The Volokh Conspiracy

There’s much speculation and debate over whether non-citizens and others who are ineligible vote in U.S. elections, but relatively few documented instances.    That makes this report by a local television station in Fort Myers, Florida all the more significant.  The station’s investigation uncovered nearly one hundred non-citizens who were registered to vote, and several admitted to have cast ballots.  The non-citizen voters were discovered because they said to be excused from jury service due to their lack of citizenship.  The question now is whether this report is symptomatic of a larger problem in Florida, if not elsewhere, or a relatively isolated problem.

Liberty Counsel points to these these excerpts of an interview with Justice Ginsburg on Egyptian television, and argues:

In a recent interview with Egyptian television, Supreme Court Justice Ruth Bader Ginsburg insulted the U.S. Constitution and advised Egypt to look somewhere else when drafting its own constitution. Justice Ginsburg was asked to give insight on this crucial topic for the post-Mubarak government but focused more on liberal human rights, rather than traditional American freedom.

When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, “I would not look to the US Constitution if I were drafting a Constitution in the year 2012.” Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, “I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution.” This directly refutes the U.S. Constitution’s relevance today.

For a United States Supreme Court Justice, entrusted with the duty to interpret the Constitution, this type of statement is unacceptable. Justice Ginsburg failed to respect the authority of the document that it is her duty to protect. When given the opportunity to promote American liberty abroad, Justice Ginsburg did just the opposite and pointed Egypt in the direction of progressivism and the liberal agenda.

Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, said, “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg’s comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?

To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis — the Civil War — for a long time, and of having produced a very rich and free country; that’s good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.

And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions — for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own states’ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn’t tell us that it would work well for Egypt for the coming years.

Nor do I think that there’s something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it’s just sensible and sensibly (not excessively or falsely) modest.

And, returning to my first point, none of this tells us whether Justice Ginsburg is committed to following the U.S. Constitution in the U.S. Maybe you think she is so committed and maybe you think she isn’t, but you’d have to figure that out from other sources than from the advice she gives to a different country about whether to adopt the constitutional text in a completely different political and legal requirement.

I’m on the run now, so can’t analyze it in detail, but I thought I’d pass it along: Gonzalez v. City of West Milwaukee (7th Cir. Feb. 2, 2012). Thanks to John Tuffnell for the pointer.

Philip Bobbitt is an old and dear friend, and I was privileged to meet his bride, the marvelous Maya Ondalikoglu, at a dinner in California last month.  This Above the Law story on the romance and wedding is not a gossip piece.  Professor Bobbitt agreed to be interviewed for the story, and it’s a quite lovely wedding announcement.  For those who don’t know Professor Bobbitt, take my word that the announcement he had wed took those of us who do know him, um, somewhat by surprise, save for the fact that the unexpected is so … so characteristically Philip Bobbitt. On behalf of the Volokh Conspiracy, congratulations and best wishes to the newly-weds.  Long life and happiness.

An interesting opinion in United States v. Stone (E.D. Mich. Jan. 30, 2012); this isn’t my field, so I can’t opine on it with confidence, but the decision strikes me as likely right. Here’s an excerpt:

On November 30, 2011, the Government notified Defendants that it intended to call an “Academic Expert,” Professor Michael Barkun, to testify concerning his research into conspiracy belief and theories. In response to Defendants’ motion to preclude Dr. Barkun’s testimony, the Government admitted that a hearing pursuant to Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ( “Daubert hearing”) was necessary to test the admissibility of Professor Barkun’s testimony.

Before the hearing, the Government provided Defendants with a longer, more concrete Rule 16(a)(1)(G) summary of Dr. Barkun’s proposed testimony, containing notice that Dr. Barkun will testify about conspiracy subcultures, beliefs and theories; and theories such as “stigmatized knowledge,” “New World Order” and the “Illuminati.” The Government also intends to ask Dr. Barkun questions to elicit conspiracy theorists’ beliefs about the history behind Federal Emergency Management Agency (“FEMA”) detention centers and the role of the internet in spreading conspiracy belief literature and thought. Dr. Barkun also plans to testify about significant events in conspiracy belief and how conspiracy theorists view these events. The events listed in the Rule 16 summary include: Ruby Ridge, Waco, the Oklahoma City bombing and the 9/11 attacks.

The Government states:

As he testifies about each of the concepts above, Professor Barkun will also be asked whether he has reviewed some of the materials seized during the search warrants executed at the defendants’ residences and some of the recorded conversations and whether this material is consistent with the conspiracy beliefs about which he is testifying. The government found a great deal of material in numerous locations which espouse these beliefs, shedding light upon the defendants’ intent and motive, as well as linking the co-conspirators to the goal of the charged conspiracy in Count One.

… Dr. Barkun’s testimony will not assist the jury, as required by Rule 702…. At the Daubert hearing, the Government insisted it would use Dr. Barkun’s testimony as evidence of Defendants’ “intent and motive” to forcibly and violently oppose the Government under the Seditious Conspiracy count. However, the Government failed to connect the proposed expert testimony to the issues in dispute under that count.

For instance, Defendants asked the professor whether there is any literature on what people who read the conspiracy belief books, charts and other items seized from some of the Defendants’ homes, do with the information contained there, i.e, whether studies demonstrate whether these individuals lead normal lives or act out violently pursuant to their beliefs. Dr. Barkun replied that he is not aware of such studies. Similarly, when asked whether it was possible to predict what a conspiracy theorist will ultimately do with his or her beliefs, Dr. Barkin admitted it was impossible to predict.

Continue reading ‘District Court Judge in Hutaree Case Rejects Government’s Conspiracy Theory Expert’ »

Fair Housing Council v. Roommate.com (9th Cir. Feb. 2, 2011) holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

The opinion is by Chief Judge Kozinski, joined by Judge Reinhardt. Judge Ikuta concurs as to federal law, but concludes that state law does apply to roommates; she would therefore remand for further briefing in district court on the constitutional question. Thanks to How Appealing for the pointer.

UPDATE: Link fixed, sorry about that.

Here’s my favorite comment on the FOXnews.com story about the holding of Jones, in which I pointed out that the Supreme Court opted not to rule on whether a warrant was required:

every common citizens KNOWS what the SCOTUS ruled. leave it to the know nothing know it all lawyers to think they’re better than you.

And I would have gotten away with it, too, if not for commenter Christopher K.

The Deseret News reports:

Former Naples Police Chief Steven C. Guibord is charged with criminal defamation, a class B misdemeanor, in Uintah County. Prosecutors allege that he used the name of the city’s current police chief [Mark Watkins] to post derogatory comments on the online memorial pages for the two fallen Border Patrol agents….

Guibord — posing as Watkins — posted comments on memorial pages for two Border Patrol agents that are offensive to law enforcement officers, according to state investigators….

Clark’s page on the Officer Down Memorial Page website included a comment attributed to Watkins that said, “I realize that the Border Patrol is just a security organization, but we, in the police services recognize your sacrifice.”

Rojas’ page contained a similar comment, also attributed to Watkins, that referred to the Border Patrol as a “security business.”

For those in the law enforcement community, being identified as a security guard is considered a serious insult….

The theory is that Guibord’s use of Watkins’ name — which essentially states to readers that Watkins posted the comments — is a knowing falsehood that injures Watkins’ reputation. One could argue that the falsehood isn’t defamatory, because a reasonable reader wouldn’t perceive the statements as that derogatory, and therefore wouldn’t have a dimmer view of Watkins. But given the audience, and the fact that Watkins is a police chief, I suspect that the attribution of the statements to Watkins would indeed injure Watkins’ reputation.

And if this is so, then the criminal libel prosecution would likely be permissible: Though Garrison v. Louisiana (1964) held that criminal libel laws must require a showing that the speech is a knowing or reckless falsehood, Utah Code § 76-9-404 — which says, “[a] person is guilty of criminal defamation if he knowingly communicates to any person orally or in writing any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule” — embodies such a requirement. (For more on this, see I.M.L. v. State (Utah. App. 2002), which struck down a different Utah criminal libel statute.) Though most states have repealed their criminal libel statutes, the remaining statutes, if sufficiently narrow (as Utah’s seems to be), are likely constitutional.

Thanks to Dan Laidman for the pointer.

I’ve been light on blogging for the past while, due to a relentless travel schedule and still-more relentless editors on several projects.  However, I did not want to let the day go by without congratulating my Beloved Wife, Jean-Marie Simon, for the online exhibition and commentary in the New York Times Lens photography blog today.  It’s an astounding number of photographs from a book forthcoming in Guatemala of photographs taken during that country’s 1980s civil war.  One interesting feature of this book is that it was produced with $20,000 raised from the crowd-sourcing fundraising site Kickstarter. Also, Beloved Wife, despite some initial skepticism when she began this project to republish her photographs from the 1980s, concluded that the book and photographs could be produced with as high or better quality in Guatemala.  The book by its nature is highly political; Beloved Wife covered a civil war, combat, many military and guerrilla operations, and the whole campaign of state terrorism and disappearances of that conflict; the photographs are sometimes graphic and violent.  Congratulations, Jean-Marie.

So concludes the Oregon Attorney General, in Op. 2012-1 (Jan. 19, 2012):

The requirement in ORS 475.323(2) to return marijuana likely is preempted by provisions of the federal Controlled Substances Act that prohibit the distribution and possession of marijuana….

Based on the reasoning in Emerald Steel [a recent Oregon Supreme Court decision], the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution…

Question …: Assume an individual is arrested and has a lawful amount of medical marijuana under Oregon law in his or her possession; the individual is lodged at the county jail; and the jail staff inventories and stores the individual’s marijuana along with the individual’s other personal possessions for safekeeping. If a jail staff member returns the marijuana to the individual upon the individual’s release from custody, does the jail staff member or the individual, or both, violate federal law?

Short Answer: Based on the reasoning in Emerald Steel, the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution. The recipient of the marijuana would violate federal law by possessing marijuana and also may be subject to federal criminal prosecution.

Sounds right to me, given the continuing federal ban on marijuana possession and distribution, with no medical marijuana exception. A state may, by excluding possession for medical purposes from state marijuana laws, choose to ignore medical marijuana possession (and distribution, to the extent that is legal under state law). But it can’t affirmatively give medical marijuana to someone, even in the process of returning the property to its owner.

Note: If you want to condemn — or praise — the AG’s analysis, please read the opinion first. The AG’s job, after all, is to describe what the law is, given the existing precedents, not to revert to first principles about what the law ought to be.

Here’s a revised version of an op-ed I published on the potential importance of the SOPA fight.  The original appeared in Hollywood Reporter (caution: paywall; free version is here)

What went wrong for SOPA, the entertainment industry’s proposal for stopping international piracy? And what does it mean for Hollywood’s future clout in Washington?

I had a ringside seat for the battle over SOPA, though not as a supporter.  I thought it would make Internet users more vulnerable to cybercrime. That was a problem that could have been fixed.  Instead, after a brief halt and some modest changes, the entertainment industry decided to press for a showdown.

And a showdown, of course, is what it got.

Why did it turn out so badly? The entertainment industry’s first mistake, then and now, is believing that its adversary is a group of other companies — Google, Internet service providers, and others — who are somehow hoping to profit from the Internet travails of the entertainment industry.

In fact, the industry is fighting what amounts to a new popular culture.

Unlike the old pop culture, this one is largely independent of the music, movie, and broadcast industries. In fact, people who spend hours on line instead of watching TV or going to movies will probably encounter the entertainment industry only when Youtube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood’s bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone.

To the entertainment industry these episodes may seem like collateral damage in the fight to stop piracy.  To the new pop culture, though, collateral damage and misuse of enforcement tools is everywhere, and it threatens everyone.  The content industry has made itself into the villain. Increasingly it looks like an occupying power; obeyed at gunpoint, despised for its hamhanded excesses, and resisted from every dark corner.  Unfortunately for the entertainment industry, as its customers migrate to the Internet, it loses not just their money but their hearts and minds as well.

The industry’s miscalculation about the source of the resistance to SOPA may have led to an even bigger mistake.  As long as the campaign for better IP enforcement was an inside-the-beltway, company-versus-company struggle, it could be fought within the Congressional judiciary committees, where both Republican and Democratic politicians were wooed and won as individuals. As a result, strengthening intellectual property enforcement has been a bipartisan issue for the last 25 years.  But when the fight went from the committees to the floor, and Wikipedia went dark, every member of Congress was expected to take a stand.

The two parties reacted very differently. Despite widespread opposition to SOPA from bloggers on the left, Democrats in Congress (and the Administration) were reluctant to oppose the bill outright. The MPAA was not shy about reminding them that Hollywood had been a reliable source of funding for Democratic candidates, and that it would not tolerate defections.

But that very public message also reached another audience: Tea Party conservatives. Most of them had never given a second’s thought to intellectual property enforcement before coming to town. But many had drawn support from conservative bloggers.  They began to ask why they should vote against their Internet supporters to rescue an industry that was happily advertising how much it hated them. Pretty soon, far more Republicans than Democrats had bailed on SOPA, and the Republican presidential candidates had all come out for what they called “Internet freedom.”

That’s what really ought to worry the entertainment industry. For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars, and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley.

We’ve seen this movie before.  Immigration reform and the DREAM Act, free trade agreements, and the USA PATRIOT Act all commanded impressive bipartisan support. For a while. Now, not so much. Bills on these topics still come to the floor, and they sometimes even pass, but only after endless partisan point-scoring and amendments driven by talk radio and mass email. The same could soon be true of intellectual property enforcement.

With SOPA, the entertainment industry pushed a generation of Republicans into choosing sides between Hollywood and the Internet.

They may never look back.

While I’m on the subject, talk about culture clash: I’ve written two SOPA op-eds, for Politico and Hollywood Reporter, and both have been put without notice behind paywalls. That’s never happened to me before, and it seems a little odd. Sure, it must sound good to the publishers, at least for a while.  But they aren’t paying op-ed contributors in gobs of cash, or in massive circulation.  They’re giving circulation to the contributors’ ideas.  Or not, in the case of the paywalled publications.

Contributors who actually care about communicating to the public have to wonder why they should offer content to an outlet with such a policy.  That only makes sense to contributors who have a strong reason to communicate just to the elite audience that pays to get these highly specialized publications — lobbyists or studio execs in the case of Politico and Hollywood Reporter. It makes sense, in other words, only to contributors who see their op-eds as an alternative form of targeted advertising.

Nothing wrong with that, either, except that it means the subscribers who pay for the publications have to read even the op-eds with their hands on their wallets, wondering, “Now why did he want me, and only me, to read that?” Ironically, then, in the long run the paywalled op-eds are less valuable than op-eds that appear for free.

UPDATE: The Hollywood Reporter assures me that the paywall is temporary — likely to last only a day or two while they’re promoting the new issue.  So, uh, never mind.  When the public link is available, I’ll add it.

UPDATE 2: Done.

Because of numerous conflicting commitments, I have not blogged as much as I would have liked over the last two weeks. In addition, blogging has been impeded by the fact that our recent transition to a new platform has (hopefully only temporarily) wrought havoc with the VC archives. I rely heavily on links to old posts in many of my new ones, so as not to have to repeat in detail in-depth arguments that I have already made elsewhere. We hope to have these issues resolved soon, and then I have a large number of topics I intend to get to. So please bear with me for what I expect will only be a brief additional delay.

FoxNews.com reports that legal experts are divided on whether United States v. Jones requires a warrant to install a GPS device:

Most media reports of the Supreme Court’s decision said the court was requiring police to obtain warrants for attaching GPS devices.

But several experts argued that the court had not in fact ruled that a warrant is now required.

“The court merely held that the installation of the GPS was a Fourth Amendment ‘search,’” George Washington University Professor of Law and computer law expert Orin Kerr wrote on The Volokh Conspiracy website.

“The court declined to reach when the installation of the device is reasonable or unreasonable. So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment ‘search.’”

But other experts have said the court did create a warrant requirement for installing GPS devices. They point to past Supreme Court rulings that held that all Fourth Amendment searches require warrants unless the police action meets a specific and well-delineated exception.

These scholars say that because the court did not create an exception for GPS searches, those intrusions therefore require a warrant.

“Orin Kerr would probably not say that you don’t need a warrant to break down the door of someone’s house,” Priscilla Smith, who is a senior fellow at the Yale Law School Information Society Project, told NewsCore. “He would say you do need one unless one of the exceptions apply. Same is true here.”

Other scholars had views that fell somewhere in between those of Kerr and Smith.

University of Iowa Law School Professor of Law James Tomkovicz told NewsCore that the Supreme Court “dodged” the warrant issue, but said it would be very difficult to persuade courts in the future that police do not need warrants to install GPS devices on automobiles.

“It would be pretty unprecedented for the court to call it a search and then turn around and say you don’t need a warrant or you don’t even need probable cause,” Tomkovicz said.

Lawrence Muir, who teaches a cybercrimes seminar as an adjunct professor at Washington and Lee University School of Law, said that police are now generally required to obtain warrants for GPS attachments after Monday’s decision.

Two thoughts in response. First, to the extent anyone really claims that Jones ruled on whether the police must obtain warrants, the text of the opinion clearly indicates to the contrary:

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D.C. Circuit therefore did not address it. See 625 F.3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (2002).

The D.C. Circuit concurring opinion referenced above notes that “because the Government did not argue the points, the court did not decide whether, absent a warrant, either reasonable suspicion or probable cause would have been sufficient to render the use of the GPS lawful[.]” Maybe I lack creativity, but I cannot see how anyone — much less an expert — can read the Supreme Court’s discussion here as a ruling that a warrant is required to install a GPS device.

Second, I’m puzzled by the claim that a warrant is obviously or very likely required for GPS surveillance because the Fourth Amendment requires warrants for home searches. The police install GPS devices on cars, not homes. Sure, the Fourth Amendment requires warrants to search homes. But the Supreme Court has always treated searches of automobiles quite differently. The unbroken rule from the first automobile case in 1925 to the present is that searching an automobile requires probable cause but does not require a warrant. This is known as the “automobile exception” to the warrant arequirement.

The Court has justified the different treatment of cars on two grounds. First, cars can be quickly moved. By the time an officer obtains a warrant to search a car, the car might be outside of the court’s jurisdiction; if the car is outside the court’s jurisdiction, the car can’t be searched either as a matter of law or fact. As the Supreme Court recognized as far back as 1925, in language that it has repeated since:

[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Carroll v. United States, 267 U.S. 132, 153 (1925).

The second justification for treating automobile searches differently than home searches is that while searching a car is still a search, cars are simply less private than homes.

Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate’s prior evaluation of those facts.

In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.

California v. Carney, 471 U.S. 386 (1985) (internal quotations and citations omitted).

So let’s return to Jones. The Jones majority opinion argues that installing the device with intent to use it constitutes a search of the car. That’s the traditional set of circumstances that trigger the automobile exception. And the rationale of the automobile exception plausibly applies here, too. If the police delay to get a warrant, the car known to be in one place today might be lost tomorrow. A car in one jurisdiction today can be driven outside the court’s jurisdiction in minutes or hours. And if it is a reasonable search to break open a car’s trunk and rifle through a suspect’s private stuff without a warrant, why isn’t it a reasonable search to attach a device to the outside of a car’s frame? Isn’t the placing of the device on the outside of the car less invasive than rummaging through a suspect’s personal items stored in the locked trunk?

To be clear, I’m not arguing that the automobile exception definitely applies to the installation of a GPS device. You can make arguments that it does not.** Maybe those arguments will carry the day, maybe they won’t. But it seems mistaken to me to suggest that the relevant Fourth Amendment precedents strongly point to requiring a warrant to install a GPS device. Under the automobile exception to the warrant requirement, that’s not where the relevant precedents most naturally point.

_______________
** For example, in his opinion concurring in the denial of rehearing en banc, Judge Ginsburg briefly suggested two reasons why the automobile exception didn’t apply. First, Jones’s car was not “readily mobile”; second, the automobile exception only applies to searches for contraband. As for the first reason, it’s hard to know why: If the motor home in Carney was deemed readily mobile, I don’t know why Jones’s car wasn’t, as well. As for the second reason, it”s true that the early cases did limit the automobile exception to contraband instead of mere evidence. But as the Sixth Circuit noted in United States v. Kemper, 503 F.2d 327 (6th Cir. 1974), this limitation reflected the “mere evidence rule” later overturned in Warden v. Hayeden (1967), and is hard to justify post-Hayden. See Kemper, 503 F.2d at 331 (“While it could initially have been said that Carroll is applicable to the search for and seizure of contraband only, the demise of the ‘mere evidence’ rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), would suggest that the distinction between contraband and instrumentalities, on the one hand, and mere evidence on the other, would no longer be a valid limitation on the automobile exception.” See also Arizona v. Gant, 556 U.S. 332 (2009) (articulating the automobile exception as being that”[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, [the automobile excerption] authorizes a search of any area of the vehicle in which the evidence might be found.”) (emphasis added). In my view, a better argument that the automobile exception doesn’t apply would start from the point that the kind of information revealed by GPS surveillance is not information about the inside of the car, but rather about its public location. You could then try to argue that the automobile exception should apply only when the relevant information involves the former not the latter. This isn’t an easy or obvious argument to make, but it might go somewhere.

Here’s another London School of Economics Students’ Union resolution:

Union believes …
3. Anti-Semitism includes but is not limited to:
* Denying, trivializing and misconstruing the Nazi Holocaust. This includes denying the fact, scope, method, or motivation for the genocide of 6 million Jews at the hands of the National Socialist regime. It also includes the accusation that Jews or the state of Israel have fabricated, cause or over-exaggerated the Holocaust.
* Calling for, aiding or justifying the killing or harming of Jews for the sake of their Jewish religion, ethnicity or identity.
* Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such. This includes accusations of Jewish control of the world, government, media, as well as blaming Jews for imagined and real atrocities.
* Questioning the loyalty of Jews to their nation of citizenship simply on the basis of their Jewish identity. This includes claims that Jews as a collective or a community subvert or mislead the general population, as well as the claim that Jews are more loyal to the state of Israel than their country of citizenship.
* Claiming that Jews do not have the same rights as any other ethnic group. This includes the right to free speech, free practice of religion, free use of native languages (i.e. Hebrew, Yiddish, Ladino, etc.) and self-determination.
* Equating Jews or maliciously equating Jewish Foundations of the state of Israel with the Nazi Regime. This includes, but is not limited to equating Zionism with Nazism and claiming that ‘History is repeating itself’ with regards to the Nazi Holocaust and the state of Israel. This also includes using Jewish symbols and religious imagery alongside Nazi symbols and imagery. This does not necessarily include analogies between historical events.
* Using Jewish symbols to antagonize, harass, and intimidate Jewish students.
4. Legitimate criticism of the Israeli government and its actions are not inherently anti-Semitic.

Union resolves …
2. To ensure all anti-Semitic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the school and, if appropriate or requested by the victim, the Metropolitan Police.

Now apparently LSE students are supposed to be “dealt with swiftly and effectively” for analogizing Israeli conduct to the Holocaust, or claiming that Israel shouldn’t exist (since I take it that this would be seen as denying Jews’ “self-determination”), “blaming Jews for imagined and real atrocities,” “using Jewish symbols to antagonize … Jewish students,” or claiming that Jews are generally more loyal to Israel than to their country of citizenship. As it happens, I think that such speech is generally bunk. But the point of Western universities, it seems to me, is to be places where bunk can be debunked — not “dealt with swiftly and effectively” through administrative sanctions (or, “if appropriate or requested by the victim,” by the police), including when it isn’t even said in university programs but “online” “by LSE students.”

The Carolina Journal has published a new review, by George Leef.  He concludes his favorable review by opining that “Rehabilitating Lochner is a sharp and iconoclastic work of scholarship.”

To read the review, go to this link, click on the February 2012 issue, and go to page 20.  Links to other reviews available online can be found here.

So holds Galbreath v. City of Oklahoma City (W.D. Okla. Jan. 27, 2012), holding that the plaintiff “faces a credible threat of future prosecution” and thus has standing to seek an injunction against the ordinance’s application to cross-dressing. The plaintiff had been arrested for disorderly conduct before — apparently with little basis, other than being a pretty obvious cross-dresser — and the charge was eventually dropped.

I should note that I’m skeptical of the claim that either a man or woman is likely to be “doing [one's] morning exercises” when wearing shoes with a 2.5 inch heel, though that surely doesn’t mean that the plaintiff was indeed guilty of disorderly conduct.

That’s what the London School of Economics Students’ Union — as best I can tell, the British equivalent of a student government here in the U.S. — resolved, with Islamophobia defined to include “hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred.” Here’s the resolution:

Union believes
1. In the right to criticise religion,
2. In freedom of speech and thought,
3. It has a responsibility to protect its members from hate crime and hate speech,
4. Debate on religious matters should not be limited by what may be offensive to any particular religion, but the deliberate and persistent targeting of one religious group about any issue with the intent or effect of being Islamophobic (‘Islamophobia’ as defined below) will not be tolerated.
5. That Islamophobia is a form of anti-Islamic racism.

Union resolves
1. To define Islamophobia as “a form of racism expressed through the hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur’an as a manual of hatred”, …
4. To ensure that all Islamophobic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the School ….

Here’s the problem: What does it mean to “believe[]” “in freedom of speech,” if you can’t express your view that the Koran is a manual of hatred, or that Islam — or Catholicism or Scientology or atheism or any other belief system — should be hated or feared? How you can have a sensible “[d]ebate on religious matters” about the worth or dangerousness of these belief systems if the view that some of the systems are evil is “dealt with swiftly and effectively” by the School and its student government?

Greg Lastowka points to a very interesting new decision of the Supreme Court of the Netherlands on whether a theft of virtual goods in a virtual world game can be a subject of a real-world theft prosecution. Here’s the Google Translate version of the summary of the decision:

Virtual amulet and mask in the online game Runescape can be regarded as ‘good’ in the sense of Art. Sr and 310 are susceptible to theft. Suspect and co-defendant forced the victim to violence and threats of violence to login to his account in the online game Runescape and virtual objects to leave (dropping) in the virtual game environment. The suspect was then the virtual amulet and mask to transfer to his own Runescape account, making the victim the power to dispose of these objects is lost. These virtual objects, which the actual victim and exclusive sovereignty had had for him, suspect and his accomplice a real value. In light of the intent of the legislature to the disposal of the holder of a ‘good’ protection, and the earlier case as including non-physical objects can fall, the Supreme Court held that the virtual nature of the objects itself does not preclude the state to be regarded as good in the sense of art. Sr. 310. The mere fact that an object also has properties of ‘data’ in the sense of Art. 80quinquies Sr. does not mean that this object has therefore not as good in the sense of art. 310 Sr can be considered. In borderline cases where non-physical characteristics of both a business ‘good’ as ‘data’ show, the legal interpretation depending on the circumstances of the case and their valuation by the court. The complaint that the removal of the virtual property of another is precisely one of the goals of the game Runescape is bounce up to it that the rules do not provide the suspect and his accomplice followed method of removal.

For the full decision as translated by Google, go here and scroll down a bit.

I posted a reader poll yesterday on the video of the U.S. Park Police officer tasing an OccupyDC protester, and the responses are fascinating. With about 2,000 votes, opinion is almost exactly evenly divided. 43% say the officer acted appropriately; 41% say the officer did not act appropriately; and 16% say that they need more information before deciding. The comment thread is equally divided, with over 300 comments so far.

Why is opinion so divided? My pet hypothesis is that most people recognize two competing narratives when it comes to police-citizen interaction. The first narrative is what you might call the equality narrative. The equality narrative posits that the police are just citizens who happen to wear uniforms, and they have no more right to get their way than anyone else. If an officer asks a person questions, for example, he doesn’t have to respond. Unless the officer orders him to stay put, he can walk away.

The second narrative is what I’ll call the inequality narrative. The inequality narrative posits that the police have special authority by virtue of being police officers, and that people interacting with the police have to recognize that special authority and should expect trouble if they don’t. If an officer decides to make an arrest, for example, the subject of the arrest can’t just decide he would rather not be arrested and try to resist the officer’s efforts.

The key to these two narratives is that they’re both true — at times. The equality narrative is often true. In some circumstances, the police have no more power than anyone else. The inequality narrative is also often true. In other circumstances, the police do have the power to use force to overcome the resistance of individuals who may not want to do what the police want.

The OccupyDC taser video is particularly interesting because it starts midway through the scene. The offense that triggered the officers’ approaching the suspect (tearing down the notices) is minor. The video therefore presents a circumstance in which viewers can reasonably differ as to whether we should be in the equality-narrative zone or the inequality-narrative zone. As a result, different viewers fill in the uncertainty by just picking a narrative. In general, those who are more distrustful of the police pick the equality narrative. They interpret the officers’ conduct as bullying. In their view, grabbing the protester was an act of thuggery. Those who are less distrustful of the police generally pick the inequality narrative. They see the protester as practically asking for an elevated use of force by resisting the officers’ efforts to arrest him, and they see the officers as acting appropriately in response.

The Daily Mail (UK) reports:

Two British tourists were barred from entering America after joking on Twitter that they were going to ‘destroy America’ and ‘dig up Marilyn Monroe’.

Leigh Van Bryan, 26, was handcuffed and kept under armed guard in a cell with Mexican drug dealers for 12 hours after landing in Los Angeles with pal Emily Bunting.

The Department of Homeland Security flagged him as a potential threat when he posted an excited tweet to his pals about his forthcoming trip to Hollywood which read: ‘Free this week, for quick gossip/prep before I go and destroy America?’ …

Leigh was also quizzed about another tweet which quoted hit US comedy Family Guy which read: ’3 weeks today, we’re totally in LA p****** people off on Hollywood Blvd and diggin’ Marilyn Monroe up![']

A New York Times blog post suggests the story is indeed correct, and quotes a Customs and Border Protection response that seems to acknowledge at least some details.

If the facts described in these stories are correct, this strikes me as a pretty unsound decision on the government’s part. To be sure, the government has broad authority to exclude people from the country, even based on their speech — see Kleindienst v. Mandel (1972) — and the authority would be properly exercised for people who really do seem to be threats. But I don’t see the reported Twitter messages as being an adequate basis (again, if they were the extent of the basis) to justify the government’s decisions here. Likewise, while I realize that when someone is excluded from the country they have to be held somewhere until they can leave, locking them up with people who likely genuinely are serious criminals strikes me as improper treatment.

UPDATE: I erroneously faulted TSA for the actions here — the agency involved was Customs and Border Protection, which is also part of the Department of Homeland Security. My apologies for the error, and thanks to commenter Decius for the correction.

The New York Times reports:

[M]any in Tunisia, both pious and less so, were taken aback by the brief scene in which God was personified — speaking in Tunisian slang no less. A week later, a crowd of Salafis — the term used for the most conservative Islamists — attacked the house of Nabil Karoui, the station’s director, and he was soon charged with libeling religion and broadcasting information that could “harm public order or good morals.”

The trial, which Human Rights Watch called “a disturbing turn for the nascent Tunisian democracy,” was originally scheduled for Nov. 16, then postponed until January [and has since been postponed again, until April].

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Yesterday afternoon, at the OccupyDC protest in Washington, DC, a police officer tased a protester. As I understand it, the police were putting notices around the protest site that all camping supplies had to be removed because the site was no longer going to be made available for the protest. A protester in a red shirt proceeded to tear down the notices after the police left them, and he is heard screaming at the police: “Let them clean up the trash in the fucking parkway! It was your fucking trash, you fucking pigs!” The police then walked after the protester, who ran away from the police. A bunch of officers then surrounded the man, who started repeating that he had done nothing wrong. Two officers then went to grab him, but he resisted; after he continued to resist, a third officer tased him. Here’s the video:

And here’s the question, which you should answer only after having watched the video:

If anything is clear from the Supreme Court’s decision last week in United States v. Jones, it’s that not very much is clear from the Supreme Court’s decision in United States v. Jones. Reading over the commentary on Jones both in the print media and on blogs, I think I’ve seen just about every reaction (at least from enthusiasts of greater privacy, from which the commentariat is almost exclusively drawn). My favorite analysis so far is this new post from Tom Goldstein. I think it’s a real gem. But it’s only one view among many as to what the case means.

Why is Jones such a puzzling decision? I think there are two major reasons. First, Justice Scalia creates a new test for Fourth Amendment searches without being fully candid that he’s doing something quite new. Trespass has long been relevant to the Fourth Amendment search inquiry, to be sure. But the Court never embraced a straight trespass test, and even in the old days deviated from it (see Boyd, McGuire, etc). So this test is new. And yet Scalia writes his opinion as if a well-established trespass test existed that he is returning to, and that returning to it is some sort of obvious step. The disjunct between Scalia’s doctrinal innovation and his apparent incredulity that anyone could find his opinion confusing makes for some very strange reading.

For example, if you want to understand the new trespass test, you mostly have to read the footnotes — especially footnotes 3 and 5, which are responses to Alito’s concurrence. Here, though, Scalia is so dismissive of Alito’s critique that it’s hard to know why Scalia sees Alito’s questions as so obviously answered. Scalia is the one who is introducing a new test; presumably he’s the one who knows what the new test will look like. But these footnotes are filled with phrases indicating tremendous certainty: “no doubt,”"quite irrelevant,” “undoubtedly occurred”, “undoutedly true, but undoubtedly irrelevant,” “similarly irrelevant,” etc. Such certainty makes it hard to know what principle Scalia is applying that makes him so certain he’s right.

The second reason Jones is so confusing is that Justice Alito spends only a single paragraph of his 14-page opinion explaining how he would resolve the Jones case. Most of his opinion is spent criticizing Scalia’s test in great detail. Alito makes some very good points in that section, I think. But we only get to how Alito would resolve the case in the middle of page 13, near the end. And in that one paragraph, Alito is surprisingly unclear as to what he is doing. Without giving the issue any analysis, Alito seems to assume that the reasonable expectation of privacy test is simply about what privacy a hypothetical reasonable person would think — a common error, as I have noted — and then he just says that this case has gone too far, in his view.

But the reader is left uncertain as to why. Is Alito embracing the DC Circuit’s novel “mosaic theory”? If so, isn’t such a revolutionary change in Fourth Amendment doctrine worth a bit of explanation? (Or does Alito not recognize the revolutionary nature of that approach?) And if the line is to be drawn, where and why? Like Justice Scalia, Alito uses a statement of judicial certainty as a substitute for analysis: “the line was surely crossed before the 4-week mark,” he says, emphasis added, with no explanation of why that is sure.

I don’t mean to be too critical of the Justices here. They’re generalists, not Fourth Amendment nerds. But I think these characteristics of the Jones opinions make the decision a Rorschach test. You can read the opinions in many different ways depending on what you want to read into them. And I think that explains why the commentary about Jones is all over the map.

This is the conclusion of the U.S. Court of Appeals for the Sixth Circuit in an interesting case, United States v. Carroll, in which the United States sought to invoke its sovereign immunity in a suit in which it is the plaintiff.  To make matters more interesting, the U.S. was suing the bankruptcy trustees of the Eastern District of Michigan in their official capacities.  And were that not enough, the Sixth Circuit dismisses the case because the federal government lacks Article III standing to bring its claims against these parties.  I think I spy a Federal Courts exam question in here somewhere.

Actually, it’s not quite that simple, but close. David Kernell hacked then-Governor Sarah Palin’s Yahoo e-mail account, and was subsequently convicted under 18 U.S.C. § 1519, a provision of the Sarbanes-Oxley Act of 2002, for deleting information on his computer in order to impede the investigation into his accessing of Gov. Palin’s account. Today, the U.S. Court of Appeals for the Sixth Circuit affirmed Kernell’s conviction, rejecting his claim that Section 1519 is unconstitutionally vague.