Posted by: Patrick Allen Foster | October 19, 2013

Saturday Law Blogging: the Supreme Court, Canada, the First Amendment, and so on

1. At Ordinary Times (the site formerly known as the League of Ordinary Gentlemen), Burt Likko has a good rundown of some of the cases that the US Supreme Court will be hearing and deciding this term. (I am late posting this, and the term began two weeks ago, but the post — which appeared 10/8 — is still timely.) Burt also links to and discusses the Scalia interview that we have been discussing lately.

2. This past Tuesday, 10/15, SCOTUS agreed to hear a group of cases dealing with the federal government’s power to regulate greenhouse gases emitted by “fixed sources” — i.e., power plants (and some factories, I suppose). This consolidated group of cases (the Court is combining six separate petitions into one case for purposes of argument and briefing) will be immensely important for all utilities with significant coal-fired power plants — that is, most US utilities, I believe. It will also be important for coal industry, for obvious reasons.

Lyle Denniston at SCOTUSblog reports: “The challengers to the Environmental Protection Agency on its greenhouse gas regulations had raised a variety of issues, including the basic question of whether EPA had justified its finding that such emissions are a hazard to public health. The one question on which the Court will rule involved a decision by EPA that, after deciding to limit emissions from cars and trucks, it had the power to then move on to impose permit requirements on stationary sources like power plants that emit such gases.”

3. Also via Burt Likko, I learned this week that Canada celebrates a holiday called “Persons Day.” This holiday celebrates a 1929 judicial decision, in which the British Privy Council ruled that women are “persons” for purposes of section 24 of the British North America Act, 1867 (Canada’s basic law/quasi-constitution at the time), and thus eligible to be appointed to the Canadian Senate. That decision by the British Privy Council overruled a unanimous decision by the Canadian Supreme Court.

(Until 1949, decisions of the Canadian Supreme Court could still be appealed to the Privy Council — part of being in the British Empire at the time, I guess. To this American, it seems odd to celebrate an occasion on which a foreign judicial body overruled your country’s home-grown high court. Incidentally, the first woman to serve in the United States Senate — Rebecca Latimer Felton of Georgia, appointed by her state’s governor to fill a mid-term vacancy — served for one day in 1922 [after which her elected successor took his seat]. So, by my count, we beat Canada by seven years. U-S-A! U-S-A! U-S-A! Umm, also, Wikipedia indicates that Mrs. Felton, the first female senator, was also the last senator to be a former slave-owner! I don’t know if “ironic” is the most apt word for that, but I’m having trouble finding the right word. The next female US Senator was Hattie Caraway of Arkansas, elected in 1932. Meanwhile, Jeannette Rankin of Montana was the first woman elected to the House, in 1916.)

Anyway, in the New York Times, Linda Greenhouse, in what strikes me as a bit of a non-sequitur, uses the occasion of Canada’s Persons Day to slam Justice Scalia for his originalism. Not Greenhouse’s strongest column.

4. In Slate, Emily Bazelon writes about Schuette v. Coalition to Defend Affirmative Action, the affirmative-action case out of Michigan that “liberals deserve to lose.” After the Supreme Court upheld the use of affirmative action in a pair of cases (from Michigan) in 2003 — allowing affirmative action as long as the way the admissions committee uses it isn’t too formulaic, essentially — Michigan voters in the fall of 2006 approved a ballot initiative, Proposition 2, which bans the state’s public universities from using affirmative action in admissions. Opponents of Proposition 2 have challenged the ban in federal court, and now SCOTUS is hearing the case on appeal from the Sixth Circuit (which ruled for the challengers and invalidated the ban).

Writes Bazelon (her emphasis): “Michigan’s Proposal 2…involves taking away a means of preferential treatment, based on race. Affirmative action, formally speaking, isn’t about treating all applicants equally. It’s about introducing a different set of standards for some applicants. A more equal society may be the broader long-term goal of affirmative action. But the way you get there is by treating people differently, based on race. As University of Chicago law professor Richard Epstein points out, it’s not clear what’s wrong with Proposal 2 that wouldn’t also be wrong with other formally colorblind laws that prohibit discrimination on the basis of race (or sex or religion or ethnicity).”

The Supreme Court has ruled that affirmative action is allowable (if done right), but the Court has never ruled that it is required. In this case, salvaging affirmative action, against the will of the voters, would require the Court seriously to curtail the right of people to legislate through initiative. So, from a certain liberal or progressive perspective, this case sets two principles — affirmative action and direct democracy — in opposition. That can’t be fun.

From Bazelon’s conclusion: “Does the Constitution require every public university to have the option of using race-based preferences in admissions? That’s a stretch for the meaning of equal protection. The conservative majority on the Supreme Court won’t make it.” (Again, emphasis in original.)

A grateful hat tip goes to Ann Althouse (see this post). Prof. Althouse also has this post, pointing to an NPR story by Nina Totenberg reporting on the oral arguments in Schuette, in which Totenberg also sees the writing on the law and seems to be preparing her listeners (readers) for the Court ruling to uphold the Michigan referendum.

I think Bazelon, Totenberg, and other liberals know that the pro-affirmative action folks are going to lose this case, and they are in the early stages of managing expectations. Althouse picks up on Totenberg’s use of the term “preferences” and comments (her emphasis):

It seems to me, if you want affirmative action to be accepted as important, good, and — as we say in legal doctrine — compelling, you don’t want to encourage the habit of thinking of it as preferences, which seem to be special benefits that some people get because of their race. You want people to think in terms of taking into account all of the many factors that play a role in the university’s practicing of a subtle art of composing a student body with a marvelously fine-textured, beneficial-to-all diversity.

If that way of thinking is lost, affirmative action is doomed.

Totenberg’s summary of the oral arguments is quite good and concise — worth reading. Lyle Denniston at SCOTUSblog and Ilya Somin at the Volokh Conspiracy also have oral argument recaps. Denniston and Somin say that Justice Kennedy seems likely, based on his questions during oral argument, to vote with the four other conservatives to uphold the Michigan referendum. Even Justice Breyer might join the majority, so the decision could be 6-3 to reverse the Sixth Circuit and uphold the amendment to the Michigan constitution.

5. At Popehat, Ken White has a skilled takedown of a blogger who doesn’t allow aggressive ignorance of modern First Amendment jurisprudence to stop him from opining on a recent case involving expressive activity by students in school. Watching Mr. White tear Mr. Rowe’s arguments to pieces is a bit like watching an adult MMA fighter take on a eight-year-old, but what else is the Internet for?

6. In the context of discussing a proposed New York statute that would criminalize the “non-consensual disclosure of sexually explicit images,” this New York Times editorial appears to take a swipe at section 230 of the federal Communications Decency Act:

Neither current nor proposed state laws are likely to have an effect on the Web sites that make the explicit images available to the prurient public, because they can claim protection under the Communications Decency Act. Section 230 of that statute has been interpreted by courts to shield sites that host third-party content from liability, unless that content, like child pornography, violates federal law. (Or unless sites cross the line from aggregators to co-creators of the material in question.)

As Scott Greenfield notes:

They’re correct, that the laws being hyped, while rife with the potential for abuse, won’t actually “get” the people they most hate. …Hunter Moore won’t be touched, as he’s protected by the safe harbor provisions of Article 230. So let’s start screwing with Article 230 to get the really bad dudes. Why shield these horrible people?

Because the same law that shields them shields me, and every other blogger, and every website that allows comments, and Reddit, and every other website that allows anyone to post anything on the internet. Without the safe harbor, there will be no free speech on the internet. Here’s reality, I’m not losing my shirt because of your comment. Neither is the New York Times, though its editorial eyes are clouded by the same conflicted desire for a perfect world that lets them see only the low-hanging fruit without grasping that they will kill the tree by plucking it.

If we lose the Safe Harbor of section 230, then the Internet as we know it will be gone. Oh, there will still be a global network for accessing websites and viewing pictures of cats, and big companies will have their carefully manicured websites, but the Internet will cease to be a forum for free-wheeling discussion. Comments sections will be eliminated, because most bloggers could not and would not open themselves up to the sort of liability that would arise — and the reaction of those bloggers would be rational. Most websites, even operated by newspapers or online magazines like Slate or big outfits like ESPN, would rather kill comments than expose themselves to liability or marshal the sort of resources that would be needed to police comments sufficiently. And online discussion fora would disappear. Not just Reddit, but also Facebook and Pinterest would either go away or have to transform themselves into something very different from what they are now.

I don’t think I’m being hyperbolic here: without section 230 of the Communications Decency Act, the Internet as we know it will cease to exist.

Fortunately, I think that some big companies with deep pockets — Facebook and Google not least among them — have enough riding on the line to keep section 230 safe for now. But we should be mindful of threats, even when they seem small now.

Counselor Greenfield’s comments reminded me of this video:


For more on the underlying statues under discussion here, see this interview with Prof. Mary Anne Franks at Concurring Opinions, as well as this post by Prof. Danielle Citron at the same site.

Then, read this critique by Michael Froomkin, also at Concurring Opinions; be sure to check out the comments on the post. Also read this post by Greenfield on the subject.

Finally, check out Mark Bennett’s fisking of the model laws under discussion, here and here.

(As H. L. Mencken once said, “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”)

7. How long before the police convince compliant state legislatures to make it a crime to upload videos like this one? (Not for the faint of heart.) (H/T: Clark at Popehat.)

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