Bond and The Bar

On February 22, while I’ll be locked in a lecture hall taking the bar exam, the Supreme Court will be hearing oral argument in what may be the most salacious suit of the term.  Bond v. United States appears so factually, legally, and politically wild that it almost makes me question my taking that term off during my 2L year: had I stayed at Georgetown rather than go to ABC News, I would have graduated in May, taken the bar in July, and been able to be at the Court in February to hear the lawyers tell the tale of a scorned woman seeking solicitude for her hell-fury under the protection of the Tenth Amendment.

In his brief for Carol Anne Bond, Paul Clement tells the story:

In 1995, petitioner moved with her mother and sister to the United States, where she became very close friends with Myrlinda Haynes, a woman who was also a Barbados native.  Haynes owned a home in nearby Norristown, and petitioner came to consider and treat Haynes as a sister.

In 2006, Haynes announced that she was pregnant.  Unable to bear a child of her own, petitioner was excited for her closest friend.  Her excitement did not last, however, for petitioner soon discovered that her own husband was the child’s father.  This double betrayal brought back painful memories of her own father’s infidelities and caused petitioner to suffer an emotional breakdown…

In the midst of this emotional breakdown, petitioner became fixated on punishing Haynes for her betrayal. Petitioner took a bottle of 10-cholo-10H-phenoxarsine (an arsenic-based chemical) from her employer, the chemical manufacturer Rohm & Haas, and she purchased a vial of potassium dichromate through Amazon.com from a photography equipment supplier.  Petitioner knew that the chemicals were irritants and believed that, if Haynes touched them, she would develop an uncomfortable rash.  Both chemicals are toxic and, if ingested or exposed to the skin at sufficiently high doses, can be lethal.

According to the government, petitioner went to Haynes’s home on several occasions between November 2006 and June 2007 and spread chemicals on Haynes’s car door handle, mailbox, and apartment doorknob.

These facts alone are enough to send reporters rushing to the Court, but the love triangle and poisonous revenge are backed up by crazy law and strange meta-bedfellows.

Rather than be subjected to a state charge of assault, Bond’s use of toxic chemicals against her now-former best friend got the Feds involved.  They charged her with a violation of a federal statute that Congress passed in obligation to an international treaty entitled, “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.”  A grand jury indicted her under the statute’s sweeping plain language – the chemicals fit the law’s definition of banned substances “not intended by defendant Bond to be used for a peaceful purpose” – and she pled guilty after the federal judge rejected her constitutional claims against the law as applied to her.

And it gets weirder.  The scorned woman turned terrorist-in-law invoked her Tenth Amendment rights, something that’s only recently come back in vogue with the rise of the Tea Party and the Affordable Care Act.  Bond argued to the Third Circuit that the federal criminal law used to convict her was beyond Congress’s Article I authority and therefore invaded the province of rights reserved to the states and the people.  The appeals court did not reach the merits, ruling instead that Bond, as an individual, did not have standing to bring her Tenth Amendment claim absent the state or its officials as parties to her suit.

By the time Bond petitioned the Court for review, however, the United States switched sides, officially telling the justices to let her sue.  The Solicitor General urged the Court to GVR–grant, vacate, remand–the case without oral argument.  The Court disagreed and ordered oral argument.

With the Tenth Amendment and Article I limits swirling in the air these days, it is striking to see the SG in this case on the same side as Bond’s other amici: Alabama, Colorado, Florida, South Carolina, Texas, and Utah (all parties to the health care challenge awaiting decision in Florida); CATO Institute; Gun Owners of America; and the Eagle Forum.

Ultimately, this case is about Bond’s standing to bring her Tenth Amendment challenge, not the merits of that challenge.  Still, this case is a thorny thicket of jurisprudential themes.  Textually, the law does apply to Bond.  But will the patent absurdity of this law’s use against Bond compel the Court’s more textualist justices to put aside their interpretive principles?  Perhaps because this question is embedded in a contest between conservative values–deference to federal law and order efforts versus the commitment to a limited federal government–the Court’s right flank may with an easier conscience forego the letter of the law for its more equitable spirit towards Bond.

The oral argument itself may simply be a formality so that someone may argue for the wisdom of the position that the United States has since abandoned rather than GVR the case without the dignity of a proper adversarial process.  That someone who the justices assigned to adopt the orphaned argument for the Government is Stephen R. McAllister, former state solicitor general of Kansas and dean of the the University of Kansas’s law school.  Accordingly the advocates, like the arguments they will be making, will embody a clash of legal conservatism: McAllister and Clement launched their careers from clerkships in the chambers of Justices Thomas and Scalia, respectively.

Bond brings layer upon layer of exciting stuff, from its own facts and law to its place in the moment’s larger legal-political milieu.  I guess in lieu of attending the oral argument, I will just have to inspire myself with Bond’s focused rage and sophisticated legal arguments so to unleash the fury on the bar exam.

What Posner Said.

Tomorrow morning, the Court will hear Schwarzenegger v. Entertainment Merchants Association. As far as I’m concerned, the question of whether government may ban the sale of violent video games was answered nearly ten years ago by a unanimous Seventh Circuit panel decision penned by Judge Richard Posner:

The issue in this case is not violence as such, or directly;  it is violent images;  and here the symmetry with obscenity breaks down.   Classic literature and art, and not merely today’s popular culture, are saturated with graphic scenes of violence, whether narrated or pictorial.   The notion of forbidding not violence itself, but pictures of violence, is a novelty, whereas concern with pictures of graphic sexual conduct is of the essence of the traditional concern with obscenity. […]

People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.

No doubt the City would concede this point if the question were whether to forbid children to read without the presence of an adult the Odyssey, with its graphic descriptions of Odysseus’s grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants;  or The Divine Comedy with its graphic descriptions of the tortures of the damned;  or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds.   Or if the question were whether to ban the stories of Edgar Allen Poe, or the famous horror movies made from the classic novels of Mary Wollstonecraft Shelley (Frankenstein) and Bram Stoker (Dracula).   Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low.   It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware.   To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming;  it would leave them unequipped to cope with the world as we know it.

Maybe video games are different.   They are, after all, interactive.   But this point is superficial, in fact erroneous.   All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive;  the better it is, the more interactive.   Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.   Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred.   The cult of Sherlock Holmes is well known.

Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories.   Take once again “The House of the Dead.” The player is armed with a gun-most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo.   The zombies have already knocked down and wounded several people, who are pleading pitiably for help;  and one of the player’s duties is to protect those unfortunates from renewed assaults by the zombies.   His main task, however, is self-defense.   Zombies are supernatural beings, therefore difficult to kill.   Repeated shots are necessary to stop them as they rush headlong toward the player.   He must not only be alert to the appearance of zombies from any quarter;  he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.

Self-defense, protection of others, dread of the “undead,” fighting against overwhelming odds-these are all age-old themes of literature, and ones particularly appealing to the young.  “The House of the Dead” is not distinguished literature.   Neither, perhaps, is “The Night of the Living Dead,” George A. Romero’s famous zombie movie that was doubtless the inspiration for “The House of the Dead.” Some games, such as “Dungeons and Dragons,” have achieved cult status;  although it seems unlikely, some of these games, perhaps including some that are as violent as those in the record, will become cultural icons.   We are in the world of kids’ popular culture.   But it is not lightly to be suppressed.

Although violent video games appeal primarily to boys, the record contains, surprisingly, a feminist violent video game, “Ultimate Mortal Kombat 3.” A man and a woman are dressed in vaguely medieval costumes, and wield huge swords.   The woman is very tall, very fierce, and wields her sword effortlessly.   The man and the woman duel, and the man is killed.   Another man appears-he is killed too.   The woman wins all the duels.   She is as strong as the men, she is more skillful, more determined, and she does not flinch at the sight of blood.   Of course, her success depends on the player’s skill, and the fact that the player, whether male or female, has chosen to be the female fighter.  (The player chooses which fighter to be.)   But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men.   It thus has a message, even an “ideology,” just as books and movies do.

American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001). cert. denied 534 U.S. 994 (2001).

One need not be a First Amendment absolutist or doctrinal purist to find California’s ban as problematic as the Indianapolis regulation at issue in American Amusements.  In true Posnerian spirit, there is an economics-driven, pragmatic reason California’s law must fall.

Indianapolis’s regulation required minors to be accompanied by their parents in order to play violent arcade games.  Gamers with a sense of history can correct me if I’m wrong, but the most high-end arcades cost a dollar or so to play in 2000.  For minors, that’s a far lower bar to clear for access to violent video games than the $60 home console-based games at issue tomorrow morning.  If the state’s paternalism a decade ago could not thwart the constitutional rights of a kid with a fistful of couch-found quarters, then similarly doomed should California’s ban be against today’s games, for which a parent’s consent-by-pocketbook is the de facto state of play.

This piece is cross-posted at The CockleBur.

Perry Brief Bonanza

On December 6, the Ninth Circuit will begin hearing the appeal of District Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, which struck down California’s gay marriage ban as a violation of Equal Protection and Due Process under the Fourteenth Amendment of the U.S. Constitution.  Supporters of the appellant, ProtectMarriage.com, filed their amicus briefs last month.  The Alliance Defense Fund, appellant’s co-counsel, has compiled links to those briefs–26 in all–here.

Yesterday, the opposition amicus briefs–that is, those arguing to uphold Walker’s decision–flooded in.  Prop8TrialTracker.com has compiled 24 of the briefs here.

I would like to commend, in particular, my friend Justin Ford of O’Melveny & Myers, for a job well-done co-authoring the National LGBT Association brief.  I’ve known Justin since our days at Duke together and regret that our tenures at Georgetown Law did not overlap.  If gay marriage–and with it, full and equal rights for gays–is the final frontier for American civil rights, then the Nat’l LGBT Ass’n brief squarely addresses the corresponding jurisprudential final frontier: whether laws classifying on the basis of sexual orientation should be subject to heightened scrutiny.

In arguing that heightened scrutiny should apply, the brief surveys the history of federal and state discrimination against gay Americans, including this lovely 1966 letter by then-Chairman of the U.S. Civil Service Commission, explaining the continued ban on gays in the federal government’s employ:

Pertinent considerations here are the revulsion of other employees byhomosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of thesexual deviate to erotic stimulation through on-the-job use of thecommon toilet, shower and living facilities, the offense to members ofthe public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.

Of course, gays are no longer banned from working in the federal government, and “Don’t Ask, Don’t Tell” is on the outs, whether judicially or politically.  But the brief argues that these gains made towards sexual orientation equality in the United States don’t stand in the way of recognizing gays and lesbians as a suspect class:

The existence of, for example, the Civil Rights Act of 1870, Civil Rights Act of 1964, and Voting Rights Act of 1965—not to mention the Fourteenth Amendment itself—obviously does not negate the suspicious nature of race-based classifications. More to the point, the Supreme Court in Frontiero noted the existence of antidiscrimination legislation enacted by Congress for the benefit of women—including the then-pending Equal Rights Amendment—as a factor cutting in favor of applying heightened scrutiny to sex-based classifications, because it showed that “Congress itself has concluded that classifications based upon sex are inherently invidious.”

Indeed, to show that gay rights have not enjoyed a one-way ratchet towards equality in recent years, the brief offers a litany of legislated from state statutes and constitutional amendments banning gay marriage to the federal Defense of Marriage Act to Congress’s failure to amend the Employment Non-Discrimination Act to include protection against sexual orientation discrimination.  “In light of these repeated legislative and ballot-box defeats,” the brief states,

it is difficult to see how gay people can be seen as “politically powerful” in any way that could possibly make a difference to the equal protection analysis. On the contrary, women and African-Americans have long demonstrated an ability both to obtain substantial protective legislation, and also to elect and appoint representatives to higher office, and yet legal classifications based on sex and race (rightly) remain suspicious and subject to heightened equal protection scrutiny. It is, in short, as indisputable as it is unacceptable that gay people continue to be treated differently by the law, and by voters, from straight men and women.  Such differential treatment is a product of historical animus and unjustified stereotype, and thus warrants the most searching scrutiny when subject to judicial challenge in any context.

The brief goes on to tackle the Ninth Circuit precedent standing in its way.  In the 1980 case of Hatheway v. Secretary of Army, the Ninth Circuit upheld a challenge to the military’s criminalization of sodomy, but along the way declared sexual orientation a quasi-suspect classification, like gender, worthy of intermediate scrutiny.  But this was reversed in 1990 by a case called, High Tech Gays v. Defense Industrial Security Clearance Office. Because the Supreme Court in 1986 ruled in Bowers v. Hardwick that states could criminalize homosexual conduct, the Ninth Circuit in High Tech Gays held that “because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”

The brief then invokes a similar syllogism in support of returning to the Hatheway standard of review:

The central premise underlying High Tech Gays—that sexual orientation cannot constitute a suspect or quasi-suspect classification because homosexual conduct may be criminalized without any constitutional impediment—was squarely rejected in Lawrence v. Texas, which explicitly overruled Bowers.  The Lawrence Court determined that the “State cannot demean [gay people’s] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.”

Because the foundation upon which High Tech Gays rested has been rejected by intervening Supreme Court precedent, the case is no longer controlling and must be overruled.  Just as High Tech Gays overruled Hatheway in light of Bowers, this Court should overrule High Tech Gays in light of Lawrence and apply heightened scrutiny to classifications based
on sexual orientation.

Overall, the brief is a powerful and accessible argument for the application of heightened scrutiny to classifications based on sexual orientation.  But the question remains: is heightened scrutiny even necessary, given that Prop 8 failed to meet the rational basis test in Judge Walker’s courtroom?   Here, there is some equivocation.  As Walker wrote:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.  Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

In its previous gay rights cases, the Supreme Court struck down anti-gay laws using only the rational basis test.  Such review clearly empowered Judge Walker to extend that rationale to gay marriage bans, but it is unclear whether the Ninth Circuit or the Supreme Court will be equally disposed towards such an extension.  That uncertainty, it seems, has led the National LGBT Association to advocate for a more secure jurisprudential protection against discriminatory laws.  But given Justice Kennedy’s pivotal fifth vote, trusting in his just-for-gays rational basis review may be a better bet than counting on him to anoint a new suspect class.

As I wrote on the night of Judge Walker’s decision:

[S]exual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny.  Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional.  Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant.  If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational.  Hypothetical justifications are now inadmissible opinions unworthy of deference.  And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

It’s also worth considering that heightened scrutiny can be turned against the parties who originally sought it, whereas a uniform rational basis with bite test, as deployed in Romer and Lawrence, does not have the same pitfall.  Even rational and benevolent classifications based on race are subject to strict scrutiny, which has led to the cutting back on affirmative action over the last three decades.  Should sexual orientation classifications be subject to heightened scrutiny, future laws that seek to remedy past discrimination against gays may fall when challenged by straights incidentally burdened by such laws.

In all, however, as long as assignment to levels of scrutiny are meted out by identities and not by actions–which is always, given the Equal Protection Clause’s protection of persons–the National LGBT Association’s brief should be taken very seriously.  After Romer and Lawrence, our Equal Protection Clause jurisprudence with regard to sexual orientation makes no jurisprudential sense.  The brief forcefully states the obvious: heightened scrutiny for sexual orientation classifications is a no-brainer given the indisputable history of legal and social animus against gays in America.  Further, relegating sexual orientation classifications to rational basis also strains doctrinal integrity.  Over time, something must give: either all non-suspect classifications must be subject to similar biting “rational basis” review as laws impacting gays, or laws impacting gays must be subject to the standard forgiving review all non-suspect classifications have long enjoyed.

Whatever the Ninth Circuit decides (if it gets past the standing issue to get to the merits at all), the decision will ultimately be the Supreme Court’s, and thus, Justice Kennedy’s.  I have doubts that his liberal colleagues will once again join him in ducking the standard of review.  If he once again refuses the call to heightened scrutiny, this time to deny a majority over the issue, he will, at best, do so to push forward an idealistic vision of America in which rational basis alone is sufficient to defeat all discriminatory laws.  At worst, he will be committing unprincipled, political cowardice.

My suspicion, however, is that should he vote for a federal right to gay marriage (which is hardly certain), we will find his reluctance to anoint a new suspect class to have evolved.  However happy he might be to retain Romer‘s rational basis with bite, he will be the senior justice in the majority responsible for maintaining such a majority, particularly if he assigns the opinion to himself.  If he seeks anything short of intermediate scrutiny, he may have four justices threatening to splinter the majority and leave him with a lonely concurrence in the judgment, thereby robbing his opinion of its historical force.  Although addressed to the Ninth Circuit, the National LGBT Association’s brief is ultimately directed to this very to this consideration.

Snyder v. Phelps Preview

Orlando Bethel, left, with two of his three children.

The Snyder v. Phelps line began Monday night at 8pm.  Twenty-four hours later, the Georgetown undergraduate students who started the line were joined by fifty more new friends.  The Bethel family, pictured above, were not out there to make friends.  Here’s a video of Glynis Bethel, the family’s mother, on their beliefs:

Videos of the rest of the family coming soon.  More footage to be taken tomorrow morning, too!

Corporate Personhood Redux

Among the fourteen cases the Supreme Court added to its docket today, FCC v. AT&T most caught my attention.  The case asks whether corporations can claim personhood so to qualify for the Freedom of Information Act’s Exemption 7(C), which exempts from mandatory disclosure records collected for law enforcement purposes when such disclosure could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The Third Circuit ruled that because the statute defined “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency,” then corporations were entitled to 7(C)’s “personal privacy” exemption.  The FCC’s petition for certiorari, signed by then-Solicitor General Elena Kagan–who will be recused for this case–argued that the Third Circuit’s ruling upset a thirty-five year understanding that the “personal privacy” exemption only applied to individuals.

To bolster their case, the FCC cited then-Professor Scalia’s 1981 testimony before Congress that Exemption 7 did not protect “associational or institutional” privacy from mandatory disclosure upon request.

Although this case will ultimately turn on statutory construction, it still hearkens back to last year’s Citizens United, which established that corporations are legal persons whose independent campaign expenditures cannot be limited under the First Amendment’s free speech protections.

What makes this case even more interesting is that next Tuesday, the Court will hear argument in NASA v. Nelson, which asks whether a government employee has a right to “informational privacy” that allows him to withhold information in government background checks.  Specifically at issue is whether an employee, once established he has done drugs, may then refuse to disclose if he has obtained treatment for the drug use.  Justice Kagan will also recuse herself in this case.

Informational privacy is hardly a deeply established fundamental right.  Even if it were, and if the Court’s conservative bloc embraced it, drug-tinged cases tend to soften the justices’ principles.  In Gonzales v. Raich, Justice Scalia voted to approve Congress’s Commerce Clause power to ban the personal cultivation of medical marijuana, despite his earlier votes to restrict the Commerce Clause’s scope and later votes to cabin the power of the Necessary and Proper Clause.  And in Morse v. Frederick, Chief Justice Roberts, who takes a largely robust view of the First Amendment, found a high school student’s unfurled banner reading “BONG HiTS 4 JESUS” to be unprotected pro-drug speech under the Court’s First Amendment-for-students doctrines.

In contrast to AT&T, the issue in NASA is not statutory, but constitutional.  Further, it is grounded in an individual’s Fifth Amendment Due Process rights, not in one’s First Amendment rights, which was the flashpoint of last year’s corporate personhood contest.  Still, if the Court rejects an individual’s right to informational privacy, but embraces a corporation’s ability to withhold information under the personal privacy exemption, expect some commentators’ heads to explode.

Capital Obscenity!

Back in February I wrote about the circuit split between the Ninth and Eleventh Circuits over the application of federal obscenity laws in the Internet age.  This is a major issue of law that a majority of the Court, in concurring and dissenting opinions of 2002’s Ashcroft v. ACLU,  first telegraphed its interest in updating, revisiting, or outright abandoning.

This week, another obscenity trial begins in Judge Leon’s federal district courtroom here in DC.  Via Mike Scarcella of the National Law Journal:

Stagliano and two of his companies were indicted in federal district court in Washington in April 2008 on seven counts of distributing obscene, sexually graphic videos that U.S. Justice Department prosecutors allege have no artistic or scientific value and cut against the community standard of what is acceptable. He faces up to 32 years behind bars if convicted.

Jury selection is under way and opening arguments are expected to begin this week in the first adult porn obscenity case in the U.S. District Court for the District of Columbia in more than 20 years. “There won’t be any falling asleep in this courtroom,” Judge Richard Leon said at a hearing in the case June 14. “I can assure you of that.” […]

[Stagliano’s lawyers are] arguing that Stagliano has a right to possess and to distribute sexually explicit material. The lawyers contend federal obscenity standards are too vague to govern Internet speech. The sexual acts in the movies were lawful, the lawyers said, and the participants were consenting adults. “The right of sexual privacy has evolved as society’s attitudes about sexuality have evolved,” Corn-Revere said in court papers in July 2008. “Liberty now gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. This protection is broad enough to encompass a right to buy and sell obscene materials.”

In declining to dismiss the indictment earlier this year, Leon said the federal obscenity statutes are not unconstitutionally vague as applied to Internet speech. “Although public morality may be an insufficient justification for regulating private conduct in some cases, it is certainly a sufficient justification for regulating the sort of public conduct at issue here,” Leon wrote.

Beyond the racy subject matter and evidence to be presented to the district court this week, we will also witness some scintillating constitutional law discussions.  The above passage points to Stagliano’s use of Lawrence to argue invalidation of federal obscenity laws under the Due Process Clause of the Fifth Amendment’s right to privacy.*  This argument worked in the Western District of Pennsylvania in 2005, but ever since the Third Circuit rebuked and reversed the district court and the Supreme Court denied certiorari, appeals to Lawrence have gone unheeded.

So to further push the issue of federal obscenity laws before the Supreme Court, expect also to see attacks on the “community standards” prong of the Miller test, which courts use to determine whether material is obscene:

Lawrence Walters, a First Amendment lawyer who specializes in representing clients in adult entertainment, said obscenity cases have historically been filed in districts that are generally viewed as conservative. “It may result in one of the first cases where a more cosmopolitan jury has made a determination of obscenity with regard to adult material,” said Walters of Walters Law Group in Altamonte Springs, Fla.

Although the Supreme Court and lower courts ultimately came to implicitly interpret “community standards” to be those of the location in which the material was sent, the Ninth Circuit in late 2009 stated that national community standards should apply in a jury’s determining Internet obscenity.

Depending on how this jury rules, the inevitable appeal will likely feature an attack on local community standards – either as too permissive in a big city should Stagliano get acquitted or too arbitrary should he get convicted.  Either way, however, the recent circuit split over the community standards prong will be made more ripe for Supreme Court review.

The question, then, becomes whether the Court will conform to its opinions in Ashcroft I or not.  Thomas, Scalia, and Rehnquist were perfectly satisfied with local standards.  Might Roberts, given his First Amendment protectiveness this term, deviate from his predecessor’s vote?  In refusing to extend the Court’s obscenity jurisprudence to dogfighting in United States v. Stevens, Roberts said nothing of material that actually does fall within the Court’s sex-tethered definition of obscenity.  But in siding with the government in Holder v. Humanitarian Law Project for national security concerns, the Chief showed himself willing to favor traditionally conservative concerns–of which the protection of morals-based laws have long figured–over First Amendment absolutism.

Meanwhile, O’Connor wrote in favor of a national standard, but her successor, Alito, will likely go with local standards, given his lone Stevens dissent this term.

Kennedy wrote for Ginsburg and Souter suggesting that the local standards should be reconsidered, but didn’t tip his hand on what side upon which he’d come down until he had more evidence to make such a determination.  Adding uncertainty upon that concurrence’s uncertainty, we don’t know how Sotomayor would have voted then or now, and Ginsburg may not even be on the Court by the time this case may make it up there.

And finally, Justice Stevens, the lone dissenter in Ashcroft arguing to toss community standards altogether as applied to the Internet, may not have as zealous of a successor in Elena Kagan.

This trial, and its aftermath, will surely be something worth watching.

*Lawrence concerned state laws, so the Fourteenth Amendment’s Due Process Clause governed; this case tests federal obscenity laws, which implicate the Fifth Amendment’s analogous language securing against deprivation of liberty without due process of law.

UPDATE: 7/13 – Scarcella provides a report from today’s introduction of evidence to the jurors.

Pre-EndOfTerming

We Can Be Friends

Back home for a shower and a suit-up.  A few thoughts:

• How wonderful it is to come home sweating rather than freezing.
• The fifth person in line was the Phantom First from McDonald – the oral argument was on a Tuesday, but he arrived at 7am on the Sunday prior.  I discovered him that day while I was on an afternoon run with the First Lady of First One @ One First.  Later that evening, I went back to talk to him.  Once there, another two people showed up to scope out the line.  The Phantom First was packing his things up after a day in the cold when he realized that his brother, for whom he was keeping a second seat in line, was not coming.  He said he’d be back the next morning (Monday) at 4am.  I had no interest in competing with that, but the other two were appropriately spooked and got to the Court at 5:30am on Monday morning…with the Phantom First nowhere to be found.  Those two–Rob and Larken–became the first ones at One First for McDonald.  Last night, then, I was pleased to see the Phantom First return with his brother to claim fourth and fifth in line.
• The best and worst part about this blog is having readers inspired enough to beat me to the Court.
• A largely lawyer/law student crowd this morning, but Dick Heller and Otis McDonald also got in line to see their gun rights cases extended and won, respectively.
• Around 1:30am, we were regaled to some tales, whether true or tall is undetermined, by a man from Noname, Alaska trying to find Union Station.  He spoke of white moose and face-licking grizzlies while catcalling the Court police officer on duty.

Gotta get moving to get back to the Court on time for Stevens’s last day and the final four decisions.  I’ll have something more expository about the campout and the decisions later tonight or tomorrow.

Until then, enjoy my 12:30pm liveblog of the Elena Kagan hearings!

Heading Over Now and A Prediction

About to head over to the Court.  Chance of thunderstorms and an already-existing line shall not stop my final campout of the term.

After my obligatory “First” or “Not-so-First” photo up here, I will switch to my Twitter feed to send sporadic stati throughout the night.

Meanwhile, here’s a quick McDonald prediction based upon the oral argument:

• Roberts, Scalia, Kennedy, and Alito for full incorporation Heller‘s federal vision of the Second Amendment to the states via the Substantive Due Process doctrine.  Maybe a few concurrences–Scalia explaining himself for why he’s accepted SDP, distinguishing its use for incorporation purposes as a matter of stare decisis while still hating on it as a tool for finding unenumerated constitutional rights; Kennedy, in response, trumpeting the “liberty” component of the Due Process Clause for protecting and incorporating both enumerated and unenumerated rights.
• Thomas concurring in the judgment for full incorporation via the Privileges or Immunities Clause of the Fourteenth Amendment, arguing that the Court missed its chance to overturn Slaughterhouse and right a longstanding constitutional wrong.
• Stevens concurring in part and dissenting in part, joined by Sotomayor, agreeing with the plurality to incorporate via SDP, but arguing for a more limited scope of incorporation allowing for the states for more breathing room in instituting gun control laws.  Although Stevens was the lead dissenter in Heller, he will provide a final example of his “judicial conservatism” by abiding by stare decisis in recognizing the individual right to keep and bear arms.  In doing so, however, he will work from the “inside” in a futile attempt to limit what he will present as the deleterious societal effects and misguided interpretive history of the Court’s prevailing gun rights jurisprudence.  Sotomayor will sign because she joined the Court after the Heller decision and would therefore feel improper rejecting it outright.
• Breyer, joined by Ginsburg, dissenting, still protesting Heller.

That’s 7-2 for incorporation; 6-3 for incorporation via the Due Process Clause; 5-4 for full incorporation.  Alito hasn’t yet written a majority opinion from the February sitting, so he’s due.  But I wouldn’t be surprised if the Chief or Scalia end up as the author.  Nor would I be surprised if any or all details of my prediction above, except for the 5-4 for full incorporation, will prove completely wrong.

Okay, it’s go time.  If you’re in DC, come visit me–or, better yet, get in line!

MONDAY MONDAY MONDAY!

Monday’s going to be a doozy.  Last day of the term.  Stevens’s last day ever.  Decisions on Guns and God (Gays was decided yesterday), as well as a bit of man v. machine and what may be the financial industry’s own Citizens United.

But that’s not all!

About two hours after the Court lets out for its summer recess, the Senate starts its preseason tryouts with Elena Kagan.

I plan on being in the Courtroom and the hearing room.  And my liveblogging the latter will hopefully be made more colorful by my sleepless Sunday night on the Supreme Court Side Walk.

That’s right: I will be conducting a my own final F1@1F campout for the term.  I suspect it will be a fun one, as the Guns and God oral arguments had the earliest and most enthusiastic lines of the term – and Monday’s certainty of those decisions and the drastically warmer weather (plus the prospect of a stately nonagenarian screaming, “I’m Outta Here!” to a captive audience, tossing reams of paper into the air in a sign of aged defiance) point to a big turnout.

I’d love to see some F1@1F readers out there, too.  If you’re planning on coming to the sidewalk, please do let me know.

Pre-Doeing

I'll Take It.

Final wait of the season completed.  Home to thaw.  A few thoughts on the Doe v. Reed line:

• I woke up this morning to a man ranting about G. Gordon Liddy to all in line.  Fitting to bring back Watergate as Justice Stevens, the President Ford’s post-Watergate pick, hears his final oral argument.
• Speaking of Stevens’s final oral argument, one admirer in line showed up wearing a commemorative bowtie.
• The line was shockingly short given the high profile of Doe, its gay marriage undertones, and (again) Justice Stevens’s final oral argument.
• People from Poland, California, Bangladesh, Rhode Island, and Wisconsin out there last night/this morning.  Got some good video interviews for Supreme Court Side Walk.
• Sunday night was warm and rainy.  Last night was cold and dry.  And now that the Court is done with oral arguments later this morning, what’s it like for the rest of this week?  Dry and warm.  April, you disappoint me.

Time for my final trek up First Street for an oral argument this term.  It’s been fun.  Thanks to all who brave the elements with me, even those who beat me to the front of the line.  From the Court to East Capitol and around the corner, you all rock.

Come back later today for the argument recap and tomorrow for my Vox Populi column.