R. 15066. It enjoyed steady growth through the 1990s due largely to earnings from energy trading in the company's wholesale division. R. 15228. By early 1999, Enron's stock was trading at about 25 times its per-share earnings. R. 17227. Petitioner, whose compensation was tied directly to the value of the company's stock, wished to increase the share price even further. But petitioner also knew that revenue from Enron's existing trading business could not support a higher price-to-earnings multiple (or P/E ratio); as he told his managers, “[t]here ain't no more ‘E’ in the earnings.” R. 17228. Petitioner therefore sought to increase the P/E ratio by convincing the market that Enron was poised for steady and significant growth.

As part of that strategy, petitioner portrayed as bright and promising the prospects of two newer businesses: Enron Energy Services (EES), which sold energy at retail, and Enron Broadband Services (EBS), which represented Enron's effort to enter the telecommunications industry. R. 15226-15229, 17229-17232, 19920-19921. Instead of showing promising results, however, EES and EBS suffered substantial losses. By early 2001, Enron internally predicted that EES would eventually lose more than $1 billion as a result of deteriorating conditions in the California utilities markets. R. 19398. Similarly, EBS lost money in every quarter that it existed. R. 17215, 17232-17233, 17239-17241.

Petitioner responded by systematically concealing the financial condition of EES and EBS from investors. In March 2001, instead of truthfully disclosing EES's poor first quarter numbers, petitioner hastily arranged a “reorganization” of that business two days before the quarter ended. R. 19979-19982. The sole purpose of the reorganization was to hide the losses in EES by shifting all of its money-losing components into the larger balance sheet of Enron's wholesale division. R. 15556, 19446-19448, 19775-19781. The head of EES later testified that petitioner's approval of the reorganization was the worst corporate conduct he had ever experienced, R. 20257, and said of the meeting at which it took place, “I wish on my kids' lives I would have stepped up from that table and walked away.” R. 20338.

As a result of the reorganization scheme, Enron reported first quarter earnings for EES of $40 million, when in fact the business should have recognized a $350 million loss. R. 19988-19989. In the second quarter, Enron announced that EES's earnings had increased 30% to $60 million, although in reality EES had lost $495 million by that time. R. 15567-15568, 15572-15573; Gov't C.A. Br. 17. On analyst calls, petitioner assured investors that “first quarter results were great,” that EES “had an outstanding second quarter,” and that the reason for the shift of certain aspects of EES's business to the wholesale division was “to get more efficiency out of management.” Id. 33; R. 15579.

     In his brief to the Supreme Court, Skilling puts a different spin on things.  He contends that he was simply trying to increase the value of his company's stock as any good manager would:

Petitioner Jeffrey Skilling was a longtime Enron executive, serving as its President and COO for several years before assuming the position of CEO from February to August 2001. Id. He was indicted in 2004 along with Enron Chairman and CEO Ken Lay and Enron CAO Richard Causey. PA18a. The cornerstone of the indictment was the conspiracy count, which alleged an overarching conspiracy to commit wire or securities fraud. Id. The remaining counts – securities fraud, making false statements to Enron's auditors, and insider trading – alleged conduct flowing from that conspiracy. Id.; JA322a-357a.

The Government took time to settle on what crimes, if any, occurred at Enron, R:13292 – other than secret looting by company CFO Andrew Fastow. Critically, Skilling was in no way implicated in Fastow's theft, R:21622-27, 21685, and the Government has never suggested that Skilling shifted or used company funds for his own personal purposes. Prosecutors later admitted that the case against Skilling was plagued by “fundamental weaknesses,” because he “took steps seemingly inconsistent with criminal intent,” there were “no ‘smoking gun’ documents,” and prosecutors relied heavily on cooperating witnesses who had “marginal credibility.” Hueston, Behind the Scenes of the Enron Trial, 44 Am. Crim. L. Rev. 197, 197-98, 201 (2007).

Skilling challenged the Government's case at every turn, presenting evidence showing, for example, *3 that the subject transactions and business decisions were lawful, the risks were fully vetted by outside advisors and Enron's Board, his alleged misstatements were accurate, and all relevant information was disclosed to investors. Pet. C.A. Br. 24-58. The Government responded by emphasizing its theory of honest-services fraud – as opposed to securities or money-or-property wire fraud – as the basis for the alleged fraud conspiracy. It told the jury that this case was “not about what caused the bankruptcy of Enron,” R:36449, or even about “greed,” R:37006-07, 37065. Rather, prosecutors argued, Skilling took inappropriate measures to maintain or improve Enron's stock price, in violation of his fiduciary duties. R: 14784, 14799-800.[FN2] The allegedly improper actions included business decisions that ostensibly exposed Enron to an irresponsible level of long-term risk in exchange for short-term stock-price benefits. JA1044a, 1046a, 1047a. In closing argument, the Government declared that Skilling and Lay committed honest-services fraud because they violated a duty to Enron's “employees” – one prosecutors described as “a duty of good faith and honest services, a duty to be truthful, and a duty to do their job … and do it appropriately.” R:37065.

FN2. JA1052a-53a (“we're here to decide” whether Skilling “breached [his] duties and obligations to [Enron's] shareholders and employees”); R:21224-25 (“fiduciary responsibility”); R:32262-64 (duty of “honesty, candor, and fairness”); R:36568 (“duty” of “honest services”); R:37013-14, 37043 (duties of “loyalty, “honesty,” “honest services”); accord 14751, 14757-58, 14784, 15864-67, 22769-70, 37065.

The Government argued that Skilling committed every alleged act of misconduct with the specific intent to advance Enron's interests – by increasing reported *4 earnings, maintaining an investment-grade credit rating, and improving the price of Enron's stock. JA275a-76a, 282a-83a, 286a-88a. Government witnesses agreed that Skilling was utterly dedicated and loyal to Enron. JA1048a (“had the best interests of Enron in mind” and was “fighting for [his] company”), JA1042a (“a true believer in Enron”), id. (“very committed to the company”), JA1047a-48a (“[r]eally dedicated to the company”). Indeed, Skilling declined $50 million in guaranteed compensation shortly before the alleged conspiracy began, to set an example for management, R:28481-86, and offered to invest $70 million of his own funds – effectively his entire net worth – to keep the company operating when it was on the brink of collapse in late 2001. R:28238-43. In the Fifth Circuit's words, “Enron created a goal of meeting certain earnings projections,” and Skilling's actions were intended to achieve that goal. PA27a.

The Government did not argue on appeal or at the certiorari stage that Skilling sought private gain at the expense of Enron. To the contrary, its consistent position in this case has been that the evidence needed only to show – and did only show – “a material violation of a fiduciary duty that defendants owed to Enron and its shareholders.” R:41327-28.

     A Houston jury convicted Skilling on 19 counts: one count of conspiracy to commit  securities fraud and wire fraud, 12 counts of securities fraud, five counts of making false representations to auditors, and one count of insider trading.  On appeal he contends that the conspiracy count should be reversed because the law under which he was prosecuted – 18 U.S.C. 1346 - is unconstitutionally vague.  I will discuss that claim in the next post.

     In yesterday's post I described the legal reasoning that Jay Bybee and John Yoo used to justify subjecting prisoners under American control to slow drowning, the cold cell, shackling in a standing position for days at time, and confinement in a small box.  Today I describe why David Margolis, Deputy Assistant Attorney General, does not consider their memos authorizing these actions to constitute "professional misconduct."

     The Justice Department's Office of Professional Responsibility found that Yoo and Bybee were guilty of "professional misconduct" because of the secret memos they issued authorizing the administration to engage in actions that many legal authorities regard as torture.  In his memorandum of January 10, 2010, David Margolis overruled OPR, and finds instead that Yoo and Bybee are guilty of "poor judgment" – not "professional misconduct."  How did he reach this decision?

     Margolis' memorandum is well-written, carefully crafted, and tightly reasoned.  It is, on the whole, a persuasive document.  I do not agree with his conclusion, but it is an impressive response to this matter.

     Margolis begins with the rules of professional responsibility.  Under Rule 1.2 of the Rules of Professional Conduct that were in effect in the District of Columbia when these memos were written, "a lawyer shall abide by a client's decisions concerning the objectives of representation:"

(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.

(c) A lawyer may limit the objective of the representation if the client consents after consultation.

(d) A government lawyer’s authority and control over decisions concerning the representation may, by statute of regulation, be expanded beyond the limits imposed by paragraphs (a) and (c).

(e) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.

      Note that under paragraph (c), government attorneys may be held to a different standard.  By statute or rule, government lawyers may not be primarily responsible to the wishes of their client (a government official or public agency), but rather they may be required to exercise independent judgment in the conduct of their duties.  In this case, there was a long tradition in the Office of Legal Counsel of just such independence – Justice Department lawyers are supposed to follow the law, not the President's orders.  However, Margolis points out that the regulation governing the Office of Legal Counsel (28 C.F.R. 0.25) does not mandate independent judgment.  Instead, this regulation states:

The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Office of Legal Counsel:

(a) Preparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President and as a member of, and legal adviser to, the Cabinet. …

     In short, Margolis concluded that under the law Yoo and Bybee were permitted to take the wishes of their client – the President – into account in framing arguments about the legality of waterboarding and other interrogation techniques.  Margolis found that their actions were inconsistent with the "high standards" of objectivity and candor expected of Justice Department attorneys, but that they did not constitute "professional misconduct."

     Margolis quoted Jack Goldsmith of the Justice Department as framing the issue in this way:

The issue is, are attorneys in the Justice Department required to give objective advice as to their best opinion, or are they permitted to act as attorneys for the President, advising him on how much he can get away with?

     In effect, Margolis interprets the Rules of Professional Conduct as permitting Justice Department attorneys to advise the President on "how much he can get away with," even though the Department itself holds its attorneys to a higher standard.   

     Furthermore, Margolis does not believe that Yoo and Bybee authored these memos for the purpose of facilitating criminal conduct.  Yoo, he noted, has long held a sincere belief that the President's power is nearly absolute in these matters, and Bybee was guided by Yoo in this matter.  Margolis' key finding appears on page 67 of his report:

“I am not prepared to conclude that the circumstantial evidence much of which contradicted by the witness testimony regarding Yoo’s efforts establishes by a preponderance of evidence that Yoo intentionally or recklessly provided misleading advice to his client. It is a close question. I would be remiss in not observing, however, that these memoranda represent an unfortunate chapter in the history of the Office of Legal Counsel. While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power while speaking for an institutional client. These memoranda suggest that he failed to appreciate the enormous responsibility that comes with the authority to issue institutional decisions that carried the authoritative weight of the Department of Justice. I do not believe the evidence establishes, however, that he set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.”

     I agree that it is a "close question," and I am reluctant to charge another attorney with misconduct simply because I disagree with the conclusions he reached about the proper interpretation of the law.  By that standard every person I have ever debated as well as many of my readers could accuse me of being unethical.  But Yoo and Bybee held people's health and lives in their hands, and they owed this country not partisan loyalty or ideological purity but rather their best effort to present a balanced and objective review of the law.  They were not writing acacemic articles or designing a tax shelter for a client  – they were helping to run the government.  Just as we hold prosecutors to a higher standard than defense attorneys – we expect prosecutors to be more beholden to the truth than to winning – we may reasonably expect Justice Department attorneys to at least mention Youngstown Sheet & Tube when advising the President about the constitutionality of laws affecting his exercise of war powers.

     The Yoo and Bybee memos as well as other materials may be accessed from this page on Treatment of Detainees at my website on Constitutional Law.  In addition, here some essays I have previously written on this subject:

    The Justice Department's investigation into the role of Justice Department lawyers John Yoo and Jay Bybee in the approval of conduct that many people regard as torture has come to a close.  The Office of Professional Responsibility recommended that Yoo and Bybee be referred to disciplinary committees for their role in this matter, on the theory that the lawyers' conduct was "unethical."  However, Associate Deputy Attorney General David Margolis has overruled that recommendation, and instead concludes that Yoo and Bybee were guilty of "poor judgment," not "professional misconduct."  In this post I discuss what Yoo and Bybee said in their memos.  In the following post I will discuss Margolis' findings and conclusions.

     In their memos of August 1, 2002, (here and here) and March 14, 2003, (here and here), Jay Bybee and John Yoo go to great lengths in arguing that the "enhanced interrogation techniques" that the government was considering using on prisoners were lawful.  According to Jay Bybee's memo of August 1, 2002, these techniques included the following:

    1.  Confining the prisoner in a dark box for up to 18 hours at a time.  Because the prisoner was afraid of insects, interrogators planned to include an insect in the box;

     2.  Forcing the prisoner to stand, sit, or kneel in uncomfortable positions – for example, standing or sitting on the floor with arms extended or kneeling back at an angle for unspecified periods of time;

     3.  Depriving the prisoner of sleep for up to 11 days at a time;

     4.  Waterboarding the prisoner (drowning him slowly) for up to 20 minutes at a time.

     Bybee and Yoo concluded that this conduct did not violate the Torture Act, the War Crimes Act, the Convention Against Torture, the Geneva Convenion, or any other laws prohibiting torture or "cruel, inhuman, or degrading treatment" of prisoners for a variety of reasons - these laws and treaties did not apply; the conduct did not amount to torture or cruel, inhuman, or degrading treatment; the conduct was justified under the common law doctrines of necessity or self-defense; and the laws and treaties were unconstitutional.

     The extent to which Bybee and Yoo went to justify these actions is apparent from the arguments that they made with respect to three points – the definition of torture under the Torture Act,  the defenses available in a prosecution under the Torture Act, and the constitutionality of the Torture Act.

Definition of Torture

     The Torture Act (18 U.S.C. 2340) defines torture as follows:

“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control ….

     Both Bybee and Yoo interpret the term "severe physical pain" by refering to similar language in a federal statute that describes when hospitals have a duty to render emergency medical care.  According to Bybee and Yoo, because "severe pain" is evidence that there may be a medical emergency leading to organ failure or death under federal statutes regulating the duty to provide medical care, therefore interrogation techniques that do not threaten organ failure or death do not constitute torture.  Here is the relevant paragraph from their memos on this point: 

These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity(including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in placing the health of the individual … (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level – the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

      Yoo also argues that waterboarding and other "enhanced interrogation techniques" do not even constitute acts that are "cruel, inhuman,or degrading" because they were not being undertaken with the "specific intent" of causing harm, but rather because our agents were seeking to protect this country from attack.  This argument confuses "motive" with "intent."  My motive in stealing bread might be to feed the poor, but it does mean that I lacked the intent steal the bread.  Nevertheless, Yoo confidently asserts that this would constitute a barrier to prosecution under the law.

Defenses to the Torture Act – Necessity and Self-Defense

     Bybee and Yoo both argue that C.I.A. agents could assert, as a legal defense, that their actions were "necessary" to protect Americans from attack, or that their treatment of prisoners constituted "self-defense."  None of the relevant statutes sets forth these defenses, and the relevant treaty – the Convention Against Torture, which the Torture Act was enacted to implement – explicitly strips away these defenses.  Article 1 of the Convention Against Torture, signed by President Reagan and ratified by the first President Bush, states that it applies specifically in situations where government agents are interrogating prisoners who are accused of crimes or who may have information that the government seeks to discover:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

     Furthermore, Article 2.2 of the treaty provides that "no exceptional circumstances whatsoever" can justify acts of torture by government agents, including war or insurrection:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

     Yoo and Bybee both argue the common law of necessity and self-defense would nevertheless be available to defendants charged with torture under the Torture Act.  In my opinion, this is not even a plausible interpretation of the statute and treaty.

Constitutionality of Torture Act and Convention Against Torture under Separation of Powers

     It was well-known that John Yoo has long believed that the President has more or less absolute power to act in time of war.  Both Yoo and Bybee repeat this position in these memos.  They do so without once mentioning the case of Youngstown Sheet & Tube v. Sawyer, which is not only the leading Separation of Powers decision ever decided by the Supreme Court, but it concerns the President's exercise of war powers in the absence of statutory authority.  It is simply inconceivable that any lawyer – or even a first-year law student – would attempt to analyze the constitutionality of a law limiting the President's authority to deal with prisoners without a thorough discussion of this case.   But Bybee and Yoo do just that.

    The legal memoranda authored by Bybee and Yoo were used to justify the use of these techniques on prisoners.  Nevertheless, David Margolis, Deputy Assistant Attorney General, has found that their conduct and advice does not constitute "professional misconduct" and he has recommended that Bybee and Yoo not be referred to disciplinary committees.  Tomorrow I will explain Margolis' reasoning.

     Each of these memos and other materials may be accessed from this page on Treatment of Detainees at my website on Constitutional Law.  In addition, here some essays I have previously written on this subject:

in the San Francisco Chronicle. Well, not exactly outed, since according to the article the judge, Vaughn Walker, has made no secret of his sexual orientation. In the very high-profile case in federal court in California challenging the constitutionality of Proposition 8, the gay marriage prohibition passed by California voters in 2008, Judge Walker has issued several rulings adverse to the defendants. Do you think this new information makes him inappropriately biased? Would the judge be less biased if he were a Roman Catholic heterosexual male with nine children? This issue reminds me of race discrimination cases in which White defendants sought to disqualify the judge because he was Black and identified with the civil rights movement, and was therefore allegedly incapable of being impartial. What do you think?

     Justice Anthony Kennedy followed Justice Sandra Day O'Connor as the "swing justice" on the Supreme Court.  Both justices are brilliant and devoted to the Constitution – but their approaches to constitutional decisionmaking could not be more different.

     The swing justice on the Supreme Court not only casts the deciding vote, but also has the bargaining power to demand the opportunity to author the majority opinion – to cast the Constitution in the mold that he or she chooses.  As a result, going forward more and more of the most significant decisions of the Court, like Citizens United, will be written by Anthony Kennedy.  What distinguishes Kennedy's jurisprudence from that of Sandra Day O'Connor, whom he replaced as swing justice?

     I see two distinguishing features in their approaches to constitutional interpretation.  First, using a distinction noted by Judge Richard Posner, Kennedy is more of a "top down" judge – he deduces results from general, overarching principles.  O'Connor is more of a "bottom up" judge – she starts with a careful examination of the facts, is attentive to context and nuance, and is more likely to identify and explicitly balance the competing elements of a case in reaching a decision.  Second, although Kennedy devotes a great deal of attention to the matter of following precedent and the principle of stare decisis, O'Connor takes these concepts more seriously.

     In this post I will discuss the first distinguishing feature between them – "top down" versus "bottom up" reasoning, and compare their jurisprudential styles to those of other justices.  In a future post I will compare their approaches to the use of precedent and stare decisis.

     Justice Kennedy, like Plato, lives in a world of perfect forms.  To him, the most beautiful word in the Constitution is the word "liberty," and for him it has almost mystical significance.  Here is how he describes the concept of the Right to Privacy in Lawrence v. Texas:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

     And here is what Justice Kennedy wrote about the role of "liberty" under the doctrine of  Separation of Powers in his concurring opinion in Clinton v. New York, the line-item veto case:

Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands ••• may justly be pronounced the very definition of tyranny.” The Federalist No. 47. So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84. It was at Madison's insistence that the First Congress enacted the Bill of Rights. It would be a grave mistake, however, to think a Bill of Rights in Madison's scheme then or in sound constitutional theory now renders separation of powers of lesser importance.

     The plurality opinion of Justices Kennedy, O"Connor, and Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey begins and end with the word "liberty," and the first word of Kennedy's majority opinion in Lawrence v. Texas commences is "liberty" and the last word is "freedom."  These ideas are, for Kennedy, the alpha and the omega of constitutional analysis.

     O'Connor, in contrast, is sensitive to all aspects of the human condition.  As Thorgood Marshall said in his dissenting opinion in United States v. Kras:

"[I]t is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live."

     For example, in Lynch v. Donnelly, in which the Court was asked to decide whether the City of Pawtauket, Rhode Island, could display a nativity scene in a town park, O'Connor describes the entire display in fine detail, and concludes that in the context of this particular display it was constitutional for the city to include religious imagery – that taken as a whole, the display was not an "endorsement" of religion.  You may disagree with the conclusion that Justice O'Connor reaches in this case, but you cannot accuse her of neglecting any detail or failing to consider any aspect of the problem before the Court.

     The contrast between Justice O'Connor and Justice Kennedy's approaches to constitutional decisionmaking is strikingly apparent in two significant decisions on campaign finance reform – O'Connor's opinion in McConnell v. F.E.C. (2003) upholding important provisions of the McCain-Feingold Act, and Kennedy's opinion Citizens United v. F.E.C. (2010) striking down some of those same provisions.  Both opinions are extremely long, but O'Connor concentrates on the facts while Kennedy is mostly concerned with the principles that are at stake.  O'Connor devotes tens of pages to describing the history of campaign finance reform in the United States, and to summarizing the legislative record, which itself ran to over 100,000 pages.  Kennedy gives short shrift to the facts, to the point of striking down the campaign finance law "on its face" – allowing both nonprofit and for-profit corporations to purchase campaign ads in any and every circumstance – even though the plaintiff had only challenged the law "as applied," the facial challenge wasn't argued in the trial court, and the parties did not develop a record in the trial court about what the consequences of the decision would be.  As a result Citizens United was decided in the absence of an evidentiary record that could have informed the decisionmaking of the Court.

     Justice Kennedy is devoted to the First Amendment as a matter of principle.  Like Justice Hugo Black, he tends towards First Amendment absolutism.  For example, he believes that laws restricting the conduct of abortion protestors at clinics – even where there is proof that protestors were blocking entrances and harrassing patients and staff – violate the First Amendment.  Unlike Black, however, Kennedy is no textualist – he does not interpret the Constitution literally.  Nor does he engage in extended analysis of the intent of the Framers, attempting to divine how they would apply the Constitution to modern-day corporations.  Instead, Anthony Kennedy takes a simple, direct approach to First Amendment analysis.  He would almost always allow speech even where it might cause a great deal of harm – let the cards fall where they may.  O'Connor always wanted to know where those cards were going to fall before she made a decision.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     Justice Anthony Kennedy's views have not changed on the constitutionality of campaign finance laws.  Over the years he consistently dissented from decisions upholding these laws. 

     As set forth in yesterday's post, before Citizens United the Supreme Court had held in a number of cases such as Buckley v. Valeo  (1976), Austin v. Michigan Chamber of Commerce (1990), Nixon v. Shrink Missouri Government PAC (2000), and McConnell v. Federal Election Commission (2003) that it was constitutional for law to limit the flow of money into political campaigns in the following ways:

1.  Corporations and unions may not contribute money directly to candidates or spend money on campaign advertisements for candidates.  Instead, they must create "political action committees," by means of which individuals associated with the corporation or union may contribute money to a fund that is used to make contributions or purchase advertising.

2.  No individual may contribute more than $2,300 per year to any particular candidate for federal office, whether the money is donated directly to the candidate or funnelled through a political party or other advocacy organization.

3.  The source and amount of each contribution must be disclosed.

     Justice Kennedy dissented in several of those cases.  He has consistently taken the position that laws that limit the power of corporations to make contributions to political campaigns or spend money on advertisements are unconstitutional.  He also has taken the position that limits on the amount of money that may be contributed to political campaigns are unconstitutional.  The only campaign finance laws that he has found to be constitutional are the ones mandating disclosure.  He believes that so long as voters know who is contributing money to a political campaign, they can make up their own minds about whether or not they wish to support that candidate.

     Justice Kennedy has long taken the position that corporations have a constitutional right to spend money during political campaigns.  He dissented in Austin, and in that case he stated:

the Court adopts a rule that allows Michigan to stifle the voices of some of the most respected groups in public life on subjects central to the integrity of our democratic system.

     Justice Kennedy has also repeatedly criticized Buckley v. Valeo for limiting contributions without limiting expenditures.  In Shrink Missouri he noted that wealthy individuals were finding ways around the law by donating "soft money" to political parties and spending money on "issue ads" which were thinly disguised campaign advertisements:

The plain fact is that the compromise the Court invented in Buckley set the stage for a new kind of speech to enter the political system. It is covert speech. The Court has forced a substantial amount of political speech underground, as contributors and candidates devise ever more elaborate methods of avoiding contribution limits, limits which take no account of rising campaign costs. The preferred method has been to conceal the real purpose of the speech. Soft money may be contributed to political parties in unlimited amounts, and is used often to fund so-called issue advocacy, advertisements that promote or attack a candidate's positions without specifically urging his or her election or defeat.  Issue advocacy, like soft money, is unrestricted, while straightforward speech in the form of financial contributions paid to a candidate, speech subject to full disclosure and prompt evaluation by the public, is not. Thus has the Court's decision given us covert speech. This mocks the First Amendment. The current system would be unfortunate, and suspect under the First Amendment, had it evolved from a deliberate legislative choice; but its unhappy origins are in our earlier decree in Buckley , which by accepting half of what Congress did (limiting contributions) but rejecting the other (limiting expenditures) created a misshapen system, one which distorts the meaning of speech.

     However, when Congress acted to close those loopholes regarding "soft money" and "issue ads" in the Bipartisan Campaign Reform Act of 2002, Justice Kennedy still was not satisfied, contending that law closing those loopholes was also unconstitutional.  Dissenting in McConnell, Kennedy took the position that the link between money and political influence is unavoidable, and that it is simply one aspect of a politician's "responsiveness" to constituents:

Favoritism and influence are not, as the Government's theory suggests, avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.

     In Citizens United, Justice Kennedy explains that the fact that independent expenditures by anyone – individuals or corporations – on election advertisements buy access to public officials is actually a hopeful sign.  Kenney reasons that they would not spend that money unless it was intended to influence the public – thus proving that elections are determined by the electorate, not by corporations:

The appearance of influence or access, furthermore, willnot cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “to take part in democratic governance” because of additional political speech made by a corporation or any other speaker.  

     In Citizens United, Justice Kennedy overturns Austin and McConnell and finds that all corporations, public and private, for-profit and non-profit, business and advocacy, have the right under the First Amendment to purchase advertisements favoring or opposing candidates during election season.  That Kennedy took this position is no surprise given the strong views against campaign finance legislation that he has expressed in several dissenting opinions over the years.  If he continues to rule in a manner that is consistent with the positions he embraced in those dissents, he is also likely to strike down laws prohibiting corporations and unions from contributing money directly to political candidates, as well as laws that limit the amount of money that individuals may contribute.  The only campaign finance laws that Justice Kennedy seems inclined to uphold are the disclosure laws. 

     In the next post in this series I will contrast Justice Kennedy's approach to constitutional decisionmaking in this case and in general to that of Justice Sandra Day O'Connor.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     Until its recent decision in Citizens United v. F.E.C. (2010), the Supreme Court has consistently upheld laws restricting the flow of money to candidates in political campaigns. 

     Campaign finance legislation traces back to 1907 when the federal government enacted the Tillman Act prohibiting corporations from contributing to political campaigns.  In 1947 Congress enacted the Taft-Hartley Act which prohibited unions, as well, from making political contributions.  In 1972 the Federal Election Campaign Act was enacted requiring candidates to disclose the identity of contributors and the amounts that they contributed, and in 1974 Congress amended FECA to limit the amount of money that any single individual could contribute to a candidate or to all candidates in an election cycle. 

     FECA left two very large loopholes in place: the law allowed individuals to contribute money to political parties that was then distributed to candidates, and the law permitted individuals to make "independent expenditures"  for campaign advertisements on behalf of political candidates.  In effect, political parties were "money laundering" for wealthy individuals who wished to make additional contributions to candidates, and the "independent" advertisements supporting specific candidates or attacking their opponents were simply another means of purchasing influence with a candidate.  In 2002, the Bipartisan Campaign Reform Act closed both loopholes by requiring political parties to report the source and amount of any money funnelled to candidates, and imposing the same requirements for any campaign ads broadcast before a primary or general election.  This law, also called "McCain-Feingold," also made the individual contribution limits applicable to money that was given to candidates by political parties or that was spent on any campaign commercials that are broadcast.

   Until this year the Supreme Court had held that these laws were constitutional.  The contribution limits set forth in FECA and contained in a state law were approved in Buckley v. Valeo  (1976) and Nixon v. Shrink Missouri Government PAC (2000), a prohibition on corporate spending on campaign advertisements was upheld in Austin v. Michigan Chamber of Commerce (1990), and the provisions of BCRA eliminating the flow of "soft money" through political parties and campaign advertisements were upheld in McConnell v. F.E.C. (2003). 

Accordingly, before Citizens United, it was constitutional for law to limit the flow of money into political campaign in the following ways:

1.  Corporations and unions may not contribute money directly to candidates or spend money on campaign advertisements for candidates.  Instead, they must create "political action committees," by means of which individuals associated with the corporation or union may contribute money to a fund that is used to make contributions or purchase advertising.

2.  No individual may contribute more than $2,300 per year to any particular candidate for federal office, whether the money is donated directly to the candidate or funnelled through a political party or other advocacy organization.

3.  The source and amount of each contribution must be disclosed.

       It is also important to note what campaign finance laws may not do under the Constitution.  First, the law may not limit the amount of money that politicians spend on their campaigns.  In Buckley v. Valeo, the Supreme Court distinguished campaign contributions from campaign expenditures in two ways.  Campaign expenditures, said the Court, constitute a pure form of speech, while campaign contributions are a form of political association.  In addition, the danger of corruption is far more directly related to campaign contributions than to campaign expenditures.  Accordingly, the government is permitted to regulate campaign contributions, but may not regulate the total amount of money that a candidate spends on an election.

     Second, the campaign finance laws have never attempted to regulate what media corporations say and do, because this would probably be a straightforward violation of freedom of the press.

     Third, unions, corporations, and advocacy organizations have a constitutional right to spend money from their treasuries to run "issue advertisements" at any time – on referenda, for example – so long as these are not attempts to favor one candidate or another.

     Fourth, the limitations on spending for campaign advertising do not apply to company or union newsletters or to the internet.  These organizations are permitted to communicate with their members through normal channels.

     Finally, unions, corporations, and advocacy organizations probably have a constitutial right to form PACs, facilitating a process by means of which their members who are willing may pool their money to contribute to candidates or to purchase advertisements.  In addition, it is possible that advocacy organizations may have the power to contribute money directly to candidates, since their members presumably are willing to make their voices heard in this manner.  However, all of this spending would presumably be subject to the individual contribution limits and reporting requirements of state and federal law.

     Justice Kennedy consistently dissented from the past rulings of the Supreme Court upholding limits on campaign contributions.  In tomorrow's post I will describe the positions that he has taken in these cases.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

More here.

I think not.

The fundamental premise of the Court's decision in Citizens United v. FEC is that a corporation should have the same First Amendment rights to engage in political speech as any citizen, because a corporation is simply an "association of citizens" in the "corporate form." I think this is going to lead to the politicization of everyday economic life.

The Court's reasoning that corporate speech is simply the collective speech of individual citizens does ring true for certain non-profit, ideologically-oriented corporations, especially when they are membership-driven. When the NRA or the Sierra Club takes members' dues and uses that money to speak on political issues, they in a rough way are simply amplifying the voices of their members, even if an individual member disagrees with one policy or another advocated by the group. That person can always quit.

BUT I don't think that most stockholders in for-profit corporations think that those corporations represent the stockholders' political views. We expect that corporation to be an economic actor, to be interested in making money, and to be generally agnostic with regard to political matters. They are the subjects of government regulation, not the makers of government regulation. Yes, we understand that our bank probably has a lobbyist that advocates a position with regard to banking regulation, but they aren't representing us in any but the most attenuated way. I suppose there's a sense in which we expect the bank to favor regulation that allows them to make money in the long run, but that could lead them to either support or oppose any particular proposal, depending on their political ideology, and I doubt that many people choose their bank based on its political ideology and attitude towards regulation.

So we tend to think of our market decisions and our political advocacy in different ways. We buy the best or the cheapest pizza without regard to whether the founder of the company and its top executives ardently oppose abortion.  We buy stocks of promising corporations without regard to whether its board of directors believes that global warming is a hoax.

This is of course a false barrier, and always has been. And it has already been breaking down. Recently several companies resigned from the Chamber of Commerce because of its strong political stance in opposition to legislation aimed at climate change. In the last election cycle there were websites rating companies as "blue' or "red" based on the proportion of employee contributions given to one party or the other. Readers were encouraged to support those companies that reflected the readers' political allegiances.

SO NOW the Supreme Court has exposed the connection between our political and economic commitments, and cognitive dissonance is no longer sustainable. The Court is telling us that Wal-Mart's speech is our speech when it works to oppose fair pay rules. That the Teamsters' speech is our speech when it opposes trade agreements. That Citibank speaks for us when it fights against banking regulation.

I don't see how I can now avoid making political calculations with regard to my investments and purchases. No, I won't be able to be pure in my judgments, and yes my decisions surely will be incomplete and inconsistent.  But the Court's decision challenges those who disagree with certain aspects of free market ideology to step out of it. It tells us that our corporate associations are not only economic but political. It's on.

    The Supreme Court today handed down its decision in Citizens United v. Federal Election Commission.  In this case the Supreme Court overrules longstanding precedent and gives corporations the right to spend unlimited amounts of money on campaign advertisements.  Here is a link to the decision on the Cornell website.  The Supreme Court site seems to be overwhelmed.  I will summarize the decision in a later posting.

     This term in the case of United States v. Stevens the Supreme Court will decide whether or not Congress has the power to enact a law prohibiting the production and sale of commercial videos depicting cruelty to animals.  The case presents a number of difficult problems under the First Amendment.  One of the issues that is directly presented by this case is whether the government has a compelling reason to prevent people from viewing images of acts of animal cruelty.  An even larger issue, in my opinion, is whether "obscenity" will remain limited to depictions of sexual conduct, or whether the Court will change the meaning of the term to include graphic images of gratuitous violence.  In this initial posting, however, I discuss a narrow, technical question – the difference between challenging a law "on its face" and challenging it "as applied" to the defendant.

     In 1999 Congress enacted and the President signed a statute entitled "Depiction of Animal Cruelty," codified at 18 U.S.C. 48, making it a crime to create, sell, or possess any video or audio recording of animal cruelty for the purpose of selling that recording for commercial gain.  Here is the entire text of the statute:

(a) Creation, Sale, or Possession.— Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) Definitions.— In this section—

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and

(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

     Notice that it does not matter where the act of animal cruelty occurred – what matters is where the creation, sale, or possession of the recording occurs.  It is unlawful to create, sell, or possess one of these recordings if the act of animal cruelty it depicts is unlawful in the place where the creation, sale, or act occurred.  Furthermore, the law does not apply to material that has "serious religious, political, scientific, educational, journalistic, historical, or artistic value." 

     According to a posting by Adam Ezra Schulman of the First Amendment Center, the legislative history of the bill indicates that the law was directed at a very narrow problem – the appearance of "crush videos" on the internet, in which women in high-heeled shoes would torture and kill baby rats, mice, and kittens by stepping on them.  When President Clinton signed the bill, he stated that "the Act would prohibit the types of depictions, described in the statute’s legislative history, of wanton cruelty to animals designed to appeal to a prurient interest in sex."  However, the law was not written in a limited fashion.  By its terms it applies to all depictions of animal cruelty, not simply those acts that are performed in a sexually-charged atmosphere.

     Since this law was enacted "crush videos" have disappeared, but animal cruelty has not.  In particular, there is still a large underground market for dogfighting.  Dogfighting is illegal in every state of the union, but some people enjoy breeding and training dogs for these events, others enjoy gambling on them, and still others like to watch.

     Robert J. Stevens of Virginia caters to the tastes of the third category of dogfighting fans – the onlookers.  Although Stevens does not organize or participate in dogfighting events, he collects video recordings of them, edits them, adds commentary, and sells these recordings.  After selling three videos to undercover officers he was arrested and tried in federal curt for violating 18 U.S.C. 48.  Experts for the defense claimed that Stevens'  videos had serious educational or political value, but the jury disagreed and found him guilty.  

     Stevens won on appeal.  By a vote of 10-3, the Third Circuit Court of Appeals ruled that the law was unconstitutional under the First Amendment, and it reversed Stevens' conviction.  Here is a link to a pdf file containing the majority and dissenting opinions of the Court of Appeals. The majority opinion is set forth on pages 1-41 of the document, and the dissent is on pages 42-79.  The United States has appealed the decision of the Third Circuit to the Supreme Court.  

     Stevens persuaded the Court of Appeals that this law, on its face, violates the First Amendment.  Accordingly, according to the brief of the United States, the question presented to the Supreme Court is "whether 18 U.S.C. 48 is facially invalid under the Free Speech Clause of the Constitution.

     It is important to recognize that there is a difference between challenging a law "on its face" and "as applied."  In this initial posting on the Stevens case I expain the difference between challenging a law "on its face" and challenging it "as applied."

     When a defendant challenges a law "as applied" the defendant is claiming that he or she has a constitutional right to engage in the behavior in question, and that while the law may be constitutional in other circumstances, as applied to the defendant himself or herself the law is unconstitutional.  The law may be unconstitutional as applied to the defendant for one of two reasons.  The law may be "vague" as applied to the defendant – for example, Stevens could argue that it is impossible for the average person to determine whether or not dogfighting constitutes cruelty to animals.   Or the defendant may claim that the law is "overbroad" as applied to him.  In this case that would mean that Stevens would claim that he has a constitutional right to produce dogfighting videos.

     To challenge a law on its face is to assert that other people's constitutional rights would be affected by this law, and that is the argument that Stevens is making in this case.  Stevens argues that even if dogfighting videos are not protected by the First Amendment, movies about hunting or programs about bullfighting are constitutionally protected, and because the federal statute might be the interpreted to prosecute people who creae or sell those videos, the law is unconstitutional.

     To succeed in a facial challenge to a law the defendant must prove that there are relatively few circumstances where the law could be constitutionally applied.  To be unconstitutional on its face, a law must be "substantially overbroad" – that is, most of the possible applications of the law would be improper because they would be interfering with people's freedom of expression.  Notice that even someone whose conduct is not protected by the First Amendment may challenge a law on its face. 

     In effect, Stevens is saying, "Even if my commercial videos showing episodes of dogfighting are not constitutionally protected, the federal law used to prosecute me is unconstitutional because as applied to many other persons in other circumstances it would be vague or overbroad."

     Here are links to the ABA Preview report of this case, which is an outstanding article authored by Thomas Baker; Adam Schulman's summary of the legislative history for the First Amendment Center; and a summary of the case from Oyez's "On the Docket."  In subsequent postings I will discuss the merits of the defendant Stevens' First Amendment facial challenge to this law.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

      United States v. Stevens, the animal cruelty video case, was argued before the Supreme Court on October 6.  The transcript makes for a fascinating read, both from a forensic as well as a substantive perspective.

     Here is a link to the official transcript of oral argument in the case of United States v. Stevens.

     It was a "hot bench" – the justices posed a blizzard of questions, mostly hypotheticals about what kinds of images the government may and may not ban under the First Amendment.  They asked about hunting shows, bullfighting events, movies showing dogfighting, crush videos, and programs showing animals being processed for food.  They asked about photographs depicting women being raped and tortured and a cable channel devoted to showing human sacrifice.

     The antagonists were Neal K. Katyal, Deputy Soliciter General for the United States, and Patricia A. Millett, a Washington attorney.  Both attorneys did an outstanding job, despite their mutual inability to always respond swiftly to the judges' rapid-fire questions.  First up was Mr. Katyal, and here is an exchange he had with Chief Justice Roberts:

CHIEF JUSTICE ROBERTS: What would you — if you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?

MR. KATYAL: In one sentence, if — if — if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can — they can regulate a depiction, so long as it leaves alternative mechanisms for that expression in — in place, and that is I think what Ferber -

     With the benefit of hindsight, all the time in the world, and the safe position of the armchair quarterback, I suggest that Mr. Katyal might better have responded:

"Unprotected categories of speech represent those situations in which the speech causes harm directly to another person (defamation or threats), or where serious harm is both likely and imminent if the speech is allowed (incitement to riot and fighting words), or where the speech consists of the depiction of a crime, and by creating a market for these depictions the commercial sale of the speech will have the effect of making the crime more likely to occur (child pornography).  This law, Mr. Chief Justice, outlaws recordings that fall within the third kind of unprotected speech." 

Nothing like second guessing, is there?

     Attorney Millett attempted to avoid answering when Justice Alito asked her whether Congress may make it illegal to create or sell "crush videos" showing women in high heels stomping small animals to death.  Ms. Millett said:

I think — I think there's a — that a properly drawn law could very well, at least in my humble opinion, this Court would have to decide, survive strict scrutiny.

There is also, I suppose, some argument whether it would fit into — you wouldn't need strict scrutiny, you would fit it into an unprotected category of speech like obscenity or it would be the production issue that would — like you have in Ferber.

JUSTICE ALITO: You are not — you are not even willing to say that that could be prohibited?

MS. MILLETT: No, no. I think — I'm saying that there are three alternative ways in which to get to it. My first if one is that not this statute, but under a properly drawn statute -

JUSTICE ALITO: Under a properly drawn statute -

MS. MILLETT: — that might survive scrutiny. I'm not sure you would -

JUSTICE ALITO: Might. I would really like you to tell me whether it would; whether you are willing to concede. Because we are trying to determine whether this is overly broad. And this is the category of activity that Congress particularly targeted. So to me at least it's important to know whether at least as applied to what Congress principally had in mind, the statute could — could pass constitutional muster. If it were, you know, as applied.

MS. MILLETT: I don't — I don't want to, say this statute, because I don't think this statute -but if the statute said, this — I think this Court disagree — it disagrees with me sometimes — but I think this could pass constitutional muster. A statute that says the patently offensive intentional torture and killing of an animal for — designed to appeal to the prurient interest for the purpose of producing the image, I think that would satisfy — I think it would satisfy strict scrutiny. The Court might also decide that it's close enough to obscenity or it's like the Ferber production rationale. That's my position; there are sort of three ways it could be analyzed, a statute like that.

That's not this statute and I don't think we can say that this statute, because Congress has the authority to reach something, that when it throws a blanket net as wide as this one has that this means this statute is the mechanism, a lawful mechanism for getting … [Here Justice Kennedy interrupted her to ask another question.]

     Again, having time to think about it, a more concise and powerful answer to Justice Alito's question would have been to say:

Yes.

     Or,

Yes, your honor, a statute narrowly drawn to prohibit the recording of actual torture or killing of animals for perverse sexual gratification would be constitutional.  Unfortunately, the statute in question, 18 U.S.C. 48, is not narrowly tailored, but instead encompasses depictions of all forms of cruelty to animals.

     Because the defendant Stevens is attacking this law "on its face" (see Part 1 of this series on United States v. Stevens), the bulk of the judges' questions and the majority of the participants' discussion related to what other acts of cruelty to animals this law might be applied to.  Justice Sotomayor asked whether the law could be applied to shows about hunting.  (Page 4)  Justice Scalia asked about programs on bullfighting (pages 10-11).  Justice Breyer added:

"sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and for, I think somewhere I found, the stuffing geese for pate de fois gras."  (Page 13)

     Justice Breyer then added quail hunting to the list (page 13), and Justice Ginsburg contributed cockfighting.  (Page 15).  Justice Stevens asked about hunting with a bow and arrow out of season.  (Page 16)  The answer to each of these questions is to say that the depiction could be banned only if what was being shown met three criteria: (1) the act being depicted constituted cruelty to animals; (2) the act is illegal in the jurisdiction where the recording was created, sold, or possessed; and (3) the recording has no serious political, educational, or scientific value.  Normal hunting shows do not meet any of these criteria, let alone all three. 

     Justice Ginsburg then mercifully tried to put this line of questioning out of its misery, stating:

Have we finished with the category of fights?  (Page 16)

     The discussion then turned to an even more serious subject – depictions of torture and slaughter of human beings.  Justice Sotomayor asked about the case of American Booksellers v. Hudnut (1985) (summarily affirmed by the Supreme Court in 1986), in which the Seventh Circuit Court of Appeals declared unconstitutional a municipal ordinance that attempted to outlaw images of women being degraded or tortured.  (Page 6-7)  Justice Scalia asked about the constitutional status of the slasher movies that appear every Halloween.  (Page 22)  Justice Alito inquired about the legality of videos of gladitorial constests.  (Page 23)  Justice Alito asked about depictions of human sacrifices:

what about people who –who like to see human sacrifices? Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay per view, you know, on the human sacrifice channel.  (Page 46).

Justice Scalia asked about a new Adolph Hitler, and the extermination of whole populations.  (Page 47)  Other justices raised questions about "snuff videos" and "the ethnic cleansing channel."  (Page 48).  Quite clearly the Court is wondering whether some depictions of violence against human beings may be prohibited … in effect, whether violence should be considered to be a form of obscenity.  Chief Justice Roberts wanted Ms. Millett to answer this question:

JUSTICE ROBERTS: I'm still looking for your answer to Justice Alito's hypotheticals. Can Congress ban the human sacrifice channel or not?

MS. MILLETT: I — the — I think — I — I will start by saying — no. Let's start and see. Maybe — maybe it won't work, but I think -

     Attorney Millett's initial response accurately reflects the ambivalence of the American people and the law towards depictions of violence.  The fact of the matter is that as a society we haven't been willing to answer that question.  We have made the explicit sex act taboo, but graphic scenes of torture, mutilation, and murder are simply routine "entertainment."  Towards the end of her argument, Millett ably contends that laws prohibiting depictions of violence which are enacted, not because Congress is attempting to stamp out the activity in question, but merely because society finds the images repulsive, violate the First Amendment.  (Pages 54-55).  On rebuttal, Attorney Katyal agreed.  (Page 57)

     This case broaches the question of depictions of gratuitious violence in an indirect manner.  With a focus on cruelty to animals rather than cruelty to other people, United States v. Stevens challenges us to come up with good reasons to allow people to make money from the actual suffering of other creatures.  It is a discussion that is long overdue.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     Here are some useful links to keep you up to date on the Prop 8 trial.

1.  A summary of the procedural aspects of the trial from my Constitutional Law website;

2.  Plaintiffs' trial brief;

3.  Defendants' trial brief;

4.  Alliance Defense Fund website, with daily updates on the trial from the standpoint of supporters of Prop 8;

5.  lgbt pov website on the trial, with daily updates from the standpoint of opponents of Prop 8.

     In addition, here are links to a Newsweek article by Eve Conant on the collaboration of Ted Olson and David Boies as attorneys for the plaintiffs; a speech by Jenny Pizer of Lamda Legal's National Marriage Project; Ted Olson's Newsweek article "The Conservative Case for Gay Marriage;" and a posting by Amy Ridenour of the National Center for Public Policy Research rebutting Olson. 

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     By a vote of 5-4 along the usual ideological lines, the Supreme Court today overturned the order of the trial judge that would have allowed the Prop 8 trial to be broadcast.

     Until late December of 2009 Civil Local Rule of Court 77-3 of the United States District Court for the Northern District of California prohibited the use of cameras in court – neither still photos nor broadcast of proceedings were permitted.  On December 23, Judge Vaughn Walker issued notice that he was amending the local rule to allow broadcast of trials in the discretion of the court.  On December 31, the judge invited the public to comment on the amendment to Rule 77-3.  On January 8, Judge Walker issued an order amending the rule and stating that the Prop 8 trial would be broadcast.  The defendants requested a stay from the United States Supreme Court that would prohibit the trial from being broadcast.  Today the Supreme Court ruled in favor of the defendants, and ruled that cameras would not be allowed. 

     Here is a link to the opinion of the Court.  The majority opinion of the Supreme Court is "per curiam," meaning that it was not signed by any single judge, but it was joined by Justices Scalia, Thomas, Kennedy, Alito, and Chief Justice Roberts.  The four dissenters were Justices Stevens, Breyer, Ginsburg, and Sotomayor.  The Court split along the usual conservative/liberal divide.

     The majority based its ruling on procedural grounds – it found that the district court had amended its local rule of court banning cameras without giving sufficient notice to the public to object to the change.  Here is the key portion of the majority's opinion:

Federal law … requires a district court to follow certain procedures to adopt or amend a local rule.  Local rules typically may not be amended unless the district court "gives appropriate public notice and an opportunity for comment."  28 U.S.C. 2071(b).

    This federal statute – the Rules Enabling Act - grants the federal courts broad discretion to adopt or amend local rules of court, but as the majority states, the statute provides that the courts must give the public appropriate notice and opportunity for comment, and the Supreme Court found that the five business days allowed by Judge Walker was not long enough.

     Any person who asks a court to issue an injunction must persuade the court that that person will suffer "irreparable harm" if the injunction not issued, and in this case the defendants claimed that their witnesses might refuse to testify, or be discouraged from testifying fully, if the trial is broadcast.  The Supreme Court sided with the defendants on this question, citing 71 news reports that supporters of Prop 8 had been harassed by gay rights activists.  The Court stated:

The balance of equities favors applicants.  While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast.

     Finally, the majority reasoned that even if Local Rule 77-3 had been properly amended, this case would not be a good candidate for broadcast because it is a "high-profile, divisive" case. 

     The dissenting opinion by Justice Breyer contends that this case does not meet even a single requirement for intervention by the Supreme Court.  The dissent points out that Judge Walker initially raised the issue of allowing the trial to be broadcast on September 25, 2009, and that none of the parties objected at that time.  The Ninth Circuit had already approved the use of cameras in courtrooms on a trial basis, and Judge Walker's order merely brought his local rule of court in line with Ninth Circuit policy.  Before January 8 the trial court received over 138,000 comments on the proposed amendment, almost all of them approving of the change to the rule. 

     Justice Breyer also comments on how unusual it is for the Supreme Court to review the decision of a federal court to amend its local rule of court.  Breyer states:

For the past 80 years, local judicial administration has been left to the exclusive province of the Circuit Judicial Councils, and this Court lacks their institutional experience.   …  I have not been able to find any other case in which this Court has previously done so.

     Breyer quotes Justices Scalia and Rehnquist as having stated in a previous cases,

I do not see the basis for any authority to supervise lower courts.

     Breyer also challenges the finding of the majority that the broadcast of the trial will cause irreparable harm.  Forty-two states and two federal district courts grant judges the discretion to permit the broadcast of trials, and there is no empirical data supporting the assertion that such broadcast is harmful.  Nor are the witnesses likely to suffer any harm as a result of broadcasting the trial.  The defendants' witnesses are paid experts who are already publicly identified with their positions in opposition to same-sex marriage – and who, indeed, have actively sought this recognition.  Hundreds of national and international newspapers are already covering the trial.  Furthermore, Breyer contends that the interest of the public in viewing the trial outweighs any potential harm to the witnesses, quoting this statement from Justice Brennan's opinion in Nebraska Press Association v. Stuart:

If the public could see how the judicial process works, they would take a somewhat different view of it.

   The dissenters note that the remedy of mandamus is "a drastic and extraordinary remedy reserved for really extraordinary causes," and they suggest that Judge Walker's decision to allow broadcast of the Prop 8 trial does not qualify as extraordinary.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     Here are some links to information about the Prop 8 trial, and some analysis to put the trial in perspective.

     In May of 2008 in the case entitled In re Marriage Cases the California Supreme Court ruled that it was unlawful under the California Constitution for the State of California to establish two equivalant legal relationships but to call them by different names – "marriage" for heterosexual couples, and "domestic partnerships" for gay and lesbian couples.  In the November elections later that same year the people of the State of California narrowly voted to approve Proposition 8, an amendment to the state constitution that provides:

Only marriage between a man and a woman is valid or recognized in California.

     Proposition 8 in effect overruled the California Supreme Court's decision in the Marriage Cases.

     Attorneys Ted Olson and David Boies, who were adversaries in Bush v. Gore, the case that decided the 2000 presidential election, have brought suit in federal district court in California challenging the constitutionality of Proposition 8.  They contend that Prop 8 violates both the Due Process Clause and the Equal Protection Clause of the Constitution of the United States.

     Trial is underway in the case – the attorneys have made their opening statements and witnesses are testifying about the benefits and detriments of extending marriage rights to gays and lesbians.  But this is not a "trial" in the traditional sense.  The trial judge has no authority to make "findings of fact" on the question of whether it will be beneficial to gay and lesbian families to be admitted to the institution of marriage, or whether it will harm heterosexual couples' marriages if that were to happen.

     The reason that this is not a "trial" but rather a "hearing" is that all of the questions before the trial court are questions of law, not questions of fact.  Questions of law are decided by judges, not by juries, and it isn't even necessary for the parties to call any witnesses or introduce any evidence.  Both the plaintiffs and the defendants could, if they wish, rely entirely upon their pleadings and briefs, and the judge could take judicial notice of the facts and policies surrounding gay marriage.  Furthermore, whatever conclusions the trial court may reach in this case, the standard of review on appeal will be de novo, meaning that the appellate courts will be free to accept or reject the findings of the trial court.  The witnesses and evidence will no doubt be helpful to the courts in determining the rights of gay and lesbian couples, but neither the trial court nor the appellate courts will be "bound by the record" regarding the evidence as they are in the usual case.

     Here is the plaintiffs' trial brief setting forth arguments that Prop 8 is unconstitutional; plaintiffs' list of 37 witnesses whom they may call to testify; and a liveblog of the proceedings from Teddy Partridge of The Sentinal.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     In this final installment on this pending case I discuss whether or not a religious organization like CLS has a constitutional right to discriminate that is superior to the rights that other advocacy groups might have.

     In five previous posts I have introduced the pending Supreme Court case of Christian Legal Society v. Martinez, laid out the breadth of constitutional issues that are implicated, and discussed CLS's First Amendent claims under the doctrines of equal access to a public forum, expressive association, and the free exercise of religion.  In this sixth post I suggest that CLS may try to argue that, as a religious organization, the discrimination that it practices against gays, lesbians, and people of other faiths is on a higher plane and should receive more constitutional protection than discrimination by other, non-religious organizations.

    The problem that CLS faces is that Hastings Law School has a legitimate and compelling reason not to recognize student organizations that discriminate on the basis of race, religion, gender, national origin, disability, and sexual orientation.  The law school is attempting to instill in its students principles of inclusiveness and tolerance – and the law school has that right under the First Amendment.  For example, no court would ever require the law school to confer official recognition a group that wished to call itself the "Hastings Law School Chapter of the KKK," for example, nor would the law school be required to give such a group access to student activity fee funding for a cross-burning.

     The obvious strategy would be for CLS to persuade the Court that the kind of discrimination that is practiced by religious organizations can be distinguished from the kind of discrimination that hate groups like the KKK or the Nazi Party engage in.  And at first blush that would seem easy to do.  We certainly do not regard our churches or religious societies in the same moral light as hate groups. 

     In support of this distinction the CLS can point to the fact that the law routinely exempts religious organizations from the operation of the civil rights laws.  If this were not the case, it would be unlawful for religious institutions to engage in gender discrimination, and churches, synagogues, and mosques could be compelled to employ women as clergy.  This exemption exists for very good reason – the civil rights laws are in some instances in conflict with religious doctrine, and to enforce these laws against religious institutions would infringe upon those institutions' right to the free exercise of religion.  Moreover, in the process of enforcing laws against employment discrimination the government would almost certainly become "excessively entangled" in the affairs of the religious body, thus violating the principle of separation of church and state that the Establishment Clause stands for.

     On closer inspection, however, there are difficulties with this argument.  While it is true that religious institutions enjoy immunity from civil rights laws that prohibit discrimination, so, too, do social, fraternal, and advocacy groups, insofar as those laws would interfere with the organization's rights to expressive association.  The law may not require the Lutheran church to employ a Methodist pastor any more than it may require the Democratic Party to allow Republicans to vote in its primary elections (California Democratic Party v. Jones (2000)), or require the Boy Scouts to employ a gay man as a Scoutmaster (Boy Scouts of America v. Dale (2000)).  Even the KKK has the right, under teh First Amendment, to exclude people of color from becoming members.  Religious institutions exercising the right to freedom of religion in their discriminatory practices are treated no differently than secular organizations asserting their right to freedom of speech.

     Furthermore, there are organizations that function both as religions and as hate groups.  Christian Identity, for example, is a church instituted upon principles of racism and anti-semitism that according to the Anti-Defamation League has penetrated many right-wing extremist movements in America.  Terrorist organizations such as al-Qaeda obviously draw inspiration from religious fanaticism.  And, until 1978, the Mormon church discriminated on the basis of race.  In my opinion there is no principled basis for distinguishing religiously-based acts of discrimination from those that arise from secular motives.

     If CLS raises this line of argument, and if the Court chooses to discuss it, it will be fascinating to witness.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     We have seen in the two previous posts that CLS faces an uphill battle against Hastings Law School in its First Amendment claims based on "expressive association" and "equal access to a public forum."  Under existing doctrine, it will be equally difficult for CLS to win with yet another First Amendment claim under the Free Exercise Clause, for reasons discussed below.  That is why CLS may get creative and try to establish new doctrine – that discrimination by a religious body is different from and more protected than discrimination by non-religious advocacy organizations.

     In order to become a member of CLS, a Hastings Law Student must make the following "statement of faith":

Trusting in Jesus Christ as my Savior, I believe in:

• One God, eternally existent in three persons, Father, Son and Holy Spirit.

• God the Father Almighty, Maker of heaven and earth.

• The Deity of our Lord, Jesus Christ, God’s only Son conceived of the Holy

Spirit, born of the virgin Mary; His vicarious death for our sins through

which we receive eternal life; His bodily resurrection and personal return.

• The presence and power of the Holy Spirit in the work of regeneration.

• The Bible as the inspired Word of God.

     Furthermore, the district court found:

CLS will not permit students who do not sign the Statement of Faith to become members or officers. CLS also bars individuals who engage in “unrepentant homosexual conduct” or are members of religions that have tenets which differ from those set forth in the Statement of Faith from becoming members or officers.

     Hastings Law School allows CLS the use of its classrooms for meetings as well as access to bulletin boards and audio-visual equipment.  But because CLS refuses to admit members on a non-discriminatory basis, Hastings does not recognize CLS as an official student organization, it does not allow CLS to use the name or logo of the law school, and it does not give CLS any funding.  

     CLS contends that Hasting's actions infringe upon the student organization's right to freedom of religion under the Free Exercise Clause of the First Amendment.  It will be difficult for CLS to establish this claim for a number of reasons.

     First, under the case of Sherbert v. Verner (1963), to make out a claim under the Free Exercise Clause an individual or a group must prove that the government has imposed a "substantial burden" upon the practice of religion.  That basic element may be missing in this case.  Hastings Law School has done nothing to make CLS's religious exercises illegal, difficult, or expensive.  It has simply declined to endorse CLS on account of the fact that the club is not open to gays, lesbians, and persons of other religions. 

     Second, under the same case, even if Hastings' non-discrimination policy constitutes a "substantial burden" on the exercise of religion, that policy is constitutional if it serves a compelling governmental interest."  Hastings will argue that it has a compelling governmental interest in preventing discrimination on the basis of religion and sexual orientation by student organizations that it indorses, and in light of the fact that Hastings also has First Amendment rights to define its educational mission, this, too, is a powerful argument.

     As if Sherbert v. Verner were not a high enough hill to climb, the Supreme Court threw some more roadblocks in the way of Free Exercise claims in the case of Employment Division v. Smith, a 1988 decision written by Justice Antonin Scalia.  In that case the Supreme Court ruled that the plaintiff must also prove either that the law or official policy is not a rule of "general application," that the law or policy was "directed at religious practice," or that the law or policy affects both religious exercise and some other constitutional right.  If any of those three elements are present, then Sherbert v. Verner applies.  If not, then the governing standard is the low-level rational basis test, and the law or policy will be upheld if it has any tendency to serve a legitimate governmental interest.

     Hastings' non-discrimination policy is a rule of general application – it applies to all student organizations that desire official recognition.  It is not directed at religion – prior to 2004, when it allowed Hastings students of any religion or sexual orientation to join, CLS was a recognized student organization.  Finally, as we saw in the previous posts, the law school's policy may not violate the student organization's right to freedom of expression.  The Supreme Court may well find that CLS's Free Exercise claim is barred by the Smith case, and may not even consider whether the policy amounts to a "substantial burden" on the exercise of religion under Sherbert.

     Under existing law, CLS will have a hard time proving that Hastings' non-discrimination policy violates the First Amendment.  CLS will have to get creative.  Its best chance lies in persuading the Supreme Court that discrimination by a religious organization is different from discrimination by other types of organizations.  I will discuss that idea in tomorow's post.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     Another argument that CLS will advance in support  its claim that Hastings Law School should be compelled to recognize it as an official student organization is its contention that the law school is interfering with its rights as an "expressive association."  Here is a history of that doctrine, and a summary of two of the most relevant cases.

     Much of constitutional law grew out of the civil rights movement – more specifically, in reaction to the attempt of several southern states to quash the movement.  For example, the first appearance of the "state action" doctrine – the idea that private organizations might have engaged in "state action," and that its conduct was therefore subject to the requirements of the Constitution – came in the 1944 case of Smith v. Allright, because the Texas Democratic Party had excluded blacks from membership.  The "public forum" cases owe much to cases like Edwards v. South Carolina (1963), holding that civil rights marchers could not be arrested for peacefully protesting on the grounds of the statehouse.  The "actual malice" test under the First Amendment originated in the 1964 case of New York Times v. Sullivan, when southern officeholders, with assistance of the state courts, sought to silence northern newspapers from covering the civil rights movement through a series of libel actions.  And modern Equal Protection doctrine stems from the case of Brown v. Board of Education (1954).

     So, too, with the right of expressive association.  In the 1950s and early 60s southern states sought to silence and suppress the N.A.A.C.P., which had undertaken Brown and other successful civil rights litigation.  The State of Alabama ordered the organization to disclose its membership lists, which would have undoubtedly subjected its members to harrasment and violence.  In the case of N.A.A.C.P. v. Alabama (1964), the Supreme Court ruled that the group did not have to disclose to the state who its members were – that the organization has a right to "political association" - a right which is derived from the First Amendment. 

     In subsequent years the right of association has taken other forms - "intimate association," the right to enter into intimate and personal relationships, and "expressive association," the right to band together with other persons for the purpose of expressing certain values or advocating a point of view.  We deal here with the right of expressive association.  And in an ironic twist, the First Amendment right of expressive association has grown out of the enforcement of civil rights acts against private organizations.

     One of the ways in which the right of expressive association may be affected is when the state or federal government adopts non-discrimination laws which prohibit private entities from discriminating.  If the private organization is a business or a landlord the courts have no difficulty in ruling that the private party must obey the civil rights law.  Private businesses do not have a constitutional right to engage in employment discrimination or treat customers differently because of their race, and individual homeowners do not have a constitutional right to refuse to sell their home to someone an account of the buyer's religion. 

     But the question becomes much closer when non-discrimination laws attempt to prohibit private fraternal or social organizations from discriminating in their membership policies, particularly in circumstances where the organization was formed to exemplify certain values or to express a particular point of view.  In those circumstances the First Amendment comes into play, and the courts must determine whether or not the interest of the government in preventing acts of discrimination is sufficiently strong to outweigh the interest of the group in being permitted to express itself in word or by deed. 

     Two cases serve to demonstrate the reach of the doctrine.  In Roberts v. Jaycees (1984), the State of Minnesota enforced its Human Rights Act – a non-discrimination law – against the Jaycees, a civic organization that did not admit women to membership.  The Jaycees were unable to articulate any particular reason why they chose not to admit women.  The organization was not pursuing a gender-based agenda, and in fact women were often present at meetings and participated in many activities of the group.  Under these circumstances the Supreme Court found that the state was not interfering with the ability of the Jaycees to express itself, and the Court upheld the appliacation of the non-discrimination law to the Jaycees.

     In contrast, in the case of Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the private organization had the right, under the Constitution, to discriminate in its hiring policy, because the organization stood primarily for certain values.  The Boy Scouts of America revoked the membership of James Dale, an Assistant Scoutmaster who was both gay and an advocate for gay rights.  Dale challenged this action as a violation of New Jersey's public accommodations law, which prohibits discrimation on the basis of several factors, including sexual orientation.  The Boy Scouts contended that the state court's decision violated its First Amendment right to expressive association – that among the values that it sought to inculcate in young men was heterosexuality.  The Supreme Court found that if the Scouts had been required to retain Mr. Dale as a member, it would substantially interfere with the message that the organization was attempting to instill in young people.  The New Jersey non-discrimination law, as applied to the Boy Scouts, violated the organization's right to expressive association.

     The CLS will argue that Hastings Law School is trampling on the organization's right to freedom of expressive association by requiring it to admit persons who do not adhere to its religious principles, including sexually active gays and lesbians.  The principal difficulty with this argument is that Hastings Law School does not stand in the position that the State of Minnesota or the State of New Jersey did in Roberts and Dale – Hastings Law School does not, and cannot, make it illegal for CLS to discriminate on the basis of religion or sexual orientation.  Nor has the law school denied CLS the use its bulletin boards, meeting rooms, or audio-visual equipment.  Instead, the law school has refused to endorse the organization's message by allowing CLS to use the Hastings name and logo, and it has refused to provide CLS with funding; the Supreme Court may find that these actions are not the equivalent of a state government making a discriminatory membership policy illegal.

     In tomorrow's post I will discuss the student organization's Free Exercise claim against the law school.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     One of the strongest arguments that the Christian Legal Society will assert in its case challenging Hastings Law School's refusal to recognize it as an official student organization is based upon a series of Supreme Court decisions establishing the rights of student or community groups to equal access to school funding and facilities.  The CLS reliance on these cases is undermined, however, by two facts.  First, Hastings allows CLS to meet on school property – it simply denies CLS funding and the right to use the Hastings name and logo.  Second, Hastings does not prohibit "religious organizations" or "religious activities" among its student organizations – instead it refuses to recognize student organizations that discriminate in their membership policies on the basis of several factors, including religion and sexual orientation.

     There are five principal decisions of the Supreme Court that govern student access to campus facilities and funding.  Each case is briefly described below.

Healy v. James (1972)

     The Students for a Democratic Society (SDS) sought recognition as an official student organization at Central Connecticut State College, and the college not only denied official recognition but refused to permit the organization to meet on campus.   The President of the college justified his decision on the ground that the SDS had disrupted classes at many colleges and universities nationwide, and because "the organization's philosophy was antithetical to the school's policies" of academic freedom.  The Supreme Court ruled that it was unconstitutional for the college to refuse to recognize the SDS - and to deny the group the opportunity to meet on campus, which it called the "most important" aspect of official recognition – solely because the group's beliefs.  However, the Court did hold that the College could withhold recognition if the group refused to agree to abide by the reasonable rules and regulations of the university (such as not disrupting classes).  The Court stated:

A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law. Such a requirement does not impose an impermissible condition on the students' associational rights. Their freedom to speak out, to assemble, or to petition for changes in school rules is in no sense infringed. It merely constitutes an agreement to conform with reasonable standards respecting conduct. This is a minimal requirement, in the interest of the entire academic community, of any group seeking the privilege of official recognition.

Widmar v. Vincent (1981)

     The University of Missouri at Kansas City had a regulation prohibiting the use of campus buildings or facilities ""for purposes of religious worship or religious teaching."  The regulation was challenged by Cornerstone, a student organization whose official recognition was withdrawn by the University.  The Supreme Court ruled that the University's policy was content-based and therefore subject to "strict scrutiny."  The University contended that the policy satisfied strict strict scrutiny because it was necessary to serve a compelling governmental interest – that is, its duty under the Establishment Clause to remain neutral with respect to religion.  The Court ruled that an "equal access" policy allowing religious groups to meet on campus on the same basis as other groups would not violate the Establishment Clause, and that accordingly the Establishment Clause was not a sufficient reason to jusify the school's policy against religious organizations.

Lamb's Chapel v. Center Moriches Union Free School District (1993)

     A public school district allowed social and civic organizations to use its buildings after school hours, but it prohibited a religious organization, Lamb's Chapel, to show a film series about family values and child-rearing from a christian perspective.  The Court ruled that the school district was under no duty to open its facility to the community, but that once it did it had created a "public forum," and the school could not allow some groups to use the facility to discuss family issues and bar others based upon the content of what those groups would discuss.  To do so, said the Court, was to engage in "viewpoint discrimination" - and viewpoint discrimination is strictly prohibited by the First Amendment.  Here is the Court's own summary of its decision in Lamb's Chapel, as set forth in a later case:

[A] school district had opened school facilities for use after school hours by community groups for a wide variety of social, civic, and recreational purposes. The district, however, had enacted a formal policy against opening facilities to groups for religious purposes. Invoking its policy, the district rejected a request from a group desiring to show a film series addressing various child-rearing questions from a "Christian perspective." There was no indication in the record in Lamb's Chapel that the request to use the school facilities was "denied for any reason other than the fact that the presentation would have been from a religious perspective." Our conclusion was unanimous: "[I]t discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious standpoint.

Rosenberger v. University of Virginia (1995)

     Wide Awake Productions (WAP) was a student organization that published a magazine offering Christian views and commentary on social issues and current events.  WAP applied for funding which was available from student activity fees at the University of Virginia.  The University had a rule prohibiting SAF funding for any "religious activity" on the ground that the University, which is a state institution, wished to avoid any violation of the Establishment Clause.  The Court ruled in favor of WAP on the ground that the SAF funding, just like the use of facilities in Lamb's Chapel, constituted a "public forum" that the University must allow access to in a non-discriminatory manner.  The Court stated:

The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.  … We conclude … that here, as in Lamb's Chapel, viewpoint discrimination is the proper way to interpret the University's objections to Wide Awake. By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints.

Board of Regents of the University of Wisconsin v. Southworth (2001)

     In Southworth, a group of students contended that it was a violation of their First Amendment rights for the university to charge a mandatory student activity fee to support student organizations – organizations whose messages students might disagree with.  The Court ruled:

The First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral.

Summary 

     CLS will argue that the foregoing cases support its claim that the refusal of Hastings Law School to officially recognize the student group is unconstitutional.  CLS will contend that the decision of the law school is not "viewpoint neutral," and is therefore in violation of decisions like Lamb's Chapel, Rosenberger, and Southworth.  The law school will contend that, unlike cases like Healy or Widmark, it allows CLS to meet on campus and therefore is granting CLS "equal access" to its facilities.  Furthermore, the law school will argue that its decision to withhold official recognition from CLS was based upon the organization's conduct, not its speech – and that Healy allows this.  Hastings will claim that it is not discriminating against CLS based upon the "content" or "viewpoint" of the ideas that CLS wishes to express – that instead, the law school has denied CLS official recognition because of its conduct in failing to open membership in CLS to all Hastings students on a non-discriminatory basis; specifically, that CLS discriminates on the basis of religion and sexual orientation.

     In tomorrow's post I will discuss the "expressive association" decisions and their relation to this case.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     The difficulty of this case stems from the number of constitutional doctrines and principles which are intertwined, a tangled skein of general rules and fundamental values.

     Yesterday's post introduces the case.  The Christian Legal Society is a student organization at Hastings Law School that in 2004 adopted rules requiring that in order to become members of the organization students must take an oath expressing their adherence to specific religious beliefs.  As construed by the CLS, the oath and the duty to conform to it would exclude sexually active gay and lesbian students.  The law school refuses to recognize student organizations that discriminate on the basis of religion or sexual orientation, and accordingly the law school withdrew recognition of CLS, thus depriving the organization of the right to use the name and logo of the institution, access to certain facilities at the law school, access to e-mail lists of students, and funding.

     This case implicates a virtual blizzard of constitutional principles.  For CLS, three primary constitutional rights are involved:

1.  Freedom of Speech and the Right of Expressive Association

     The Christian Legal Society has the right to express its views, not only through advocacy, but by means of its membership policies.  This right – called the right of "expressive association" – makes it unconstitutional for the government to enforce civil rights laws against such organizations, at least in settings where the organizations is acting in a wholly private capacity and not performing some governmental function, such as conducting a primary election for elective office.

     The principal case protecting the rights of CLS in this case is Boy Scouts of America v. Dale, in which the State of New Jersey had charged the Boy Scouts with violating the state's nondiscrimination law because it had fired a scoutmaster because he was gay.  The Supreme Court ruled that enforcement of the law violated the Boy Scouts' First Amendment right to stand in opposition to homosexuality – and that this right would be infringed if the BSA was required to employ gays or lesbians as scoutmasters.

2.  The Free Exercise of Religion

    The CLS's right to discriminate on the basis of sexual orientation is also based upon its rights under the Free Exercise Clause of the First Amendment.  Religious bodies may not be forced to admit members or hire clergy who are not of the same faith, or who are not obedient to the organization's code of conduct. 

3.  Equal Access

     When government institutions such as schools and colleges open up their facilities to the community, they must provide access in a "viewpoint neutral" manner – that is, the government must not attempt to elevate one point of view over another.  The Supreme Court has specifically held that religious groups are entitled to the same access to public facilities as secular organizations. 

     However, this case is complicated by the fact that CLS is not simply seeking access to Hastings Law School – it is seeking official recognition and funding.  A university – even a public university – also has the rights and responsibilities under the Constitution. 

1.  Government speech

     Government institutions, no less than private parties, enjoy freedom of speech.  By prohibiting recognized student organizations from discriminating Hastings Law School is attempting to inculcate tolerance and civic responsibility among its students.  The law school's First Amendment rights are enhanced by the fact that its recognition of a student organization confers upon the organization the right to use the name and logo of the law school, giving the impression that the organization is speaking for the law school – and the law school does not wish to endorse discriminatory views.

2.  Government subsidization of private speech

      Not only may government institutions speak, they may also elect to subsidize the views of private parties with whom they agree.  Just as the National Endowment for the Arts may decide to fund one form or art or music over another – or "decent" kinds of performances instead of "indecent" ones – universities may choose to subsidize some forms of expression and not others.  Essentially, this line of cases (like the abortion funding cases) stands for the principle that while citizens may have a constitutional right to freedom of speech, they do not have a constitutional right to the assistance of the government in expressing themselves.

3.  Establishment Clause

     Under the First Amendment's that the government shall make no law "respecting an establishment of religion," the Supreme Court has ordered that the government must act in a neutral fashion towards religion.  The government may neither advance religion or hinder it.  The problem, of course, lies in defining what constitutes the "neutral" position.

4.  The power to regulate the conduct of students

     Public educational institutions have the authority to regulate student conduct to a far greater degree than they may regulate student expression.  One of the difficult questions in this case is whether through its nondiscrimination requirement for recognized student organizations the law school is attempting to prohibit discriminatory conduct, or whether it is attempting to regulate the beliefs and expressions of students.

     I will continue the analysis in tomorrow's post.

Visit Professor Huhn's website  for information and links to sources – both timely and historical – on Constitutional Law.