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Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

The Two Sides of Collective Bargaining: A Way of Looking at the First Amendment Question in Janus

The government always compels taxpayers to fund the management side of management-labor bargaining in public workplaces. Given this, why should there be a First Amendment problem with compelled funding (through agency fees as well as taxes) of both sides?

In Janus v. AFSCME, the Supreme Court is considering: Does it violate the First Amendment for a public employer to require employees to pay union agency fees, which will cover the costs of collective bargaining and contract administration? In Abood v. Detroit Bd. of Ed. (1977), the Court that such compelled agency fees implicate the First Amendment rights of government employees -- but that they are still constitutional because they are justified by "important government interests" in preventing "confusion and conflict" among rival unions, preserving "labor peace," and preventing "free rid[ing]" by employees who get the benefit of union representation but refuse to pay its cost. (Abood also held that such fees would not be constitutional to the extent they pay for ideological advocacy by unions, as opposed to bargaining and contract administration.)

In recent years, conservative Justices (and many conservative and libertarian commentators) have argued that this is wrong, and that agency fees should be categorically unconstitutional. Will Baude and I, though, take the view that there's just no First Amendment problem here in the first place, and have signed on to an amicus brief that so states. Requiring employees to pay money just doesn't violate the First Amendment (though requiring them to say certain things or actually join certain groups might).

Here is one way of thinking about the problem, at least as to agency fees being used for bargaining and administration: There are two sides to collective bargaining -- the employer and the employees. Say that a school board is negotiating with a teacher's union. The school board is represented by Manny, the management lawyer, and people working with him. The union is represented by Libby, the labor lawyer, and people working with her.

How is Manny paid? Through taxpayer funds, including taxes that school board employees (among other taxpayers) are required to pay. The taxes are deducted from employee paychecks, and some portion of them goes to collective bargaining on the school board's side.

Say that Owen, a school employee, objects to this use of money that he is compelled to pay (or objects to taxes altogether) -- maybe he disapproves of the school board's bargaining position, or just dislikes school boards. Does he have a Free Speech Clause basis for refusing to pay those taxes? He does not; indeed, forcing him to pay taxes isn't viewed by the law as at all implicating his Free Speech Clause rights (or his right to freedom of expressive association, which is derivative of the Free Speech Clause), even when those taxes are spent on government speech that's part of the collective bargaining process (or for other government speech).

Now say that the state wants Libby to be paid through agency fees that public employees are required to pay. These fees are deducted from employee paychecks, and they go to collective bargaining on the union's side.

Say that Olivia, a school employee, objects to this use of money that she is compelled to pay (or objects to agency fees altogether) -- maybe she disapproves of the union's bargaining position, or just dislikes unions. Why should she have a Free Speech Clause basis for refusing to pay the fees that pay for union-side bargaining, when Owen doesn't have a Free Speech Clause basis for refusing to pay the taxes that pay for (among other things) government-side bargaining?

I think she shouldn't, which is why I think Abood was mistaken in finding there to be a First Amendment issue present at all, and why those who want to strike down agency fees on First Amendment grounds are mistaken. If my analogy is correct, then both kinds of compelled payments (taxes used to support one side of the bargaining, and fees used to support the other) are equally constitutional.

Now agency fees may well be bad policy. Nothing says that the government must ensuring the compelled funding of both sides of the negotiation -- maybe it should only have compelled funding (through taxes) of the management side. There are certainly policy arguments against public employee unions, as well as policy arguments for such unions. But my point is simply that there's no First Amendment objection to government-compelled funding of both sides to the negotiation, just as there's no First Amendment objection to government-compelled funding of one side (the government side).

"Should a Federal Court Stand Idly by When a Foreign Arbitral Commission Issues an Order Restricting the Speech of a Private Party?"

"Actually, yes."

An interesting D.C. federal district court decision from last Fall that I just ran across, in Sharp Corp. v. Hisense USA Corp. The facts:

[T]wo Asian television manufacturers, Sharp and Hisense, entered into a 2015 licensing agreement under which Hisense would make and market televisions bearing Sharp's name. In 2017, alleging that Hisense had violated various regulatory standards and failed to maintain the quality of its television sets, Sharp terminated the agreement. A week later, under a provision of the licensing agreement providing that all disputes would be arbitrated by the Singapore International Arbitration Center, Hisense filed an arbitration action there. Among other relief, Hisense sought an emergency order requiring that Sharp abide by the agreement while the full arbitration was pending and enjoining it from making disruptive or disparaging statements about Hisense or the licensing dispute. In May 2017, an emergency arbitrator in Singapore issued an interim award granting that injunctive request.

The short version of the court's free speech analysis:

[T]his action boils down to a dispute over a private agreement — precisely the type of controversy that courts have held is not subject to the First Amendment. "Arbitration is a private self-help remedy," and "[w]hen arbitrators issue awards, they do so pursuant to the disputants' contract — in fact the award is a supplemental contract." The emergency award in this case is the result of a private agreement between two willing, sophisticated parties. In entering into the arbitration agreement, Sharp subjected itself to the full range of restrictions articulated under the SIAC rules, which were expressly incorporated into the licensing agreement.

I'm not sure this would be exactly right in a case where the court actually enforces an arbitral order; I think there would be state action restricting speech, but likely constitutionally permissible state action because the parties had contractually waived their speech rights, see Cohen v. Cowles Media Co. (1991) (a case involving a damages award, but with logic that I think would also apply to injunctions, see, e.g., Perricone v. Perricone (Conn. 2009)). But the court's bottom-line result seems right to me; and I liked the court's opening lines (quoted in the title and the subtitle of this post).

Church property cases and "neutral principles"

The U.S. Supreme Court has just been asked to review a major church property decision. At issue is who owns the land and buildings of 29 formerly Episcopal parishes in South Carolina. Some of these parishes have had their property for a long time—one of these parishes dates back to 1680, about a century before the Episcopal Church even existed as an entity in the United Sates. But notwithstanding this history, and even though the local congregations hold title to all these properties, the South Carolina Supreme Court held 3-2 that all of the properties belong to the national denomination, the Episcopal Church. In other words, the court held that the local congregations didn't really own their property, they just held it it in trust for the national denomination.

What is at issue is much more than the property of these 29 parishes. The case raises a fundamental question about how the First Amendment interacts with church property cases. In Jones v. Wolf, 443 U.S. 595 (1979), the Supreme Court said "neutral principles" may be applied in church property cases. Accordingly, in some jurisdictions courts have held that church property disputes should be resolved using the very same property rules as any other dispute.

In other jurisdictions--including South Carolina--courts have read Jones as requiring them to carve out special rules for ecclesiastical disputes, allowing national churches to claim that local churches hold their property "in trust" for the national church, even though there are no facts that would be sufficient to establish a trust if a church were not involved. In these jurisdictions trust law and real property law are different for churches, in ways that redistribute property away from local congregations toward denominational hierarchies. The scope of the "exception" for churches turns on the internal government structure of the church--or, more precisely, on a court's reading of the internal government structure of the church. There are obvious dangers when the ownership of real property turns on how a judge understands a church's ecclesiastical structure.

This case is an excellent vehicle for resolving a major dispute among state and federal courts over the meaning of Jones and the basic rules for how the First Amendment applies to church property cases. If the "neutral principles" of Jones are compatible with special trust and property rules for churches, the state supreme court's decision should be affirmed by the U.S. Supreme Court. But if--and I think this is the better view--the "neutral principles" of Jones can only be carried into effect with the same trust and property rules in church disputes as in any other kind of dispute, then the state supreme court's decision should be reversed. Either way, this is a cert petition the Court should grant.

NOTES

The cert petition is available here.

An article by Michael McConnell and Luke Goodrich on church property cases--one cited so frequently in the cert petition that it gets passim treatment in the table of authorities--is available here. The other side of the argument emphasizes deference to each religious organization's chosen polity (cf. this article by Rick Garnett).

Short Circuit: A roundup of recent federal court decisions

Wealth-based pretrial detention, resegregation, and violent retribution for political participation.

After the riots in Ferguson, Mo., the DOJ investigated and found officials there routinely harass citizens with citations, court summons, and even arrests over minor code violations. To thwart such abuses, which are hardly limited to Ferguson, the Missouri legislature enacted a series of reforms to ensure cities use their code enforcement authority to protect the public from harm rather than fill municipal coffers. This session, however, legislation has been introduced to undo much of that good work. IJ Attorney Josh House has more in the St. Louis Post-Dispatch.

New on the Short Circuit podcast: impartial forensics, felon re-enfranchisement, and the constitutionality of the Consumer Financial Protection Bureau. Click here for iTunes.

  • New York Attorney General: Nonprofits seeking to raise money from New Yorkers must turn over a list of their donors to the state each year—or face fines of $100 per day. Nonprofit: Which falls afoul of NAACP v. Alabama, where the Supreme Court held that the NAACP didn't have identify its supporters, lest they face violent retaliation. Second Circuit: Not so. It's unlikely this group's donors would face similar reprisals, even if the state were to accidentally leak their names to the public.
  • Employees of contractor updating NYC's time-keeping software obtain bribes, kickbacks for steering work to subcontractor at inflated rates. The employees get caught; the contractor pays settlement to the gov't. The contractor's insurer pays $15 mil to the contractor pursuant to theft-by-employee policy. To recoup the payout, can the insurer get a piece of the restitution the thieving employees were ordered to pay? The Second Circuit says no. [Updated] But maybe they can get a piece of the forfeiture pie.
  • Debtor doesn't pay $1,289 owed to gym; a debt collector sends a letter offering to settle matter for $129. Yikes! The six-year statute of limitations on the debt has passed. Did the collector violate the law even if it didn't threaten legal action? Maybe so, says the Third Circuit; an unsophisticated debtor might presume the collector's settlement offer implied a legal obligation to settle the debt. (For more on why this case is fascinating, check out CA3blog.)
  • The third iteration of Trump's Travel Ban, which adds North Korea and Venezuela to the list of countries whose nationals are temporarily barred from entering the country, is unconstitutional, says the Fourth Circuit, sitting en banc, with a bevy of varying opinions; the other six countries on the list are majority Muslim, and it's clear that the ban was intended to discriminate against Muslims.
  • Salisbury, Md. school cop handcuffs compliant 10-year-old who'd hit another girl three days previous. Excessive force? Yes, says two-thirds of a Fourth Circuit panel, but, says three-thirds of the panel, the officer gets qualified immunity.
  • In Harris County, Tex.—where over 50,000 people were arrested in 2015 for misdemeanors—judges adopt unwritten formula making it all but impossible for poor misdemeanor arrestees to make bail. Wealthy arrestees routinely make bail. Fifth Circuit: A system where a "wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration" is unconstitutional.
  • Louisville, Ky. man arrives home to find police officer parked in his space. The officer declines to move; the man utters profanity; the officer follows the man into his home, tases him. Unable to pay $1.5k bail, he spends two weeks in jail, loses his job. A federal jury convicts the officer of making an unreasonable arrest, filing bogus charges. Sixth Circuit: No need to reconsider the verdict or the officer's two-year prison sentence. (Much more on the officer via Sixth Circuit Blog.)
  • Doctors at Columbus, Ohio hospital suspect parents of child abuse, conduct additional tests, and alert child services. Can the parents sue the hospital for conducting unreasonable searches on behalf of law enforcement? They cannot, says the Sixth Circuit.
  • Man convicted in 1984 of shooting into an occupied building gets nabbed for gun possession in 2012; he gets 15-year mandatory-minimum sentence. But wait! Is shooting into an occupied building a violent crime? The Sixth Circuit says no; he didn't actually hurt anyone, so it doesn't count towards the mandatory minimum. Resentence him.
  • Public service announcement: If you file briefs in the Seventh Circuit that raise frivolous arguments and fail to comply with the circuit rules, Judge Sykes may have something to say about that.
  • Concerned that Border Patrol agents are racially profiling, unlawfully searching, and using excessive force at Arivaca, Ariz. checkpoint, area residents observe, video record, and protest from a distance. Ninth Circuit: And in retaliation, the agents may have violated residents' First Amendment rights. Their suit should not have been dismissed. (More via the ACLU.)
  • Pretrial detainee's bail is set at $1 mil even though officials find he is unlikely to abscond or commit new crimes. (He's been in jail since last July.) Grant him habeas? Prosecutors: No objection here; this is probably unconstitutional. California courts: Still, habeas denied. District court: Not for us to interfere in an ongoing state proceeding. Ninth Circuit: Give him a new bail hearing within two weeks or let him go (pending trial).
  • Allegation: Roseville, Calif. police officials disapprove of probationary officer's extramarital affair with a fellow police officer, fire her because of it. Ninth Circuit (creating a circuit split): Her private sexual activities are not the department's business (unless they affect her job performance). Her suit should not have been dismissed.
  • Immigration detainees face solitary confinement, criminal sanctions if they decline to clean common areas in Aurora, Colo. private prison. Illegal forced labor? No error for the district court to have allowed the class action to proceed, says the Tenth Circuit.
  • Allegation: Del City, Okla. middle school teacher unjustifiably and profanely berates student, who reports the incident. In retaliation, the teacher follows the student into a bathroom, forcefully opens a stall door, knocking over the student, whose pants are down. The teacher berates the student further. District court: Qualified immunity. Tenth Circuit: Reversed.
  • Residents of Gardendale, Ala. (who are mostly white) seek to form new school district, which will have the effect of excluding students from surrounding areas (who are mostly black) from the town's schools. Eleventh Circuit: No new district. The plan falls afoul of a 1971 desegregation order.
  • In 2002, owner of dilapidated industrial property in Queens, N.Y. entrusts its care to a group of artists, who improve its condition and cover it in graffiti, turning it into a tourist attraction and cultural site. In 2013, the owner, who plans to demolish the warehouses and build luxury condos, whitewashes over the art. District court: Which violated the Visual Artists Rights Act; pay $6.75 mil in damages to 21 artists. If the owner had waited a few more months while he got his building permits in order; he'd have been assessed a far more modest penalty.

In 2015, the City of Indio, Calif. brought criminal charges against Ramona Morales, a housekeeper and retired makeup saleswoman. Her offense? Tenants in the rental home she'd scrimped and saved to buy were violating city code by keeping chickens in the backyard. Ramona went to court, paid a $225 fine, and made sure the chickens were removed. She thought the matter was settled; it was not. Instead, a year later the private law firm the city hired to handle its code enforcement prosecutions demanded that she pay an additional $2,628—to pay for the firm's time prosecuting her—or that it would place a lien on the house and potentially sell it. She appealed the fine, lost, and the firm billed her for its time working on the appeal. Ultimately, she paid nearly $6,000 over something that could have been handled with a phone call. Last week, Ramona teamed up with IJ to put a stop to the abusive tactics, filing a class action on behalf of residents prosecuted and forced to pay outrageous fees over minor code violations for things like long grass, broken windows, or having address numbers that are sun damaged. Read more here.

The History of Wakanda

A historian explores the historical inspiration for Wakanda.

The Black Panther was among the first of my favorite comic heroes. The first comic book I had featuring T'Challa of Wakanda was Avengers #126. Given this I was understandably excited to take my daughter to the movie this weekend (and, like Kurt Loder, thought it was both an important film, and quite good).

In anticipation of the film, I reacquainted myself with some of the old storylines -- particularly those developed by Jack Kirby and Stan Lee. It's well-known how anxieties about nuclear radiation inspired much of the early Marvel pantheon, from Spider Man to the X-Men to the Hulk. What I had not realized, however, was the role such concerns -- and associated geopolitical concerns -- provided the inspiration for the Black Panther's homeland of Wakanda, including the idea that it was the source of a rare and important mineral resource. This is one of the things I learned from Ohio State University history professor Thomas McDow's essay on the African roots of the Wakanda story. Another was that the Black Panther first appeared (in the pages of The Fantastic Four) jsut a few months before the creation of the Black Panther Party in 1966. For those who want to know more about the history of the Black Panther's mythical home, McDow's short piece is worth a read.

Should We Expect More from Our Elected Officials?

Are there constitutional obligations above and beyond the legal requirements of office?

Should our elected officials feel bound by constitutional obligations over-and-above the legal obligations that constrain and channel their conduct in office? Professor Neil Siegel argues the answer is "yes" in a new paper, "Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for Presidents and Members of Congress." This paper is provocative and important. (Don't just take my word for it. This paper was also a Legal Theory Blog "Download of the Week.")

Here's the abstract:

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems.

I do not agree with Professor Siegel on every point, but I think this paper seeks to initiate a discussion that is of increasing importance for our political system. In this respect, I hope the paper succeeds.

Justice Ginsburg Criticizes Lack of Due Process on Campus

In a wide-ranging interview, the "Notorious RBG" suggests colleges campuses are not providing adequate process to the accused.

Justice Ruth Bader Ginsburg recently sat down for an extensive interview with Jeffrey Rosen of the National Constitution Center. The Atlantic posted an edited transcript.

In the interview, Justice GInsburg spoke about a wide-range of issues, including the #MeToo movement and cases she would like to see overturned. In this discussion, her comments about the lack of Due Process on some college campuses are worth attention, particularly her claim that some colleges provide inadequate process to the accused:

Rosen: There is a debate both among women and among men about what sort of behavior should be sanctionable, and one group is saying that it's wrong to lump together violent behavior like Harvey Weinstein with less dramatic forms of sexual misconduct, and others say that all misconduct is wrong and should be sanctioned.

Ginsburg: Well, there are degrees of conduct, yes. But any time a woman is put in a position where she is inferior, subordinate, there should be—she should complain, she should not be afraid.

Rosen: What about due process for the accused?

Ginsburg: Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There's been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that's one of the basic tenants of our system, as you know, everyone deserves a fair hearing.

Rosen: Are some of those criticisms of the college codes valid?

Ginsburg: Do I think they are? Yes.

Rosen: I think people are hungry for your thoughts about how to balance the values of due process against the need for increased gender equality.

Ginsburg: It's not one or the other. It's both. We have a system of justice where people who are accused get due process, so it's just applying to this field what we have applied generally.

Rosen also asked Justice Ginsburg about dissenting opinions that she hoped would one day become the basis for majority opinions. In reply, she identified Shelby County v. Holder (invalidating Section 5 of the Voting Rights Act) and Stenberg v. Carhart (upholding the federal prohibition on "partial-birth abortion"). She also suggested she would like to see the COurt overturn Maher v. Roe, which upheld a state law limiting the use of Medicaid funds to pay for abortions.

The Space Shuttle and Reasonable Doubt

"During voir dire, the prosecutor showed the potential jurors an incomplete puzzle of a space shuttle (with only sixty-six percent of the pieces present), stated that the image was a space shuttle 'beyond a reasonable doubt,' and asked the potential jurors whether anyone disagreed, which none did; the prosecutor also showed the image during closing arguments."

From People v. Van Meter, decided earlier this month by the Colorado Court of Appeals. Van Meter was on parole from two felony aggravated robbery convictions, and was then arrested and prosecuted for possessing a gun while on parole. The prosecutor then made a creative argument to prospective jurors:

During voir dire, the prosecutor showed the potential jurors an incomplete puzzle of a space shuttle (with only sixty-six percent of the pieces present), stated that the image was a space shuttle "beyond a reasonable doubt," and asked the potential jurors whether anyone disagreed, which none did; the prosecutor also showed the image during closing arguments. By using the iconic and easily recognizable space shuttle image, the prosecutor "invite[d] the jury to jump to a conclusion about [the] defendant's guilt," especially because the jury was shown an image and told that it was a space shuttle "beyond a reasonable doubt." See also People v. Katzenberger, 101 Cal. Rptr. 3d 122, 127 (Cal. Ct. App. 2009) (concluding that a prosecutor improperly quantified the burden of proof by displaying an eight-piece puzzle of the Statue of Liberty missing two pieces and saying "this picture is beyond a reasonable doubt"). The prosecutor's use of a two-thirds completed puzzle analogy also improperly quantified the burden of proof, even where the prosecutor did not undertake to quantify the number or percentage of missing pieces.

The court nonetheless concluded that the error was harmless, partly because "[t]he trial court instructed the jurors multiple times on the proper meaning of 'reasonable doubt.,'" because "[t]he prosecutor's use of the puzzle analogy was relatively brief and isolated," and because the evidence against Van Meter was so strong: "[T]he record contains undisputed evidence that the parole officers saw Van Meter arrive at the jobsite in a car, arrested Van Meter, immediately searched the car, and found a loaded handgun in the car's trunk; Gilliland also testified that he had seen Van Meter with the gun and had spoken to him about it."

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Appeals Court Rules That Trump's Travel Ban 3.0 Is Unconstitutional

The US Court of Appeals for the Fourth Circuit concluded that the ban violates the First Amendment because it is intended to discriminate against Muslims.

Yesterday, the US Court of Appeals for the Fourth Circuit ruled that Donald Trump's third travel ban is unconstitutional because it was adopted for the purpose of discriminating against Muslims, in violation of the First Amendment. The presidential "proclamation" permanently bars nearly all entry into the United States by citizens of six Muslim-majority nations. In a 9-4 en banc decision, the court concluded, after "[e]xamining official statements from President Trump and other executive branch officials, along with the Proclamation itself,... that the Proclamation is unconstitutionally tainted with animus toward Islam." Five of the judges in the majority also conclude that the Travel Ban 3.0 violates immigration laws enacted by Congress, relying on reasoning similar to that adopted by the Ninth Circuit in in its December ruling against the ban.

The Fourth Circuit decision includes a detailed discussion of why Travel Ban 3.0 is just as "tainted" by religious animus as its predecessors, and why the addition of North Korea and some Venezuelan government officials in this latest travel ban does not materially affect its anti-Muslim focus. The inclusion of North Korea and the Venezuelan officials does not keep out any significant number of people who might have gained entry otherwise, and the other six nations covered by the travel ban are all overwhelmingly Muslim.

In addition, as the court explains, the supposed security justifications for the travel ban are extremely weak, and "the President repeatedly distanced himself from the[se] non-discriminatory policy rationales." For that reason, the court concluded that it must "accept the President's consistent characterization of his Proclamation as intended to invidiously discriminate against Muslims—and therefore hold that the Proclamation violates the law."

Judge James Wynn's concurring opinion includes an exceptionally thorough discussion of the reasons why the president's numerous statements advocating a "Muslim ban" and equating that goal with the "territorial" approach adopted in the various travel ban orders are relevant evidence that courts must consider. I addressed this same issue, myself, here. Campaign promises and other statements by decision-makers are relevant evidence of motive, and motive is an essential element of any case where the plaintiffs challenge a seemingly neutral law or regulation on the basis that it is intended to discriminate on the basis of race, sex, religion, or some other prohibited classification.

Such pretextual discrimination claims are a longstanding and vital element of constitutional antidiscrimination law. Without them, government officials could easily target disfavored minority groups simply by focusing on some characteristic that is heavily correlated with group membership. For example, officials intent on discriminating against African-Americans could target people who live in overwhelmingly African-American neighborhoods, a strategy similar to Trump's approach of targeting overwhelmingly Muslim nations.

The Fourth Circuit decision is not a surprise. The same court issued a very similar ruling against Travel Ban 2.0, for much the same reasons, by a 10-3 margin that was nearly identical to yesterday's 9-4 vote. The Fourth Circuit decision largely affirms an October 2017 trial court ruling against Travel Ban 3.0, which was also based on religious discrimination grounds.

Yesterday's ruling reinforces my view that Travel Ban 3.0 has nearly all the same flaws as its predecessor, and may in some ways be even worse. The same two appellate courts that issued rulings against Travel Ban 2.0 have now also ruled against the latest version, and for largely the same reasons.

The 285 pages of majority, concurring, and dissenting opinions in the Fourth Circuit case include discussion of a variety of secondary issues, such as whether and to what extent different plaintiffs have standing to challenge the travel ban. But by far the most important aspects of the case are the question of anti-Muslim discrimination, and whether the travel ban violates federal law forbidding discrimination on the basis of "nationality" in the issuance of immigration visas. Both issues have important implications that go beyond the travel ban case. Their resolution will determine whether and to what extent the president will be free to adopt discriminatory restraints on entry into the United States, particularly ones that openly discriminate on the basis of nationality or use a thin veneer of neutrality to target disfavored religious groups.

Even before the Fourth Circuit issued its ruling, the Supreme Court had already decided to review the Ninth Circuit ruling against Travel Ban 3.0. The two cases are now likely to be consolidated and reviewed together. Unlike in the case of the Travel Ban 2.0 cases, which the Supreme Court dismissed as moot after that travel ban order was displaced by the third one, this time the Supreme Court will probably have to decide the case on the merits.

I am currently in Japan, completing an academic speaking engagement, and so do not have the time to analyze the Fourth Circuit ruling in greater detail. But I will have much more to say about the Travel Ban 3.0 cases in future posts.

Child Custody, Religion, and Children's Reactions to a Parent's Religious Demands

"The change in the child's relationship with the father based on the child's fear of his displeasure if she were not a 'true Muslim,' and her belief that he threatened to abscond with her to Morocco, also contributed to the change in circumstances warranting modification" of the custody arrangement.

An interesting opinion in Matter of Baalla v. Baalla, handed down Valentine's Day by a New York intermediate appellate court:

The parties, who were married in 2006, separated in 2008, and divorced in 2009, have one child, who was born in 2006. Prior to the marriage, the mother was Christian and the father was Muslim, but the mother converted to Islam and they were married in a religious ceremony. When the parties separated, the mother returned to Christianity.

Pursuant to the parties' stipulation of settlement and their judgment of divorce, the parties had joint legal custody of the child and the mother had primary physical custody of the child, who was approximately 2½ years old when the parties separated. The stipulation stated that the parties would consult with each other regarding the child's religious training, but did not specify in which religious tradition the child would be raised. As the child's primary custodian, the mother taught the child Christian values and practices in accordance with her beliefs.

When the child was approximately 7½ years old, she complained to the mother that the father was pressuring her to adopt Muslim practices and had threatened to abscond with her to his native Morocco, where he retained citizenship in addition to his US citizenship, if she failed to follow Muslim practices and customs. The child asked the mother to call the police and also sought help from school personnel. The mother responded by filing a petition seeking sole legal custody of the child. The father thereafter petitioned to enforce visitation and to enforce a purported oral agreement that the child would be raised as a Muslim.

After a hearing, the Family Court granted the mother's petition for sole legal custody but granted the father liberal visitation, including on all major Muslim holidays.... "In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child.'" Here, the parties' inability to agree on the child's religious training, which was an issue that had not been addressed in the parties' July 2009 stipulation of settlement, constituted a change in circumstances. The change in the child's relationship with the father based on the child's fear of his displeasure if she were not a "true Muslim," and her belief that he threatened to abscond with her to Morocco, also contributed to the change in circumstances warranting modification.

"In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child." Here, the record supported the conclusion of the Family Court that it was in the child's best interests to award sole legal custody to the mother. With regard to the child's medical care and education, the father had already ceded authority to the mother and admittedly trusted her judgment and expertise in making those decisions. The evidence established that the only issue on which the parents disagreed was the religion in which the child should be raised and to what degree she should be expected to observe the tenets of each parent's religion. The award to the mother of sole decision-making authority with respect to religion is in the child's best interests, and the award of parenting time to each parent on his or her respective religious holidays will continue to allow the child to be exposed to both parents' religions.

Similarly, the father's actual or perceived insistence that the child follow Islam and actual or perceived threats to abscond to Morocco with the child had a serious adverse effect on the child's relationship with him and, thus, made an award of sole custody to the mother appropriate. The child was 10 years old at the time of the hearing and, accordingly, the Family Court properly considered her wishes, weighed in light of her age and maturity.

As I've long argued (see, e.g., my Parent-Child Speech and Child Custody Speech Restrictions article), I think there are First Amendment limits on court-imposed restrictions on parental speech (about religion or otherwise), and on speech-based custody decisions. But in this instance, the decision -- which leaves the father free to speak about religion to his daughter, and which is based on what seems to be the actual deterioration of his relationship with his daughter -- strikes me as plausible, at least based on the limited factual discussion in the case.

Justice Ruth Bader Ginsburg > "Notorious RBG"

Professor Rick Hasen on why its a bad idea to treat Supreme Court justices like celebrities (and why justices should not embrace their celebrity either).

Justice Ruth Bader Ginsburg has become known as the "Notorious RBG" -- and not always for the best reasons. She has attracted a following and is treated as much as a cultural or political icon as an esteemed jurist. She also has a penchant for commenting on current political controversies, including matters that could come before the court.

Professor Rick Hasen thinks this is a bad thing. While he blames the late Justice Antonin Scalia for starting the trend, he is particularly concerned about how viewing justices as celebrities -- and seeing Justice Ginsburg not as a jurist but the "Notorious RBG" -- affects our understanding of the law and the role of courts. As he explains in the LA Times:

Ginsburg has taken up the mantle of the court's most provocative public justice. . . .

As her public persona has grown, Ginsburg has embraced the "Notorious R.B.G." label. She's encouraged a cult of worship to grow up around her. There's hagiography like the "Notorious RBG" book and the "The RBG Workout," an illustrated book by her personal trainer. There's a Ginsburg tumblr and Ginsburg T-shirts.

Just this week, despite swearing off political statements, she said sexism played a prominent role in Hillary Clinton's election defeat. That may be true, but a sitting Supreme Court justice should not be weighing in on such questions.

It's dangerous for Supreme Court justices to assume such political roles, particularly when faith in our institutions is declining. If justices are going to be public figures, they should do so in ways that reinforce the rule of law, not partisan politics.

As Professor Hasen explains, the more we view justices as belonging to one "team" or another, the more we undermine the ideals of the neutral administration of justice and the rule of law. As he concludes:

Justice Ginsburg is a hero. She deserves our thanks for her exemplary service. But the left needn't turn her into a god and conservative justices into devils.

Episode 203: Interview with Glenn Gerstell

NSA's General Counsel speaks on 702, cybersecurity, and more

In this episode, Jamil Jaffer and I interview Glenn Gerstell, the General Counsel of the National Security Agency. Glenn explains what it was like inside the effort to reauthorize section 702 of FISA. Jamil and I ask him whether the FISA court has the authority to deal with material omissions in FISA applications, and he actually answers. Glenn also touches on how it feels to discover that data subject to a judicial retention order has been inadvertently deleted, on his secret exercise regime, on his future plans, and on how the United States should respond to the cybersecurity crisis.

Download the 203rd Episode (mp3).

Subscribe to The Cyberlaw Podcast here. We are also on iTunes, Pocket Casts, and Google Play (available for Android and Google Chrome)!

First Amendment Case Brought by Immigration Checkpoint Protesters/Monitors Can Go Forward

So holds the Ninth Circuit, in a case in which the Scott & Cyan Banister First Amendment Clinic, which I run, filed an amicus brief.

Yesterday, the Ninth Circuit handed down Jacobson v. U.S. Dep't of Homeland Security; my students Alexandra Gianelli, Emily Michael, and Tracy Yao and I filed an amicus brief in the case on behalf of the Cato Institute, and I'm pleased to say that the Ninth Circuit's decision was largely consistent with what we asked for. First, the facts:

Leesa Jacobson and Peter Ragan -- as part of a group called People Helping People -- want to protest near a near-border immigration checkpoint, and to monitor what happens at the checkpoint (including by videorecording it). But the Border Patrol has set up an enforcement zone around the checkpoint -- including some neighboring sidewalks -- that would require them to move 150 feet or more away. Jacobson and Ragan sued, claiming that the enforcement zone improperly intruded into a traditional public forum, and was enforced in a viewpoint-based way:

Several incidents led Appellants to believe that the enforcement zone policy was selectively enforced against them. The agents in charge stated in an email to Appellants and at a public presentation that agents on the scene are the ones who determine "who can enter into the perimeter" and "where [Appellants] can and can't be." On April 3, 2014, one of the Appellants saw a local resident arrive at the checkpoint area, park inside the enforcement zone, and remain inside the barrier for approximately 40 minutes. The local resident's wife also arrived and parked inside the barrier.

The local resident, who was known to be a supporter of the BP and an opponent of PHP, questioned and harassed the PHP protesters. BP agents did not ask the local resident to leave the enforcement area. As he departed, he shouted "Well, we had our fun today" to the BP agents on duty, who smiled and laughed. When the Appellants asked an agent at the checkpoint area if they had given the local residents permission to be in the enforcement zone, the agent replied, "It's a free country." When the agent in charge learned of this incident from Appellants' counsel on April 16, 2014, he directed watch commanders to discuss the incident with checkpoint agents and make clear that what had been done was unacceptable.

Subsequently, a surveyor hired by Appellants was allowed inside the enforcement zone. The agents on duty explained to the surveyor that "the barriers were in place only to exclude people who might interfere with Border Patrol activities, such as protestors." One agent invited the surveyor to share a meal with the agents on duty. On another occasion, BP agents allowed reporters and pedestrians to walk along the north side of the road through the enforcement zone during a PHP rally; but, on the same day, agents parked their vehicles so as to impede the PHP monitors from even viewing, much less entering, the enforcement zone....

The District Court concluded that DHS should win as a matter of law, but the Ninth Circuit remanded for further discovery:

Appellants identified several areas in which they sought discovery relevant to critical matters at issue in the summary judgment motion.

First, Appellants sought discovery regarding the law enforcement uses of the checkpoint area encompassed within the enforcement zone, including rules and regulations governing the use of the checkpoint area. These uses are relevant to the determination of whether the enforcement zone is a public or a nonpublic forum. Moreover, regardless of which level of scrutiny applies, they may be relevant to the ultimate constitutional question of whether the enforcement zone policy violates the First Amendment. The limited information in the record regarding the layout and use of the checkpoint area leaves many questions unanswered about the specific uses of areas outside the primary and secondary inspection zones. For example, evidence that large portions of the enforcement zone are unused for checkpoint activities would tend to create genuine issues of material fact as to whether the government has transformed the enforcement zone along Arivaca Road into a nonpublic forum and, if the area is still a public forum, whether the enforcement zone is narrowly tailored to the government's interest in operating a BP checkpoint.

Second, Appellants sought discovery about who has been allowed into the enforcement zone and why. This information could reveal whether the enforcement zone has been applied selectively based on viewpoint. The government's stated policy is that "pedestrians are allowed inside the checkpoint only for official purposes," but without the benefit of discovery Appellants have already adduced evidence that calls that policy into question. While BP has consistently excluded Appellants and other protesters from the enforcement zone, the record shows that other visitors who were not protesting have been allowed inside. Whether the enforcement zone is a public or a nonpublic forum, evidence that civilians friendly or neutral to BP have been permitted into the enforcement zone while other civilians with a hostile message have been excluded—beyond the incidents already in the record—would tend to create a genuine issue of material fact as to the viewpoint neutrality of the government's policy.

Finally, Appellants sought discovery of data regarding traffic stops at the checkpoint, in order to determine the accuracy of the data gathered by Appellants from their positions outside the enforcement zone. This information is relevant to whether Appellants have ample alternative opportunities for observation, as would be required to justify their exclusion from a public forum.

The limited record before the district court does not permit us to conclude, as a matter of law, that the enforcement zone is a nonpublic forum, or, if it is, that the government has satisfied the requirements for excluding Appellants from that nonpublic forum. On remand, and after appropriate discovery, the district court will need to determine if there remain genuine issues of material fact regarding whether, and what part of, the enforcement zone is a public forum, and whether the government's exclusion policy is permissible under the principles of forum analysis.

Taylor Swift Decision: Copiers Gonna Copy, Copy, Copy

And that's not copyright infringement, if they only copy short phrases, especially ones that were themselves largely copied from others.

From yesterday's Hall v. Swift (C.D. Cal. Feb. 13, 2018):

The only obvious similarities between [plaintiff Sean Hall's Playas Gon' Play and defendant Taylor Swift's Shake It Off] is that Playas Gon' Play contains the lyrics "Playas, they gonna play / And haters, they gonna hate," and Shake it Off contains the lyrics "'Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate." The lynchpin of this entire case is thus whether or not the lyrics "Playas, they gonna play / And haters, they gonna hate" are eligible for protection under the Copyright Act.

The Copyright Act protects "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device." ... "Although the amount of creative input by the author required to meet the originality requirement is low, it is not negligible." "There must be something more than a 'merely trivial' variation, something recognizably the artist's own....

[S]hort phrases are generally not accorded protection. "Ordinary phrases are not entitled to copyright protection… Phrases and expressions conveying an idea typically expressed in a limited number of stereotyped fashions are not subject to copyright protection." Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) (holding that the following phrases, among others, that defendant copied were not subject to protection: "river wound its way between muddy banks crawling with alligators," "hordes of gold seekers," "shanties and corrugated [iron/steel] shacks … were crowded together," and "beach was strewn with boxes, bales"); see also AcuffRose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 143-44 (2d Cir. 1998) (song lyrics "You've got to stand for something, or you'll fall for anything" not protectable); Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (advertising phrase "most personal sort of deodorant" not protectable); see generally 1 Nimmer on Copyright § 2.01[B][3] ("The refusal to protect short phrases applies a fortiori to one or two words. Even marginally longer phrases ('if no pulse, start CPR') are appropriately denied copyright protection.")....

[C]ourts have recognized that there may be exceptions to the general rule that short phrases are not protectable where a short phrase is sufficiently creative.... [But a]s reflected in Defendants' [list of songs using similar language], and as Plaintiffs acknowledge, by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters. Although Plaintiffs recognize as much, they allege that they "originated the linguistic combination of playas/players playing along with hatas/haters hating…" Plaintiffs explain that the plethora of prior works that incorporated "the terms 'playa' and hater together all revolve about the concept of 'playa haters'" – a "playa" being "one who is successful at courting women," and a "playa hater" being "one who is notably jealous of the 'playas'" success." Plaintiffs explain that Playas Gon' Play "used the terms in the context of a third party, the narrator of a song who is neither a 'playa' nor a hater, stating that other people will do what they will and positively affirming that they won't let the judgment of others affect them."

The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases "playas … gonna play" or "haters … gonna hate," standing on their own, no more creative than "runners gonna run," "drummers gonna drum," or "swimmers gonna swim."

Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of "playas, they gonna play" and "haters, they gonna hate" is sufficiently creative to warrant copyright protection.... [But] Plaintiffs' combination of "playas, they gonna play" and "haters, they gonna hate" – two elements that would not have been subject to copyright protection on their own – is not entitled to protection. Two unprotectable elements that, given pop culture at the time, were inextricably intertwined with one another, is not enough....

[T]he lyrics in question are not sufficiently creative to warrant protection. As noted in Nimmer, "It appears … that there is a reciprocal relationship between creativity and independent effort: the smaller the effort (e.g., two words) the greater must be the degree of creativity in order to claim copyright protection." Even if, as Plaintiffs contend, Plaintiffs were the first to employ the concepts of players playing and haters hating for the purpose of expressing "the idea of not concerning yourself with what other people do and think," the allegedly-infringed lyrics consist of just six relevant words – "playas … gonna play" and "haters … gonna hate." In order for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issue here.... [C]ombining two truisms about playas and haters, both wellworn notions as of 2001, is simply not enough.

Quite right, I think.

Don't Know Much About History

Quite a line about World War II from a history book for children.

The Australia story reminded me of something I posted about several years ago, from the first sentence about World War II in All About World History (1999), a history book for children:

In 1939, Hitler (see below) sent armies to invade Czechoslovakia and Poland; Britain, France, and Russia decided to help the Czech and Polish people defend their lands.

I did not know that! In fact, I still don't. Yikes.

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