A coda to our discussion of religious exemptions?

According to the Washington Post, the Executive Order signed by President Obama to prohibit workplace discrimination against gay, lesbian, and transgendered employees who work for federal contractors (and discussed by Mr. Torvik here) does not contain any religious exemptions for employers who think employing  a gay, lesbian, or transgendered person violates the employer's religious beliefs. In reality, I suspect the issue is more accurately hiring since until today this kind of discrimination by federal contractors was not prohibited.

I hope and that the distinction Mr. Torvik (and others) make between the Hobby Lobby case and employment discrimination. I suppose we will find out in about a year.

Hobby Lobby & Discrimination, part 2

Following up on our earlier discussion (wherein sparks flew), I thought I'd direct your attention to this open letter sent by 50 law professors to President Obama, urging him not to carve out a religious exemption to his expected executive order banning discrimination against gays among federal contractors. It is quite persuasive, and worth a read.

Notably, the law professors' first argument is that Hobby Lobby in no way compels this kind of exemption:

[T]he Supreme Court's opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors. Both actions were predicated on the Court’s belief that the government could fully realize its compelling goals of furthering women’s health and equality through other means – because it could arrange for alternative contraception coverage for affected employees, who then would suffer no harm as a result of an employer exemption. By contrast, there is no such alternative here. Exempting religious employers would harm LGBT employees and it would frustrate the Administration’s compelling interests in providing equal rights and protection against employment discrimination for LGBT people, particularly in taxpayer funded situations.

This is essentially the same point made by Professor Althouse, which sparked our discussion.

For the contrary view, see this earlier letter from the Institutional Religious Freedom Alliance. As the law professors' letter notes, however, the IRFA letter cites no authority for its core assertion that religious employers are "free under Title VII to maintain a conduct standard that reflects their religions’ sincerely held beliefs, which include deep convictions about human sexuality." Instead, Title VII merely allows "religious organizations" to prefer people of their own faith in hiring.

Prosecutor considering whether to enforce unconstitutional eavesdropping law on a "case by case basis"

Reader(s)™ may recall previous coverage here of Illinois's unconstitutional "eavesdropping" law that makes it a felony for a citizen to make an audio recording a police officer in public.

Last we heard, the law was struck down on First Amendment grounds by the Seventh Circuit Court of Appeals. The state (Cook County, actually) appealed to the Supreme Court, but the writ of certiorari was denied. Thus the matter was settled: the law of the land is that this unconstitutional law is unconstitutional and unenforceable anywhere in this jurisdiction.

So imagine my surprise when I ran across this story today:

A Jacksonville [Illinois] man who had his phone seized for recording an on-duty police officer is not likely to be charged under the state’s controversial [sic: should read "unconstitutional"] eavesdropping law. 

Morgan County [Illinois] State’s Attorney Robert Bonjean said Monday that he is not anticipating prosecuting an eavesdropping charge against Randy Newingham — at least not at this time.

For the public at large, this does not mean that recording on-duty officers will never be prosecuted in Morgan County.

“We’ll review those reports and we’ll continue to monitor the decision from the 7th Circuit court,” Bonjean said. “I don’t foresee myself making any blanket decision, just taking it on a case by case basis.”

Let's break down this lawless nonsense.

First, he says he'll "continue to monitor the decision from the 7th Circuit." What a bizarre statement. Is he continuing to monitor Brown v. Board as well? The case is over. O-vah. The law is unconstitutional. That means you don't get to prosecute people for violating it anymore.

Yet Mr. Bonjean says he doesn't foresee "making any blanket decision, just taking it on a case by case basis." Let me help you out, Mr. Bonjean: the 7th Circuit made the blanket decision for you. When a federal circuit court finds a state law unconstitutional, that ruling is—well, it's kind of like a magical blanket that gets put over the entire state, and that blanket makes the law in question unconstitutional everywhere it touches. So you just get to cozy up underneath the blanket and prosecute the other laws that haven't been found unconstitutional (yet).

Mr. Bonjean apparently doesn't understand how legal authority works in a common law system:

“Quite honestly, I haven’t made a decision,” Bonjean said. “Officially I’ve [indicated] to [Police Chief Tony Grootens] that I won’t file charges. But technically it’s a felony charge, so I have three years from the date of the offense to file a charge.”

Do you understand what happens when you prosecute someone for violating a "law" that has been found unconstitutional? That's called violating a person's civil rights. The Seventh Circuit's opinion is "clearly established law" that would make prosecuting Mr. Newingham illegal. You might want to brush up on this stuff, sir.

It gets worse, actually, when you read the comments of Tony Grootens, the Chief of Police of the department which made the false arrest:

Grootens said he believed that Newingham was sincerely ignorant of the law.

“Believe me, [the State’s Attorney’s Office is] busy enough,” Grootens said. “There’s more pressing things on their plate right now than to go with that. I already took care of it. … I told him not to be doing it. He honestly thought he was OK to do it, so now if he continues to do it, I can’t tell you that he certainly won’t be arrested.”

This final comment should probably be the motto of his police department, encircling the badge: "We can't tell you that you certainly won't be arrested." Even if your conduct has been specifically found to be protected under the First Amendment by the federal court of appeals whose rulings are law in this jurisdiction, they can't guarantee that you won't be arrested for committing a phony felony.

Can The Liberator Be Stopped?

Yesterday I linked to a Farhood Manjoo piece in Slate about the Texas law student to came out with a 3D-printed gun ("the Liberator"). Mr. Manjoo's take is that, even if you're the kind of person who might worry about this, you shouldn't because government will not allow it to happen:

Even non-repressive regimes can impose harsh penalties to limit the spread of certain information. The United States couldn’t stop WikiLeaks from distributing secret diplomatic cables, but it did manage to strike a terrible blow to the group when it cut off its funding sources. In the same way, by imposing strict penalties for the distribution and possession of child pornography, Western governments have severely limited its spread online.

The rise of file-sharing seems to support the 3-D gun movement’s claims—people share movies and songs illegally online, and no government has been able to stop them. But note that doing so isn’t completely safe; if the authorities set their mind to it, they can bankrupt you for sharing songs online. Countries where guns are already strictly curbed could impose similarly harsh measures against the distribution of plans for 3-D guns—and if they enforce them strictly, they might well limit their availability.

To the extend Mr. Manjoo is basing these arguments on U.S. law, the analogies to crackdowns on pirated music / movies and child pornography are way off-base.

First, the analogy to piracy fails because there will be no copyright issue. Mr. Wilson and his kind will be distributing these plans, which are their own intellectual property, freely and without restriction. It is only copyright law that prevents distribution of movies and music, and it is only copyright that allows the government to enforce the standards Mr. Manjoo mentions. Given that there will be no copyright on these gun-printing blueprints, no one will have the legal right to prevent their distribution. Congress would need to pass a law to make such plans illegal, but that law would almost certainly be unconstitutional under the 1st Amendment, the 2nd Amendment, or both.

Second, the child porn analogy fails for a similar reason. Laws preventing dissemination of child porn are allowed on a very narrow exception to the First Amendment, and there is no reason to believe that dissemination of these gun-plans would fit any exception.

That is not to say the U.S. government is without recourse. In fact, it's already taking action. The U.S. State Department wrote Mr. Wilson a letter demanding that he take the plans down from his website on the theory that they may violate export regulations under certain arms control treaties. Mr. Wilson has complied with the request pending the State Department's review, although he believes that the regulations do not apply to his non-profit enterprise. This also raises issues whether the government can regulate anything published on a website as an "export" and whether treaties pertaining to exports can override constitutional rights. But we'll leave those questions for another day. I will just note that you can buy the "Anarchist Cookbook" on Amazon.

Is a Crypto-Anarchist Fit for the Bar?

Cody Wilson, a second-year law student at the University of Texas, has successfully created a 3D-printed gun and fired it. Here's the awesome video:



Mr. Wilson is apparently an extreme libertarian who, according to Farhad Manjoo, describes himself as a "crypto-anarchist":

Crypto-anarchism (or crypto-anarchy) is a cyber-spatial realization of anarchism. Crypto-anarchists employ cryptographic software to evade prosecution and harassment while sending and receiving information over computer networks, in an effort to protect their privacy and political freedom.

Prospective lawyers generally must establish their "character and fitness" to be bestowed with the privilege of practicing law. I wonder whether a person who openly avows anarchy could be found fit to practice law—that is, to become an officer of the court sworn to uphold the constitution and laws of the United States. This question itself may have an unsavory aftertaste, given that it calls to mind similar questions asked of Communists during various Red Scares. But that's how I roll.

Mr. Wilson seems to have broken no law with his 3D-printed gun, and even took active steps to comply with federal law by inserting a non-functional piece of metal into the final product. And I actually can't find any evidence to back up Mr. Manjoo's assertion that Mr. Wilson describes himself as a crypto-anarchist. (All I can find is an interview in which he expresses enthusiasm for cryptocurrencies, such as Bitcoin. It's quite possible that Manjoo just made up this anarchist stuff, because as you'll see in my next post he makes laughably wrong assertions regarding the law in the very same article.) But, assuming for a moment that Mr. Wilson is openly anarchist, it seems fair to at least explore whether such beliefs are consistent with swearing the lawyer's oath of admission.

The only constant is change

When I worked on an assembly line, one of my coworkers would sometimes say the title to this post. It was kind of ironic because on an assembly line things do not change very much. But he had worked there a long time and could remember when the assembly line was run much differently.

I reflected on this saying when I read the New York Times obituary for Edward de Grazia. As the obituary notes, Mr. de Grazia first became prominent in the 1955 when he sued the United States Postal Service over its seizure of a rare volume of the play Lysistrata. The Postal Service wanted to destroy the book because the play was “obscene, lewd and lascivious" according to then-Postmaster General Arthur Summerfield.  The obituary notes that the Postal Service also banned Candide by Voltaire. As a result of Mr. de Garzia's efforts the Postal Service released the seized volume before trial.

Seventh Circuit strikes down Illinois's unconstitutional "eavesdropping" law

UPDATE:

The Supreme Court denied cert. in this case, so the decision of the Seventh Circuit stands, and the aspect of the Illinois wiretapping law that criminalizes the recording of police officers in public is unenforceable in Illinois.

ORIGINAL POST (5/8/2012):

In an opinion issued today, the Seventh Circuit Court of Appeals ruled unconstitutional, on First Amendment grounds, the Illinois law that makes it a felony to make audio recordings of police officers in public. Richard Posner (the man, not the kidney) dissented.

Previous coverage here, here, and here.

The Outer Limits of the First Amendment

Out in California, they sure do vote on a lot of stuff.

For example, Los Angeles County had a ballot initiative this year about whether actors in pornographic films should be required to wear condoms. The idea, apparently, is that this will improve the public health by reducing the spread of sexually transmitted diseases. However, county lawmakers opposed the measure because it will require the creation of a new bureaucracy:

The county has said the law, pushed by AIDS activists concerned about disease outbreaks, forces the establishment of a new bureaucracy, complete with inspection schedules, a permitting process, a training program for dealing with bodily fluids and a special vault for evidence seized from movie sets. County employees could even be called upon to screen X-rated titles for condom compliance.

What's more, not even public health officials in Los Angeles county supported the measure:

County officials said they were in favor of condom use, but didn't support new local action because the state had jurisdiction for workplace safety and, in any case, enforcement would be too difficult. Dr. Jonathan Fielding, the county health officer, wrote in a report this summer that it would be challenging to identify "underground, inconspicuous, intentionally non-compliant filmmakers." County lawyers also said they worried that the measure violated the 1st Amendment.

Nonetheless, the measure passed and, as County supervisor Zev Yaroslavsky said, "People voted for it, and they're entitled to have it on the books. It's a challenge we're going to have to confront."

Pornographers, of course, are in an uproar and are threatening to take their business elsewhere:

The passage of the law created an outcry Wednesday in the adult entertainment industry. Porn producers have long said consumers will not purchase movies in which actors wear condoms and on Wednesday, executives and directors once again threatened to move from long-time production sites in the San Fernando Valley to other California counties, Las Vegas or Hungary, Europe's center of adult moviemaking.

Some thoughts:

1) I never thought I'd see the day where government officials in an urban county would oppose a law on the basis that it would create too much bureaucracy but then the people would go ahead and overrule them by saying, in effect, "we want more bureaucracy!" Truly, we get the government we deserve.

2) It seems to me that the lawmaking system that permits such a thing to occur is sub-optimal. In other words, it is too easy to get these kinds of measures on the ballot in California.

3) I am looking forward to the First Amendment fight over this new law. Porn has often been at the center of First Amendment jurisprudence. Indeed, under the standard set forth in Roth v. United States, the Supreme Court was constantly reviewing pornography to determine whether it was "obscene" and therefore beyond the First Amendment's protection. This led to one of the Supreme Court's great moments, in Jacobellis v. Ohio, when Justice Stewart admitted that he could formulate no legal standard to separate obscenity from protected material but "I know it when I see it." The current standard on obscenity, set out in Miller v. California has essentially ended such investigations and allowed hard-core pornography to proliferate freely. But the proliferation is partly because neither the pornographers nor the prudes want to test the boundaries of the law, for fear of enshrining an unfavorable regime. In other words, the prudes are waiting for their moment. Maybe this is it. (But probably not.)

Madison Teachers, Inc. v. Scott Walker

The Reader(s)™ have spoken—they want me to opine on the recent Dane County Circuit Court case striking down major provisions of Scott Walker's public-union busting law, Act 10. These people are nuts, but ... well, okay.

Another example of corporate speech (UPDATED)

UPDATE:

The DC Circuit has affirmed (in R.J. Reynolds v. FDA, No. 11-5332) the decision discussed below, which ruled unconstitutional the FDA's attempt to force tobacco companies to add large, graphic images to their cigarette packaging. Mr. Gillette discussed another free speech case involving tobacco companies here.

ORIGINAL POST (3/6/2012):

We have talked a lot about whether corporations have a First Amendment right to spend unlimited amounts of money engaging in political speech.

But last week, a district court judge in Washington D.C. tackled another aspect of a corporation's First Amendment rights: the right not to speak.

The corporations in question are about the least sympathetic corporations you can imagine: tobacco companies. They filed suit objecting to new FDA rules promulgated under the Family Smoking Prevention and Tobacco Control Act, which President Obama signed in 2009. One of the provisions of the Act is a requirement that the FDA "issue regulations that require color graphics depicting the negative health consequences of smoking" take up the top 50% of both the front and back of cigarette packages. Eventually, the FDA published nine such images, including the ones that appear inline here.

The tobacco companies objected to these images as compelled speech, in violation of the First Amendment. The law is clear that freedom of speech includes the right to refrain from speaking at all and that "[f]or corporations as for individuals, the choice to speak includes within it the choice of what not to say." Pac. Gas & Elec. Co. v.  Pub.  Utils. Comm'n of Cal., 475 U.S. 1, 16 (1986) (plurality opinion).  (The astute will notice that this decision long predates the Citizens United decision that supposedly established that corporations are people with First Amendment rights.)

Why do heavy metal guitar players dislike President Obama?

Back in April, we did a post about how Ted Nugent does not want President Obama to be re-elected.  The Motor City Madman is not alone in his anti-Obama views.  The Onion AV Club posted video of Megadeath leader (and former Metallica guitarist) Dave Mustaine explaining to an audience in Singapore that President Obama "staged" the recent shootings in Aurora, Colorado and Oak Creek, Wisconsin so that President Obama's administration could "pass a gun ban."  Mr. Mustaine did not elaborate on how such a measure would get through Congress.  Nor did Mr. Mustaine explain how such a ban, if passed, would survive an inevitable Supreme Court challenge.  For that matter, Mr. Mustaine does not explain how the shootings were "staged."

Bad editor or bad editing?

As the Daily Kos and others have pointed out, the Greene County, Virgina Republican Committee is attracting some attention for its March newsletter.  You can read the newsletter here (maybe, sometimes the link worked for me and sometimes it did not).  If you are not already on the committee's mailing list, you may be interested to learn that the committee apparently thinks that the GOP-controlled United States House of Representatives is insufficiently conservative and spends a lot of time "sitting on their pantaloons." The same piece makes a reference to the fact that Robert E. Lee would not have tolerated the job performance of, among other people, Greene County's current Representative in the House.

Does the Nuge's opinion have an effect on persuadable voters?

Ted Nugent, exhibiting the same lyrical skills that helped him write songs like "Wang Dang Sweet Poontang," spoke at the National Rifle Association's annual convention this weekend.  According to a report from the Seattle Post-Intelligencer, Mr. Nugent was trying to get NRA members to vote against President Obama.  Given the setting, I assume this is roughly as difficult as shooting fish in a barrel.

Terrible arguments in favor of Illinois's "wiretapping" statute

Illinois's unconstitutional "wiretapping" statute makes it a felony to make an audio recording of police officers going about their business in public spaces. A bill had been pending in the legislature to fix this before the Illinois Supreme Court gets around to it. That bill, however, has been killed.

The State Journal-Register article quotes three legislators making three different arguments against the bill. Each of the arguments is ridiculous.

Ridiculous argument #1:  Representative Jim Watson, one of the opponents of the bill, had this to say:

Why should [the police] have to go get a court order to record these people when these people can record them?

This is just hogwash. Police have every right to record the activities of citizens going about their business in public. And they do so all the time. For example, as Radley Balko points out, many cops are equipped with microphones during arrests. No warrant required.

Ridiculous argument #2: Representative Jim Scacia says that the bill opens the possibility for citizens to alter audio recordings of interactions with police to make them look bad. If that's truly a concern, here's an idea: make it a felony to alter audio recordings of interactions with police to make them "look bad." My guess is that if there were such a law it would never be enforced because this never actually happens. Making audio recordings of police officers is perfectly legal in most states. You have not missed the scandal of altered, make-cops-look-bad audio recordings in those states. It doesn't exist.

Ridiculous argument #3: Representative Dennis Reboletti says,

We should not be creating an atmosphere where people enter this ‘got you’ mode and try to tape law enforcement, trying to catch them (doing things).

Hmm. A lot of people think that people behave better when they're being monitored. That's part of the point of police departments, in fact. And in a state like Illinois, which has a horrid history of corruption and torture by police, you might think that some "gotcha" citizen reportage might be welcomed.

But even if you accept Mr. Reboletti's dubious premise that citizen recordings of police officers should be discouraged, it doesn't follow that such conduct should be criminalized and made a felony. For example, the goal of discouraging gotcha recordings could be achieved by making these kinds of recordings inadmissible in court. You could even make the recordings contraband. These would be laws only a Nazi could be proud of (and I hate Illinois Nazis) but at least they would accomplish the stated goal without putting people in prison for pressing "record" while standing on the street corner.

In any event, Mr. Reboletti's argument is ultimately disingenuous because it is already legal to take pictures of and make video recordings of police officers "doing things" in public, as long as there is no audio. If the goal is to discourage an atmosphere where citizens can make a record of cops' public activities, there is no justification for this discrepancy.

All of this goes to show that the law is unconstitutional. No one can come up with a compelling state interest that this law is narrowly tailored to address. No one can even come up with a non-ridiculous argument. The law is a disgrace.

More on the First Amendment rights of tobacco companies.

A couple weeks ago, Mr. Torvik posted about a a district court judge in Washington D.C. who ruled that tobacco companies could not be forced to devote the top 50% of both the front and back of cigarette packages to "graphics depicting the negative consequences of smoking."

It appears that while the litigation that Mr. Torvik wrote about was underway, an appeal in the United States Court of Appeals on the same topic was also underway.  While the Sixth Circuit didn't consider the 9 images that were the focus of the D.C., lawsuit, it did address the top 50% issue and found that the government could force tobacco companies to devote the top 50% to graphics depicting the negative consequences of smoking.  The opinion is here.

To Mr. Torvik's point in his post, it does not appear from the opinion that anyone argued that tobacco companies can be compelled to print the graphics because the companies are not entitled to First Amendment protection.

One weird thing about the opinion is that  the author of most of the majority opinion, Judge Eric Clay, also wrote a dissent on  the constitutionality of the color graphic and non-graphic warning label requirement.  One doesn't see that every day.

It is political.

Mr. Torvik asks what I think of the efforts by Jane Fonda, Robin Morgan, and Gloria Steinem to have the FCC pull licenses of broadcast radio stations that air Rush Limbaugh’s radio show. My first thought was “who is Robin Morgan?".  According to Wikipedia, Robin Morgan is “a former child actor turned American radical feminist activist, writer, poet, and editor of Sisterhood is Powerful and Ms. Magazine.” It is nice to learn something I new first thing in the morning.

"This isn't political."

Jane Fonda, Robin Morgan, and Gloria Steinem think that the FCC should consider revoking the broadcast licenses of the radio stations that broadcast Rush Limbaugh's show:

Spectrum is a scarce government resource. Radio broadcasters are obligated to act in the public interest and serve their respective communities of license. In keeping with this obligation, individual radio listeners may complain to the FCC that Limbaugh's radio station (and those syndicating his show) are not acting in the public interest or serving their respective communities of license by permitting such dehumanizing speech. t

They insist that their concern is purely for the public interest, and that "this isn't political."

But some, including Radley Balko, think they might be taking things a bit too far.  What do you think, Mr. Gillette?

I can't help recalling the immortal words of our old buddy Marty: "What is this, Cuba?"

Illinois "eavesdropping" statute ruled unconstitutional

A while back I posted about the Illinois "eavesdropping" law that makes it a felony to make audio recordings of police officers going about their business in public. I opined that the law is unconstitutional, at least as applied to that conduct.

Yesterday, a Cook County judge agreed with me and struck down the law.

In other news, a bill is pending in Springfield that would allow people to

record the conversation of a law enforcement officer who is performing a public duty in a public place and any other person who is having a conversation with that law enforcement officer if the conversation is at a volume audible to the unassisted ear of the person who is making the recording.

So I guess it would still be a felony to record a cop who is whispering.

Some legal background on Obama versus the bishops

Back when the issue was actually in the news, I did a little thinking about the Catholic bishops' objection to Obamacare's contraception-coverage mandate. This entailed reeducating myself on something I remember studying in law school: the Religious Freedom Restoration Act (RFRA). Since I went through the process of reeducating myself, I thought I'd try to reeducate you too, Mr. Gillette. (Probably hopeless, but worth a shot.)

Is it a felony to videotape a police officer on the job in Illinois?

The short answer is yes.

Should it be?

Consider this, one of my favorite Supreme Court passages (from City of Houston v. Hill):

The Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.

That case struck down a law that made it a crime "for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty," which had been used to justify the arrest of a bystander for "verbal challenge [of a police officer] during an investigation."  The specific "verbal challenge" was: "Why don't you pick on somebody your own size?"

It seems to me that if there is a right to shout at the police—and there is—there should also be a right to document their official activities in public.

UPDATE:

See here for an update regarding judicial and legislative action on this law..