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Archive for January, 2013

In Tobey v. Jones, the Fourth Circuit needed to decide whether Aaron Tobey’s First-Amendment-based Bivens claim for money damages against two TSA officers (Jones and Smith, their real last names) survived the federal government’s 12(b)(6) motion. These officers (TSOs) radioed for police assistance after Tobey, having been selected for “enhanced secondary screening” at a Richmond (VA) International Airport security screening checkpoint, stripped down to his running shorts and socks to reveal portions of the Fourth Amendment written on his bare chest. When the airport police arrived, they arrested Tobey. They then questioned him and ultimately released him after about an hour. Tobey boarded his plane without any further difficulty. A few months later he sued the TSOs (Jones and Smith), the airport police, the airport commission, and some higher-level officials at the commission, the Department of Homeland Security, and the TSA.

The district court (Judge Hudson, EDVA) dismissed all of the claims except for a First Amendment-based claim that Smith and Jones “caused [Tobey's] seizure . . . because of the message conveyed by [his] silent, nonviolent expression of objection to the TSA’s screening policies . . . and thereby engaged in content and/or viewpoint discrimination.” The government appealed this denial.

A split panel of the Fourth Circuit affirmed. Judge Gregory, joined by Judge Duncan, held that Tobey’s complaint “plausibly set forth a claim that the TSA agents violated his clearly established First Amendment rights.” Judge Wilkinson authored an empassioned dissent.

Eugene Volokh and most commenters at Volokh Conspiracy have expressed agreement with the panel majority’s analysis. Are they  wrong about what “sounds right”? I think so. Not because of disagreement with Volokh’s take on the First Amendment, but because he focuses on First Amendment principles apart from the appropriate pleading rules and the particular facts of the case.

Viewed through the lens of Twombly and Iqbal, Tobey needed to plead facts rendering it plausible that the TSOs called the police because of disagreement with his message rather than because he stripped off his shirt and pants in the screening area. He did no such thing. Indeed, according to the district court, Tobey’s counsel conceded at oral argument that his behavior was bizarre, “and that the TSOs were justified in summoning the RIC Police for further inquiry.” It seems to me that should be the end of it, for that is all the TSOs are alleged to have done–summon the police. When people act in a concededly “bizarre” fashion in an airport screening area, the TSOs should call the police and let them handle the bizarreness. Whether the police should have handcuffed and arrested Tobey is a separate question from whether the TSOs should have called the police to deal with Tobey. And it is only that latter question that was at issue in the Fourth Circuit appeal.

I should also add that Judge Wilkinson’s take on the effect of taking off one’s shirt and pants in an airport screening area seems better grounded in the reality of modern air travel than Judge Gregory’s. Judge Wilkinson wrote that “[o]utside a few limited contexts, such as public swimming pools, removing one’s shirt and pants will always attract other people’s attention and distract them from whatever they happen to be doing.” Judge Gregory responds that “[p]assengers routinely remove clothing at an airport screening station, and in fact are required to do so by TSA regulations.” But this misses the point. Passengers do not routinely go bare-chested, nor are they are required to do so by TSA regulations. Judge Wilkinson may have overstated the case slightly in asserting that “[i]t is sheer fancy to think that defendants had anything on their minds other than eliminating the distraction that Tobey’s state of dishabille was causing.” But if so, only slightly. And in any event it was Tobey’s burden to allege facts making the alternative retaliation-for-protest explanation plausible.

Judge Gregory’s appeal to “autonomy and the celebration of difference” seems misplaced at an airport screening point. And he surely overstates the case when he writes that “[f]or us to hold today that it is reasonable to cause an arrest due to bizarre behavior and nothing more would violate the most basic [tenets] of our Constitution.” For that redescribes what the TSOs were alleged to have done (call the police) with what followed from that call through the decisions and actions of the police (Tobey’s arrest). Judge Gregory writes that “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and RIC police act in close concert.” Yes, here, an arrest was a consequence. But to call it an “undoubtedly natural consequence” is to let the adverb and the adjective do too much work, depriving the police of any independent agency. Or so it seems to me.

 

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January 22 remains a day worth remembering. On this day in 1973, the Supreme Court promulgated its profoundly wrong decision in Roe v. Wade. At Mirror of Justice, Rick Garnett has some sober but hopeful reflections on Roe at 40.

Another date worth recalling is June 29. On that day in 1992, the Supreme Court issued Planned Parenthood of Southeastern Pennsylvania v. Casey. I share the view–most forcefully expressed by Michael Stokes Paulsen–that Casey is the worst constitutional decision of all time. (For Paulsen’s explanation, see Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995 (2002); summarized more recently in two columns at Public Discourse, available here and here.)

One axiom of some academic theories of constitutional law in recent decades has been that, for a theory to be right, it cannot yield the result that Brown v. Board of Education is wrong. I hope for the broad acceptance of a different axiom: Any theory of constitutional law is wrong if it yields the result that Casey is right.

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The twitterverse is alive with tweets about Justice Scalia’s headgear for today’s inauguration. At the risk of putting all the fun speculation to an end . . . The hat is a custom-made replica of the hat depicted in Holbein’s famous portrait of St. Thomas More. It was a gift from the St. Thomas More Society of Richmond, Virginia. We presented it to him in November 2010 as a memento of his participation in our 27th annual Red Mass and dinner.

[UPDATE: Many have asked for more details about Justice Scalia's hat. It was made in Richmond, Virginia by milliner Camille Parham. Richmond lawyer and St. Thomas More Society executive committee member Stephen Reardon spearheaded our search for a "St. Thomas More hat" and presented the hat to Justice Scalia at the dinner after our Red Mass. A picture from the presentation and one from Justice Scalia's visit earlier in the day to the University of Richmond School of Law are below.]

(more…)

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God and the World is the second book that arose out of conversations between Joseph Cardinal Ratzinger and Peter Seewald. (The first was Salt of the Earth.) Here are a couple of excerpts from their conversations, on the general topic of flexibility, vocation, and following one’s inclinations:

[Seewald] People nowadays, in contrast to these disciples following Christ, have the idea that they can work out their path, put their lives together, by their own unaided efforts. They think that in any case no one has any clear identity any longer. Life is a flowing stream of illusions, according to what task or what scenario confronts us–or what desire. An either-or decision is in any case passé in the modern world; instead of that there is the new possibility of neither-nor.

[Ratzinger] Flexibility has become the all-sufficient watchword. we want to be able to react to new demands, and we hope, by changing jobs fast, to be able to climb the ladder as quickly and as high as possible. But I think there are still callings that demand the whole of a person. Being a doctor, for instance, or a teacher, is not something I can do just for two or three years, but is a calling that requires my whole lifetime. That is to say, even today there are tasks that are not a job that runs alongside my life, so to speak, in order to ensure I have money to live on. For a true calling, income is not the criterion, but the practicing of some skill in the service of mankind.

* * *

[Seewald] To stay with paths in life: many people have the notion that their life is a kind of film. And in this biographical filmstrip they suppose they should be able to make all the cuts and supervise the production of each scene themselves. One cannot avoid the thought: Why should I go out of my way in life, make special efforts, seek anything out, show self-control or faithfulness? That is, set out on this difficult path that the disciples follow with Jesus. Why should my life not just be simple and easy?

[Ratzinger] That is something only those people can afford who are born to luxury. That is a fantasy of people with property, which takes no account of the fact that, for the great majority of mankind, life is a struggle. On those grounds I would see this idea of choosing one’s own path in life as a selfish attitude and a waste of one’s vocation.

Anyone who thinks he already has it all, so that he can take what he wants and center everything on himself, is depriving himself of giving what he otherwise could. Man is not there to make himself, but to respond to demands made upon him. We all stand in a great arena of history and are dependent on each other. A man ought not, therefore, just to figure out what he would like, but to ask what he can do and how he can help. Then he will see that fulfillment does not lie in comfort, ease, and following one’s inclinations, but precisely in allowing demands to be made upon you, in taking the harder path. Everything else turns out somehow boring, anyway. Only the man who “risks the fire,” who recognizes a calling within himself, a vocation, an ideal he must satisfy, who takes on real responsibility, will find fulfillment. As we have said, it is not in taking, not on the path of comfort, that we become rich, but only in giving.

Source: Joseph Cardinal Ratzinger and Peter Seewald, God and the World, trans. Henry Taylor, Ignatius Press 2002.

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My only regret in reading Judge Sutton’s review of Judge Posner’s How Judges Think is that I did not read it (the review, that is) earlier.

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This NBC interview of Justice Sonia Sotomayor by Savannah Guthrie looks to have been conducted in a Catholic Church. Is that so? What accounts for that setting?

Justice Sotomayor does invoke God at one point:

Q: Do you think it’s good for the democratic process for the Court to be deciding these big, social issues of the day?

A: I don’t think of us, the democratic process, as being a static one where the Court announces, and that ends the dialogue. The Court announces, and the dialogue begins, and the approach in some instances has to be changed. But the society manages to do it.

Q: Do you look forward to those big, consequential cases?

A: Oh my God, look forward to them. I don’t think you can say anyone looks forward to controversy. I think that the day a Justice forgets that each decision comes at a cost to someone, then I think that you start losing your humanity.

tdy_guth_sonia_130114.video-260x195

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It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U. S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause).

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 848 (1992)

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From the Introduction to The Relation of the Judiciary to the Constitution (1919), by William Montgomery Meigs:

The subject for the present book has for many years been of interest to the writer. Long ago, while still a young lawyer, I was in some way drawn to a study of the judiciary in relation to the Constitution; and under the same title as that which now, late in life, I am placing upon this book, I wrote the second of a series of law articles, to the writing of which ill-health and a dearth of practice had directed me.

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After seeing the link from Howard Bashman’s How Appealing and some of my prior posts about the Fourth Circuit pregnancy center cases , my friend (and CUA lawprof) Mark Rienzi sent me the plaintiff’s memorandum of law in support of summary judgment in the Montgomery County, Maryland pregnancy center compelled speech case. That case, argued the same morning as the Baltimore case, has proceeded through full discovery and to summary judgment briefing while the appeal of the preliminary injunction has been pending at the Fourth Circuit. This summary judgment record is not before the Fourth Circuit in the en banc appeal, but it is the record to which the legal standard identified by the Fourth Circuit will be applied by the district court.

I am not an impartial observer, as I was already convinced that the Montgomery County and Baltimore ordinances were unconstitutional and I have long supported the pro-life mission of the pregnancy centers targeted by the ordinances. But I believe that an impartial observer would share my assessment that the record in the Montgomery County case firmly establishes the unconstitutionality of the Montgomery County ordinance.

Reviewing this summary judgment memorandum reminds me of two episodes in the oral arguments over the Baltimore and Montgomery County ordinances.

First, near the end of the argument over the Baltimore ordinance, Judge King and Judge Wilkinson had an interchange in which Judge King advocated more discovery while Judge Wilkinson asserted that discovery is not the friend of the First Amendment (his point being that the time it takes to engage discovery is time during which protected speech may be unconstitutionally silenced). The discovery set forth in this brief shows that both judges are right and wrong in different ways. At least as far as the Montgomery County ordinance is concerned, discovery has been the friend of the First Amendment in the sense that it establishes the unconstitutionality of the ordinance. I expect discovery will establish the same about the Baltimore ordinance if that is the disposition ordered by the Fourth Circuit. But extensive discovery was not necessary. Under strict scrutiny, it is not the burden of the challengers to adduce evidence showing that the ordinance is unconstitutional. It is the burden of the government to show that the ordinance is the least restrictive means of accomplishing a compelling government interest. And the evidence on which the legislature acted should have been set at enactment such that extensive discovery is unnecessary.

Second, near the end of the argument over the Montgomery County ordinance, Rienzi as counsel for the challengers emphasized that the case was “fully teed up” for decision by the district court. In my estimation, this brief makes clear why he thought that was worth emphasizing.

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Something has been bothering me for a while about the en banc oral argument last month over a Baltimore ordinance that requires “limited-resource pregnancy centers” to post a notice that they do not refer for abortion or birth control services. I’ve now done some follow-up research. Others may view the results of this research differently, but in my view, counsel for Baltimore’s artful characterization of an advertisement in the record probably misled others present at the argument in the same way that it (temporarily) misled me.

At the argument, counsel for Baltimore asserted that the city was trying to combat “consumer deception in the offer of pregnancy services.” A powerful part of this argument came just two minutes in, when counsel pointed the court to an “Option Line” advertisement in the Joint Appendix that she described as “clearly and inherently misleading.” Counsel argued that the advertisement  was misleading because it offered “medical services” including “abortion” and “morning-after pill,” even though none of the centers actually offered abortions or the morning-after pill. Until near the end of the argument, none of the judges questioned counsel’s characterization of the Option Line advertisement even though she pointed to the page in the Joint Appendix where this “clearly and inherently misleading” advertisement could be found. And by the time one judge asked about it, it seemed as if the rest of the judges had already accepted the characterization.

This has been bothering me because, shortly after the argument, I googled “Option Line” and I could not see how someone scanning the Option Line website would get the impression that one could use the referral service to obtain either an abortion or the morning-after pill. I thought then that, unless Option Line’s advertising had changed substantially between passage of the ordinance (when the Baltimore City Council was allegedly concerned about deception) and the afternoon of the oral argument (when I reviewed the Option Line website), there was a real possibility that counsel for Baltimore had artfully and somewhat misleadingly characterized the advertisement in the JA.

I recently listened to the audio to verify my notes, and I pulled the Joint Appendix off of PACER to check the actual advertisement.  I’ve posted the relevant JA page here. The advertisement contains the words “abortion” and “morning after pill” and “medical services.” But, in my view, the advertisement cannot reasonably be viewed as offering the “medical services” of either “abortion” or the “morning-after pill.” In relevant part, the advertisement states:

Our consultants will connect you to nearby pregnancy centers that offer the following services:

  • Free pregnancy tests and pregnancy information
  • Abortion and Morning After Pill information, including procedures and risks
  • Medical services, including STD tests, early ultrasounds and pregnancy confirmation
  • Confidential pregnancy options

There is an obvious difference between offering information about abortion and the morning-after pill, on the one hand, and offering medical services such as the provision of abortion and the morning-after pill, on the other hand. Baltimore’s argument glides right over this difference. Unfortunately, Baltimore’s artful characterization of this advertisement mattered to the oral argument. Approximately 35 minutes into the argument, for example, Judge Shedd mentioned to counsel for the centers that “we’ve heard about the website that contained the false information,”thus suggesting that he accepted counsel’s artful characterization of the Option Line website.

Near the very end of the argument (around the 1:14:00 mark on the audio), Judge Niemeyer asked counsel whether Baltimore had any evidence that the clinics regulated by the ordinance “have advertised that they do provide abortions, falsely.” She responded “yes,” pointing to the Option Line advertisement. The argument continued:

Q (Niemeyer): What does it say, it says, “we provide abortion”?

A (Counsel): It says we provide medical services, quote, and then it also, quote, abortion and morning-after pill. . . .

* * *

Q (Wilkinson): That’s false advertising, isn’t it? It can be addressed in a variety of ways . . .

A (Counsel): It’s false. It is. . . .

As I’ve previously observed, the drift of this argument seemed to be that the case would be sent back for more discovery. If that happens, I would be surprised if Baltimore is able to show that any of the clinics regulated by their ordinance “have advertised that they do provide abortions, falsely.” As I read it, and as I suspect most other fair-minded readers would read it as well, the advertisement featured by counsel for Baltimore at oral argument does nothing of the sort.

In light of all this, it will be interesting, regardless of the outcome, to see what use the judges of the Fourth Circuit make of the record that is already before them.

[UPDATE: The companion case from Montgomery County has gone through discovery, although that record is not before the Fourth Circuit at this time. A link to the plaintiff's memorandum of law in support of summary judgment, which contains a discussion of the evidence in that case, is in the post above.]

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Anyone who has been on the receiving end of unsolicited communications from lawyers who don’t represent you knows that such missive can sometimes be a frightening thing. But not always. I am pleased to pass along a response by two Jones Day lawyers to arguments I set forth in a blog post about their amicus curiae brief in Standard Fire Insurance Co. v. Knowles a couple months ago (as well as to related arguments set forth in an amicus curiae brief opposing theirs). Their response does not change my assessment of the merits of their position, which I still find unpersuasive. But it’s a shrewd move on their part to continue the conversation. The first challenge of amicus curiae advocacy of the sort in which they are engaged is to get one’s arguments considered. These lawyers accomplished this in the first instance through a write-up in Alison Frankel’s “On the Case” column. Were it not for the fortuity of having a link to my post lingering at the top of Howard Bashman’s “How Appealing” for a time, I doubt many would have noticed my arguments about the position in their brief. But I suppose that is how the Internet works. In any event, I am happy to satisfy the Jones Days lawyers’ request to post this response. While I do not think that their position ought to prevail in Standard Fire, their firm is on the right side of the HHS Mandate litigation and I am grateful for that. Their full response is below. (more…)

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A couple paragraphs from an AP news story about same-sex civil marriages in Maryland show an inversion of the traditional understanding of church and state, whereby the church superintends the sacred and the state superintends the secular. Titled “Weddings abound as gay marriage becomes legal in Maryland,” the story describes wedding ceremonies between same-sex couples after explaining that Governor O’Malley pushed for legal recognition of same-sex civil marriage “against leaders of his Catholic faith” and the mayor of Baltimore opined on the relative sacredness of the resulting legal relationship:

The ceremonies follow a legislative fight that pitted Gov. Martin O’Malley against leaders of his Catholic faith. Voters in the state, founded by Catholics in the 17th century, sealed the change by approving a November ballot question.

“There is no human institution more sacred than that of the one that you are about to form,” Rawlings-Blake said during the brief ceremony. “True marriage, true marriage, is the dearest of all earthly relationships.”

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