FIRST ONE @ ONE FIRST

Two Vacancies this Summer?

Posted in Clairvoyance by Mike Sacks on February 4, 2010

ABC’s Ariane de Vogue writes:

Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring.

Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.

I do believe Stevens will retire and that Judge Diane Wood will be his nominated successor.  But I deeply question that Ginsburg intends to step down.  As National Law Journal’s Tony Mauro reported a little over a year ago (and, due to a paywall, as conveyed by the WSJ Law Blog):

Not so fast, says Mauro. “If anyone asks you, ‘When is she retiring?’ ” Ginsburg reportedly said at a law clerks’ reunion last June, “tell them I have a great role model in Justice [John Paul] Stevens, who is going strong at age 88.” Ginsburg, 75, would have to sit on the bench until 2021 to match Stevens’s tenure.

However, Ginsburg’s health scares since then, including pancreatic cancer and a spill on an airplane, may have changed her mind.  If so, I submit the following prospects:

After Obama’s firefight with the GOP over the very liberal and quite white Judge Wood, he will send up a moderate/center-left nominee of color. Hence Ward, Katyal, and Koh.

Because Breyer will remain on the bench if Ginsburg retires, there will be no need to fill the “Jewish seat.”  That puts Kagan, Sunstein, and Waxman on the back burner for the third vacancy.  And only Kagan will be young enough to be nominated by then, given the present robustness of the other justices in the over-70 club (Scalia, Kennedy, Breyer).

Patrick is at the bottom because he is running for reelection this year and I believe Obama will choose a black woman before he puts another black man on the Court.  After all, I think Obama himself may be the Court’s third male African-American justice after he leaves office.

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UPDATE: Since this writing, I’ve been somewhat disabused of my Harold Koh suggestion.  Let me offer Denny Chin and Goodwin Liu as two other possible Asian-American nominees for when Ginsburg steps down NOT this summer.

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INTERNET OBSCENITY!

Posted in Clairvoyance by Mike Sacks on February 3, 2010

Supreme Court bar, start your search engines and take off the SafeSearch: the Ninth and Eleventh Circuits have split over how prudish First Amendment law must be towards Internet obscenity.

The Court’s obscenity jurisprudence has stood largely frozen and rigid since 1973, when, in Miller v. California,  it resolved its previous fifteen years of doctrinal disarray into a three part test to determine whether material is obscene:

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest [citation omitted]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Miller test’s first prong has since been interpreted as requiring juries to apply local community standards.  Although this test was more conservative than the Court’s pre-1973 obscenity jurisprudence–see, e.g., Justice Potter Stewart’s “I know it when I see it” test–it was tailored to the times: a pornographer would send a film reel or a magazine by the mails to a particular recipient in a particular district.

Problem is, in the Internet age, speakers post their thoughts on the Web and then relinquish control over where the material is delivered.  Yet under Miller‘s extant local community standards prong, prosecutors may charge Internet pornographers in federal courts in districts where communities are more likely to rule indecent material criminally obscene.

The Bush Administration took full advantage of such forum selection when it chose to resurrect federal obscenity prosecutions after two terms of Clinton-era desuetude.  There have been four big cases to rise out of the Bush-era prosecutions.  One recently yielded a guilty plea after protracted litigation in the Third Circuit.  Another may be coming to trial in the D.C. Circuit.  The Ninth and Eleventh Circuits, however, have made their decisions, forcing a circuit split over community standards for the Internet–a topic to which the Supreme Court in 2002 signaled its receptivity.

In late October, the Ninth Circuit, in United States v. Kilbride, held that juries must apply national standards when assessing Internet obscenity, even for the sexually explicit spam emails sent by the defendants.  To reach this determination, the panel relied on the separate opinions of six justices in the Supreme Court’s 2002 Ashcroft v. ACLU decision.  In dicta, Justices O’Connor, Breyer, Kennedy (joined by Souter and Ginsburg), and Stevens all took turns expressing their doubts about the constitutionality of requiring juries to apply local community standards.  O’Connor and Breyer went so far as to endorse the use of national standards.  Here’s O’Connor:

To be sure, the Court in Miller also stated that a national standard might be “unascertainable,” 413 U.S., at 31, and “[un]realistic,” id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people, see U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 23 (120th ed. 2000) (Table 20)) and diverse State that includes both Berkeley and Bakersfield. If the Miller Court believed generalizations about the standards of the people of California were possible, and that jurors would be capable of assessing them, it is difficult to believe that similar generalizations are not also possible for the Nation as a whole. Moreover, the existence of the Internet, and its facilitation of national dialogue, has itself made jurors more aware of the views of adults in other parts of the United States. Although jurors asked to evaluate the obscenity of speech based on a national standard will inevitably base their assessments to some extent on their experience of their local communities, I agree with Justice Breyer that the lesser degree of variation that would result is inherent in the jury system and does not necessarily pose a First Amendment problem. See post, at 2. In my view, a national standard is not only constitutionally permissible, but also reasonable.

The Ninth Circuit determined that Ashcroft‘s concurring and dissenting justices’ dicta on community standards were enough guidance to blaze new constitutional ground.

Today, however, in United States v. Little, the 11th Circuit disagreed:

Appellants argue that the district court should have applied a national or Internet community standard rather than the local community standard of the Middle District of Florida. In support of this argument, Appellants rely heavily on the concurrences and dissent in Ashcroft, 535 U.S. 564, 586-612, 122 S. Ct. 1700, 1714-1728 (2002). Recently, the Ninth Circuit interpreted Ashcroft in such a way as to mandate a national community standard for Internet-based material. United States v. Kilbride, 584 F.3d 1240, 1252-54 (9th Cir. 2009). We decline to follow the reasoning of Kilbride in this Circuit. The portions of the Ashcroft opinion and concurrences that advocated a national community standard were dicta, not the ruling of the Court.

As a result, the Miller contemporary community standard remains the standard by which the Supreme Court has directed us to judge obscenity, on the Internet and elsewhere. The district court did not err when it instructed the jury to judge the materials on the basis of how “the average person of the community as a whole—the Middle District of Florida—would view the material.”

With the split now wide open, one could safely assume that at least four of the still-sitting, separately-writing Ashcroft justices would vote to grant certiorari so to align the Court’s obscenity doctrine with the times.   Still, even if the Court would grant certiorari and resolve the split in favor of the Ninth Circuit’s national community standards for Internet obscenity, it is not at all fait accompli that the Court will endorse the Ninth Circuit’s reasoning.  The panel employed what may be considered overzealous methodology in gleaning conclusive guidance out of concurring and dissenting dicta.  Further, the panel lumped email, which is sent by specific distribution analogous to that of Miller‘s time, into Ashcroft‘s concern about the Web’s indiscriminate dissemination.

Nevertheless, I predict that these cases are ripe for Supreme Court review.  Now which one of you Supreme Court advocates needs help with the cert petition?

UPDATE: Aw shucks.  The Eleventh Circuit’s opinion possesses the header that “This case was not selected for publication in the Federal Reporter.”  Boooo!  If the Eleventh Circuit was trying to dodge the cert process, there still remains hope.  The Ninth Circuit may still find itself sufficiently split with 2005’s Extreme Associates in the Third Circuit, 1996’s United States v. Thomas in the Sixth Circuit, or perhaps the pending case at the D.C. District Court if it makes its way up to the D.C. Circuit.

UPDATE II: Prof. Eugene Volokh wonders why the Eleventh Circuit chose to keep Little unpublished and whether it or Kilbride may still go up to the Court:

[I]t seems odd that the Eleventh Circuit’s opinion — which apparently considered this argument for the first time in that circuit, and which expressly rejected the reasoning of the one precedent on the subject from another circuit — was unpublished.

Unpublished opinions deliberately lack binding precedential value, and are generally intended to limit their own value as persuasive precedent as well (though the ultimate estimation of such persuasive value is of course in the eyes of a future court). It seems to me that they should be reserved for areas where more precedent is unhelpful, chiefly because there already is plenty of precedent in the jurisdiction on the subject. So it’s hard for me to see why this opinion, which is certainly quite detailed should be unpublished.

Note that there won’t be a cert petition from the government challenging the Ninth Circuit’s national-standard holding in Kilbride, since the conviction there was affirmed on harmless error grounds. The government won on the bottom line, and thus can’t petition for certiorari, even if it dislikes the court’s reasoning. (It could have petitioned for rehearing en banc, but despite two requests for extension of time to file a petition for rehearing, the government ultimately decided not to petition.)

There might well be a cert petition in the Eleventh Circuit case, though. I wonder to what extent the Court will see this case as practically involving a circuit split, even though technically there is no disagreement between the precedent in the two cases. Supreme Court Rule 10(a), for what it’s worth, notes that one important factor in favor of granting certiorari is that “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.”

UPDATE III: Scott Gant, partner at Boies Schiller and author of We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age, passed along a 2006 Boston College Law Review article he wrote on unpublished circuit court opinions.  On page 729, he writes of Supreme Court review:

One might also expect unpublished opinions rarely, if ever, to be the subject of Supreme Court review. Yet the Court has elected to review dozens of unpublished appeals court opinions, in many cases reversing the court’s decision.  Still other cases involve circuit splits, where at least one of the court of appeals decisions addressing the disputed issue was unpublished.

In his footnotes to the above text, he lists twelve cases, many of which from the past ten years, to support his assertion.   So my offer is back on: any Supreme Court advocates want some help writing a killer cert petition?


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Whitehouse.gov Gets Obama’s Back in SCOTUS Spat

Posted in Supreme Conflict by Mike Sacks on February 1, 2010

Norm Eisen, Obama’s Special Counsel for Ethics and Government Reform, counters Alito’s “not true” regarding foreign corporate money in American elections:

We noted with interest reports that subsidiaries of foreign corporations from across the globe have launched a lobbying campaign in Washington to protect their newfound power to influence American elections under theCitizens United case.  About 160 of these U.S. subsidiaries of foreign-owned or controlled corporations are involved in a lobbying group trying to stop President Obama and Congress from enacting limits on their spending in political campaigns.  Worse still, the lobbyist leading the effort refused to disclose all the companies involved in the lobbying campaign.  But it appears that the group of companies has the potential to spend hundreds of millions of dollars to influence American elections. [...]

Some have argued that Citizens United will not increase foreign influence, but they are mistaken.  The four Justice dissent, authored by Justice Stevens, specifically pinpoints the fact that the majority opinion opens the door to foreign influence — see page 33 and page 75.   The majority openly acknowledged that foreign influence could pose a potential issue here, as did the lawyer for Citizens United. [...]

Others assert that subsidiaries of foreign companies already spend millions on independent expenditures and so the Citizens United decision will make no difference.  That misses the point.  The electioneering communications law that was struck down restricted corporate ads naming elected officials in the crucial 60 days before general elections and 30 days before primary elections.  Now those corporations can spend freely on those ads during the most critical periods in elections and the express message can be to vote for or against a named candidate.  That constitutes an enormous expansion of corporate power to influence elections.

Others claim existing law is sufficient to protect against foreign influence in our elections. That too is wrong.  Although the Federal Election Commission (FEC) restricts foreign nationals from spending or directing spending in American elections, it does not prohibit corporations in which foreign nationals are shareholders or hold significant sway or de facto control from making such expenditures.  For example, foreign-controlled corporations making independent expenditures cannot be relied upon to make decisions contrary to the political interests or preferences of their owners.  Before Citizens United, these problems did not exist at the federal level since the corporations themselves were limited in what they could do regardless of whose money or influence was behind them.  But now that restriction is no more.  Accordingly, because of these realities of how foreign control can operate, a stronger rule is needed to protect our domestic politics from foreign influence.

Fleeting Bleeplatives @ The Grammys?

Posted in Clairvoyance by Mike Sacks on February 1, 2010

Tonight Lil’ Wayne, Eminem, Travis Barker, and the atrociously autotuned Drake performed “Forever” at the Grammys.

Starting just before two minutes into the above video, you will notice unnecessarily long patches of silence during the song.  I’m not familiar with the song they played, so I do not know if the silences were technical difficulties or in response to expletives in the lyrics.  But if expletives were indeed getting blanked out, then perhaps CBS was ultra-conspicuously responding to past incidents that led to last term’s Supreme Court case, FCC v. Fox Television Stations.

At issue in FCC v. Fox was whether the FCC irrationally changed its policy on broadcast indecency to punish previously uncovered “fleeting expletives” on radio and television.  The FCC’s changes were in response to complaints against Fox’s broadcasting Cher’s F-Bomb at the 2002 Billboard Music Awards, Nicole Richie and Paris Hilton’s S-Word at the next year’s award show, and NBC’s broadcasting Bono’s F-Bomb at the 2004 Golden Globes.  Following the doctrine of constitutional avoidance, the Court, splitting 5-4 for the conservatives, avoided the First Amendment question to hold that FCC’s regulation was not arbitrary and capricious.  The case, however, could be back up to the Court next term: on remand, the Second Circuit heard argument on January 13 over the regulation’s constitutionality under the First Amendment.

So back to tonight: assuming the silences were in response to expletives in the song’s lyrics, could CBS have been doing more than merely exercising over-caution?  Could they actually have been blanking out chunks of the song in a deliberate attempt to infuriate viewers?  That is, perhaps CBS hoped that enough viewers would write to the FCC expressing disgust that CBS censors felt “compelled” to be overzealous with the bleep button during a song enjoyed by much of America.  This, of course, is a longshot: the ACLU, for instance, may not have the vigilance or the committed following to organize a major letter-writing campaign to the FCC such as the Family Research Council mobilized in response to the Bono’s utterance.

Nevertheless, such efforts may be unnecessary.  First, the FCC under the Obama Administration may be less inclined to enforce the fleeting expletives regulations.  Second, the Obama Administration could do away with the regulation altogether.  Third, the Second Circuit could strike down the regulation as unconstitutional and the Court could deny certiorari.  Or fourth, the Court could grant certiorari regardless of how the Second Circuit rules and then strike down the regulation as unconstitutional.  Indeed, last year’s voting blocs will not remain static on the constitutional issue.  Writing separately, Justice Thomas clearly signaled that he would give the broadcasters the winning vote should the Court decide the case on constitutional grounds:

I join the Court’s opinion, which, as a matter of administrative law, correctly upholds the Federal Communications Commission’s (FCC) policy with respect to indecent broadcast speech under the Administrative Procedure Act. I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.

All of this conjecture may be moot if the silences were merely technical difficulties.  Still, the LA Times’s liveblog writes:

Not sure how the performance played in the Staples Center — and it seemed to look pretty powerful — but it was largely bleeped on CBS broadcast.

If I learn anything more, I’ll post it here in an update.

UPDATE: Here’s the uncensored version.  Looks like the silences were from the censor’s hand.

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