Category: Constitutional Law

Constitutional Law, Criminal law, Society, Torts

Supreme Court Vacates Jane Doe Child Pornography Restitution Case

Supreme CourtWe previously discussed the case of Doyle Randall Paroline, who pleaded guilty in Texas in 2009 to possessing child pornography. He downloaded hundreds of images and two were found to be child pornography dedicating the abuse of Amy. After pleading guilty, Paroline was hit by $3.4 million in restitution damages for Amy even though he had no role in her victimization nine years earlier or any role in the production or distribution of the two photos. The United States Court of Appeals for the Fifth Circuit found that the federal restitution law does not require “proximate causation” — a critical limitation in torts and criminal law that ensures that liability is confined to those parties immediately responsible for injuries. I have criticized the expansion of restitution in this area for years and I spoke with NPR’s On The Media on the case. The Court has now ruled and reversed the Fifth Circuit in a 5-4 decision. As discussed with regard to yesterday’s decision in the Michigan affirmative action case, my Supreme Court class votes on the merits and predicted outcome of the major cases of the term before the Supreme Court. On this occasion, the vote was 8 to affirm and 6 to reverse. The latter “reversal” is closest to the outcome in the case. On prediction, the vote was 11 to 2 in favor of affirming so we were way off on the prediction on this one.

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Academia, Constitutional Law, Politics, Society

Supreme Court Declares States Can Bar Racial And Other Preferences In University Admissions

Supreme CourtI was just on CNN discussing the decision in Schuette v. BAMN, reversing the United States Court of Appeals for the Sixth Circuit and declaring that the citizens of Michigan have the constitutional authority to prohibit racial and other preferences in university admissions. We addressed this case this term in my Supreme Court class and the students voted not only in the same way as the majority today but predicted this result. What was surprising was the vote — 6-2. Only Justice Sotomayor and Ginsberg voted to upheld the Sixth Circuit.

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Congress, Constitutional Law, Courts, International, Lawyering, Media, Military, Politics

Second Circuit Orders Obama Administration To Release Drone Memos On Killing U.S. Citizens

PresObamaUS-CourtOfAppeals-2ndCircuit-SealWhile President Obama ran on a pledge to be the most transparent presidency in history, critics have charged that — as with promises to protect civil liberties and international law — Obama has done precisely the opposite of what he promised. His Administration has radically expanded the national security state while fighting every effort in court to challenge unchecked executive powers, including his successful effort to get Congress to dismiss dozens of public interest lawsuits over surveillance, torture, etc. The latest effort of the Obama Administration was to refuse to release even redacted version of legal memoranda on Obama’s use of drones to kill U.S. citizens. I have previously written about Obama Kill list policy in columns and blog posts. What is interesting is that the Obama Administration shows utter contempt for the federal courts in first claiming that any release of redacted classified legal arguments would endanger national security and then, after the district court yielded to the government, proceeding to discuss the very same information in public when it suited the Administration. The United States Court of Appeals for the Second Circuit finally said enough. The problem is that the district court did not exercise its authority to reject the clearly excessive claims of the government. It is only because the government contradicted itself — not the facially overboard claims made before the district court. The case is New York Times v. United States Department of Justice, 2014 U.S. App. LEXIS 7387. The case highlights the extreme hostility shown by the Obama Administration to both transparency and the media.

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Academia, Animals, Bizarre, Congress, Constitutional Law, Courts, Criminal law, Environment, Free Speech, International, Justice, Lawyering, Media, Military, Politics, Society, Supreme Court, Torts

21,000,000

We only recently passed the 20,000,000 mark last February but we just hit 21,000,000, according to WordPress. Congratulations everyone. This has been a banner year for the site with a continuing increase in traffic, links on other sites, and new voices on the blog. These milestones are coming faster and they give us a chance to look at the spread of our regular readers and commentators. As always, I want to offer special thanks for our weekend contributors: Mark Esposito, Eliane Magliaro, Mike Appleton, Larry Rafferty, Charlton Stanley and Darren Smith. The increasing traffic on the site is gratifying and reaffirms that there are many people looking for mature and civil debate. Even among the top ten sites, I believe that we offer a unique forum of different views and backgrounds in the discussion of law and politics (and a few quirky items).

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Congress, Constitutional Law, Courts, Criminal law, International, Justice, Lawyering, Military, Politics, Supreme Court, Uncategorized

The CIA Psychologist Who Designed the Torture Program Claims It Was Not Torture

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Respectfully Submitted by Lawrence E. Rafferty (rafflaw)- Weekend Contributor

We have seen and heard the claims from Donald Rumsfeld and others that the leaked Senate torture report is off base because the enhanced interrogation techniques were not only legal according to the Office of Legal Counsel, but they also produced results.  Putting aside the idea that just because an allegedly illegal act is claimed to have been successful in producing actionable intelligence, does not make it any more legal or illegal, is there a reason why we should listen to the participants who authorized the waterboarding and other torture procedures when they claim that all is well?

Now it seems that Donald Rumsfeld has company.  “In an uncompromising and wide-ranging interview with the Guardian, his first public remarks since he was linked to the program in 2007, James Mitchell was dismissive of a Senate intelligence committee report on CIA torture in which he features, and which is currently at the heart of an intense row between legislators and the agency.

The committee’s report found that the interrogation techniques devised by Mitchell, a retired air force psychologist, were far more brutal than disclosed at the time, and did not yield useful intelligence. These included waterboarding, stress positions, sleep deprivation for days at a time, confinement in a box and being slammed into walls.

But Mitchell, who was reported to have personally waterboarded accused 9/11 mastermind Khalid Sheikh Mohammed, remains unrepentant. “The people on the ground did the best they could with the way they understood the law at the time,” he said. “You can’t ask someone to put their life on the line and think and make a decision without the benefit of hindsight and then eviscerate them in the press 10 years later.” ‘  Reader Supported News  Continue reading “The CIA Psychologist Who Designed the Torture Program Claims It Was Not Torture” →

Constitutional Law, Free Speech, Justice, Media

Peoria Mayor vs. the First Amendment

Submitted by Charlton (Chuck) Stanley, Weekend Contributor

This piece could easily have been titled, Peoria Mayor Jim Ardis (below, left) discovers the Streisand Effect.

Peoria Mayor Jim Ardis (Official Photo)
Peoria Mayor Jim Ardis
(Official Photo)

The same might be said of Peoria Police Chief Steve Settingsgaard. Sometime in February or early March, the Twitter account @Peoriamayor was created, with a picture and fake bio of Mayor Ardis. On or about March 10, the account was labeled a parody, clarifying that it was not really Jim Ardis’ account. That did not deter Ardis, who appears to be as thin-skinned as any politician we have seen recently. He recruited Police Chief Settingsgaard to track down whoever was behind the parody Twitter account.

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Constitutional Law, Courts, Free Speech, Politics, Supreme Court, Uncategorized

Chief Justice Roberts and McCutcheon v. Federal Election Commission

Submitted by Elaine Magliaro, Weekend Contributor

First, there was Citizens United. Now, we have the Supreme Court’s recent ruling in the McCutcheon case. It does appear that our country’s campaign finance laws may have been “eviscerated”—as noted by Justice Breyer when he wrote that, taken together with Citizens United, McCutcheon “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

Corporations are people…money is speech. The more money one has to spend…the more “speech” one can afford to buy—especially where political campaigns are concerned.

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Academia, Constitutional Law, Free Speech, Media, Politics, Religion, Society

New York School Bans Two Students Who Brought Confederate Flag To After-Hours Sporting Event

220px-Confederate_Rebel_Flag.svgTwo high school students at St. Anthony’s High School in Long Island have been suspended indefinitely after they walked into an after-hours sporting event wearing a Confederate flag draped over their shoulders. We recently discussed another suspension of a student involving a Confederate flag. I have the same free speech concerns in this case. The question is whether other flags would also be confiscated and the student suspended in my view. While I can certainly understand how this flag represents racism for many, others view the flag as a symbol of Southern heritage and heroism. I often see them in Virginia and recoil a bit due to the association with slavery. However, my concern is where the school is drawing the line on speech.

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Constitutional Law, Courts, Lawyering, Media, Society, Torts

A’Peel Gone Bad: Posner Dismisses Case Of The “Banana Lady” And Suggests Bar On New Filings Pending Payment of Outstanding Fees

220px-Banana_(partially_peeled)220px-Richard_posner_harvardzJudge Richard Posner has crushed the appeal of Catherine “Banana Lady” Conrad who sued for copyright infringement over the publication of her photograph in her costume after appearing at parties for children. Posner not only dismissed her case, he encouraged a lower court to bar her from new filings and published a picture as part of the opinion. The picture is now part of an official opinion and court record. As discussed below, The Banana Lady fared much worse than did The Human Cannonball in an earlier analogous case brought under the common law as opposed to copyright.

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Bizarre, Constitutional Law, Courts, Criminal law, Lawyering, Society

Ohio Judge Sentences “Bully” To Wear Demeaning Sign In Public

bully-2-e1397330995935article-2603196-1D0E0E1500000578-133_634x819We have previously discussed the use of shaming punishments by judges around the country — a practice that I have previously denounced in columns and blog postings. I discussed a new case this week on BBC involving Edmond Aviv, 62, in South Euclid, Ohio. Aviv pleaded no contest to a misdemeanor disorderly conduct charge. Aviv, 62, had been feuding with his neighbor for 15 years, particularly over the smell of her dryer vent when she did laundry. He retaliated by hookup up kerosene to a fan to blow the smell on to the property of Sandra Prugh. Municipal Court Judge Gayle Williams-Byers (left) decided to impose her own brand of justice and ordered him to demean himself in public and wear a signing reading “I AM A BULLY! I pick on children that are disabled, and I am intolerant of those that are different from myself. My actions do not reflect an appreciation for the diverse South Euclid community that I live in.” For those of us who view this type of novel or shaming punishment to be unprofessional and abusive, it is Judge Williams-Byers who is in serious need for corrective measures. Indeed, many view judges who entertain the public with shaming sentences to be the ultimate bullies.

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Academia, Constitutional Law, Free Speech, International, Media, Politics, Religion, Society

Sensitivity Training or Self-Censorship? Journalism Dean Publishes “Islam for Journalists” To Teach Reporters How Not To “Inflame” Muslims

Islam for Journalistspintakl Lawrence Pintak, dean of the Washington State University’s Edward R. Murrow College of Communication, has written a controversial guide for journalists on how to cover stories without insulting Muslims. “Islam for Journalists” is an effort to educate reporters on the sensitivities of Muslims to avoid triggering protests or violence. Pintak writes that “Across the Muslim world extremists are wielding their swords with grisly effect, but the pen . . . can be just as lethal.” That line captures the controversy because it seems to suggest that reporters are a cause of violence when they fail to adhere to the demand of religious values or orthodoxy in their publications.

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Constitutional Law, Free Speech, Politics, Religion, Society

Louisiana Moves To Make The Bible The State Book

220px-Rembrandt_-_Moses_with_the_Ten_Commandments_-_Google_Art_Projectrep6Usually the selection of a state bird or state song is not particularly divisive or even notable. The same goes for a state book (though it seems a bit odd to select a single book for a state unless it is written by a native son or daughter). Louisiana however could find itself in court as it moves to make the Bible the state book. Rep. Thomas Carmody, R-Shreveport, proposed the official adoption but insisted that it should not be viewed as any type of state endorsement. It is simply the selection of one faith’s religious book as the official book for the entire state. Who could possibly view that as a state endorsement?

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Animals, Constitutional Law, Courts, Justice, Lawyering, Supreme Court

Save The Dogs Exception?

By Mark Esposito, Weekend Contributor

Zen Dharma Dog Bite Paralegal in Downtown Los Angeles Law Library Legal Research and Writing Law and Motion_fullMany courts have recognized the so-called emergency aid exception to the Fourth Amendment’s prohibition against  warrantless searches, but the emergency usually had to involve a natural person. Now the highest court in Massachusetts has extended the doctrine to emergency aid in furtherance of animals. In Jan. 2011, Lynn police were called to the home of Heather Duncan based on neighbors’ reports of two dead dogs lying near her locked fence in her backyard. Two officers from the Lynn Police Department arrived and began to investigate the scene. Climbing a nearby snowbank, the officers saw two motionless dogs and another barking weakly.  No food or water was seen and according to the officers, the dogs appeared malnourished and in immediate distress. After trying  unsuccessfully to reach the homeowner, fire officials were called who promptly cut the fence lock and escorted the police onto the property. Two of the animals were indeed dead and the third was starving.

 Ms. Duncan was charged with three counts of animal cruelty. She defended the case based on her claim that the officers had unreasonably searched without a warrant and the fruit of their search was thus unconstitutional. No warrant, no dogs, no case went the defense.

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Constitutional Law, Criminal law, Lawyering, Society

Spare the Prison, Spoil the Prosecutor? West Virginia Prosecutor Claims Constitutional Right To Beat Son With Belt

kanawha-county-prosecutor-mark-plantsPreviously, our contributor Charlton Stanley wrote about Kanawha County Prosecuting Attorney Mark Plants in a controversial foreclosure matter. Now, Plants is back in the news as the subject of a criminal case as opposed to the charging prosecutor. Plants is charged with beating his son with a belt and leaving a considerable bruise. He is claiming a constitutional right to such beatings as a parental choice on discipline.

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