"To permit Defendant to claim that he had instructed his lawyers to comply with all court orders including those requiring electronic production and that it was Prior Counsel who were responsible for the misdeeds that have plagued this case, while sitting on declarations in the court file that belie those claims, would permit him to make a 'mockery' of the court and its proceedings. "
Some excerpts from Freeman v. Giuliani, decided Monday by Judge Lewis Liman (S.D.N.Y.) (read the whole opinion for more details):
[Earlier,] the Court permitted the filing under seal of certain paragraphs of the declarations of Kenneth A. Caruso and David Labkowski (collectively, "Prior Counsel") to withdraw as counsel for Defendant Rudolph W. Giuliani ("Defendant") in this case. The Court recognized that there was a common law and First Amendment right of access to documents filed in public court, but held that there were countervailing factors that supported sealing of those paragraphs that contained privileged information, specifically paragraphs 4 to 7 in Mr. Caruso's declaration.
In particular, certain of those paragraphs discussed fundamental disagreements that had arisen between Defendant and Messrs. Caruso and Labkowski regarding document production in this case. The Court now considers whether it is appropriate to unseal portions of those declarations, as Defendant has put privileged communications "at issue" in his representations to the Court. For the reasons discussed below, there no longer exist countervailing factors justifying continued sealing of certain portions of the declarations, and unsealing those portions is appropriate and necessary in the interests of fairness and to protect the integrity of the court….
Plaintiffs Ruby Freeman and Wandrea' Moss filed a motion … for an order holding Defendant in civil contempt and imposing sanctions [for violating discovery orders]…. In response to that motion and in opposition to the request for civil contempt sanctions, Defendant has submitted a declaration in which he pins the blame for his discovery failures on Messrs. Caruso and Labkowski. In particular, Defendant asserts that he did not "intentionally or willfully disobe[y] any of this Court's orders or Plaintiffs' discovery demands." He swears:
From Monday's decision in Harborne v. Dow Jones & Co., by Judge Kathleen Miller (Del. Super. Ct.); the opinion is over 9000 words long, so here are just a few excerpts:
Christopher Harborne ("Harborne") is an international businessman, owning and investing in several successful businesses. He was an early investor in cryptocurrency, and became an active trader on the Bitfinex cryptocurrency exchange. While Harborne owned 12% of Bitfinex and its sister company Tether, he was not involved with either company, except as a minority stakeholder.
The Wall Street Journal ("Journal") published an article in 2023 about Bitfinex's and Tether's difficulties maintaining access to the global banking system in light of fraud and money laundering allegations. The article detailed how these companies used falsified documents, "shadowy intermediaries," and shell companies to open bank accounts around the world, including at Signature Bank. Signature Bank ultimately closed the accounts and later attempts by Tether and Bitfinex to open new accounts were rejected, due to the allegations against them.
The article then turned to Harborne, reporting that after Tether and Bitfinex were turned down by Signature Bank, the bank was "then introduced" to Harborne and his company AML Global. The article stated that Harborne opened an account for his company at Signature Bank, but the application did not say that he owned 12% of each of Bitfinex and Tether under the name Chakrit Sakunkrit. {[According to the Complaint, Harborne] holds dual citizenship in Great [Britain] and Thailand, where he has lived and worked for over 20 years. When he became a naturalized Thai citizen, Harborne was required to adopt a Thai name. He chose Chakrit Sakunkrit. He uses his Thai name for legal purposes in Thailand and uses his birth-name outside Thailand.}
The article also stated that the Sakunkrit name appeared on Signature Bank's list of those the bank felt "were trying to evade anti-money laundering controls." The article described Signature Bank executives questioning the source of funds into AML Global's account. The bank then "soon closed" the account.
Harborne and his companies sued for defamation, and the court concluded that Harborne had adequately alleged the article falsely accused him of financial improprieties:
The risk of migrant terrorism is low, immigrants generally have lower crime rates than natives, and migration restrictions are both unjust and less effective than other strategies for reducing violence.
Dramatic recent incidents have heightened calls to impose severe restrictions on immigration in order to curb crime and terrorism. By all means we should punish violent criminals and terrorists, whatever their background. But crime and terrorism risk are bad rationales for immigration restrictions. I covered the terrorism angle in some detail in a 2022 article for the Verfassungsblog website. Virtually everything I said then still applies. To briefly summarize: 1) the risk is low, 2) restricting liberty of large numbers of people because of the wrongdoing of a small minority is deeply unjust, 3) migration restrictions cause great harm, and 4) there much better ways to reduce the risk of violence.
Here's an excerpt:
In both Europe and the United States, fears of terrorism and violence have been exploited by anti-immigrant nationalist political movements….
The risks of terrorism by migrants are low and can potentially be mitigated further by "keyhole" solutions that address the problem by means less draconian than the complete exclusion of migrants.
The risk that an American will be killed by an immigrant terrorist in a given year is so infinitesimal that it is actually several times lower than the risk that he or she will be killed by a lightning strike during the same timeframe.1) Over a 40 year period, the number of Americans killed by terrorist entrants from any of the five majority-Muslim countries covered by Donald Trump's 2017 "travel ban" order was zero. The risk in European countries was comparably low,2) also in the same general ballpark as common everyday dangers. Even if these risks were to increase several-fold as a result of expanded immigration, they would still be extremely small…
There are some ways in which migration restrictions can actually increase terrorism risks and undermine efforts to combat terrorist organizations. First, they may feed into the propaganda of terrorist groups, claiming that the West is hostile to Muslims, Arabs, or other groups targeted for migration restrictions. Second, allowing migrants from areas controlled by terrorist groups or hostile anti-Western regimes to come to the West reduces the amount of people and resources under those entities' control, thereby weakening them….
Even if migration increases terrorism risks only slightly, it might be argued that is still enough to justify restricting it, at least in the case of migrants from nations that may seem to pose relatively higher risks. After all, even one terrorist attack is one too many. But this analysis implicitly assumes that migration restrictions have few or no costs….
In reality, barring migration has enormous costs, for both migrants and destination countries. The cost to the former is obvious. Barring or severely restricting migration from nations with repressive governments and powerful terrorist movements inevitably consigns hundreds of thousands of people to lives of oppression and poverty, and sometimes even to death.
Restricting migration to prevent small increases in terrorism is also unjust for reasons that go beyond consequentialist considerations. Imagine that migrants from Nation A have higher terrorism rates than natives Nation B, but the vast majority of residents of both are not terrorists. Perhaps 1 in 100,000 migrants from A is a terrorist, which is true of only 1 in 1 million residents of B…. Still, barring all or most migration from A into B means imposing severe restrictions on the liberty of many thousands of people merely because they happened to be born to the wrong parents, in the wrong place.
We readily see the injustice of such measures in the domestic context. I live in the state of Virginia, which borders on West Virginia, a significantly poorer state with a much higher crime rate than our own. But virtually everyone agrees that it would be unjust to bar migration from West Virginia to Virginia, merely because migrants from the former may be more likely to commit violent crimes than native-born residents of the latter.
Similarly, in the US, young black males, on average, have higher crime rates than members of many other ethnic groups. White males, in turn, are disproportionately likely to become domestic terrorists…. It does not follow, however, that we would be justified in imposing severe restrictions on the freedom of movement of either black males or white males as a group. In both cases, it would be deeply unjust to restrict the freedom of large numbers of people merely because they happen to be members of the same racial or ethnic group as others who have committed various crimes and misdeeds. The same point applies to potential immigrant groups singled out for exclusion merely because others born in the same place have a disproportionate propensity to commit acts of terrorism…..
The case for terrorism-based immigration restrictions is further weakened by the availability of alternative ways to reduce the danger. Because terrorism risks from migration are already so low, it may be very difficult to reduce them still further. However, tapping the vast new wealth created by immigration can potentially pay for extensive new security and counterterrorism operations, if necessary. In Chapter 6 of Free to Move, I describe how shifting the resources currently devoted to enforcing American immigration restrictions could easily pay for many thousands of additional police officers. Social science research indicates that increasing the number of cops on the streets can significantly reduce violent and property crime, whether perpetrated by immigrants or natives, thereby greatly improving public safety…. If necessary, we can also use some of the funds saved on immigration enforcement and wealth generated by increased migration to finance additional counter-terrorism operations.
In the Verfassungblog article, and elsewhere, I have also noted ways in which migration restrictions actually increase crime and terrorism, such as by creating a black market that organized crime will almost inevitably exploit.
I also noted, in the article, there is some evidence that migration sometimes leads to acts of terrorism by anti-immigrant right-wingers. The recent awful attack in Magdeburg, Germay may have been example of this phenomenon, as the perpetrator - though himself a migrant from Saudi Arabia - was anti-Muslim activist and a supporter of the neo-fascist anti-immigrant AFD party. When such things happen, the right approach is to crack down on terrorists, not give in to them. As in the case of hostage deals, yielding to terrorists incentivizes more terrorism. Governments can target terrorists - whether their ideology be right, left, or radical Islamist - without in the process punishing innocent people whose only sin is fleeing poverty and oppression.
American elites need to do a better job of making themselves useful…. The cluster of political positions and communicative moves called "wokeness" is often alien to the people it claims to represent—most black Americans don't want to defund the police, and almost no Hispanics identify themselves as "Latinx." …
[I]nequality is inevitable in a capitalist economy. The interesting question is under what circumstances it can be justified. Here the philosopher John Rawls offers a crucial insight: inequalities are justified to everyone in society if they operate to the benefit of the least advantaged. This is one important justification for capitalism, which has nearly eradicated world poverty…. The medical profession is [another] example: it is a path to wealth, but it has also prolonged everyone's life, including the poorest people in the poorest countries….
[Symbolic capitalist professional elites are worth what they are paid]—but only if they do their jobs. Here is the real problem with wokeness: It is impairing the capacity of professional class institutions to do what they are paid to do….
The plaintiffs in Juliana v. United States--aka the "kids climate case"--are back at the Supreme Court asking the justices to bring their case back from the dead.
The lawsuit (which I have covered repeatedly) claims there is a federal constitutional right to a stable environment enforceable in federal court. While one district court judge accepted these arguments, the Ninth Circuit has repeatedly concluded the plaintiffs lack standing to press their audacious claims.
Back in May, the U.S. Court of Appeals for the Ninth Circuit granted the federal governments writ of mandamus to end the district court's proceedings and ordered the case dismissed. Since then, the plaintiffs sought a writ of mandamus from the justices to vacate the Ninth Circuit's judgment and bring the case back, but the justices were not having any of it.
Now the plaintiffs have filed a petition for certiorari, challenging the Ninth Circuit's conclusion that they lack standing and approach to mandamus. Cleverly, the plaintiffs have sought to tie their standing argument to issues being considered in another case on the docket later this term (Gutierrez v. Saenz). But it is unlikely to be enough.
This cert petition is unlikely to attract much interest from the Court. The real question is whether it will influence how the justices evaluate other pending petitions for certiorari, such as those seeking high court review of state tort law claims against fossil fuel companies. Insofar as the Juliana petition (combined with the Montana Supreme Court's recent Held decision) raise the salience of climate litigation, they could feed the impression that climate litigation is out of control and needs a corrective. In this sense, the filing could make it more likely that the Court grants certiorari in the Honolulu case and issues a ruling cutting back climate litigation across the board. In the alternative, the justices may recognize it as a fringe filing and deny it without a second thought.
The Senate passed the bill unanimously in August, and a bipartisan House majority followed suit shortly after the election. It would have created 66 new district court seats over the next decade. The bill is based upon the recommendations of the Judicial Conference and was endorsed by the Federal Bar Association and Federal Judges Association. Even Fix the Court liked it, calling the veto threat "weird."
The veto statement reads as follows:
I am returning herewith without my approval S. 4199, the "Judicial Understaffing Delays Getting Emergencies Solved Act of 2024" or the "JUDGES Act of 2024."
S. 4199 seeks to hastily add judgeships with just a few weeks left in the 118th Congress. The House of Representative's hurried action fails to resolve key questions in the legislation, especially regarding how the new judgeships are allocated, and neither the House of Representatives nor the Senate explored fully how the work of senior status judges and magistrate judges affects the need for new judgeships. The efficient and effective administration of justice requires that these questions about need and allocation be further studied and answered before we create permanent judgeships for life-tenured judges.
S. 4199 would create new judgeships in States where Senators have sought to hold open existing judicial vacancies. Those efforts to hold open vacancies suggest that concerns about judicial economy and caseload are not the true motivating force behind passage of this bill now.
Plaintiffs Olabinjo and Abimbola Osundairo … attacked actor Jussie Smollett in Chicago on January 29, 2019. Plaintiffs describe the attack as being "fake," "staged," and a "social media hoax" that was orchestrated my Mr. Smollett to create public attention. To that end, the Osundairo brothers claim Smollett directed that the attack occur in the view of a surveillance camera and that the brothers dressed and acted like "white supremacists" and "MAGA Trump supporters."
Plaintiff Abimbola attempted to look like a "southern country white person" during the attack. Immediately before the attack, Plaintiffs shouted racist and homophobic slurs at Smollett, who is black and openly gay. Abimbola struck Smollett during the attack and tried to bruise him, although Plaintiffs contend that the punches were "pulled" so as to not harm Mr. Smollett.
The attack generated significant public interest, and the Osundairo brothers enlisted a public relations agency to handle the volume of media inquiries that they received. Within a month of the attack, Plaintiffs and their representatives began negotiating their participation in a documentary in which the brothers planned to tell their story. Since the attack, the Osundairo brothers starred in both a documentary and in a series of podcasts related to the attack, and the brothers have made several other related media appearances. At the time of briefing, Plaintiffs were working with a publisher on a book related to their involvement.
Smollett was charged with filing a false police report related to the attack, although those charges were dropped. Defendant [Tina] Glandian represented Smollett in those proceedings. Glandian appeared on the Today Show on March 27, 2019, to discuss the charges. The Today Show interviewer, Savannah Guthrie, … stated that Smollett had reported to the police that his attackers were white, and, noting that the Osundairo brothers are black, asked Glandian if Smollett was lying. Glandian replied:
The statements were true or at least substantially true, the court concludes, plus Trump Media failed to adequately allege knowing or reckless falsehood on the Post's part.
This lawsuit for defamation by Plaintiff Trump Media & Technology Group Corp. ("TMTG") against Defendant WP Company LLC (the "Post") arises from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023, and circulated on Twitter (now known as "X") by Post personnel. The article described events related to a contemplated merger between TMTG and a special purpose acquisition company ("SPAC") known as Digital World Acquisition Corp. ("DWAC") as part of taking TMTG's "Truth Social" business public.
The article noted there had been a delay in obtaining SEC approval for the merger, which supporters of former President Donald Trump and TMTG attributed to political bias. The article offered a "possible" alternative explanation: concerns by the SEC and other regulators regarding a loan obtained by TMTG, the identity of the lender, and whether the loan had been properly disclosed by TMTG and/or DWAC to DWAC's shareholders or the SEC. The article cited various sources for its story, including "internal documents a company whistleblower has shared with federal investigators and [the Post]," as well as statements expressly attributed to the whistleblower, former TMTG officer Will Wilkerson.
The article related that in late 2021, with the proposed merger "frozen" and TMTG concerned about paying its bills, then-DWAC president Patrick Orlando announced he had arranged for an $8 million loan from an entity known as "ES Family Trust." According to the article, the loan was part of a deal in which TMTG would receive the loan and, in exchange, ES Family Trust would acquire an equity interest in the public entity to be formed from the merger of TMTG and DWAC. This loan-for- stock deal was reflected, according to the article, in a convertible promissory note, although the article acknowledged that the only copy of the note the Post had been able to locate was unsigned.
The article reported that some of the funds were wired by another entity, Paxum Bank, which had ties to ES Family Trust and to the adult film industry. Also, according to the article, TMTG paid a finder's fee of $240,000 in connection with the loan to Entoro Securities, a Texas entity of which Orlando was a managing director. Although the article did not refer to a specific document evidencing the payment, it pointed to a broker agreement regarding the fee and an invoice for payment from Entoro.
The article stated that neither the loan-for-stock deal nor the finder's fee had been disclosed to shareholders of DWAC or the SEC. It further reported the opinion of Michael Ohlrogge, a New York University law professor who studies SPACs, that these matters could affect the value of the shares and should have been disclosed. The article also noted that the British journal The Guardian had earlier reported that federal prosecutors in New York were investigating whether TMTG had violated money laundering statutes in connection with the loan, and that TMTG Chief Executive Officer Devin Nunes had filed a lawsuit against Wilkerson and others (including The Guardian) asserting that the Guardian story was "fabricated." …
TMTG does not challenge the accuracy of the bulk of the story set forth in the Post's article, including the assertions that TMTG borrowed $8 million from an entity or entities with connections to the adult film industry, that the loan deal involved a pledge of stock in the company to be formed by the merger, and that some TMTG executives were concerned about the lack of information regarding the lender. TMTG's defamation claims now center on the Post's statements regarding the disclosure of the loan and the finder's fee to the SEC and investors….
The court concluded that the allegations were substantially true, plus that TMTG in any event didn't adequately allege "actual malice" (i.e., knowing or reckless falsehood on the Post's part):
A cert petition was recently filed at the Supreme Court in Case v. Montana on the Fourth Amendment standards for entry into a home to help people in an emergency. The question presented:
Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.
The petition does not address the original public meaning of the Fourth Amendment, or the common law rules on this issue. But this is one area where there are common law authorities on the question, and they seem pretty home-protective. Given the Supreme Court's increased interest in originalism, I thought I might blog about what the established rule was for this issue at the time of the adoption of the Fourth Amendment, which presumably would inform what would have been understood as an unreasonable search and seizure.
Let's start with what was perhaps the best treatise on common law rules of criminal procedure, William Hawkins, Pleas of the Crown (1787 ed). Here's how Hawkins summarizes the rule:
Here Hawkins states the rule as allowing entry when the "affray" (somewhat a term of art in the 18th century, but basically meaning a really big fight) is made in the constable's "view or hearing." It's not just that the constable has heard about the fight. He needs to see it or hear it. If he sees it or hears it, he can enter the home to "suppress the affray," that is, break up the fight.
What makes Hawkins particularly helpful as a treatise writer is that he cites sources. On the side note, he cites five sources. Let's take a look at them.
Hale's short volume is less clear on the standard of entry. The constable ought to break up a fight in his presence (somewhere outside, one assumes) but there's nothing specific about what if the fight is ongoing in a house; does the constable need to see or hear the fight, as Hawkins is saying later on?
Hawkins next cited "2 Hale 95." That's a cite to Volume 2 of Hale's more developed and influential treatise, Historia Placitorum Coronæ, the 1736 edition of which contains the following at page 95:
In this volume, Hale talks of two different situations. First, if there's an affray in the house, and "there is likely to be manslaughter or bloodshed committed," the constable can demand entrance, and if no one lets him in but the fight is still ongoing, he can break in. Second, if there's a lot of noise going on at night, he can basically do the same.
Hawkins also cites "Crompton 170," which I assume refers to George Crompton's Practice Common-placed Or, The Rules & Cases of Practice in the Courts of King's Bench & Common Pleas, although at least on a quick look I can't find the relevant discussion. It may be that, since Hawkins wrote his treatise in 1719, that the pagination of Crompton was different from the later editions I find on Google books. Or maybe that's the wrong Crompton treatise? Not sure. I'll have to look into that more later.
The next Hawkins cite is to "Dalton c.78," which is to Chapter 78 of Michael Dalton's Country Justice, the chapter on jails, although it seems to be mostly about who pays for setting up a jail (a big deal in an era where there was no state-provided jail). That's perhaps relevant to the second common law rule in that Hawkins paragraph, about hot pursuit searches, but it doesn't seem relevant to the rules about emergency entry.
Finally, there's a citation to "B.P. Imprison. 6." I'm not sure what that is, but I wonder if it's to a Parlimentiary writ of the era, "B.P." standing for ""Brevia Parliamentaria," or "Before Parliament." Perhaps a writ relating to imprisonment powers, akin to the citation to Dalton above? I'm not sure.
Anyway, combining the Hawkins rule from his Pleas of the Crown with the rule from Hale's Historia Placitorum Coronæ, I take the common law authorities to suggest some significant certainty about whether the "affray" is happening inside the house before the constable can enter. Hawkins says the constable has to hear or see the big fight. Hale says it needs to be "likely" that there will be manslaughter or bloodshed, something that to me sounds more suggestive of a probable cause standard. Hale's mention of noise coning from the house seems consistent with a high certainty, too. The constable would hear the noise himself, being sure of it. Read More
A state Supreme Court gives environmental activists an important symbolic victory that will not do much of anything to mitigate the threat of climate change.
Last week, in Held v. Montana, the Montana Supreme Court held that the Montana Constitution's guarantee of a "clean and healthful environment" encompasses a right to a "stable climate system that sustains human lives and liberties." On this basis it concluded that legislative amendments to the State Energy Policy Act and Montana Environmental Policy Act barring the consideration of climate impacts and impacts beyond Montana's borders as part of statutorily mandated environmental reviews of some permit applications were unconstitutional. In the process, it also concluded that the citizen-suit plaintiffs had standing (in state court) to bring such claims. The vote was 6-1, with one justice dissenting on standing grounds.
Held v. Montana is the first decision by an appellate court in the United States recognizing a constitutional right to a "stable climate." This is no doubt significant. Efforts to vindicate such a claim in federal court, as in the Juliana litigation, have been unsuccessful beyond the trial court level. Yet the legal significance of this case is somewhat limited. The decision only affects activities in Montana and is based on provisions in the Montana state constitution expressly recognizing a right to a clean and healthful environment. And as a policy matter, the actual judgment--invalidating a limitation on MEPA reviews--will have no meaningful impact on climate change whatsoever. What activists are hoping for is that Held will spur other courts to follow suit, or that it will encourage further efforts to adopt meaningful climate mitigation policies.
This is not the first Montana court decision concluding that citizens could sue in state court to vindicate their state constitutional right to a clean and healthful environment. Part of what is interesting (and perhaps path-breaking) about the Held decision is that it appears to be the first in which the plaintiffs did not need to be able to identify any tangible way in which their constitutional rights were violated (such as by a tangible change in environmental quality), nor did they need to identify any way in which a favorable judgment would redress such injuries (such as by preventing or ameliorating identifiable environmental harm). So while the Court adopted a standing inquiry that paralleled that which is required in federal court, the substance of that inquiry was far more permissive. Read More
From today's decision in Doe v. Ga. Dep't of Corrections, by Chief Judge William Pryor and Judges Adalberto Jordan and Stanley Marcus:
Plaintiff-Appellee, Jane Doe, is a transgender woman currently in the custody of the Georgia Department of Corrections ("GDOC") serving a sentence of life imprisonment. On December 6, 2023, she sued the GDOC and others (collectively, the "GDOC"), claiming that they were violating her Eighth Amendment constitutional rights by refusing to provide her medically necessary care to treat her gender dysphoria. The same day Doe filed suit in the district court, she filed accompanying motions, one seeking leave to proceed in the case anonymously and another seeking preliminary injunctive relief.
In resolving these motions, the district court issued a Pseudonym Order, granting Doe the right to proceed under a pseudonym, and a Preliminary Injunction Order, granting in part and denying in part her request for preliminary injunctive relief. The GDOC has filed an interlocutory appeal in this Court challenging both orders. The GDOC seeks to vacate both the district court's preliminary injunction and its pseudonym order. We will address that appeal in a separate opinion at a later date.
In the meantime, the GDOC has moved us to unseal the appellate record. While the parties hotly dispute whether we have jurisdiction now to review the district court's Pseudonym Order, there is no dispute that we have the power to decide a motion to unseal our own docket. "When presented with an appeal, [courts of appeals] routinely unseal documents that were sealed in the district court when those documents are used on appeal and there is no legal basis for sealing." The GDOC's cross-motion to unseal only addresses the appellate record accompanying this interlocutory appeal. We consider this to be a matter of considerable immediacy and find it appropriate to address it now, separate from our consideration of the merits of GDOC's interlocutory appeal.
An Arkansas statute (Act 372) makes it a crime (in its section 1) for librarians and booksellers to "[f]urnish a harmful item to a minor." The U.S. Supreme Court has held that the First Amendment doesn't protect distribution of "obscenity," a narrow category that basically covers hard-core pornography. To be obscenity, a work must satisfy all three of the following elements, largely drawn from Miller v. California (1973), though with extra detail added by Smith v. U.S. (1977), Pope v. Illinois (1987), and Brockett v. Spokane Arcades, Inc. (1985):
"the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest" (which means a "shameful or morbid" interest in sex as opposed to a "normal, healthy" interest);
"the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards], [c] sexual conduct specifically defined by the applicable state law"; and
"the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value[, [d] applying national standards and not just community standards]."
And the Court has also held that the law may bar distribution to minors of sexually themed material, if it fits within what's basically the Miller test with "of minors" or "for minors" added to each prong (e.g., "the work taken as a whole, lacks serious literary, artistic, political, or scientific value for minors"). Ginsberg v. New York (1968), a pre-Miller case, upheld a law that implemented the then-current obscenity test with "to minors" added at the end of each prong; most lower courts and commentators have assumed that Ginsberg plus Miller justify laws that implement the Miller-based test with "to minors" added to each prong as well. This category is often labeled material that is "obscene for minors" or "harmful to minors." (It's a completely different First Amendment exception from the one for child pornography, which focuses not on the recipient of the material but on the person depicted in the material.)
Now of course minors vary sharply in age, so this raises the question: Is a work "obscene as to minors" when it has value for a 17-year-old (or isn't patently offensive when displayed to a 17-year-old) but lacks value for a 5-year-old? Back in 2004, the Arkansas Supreme Court basically said such a work is indeed obscene as to minors; and because of this, Judge Timothy Brooks (W.D. Ark.) held today in Fayetteville Public Library v. Crawford County, Section 1 of Act 372 is likely unconstitutional:
In this employment-discrimination action, a non-profit community development organization and its then-employees move for summary judgment against a job applicant's claims that they did not hire him for a job monitoring grants in low-income communities because he is black. The head of human resources who communicated the denial and bore the brunt of his accusations now also moves for summary judgment. Both motions are GRANTED. A motion for sanctions is GRANTED….
The whole opinion is long (over 8700 words), so I just thought I'd excerpt the sanctions section, which also discusses some of the facts and some of the bases the court gave for granting summary judgment; for more, see the full opinion:
As a result, the merits of this action have been decided against Rogers, as have the merits of every one of Rogers's previous discrimination actions brought and concluded in this district. Now, LIIF moves for sanctions.
Rogers is a perpetual claimant. Over ten years ago, a state court [in San Diego County] found Rogers vexatious. Recently, after Rogers had not requested to file a new action in that county for more than five years, Rogers's repeated application for the order to be vacated was finally granted. {The form order does not provide a reasoned decision, but the five-year threshold for filings in the county may have been decisive ….} Rogers by then had relocated to the Bay Area, and the record shows his litigation energies are now directed here.
Rogers has abused the right to come to court by pursuing an unmeritorious cause and by trying to extort a settlement by threat of defamation. The sanctions motion explains that such conduct could amount to criminal extortion, and plainly amounts to bad faith. The motion also identifies attorney's fees that but for Rogers's improper conduct LIIF and its employees would not have incurred.
The Justice Department's policies generally require such conferrals, but it is unclear whether standard procedures were followed by the President in today's mass commutations of federal death sentences.
This morning, the White House announced that President Biden has commuted the death sentences of 37 of the 40 federal death row inmates. I wonder whether the President has ignored the rights and interests of crime victims' family members in granting mass commutations.
The Justice Department does have in place an announced policy for processing requests for executive clemency in capital cases. Under the Department's "Rules Governing Petitions For Executive Clemency sec. 1.10/Procedures Applicable to Prisoners Under a Sentence of Death Imposed by a U.S. District Court," victims' families (like a death row inmate's representatives) are supposed to generally have an opportunity to make a presentation to the Office of the Pardon Attorney before clemency is granted:
(c) The petitioner's clemency counsel may request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney in support of the clemency petition. The presentation should be requested at the time the clemency petition is filed. The family or families of any victim of an offense for which the petitioner was sentenced to death may, with the assistance of the prosecuting office, request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney.
In reading today's "fact sheet" from the White House, I see no reference to the Department having contacted victims' families or otherwise conferring with them before making the decision. The large numbers of commutations the President issued at the same time--all in the waning days of the current Administration--makes me wonder whether the Administration has simply left victims' families outside of the process.
As the Justice Department rules suggest, a fair process in considering commutations would necessarily involve at least hearing from victims' families before making any final commutation decision. And there does not appear to be any logistical barrier to conferring with the victims' families. The U.S. Attorney's Offices who have handed these 37 cases, no doubt, have ways to quickly contact family members. The federal Crime Victims' Rights Act (CVRA) broadly commands that victims (and family members in homicide cases) have the "right to be treated with fairness and with respect for the victim's dignity and privacy." Failing to confer with victims family members who have gone through a long and arduous capital trial and sentencing process is difficult to square with this command. And the Justice Department's own Attorney General Guidelines for Victims and Witness Assistance indicate that "[t]his broad-based right [to fair treatment] is central to the purpose of the CVRA and should serve as a guiding principle for Department personnel that governs all interactions with crime victims." A.G. Victims Guidelines at 70, art. III, sec. j.
My suspicions that the victims' families have been ignored in this commutation process are heightened by the fact that in another case--U.S. v. Boeing--the Department has paid little attention to victims' families. Indeed, a federal judge has found that the Department violated the federal Crime Victims' Rights Act in reaching its decisions without conferring with victims' family members.
Here, of course, the President has constitutional power to commute federal sentences, including federal death sentences. And in this short post, I don't take a position on the substantive pros and cons of the 37 commutations. My question is simply a procedural one that goes to the fairness of the process: In making the commutation decisions, has the President followed standard procedures and given the victims' families an opportunity to confer with appropriate officials before making a final decision? Perhaps such conferrals have taken place and these details have not been publicly disclosed. But from the information I've been able to review quickly, that seems unlikely … and, once again, victims' families rights and interests are apparently being ignored in some larger political manuever.
