Lies and Levels of Scrutiny

By Associate Professor Aaron Caplan

The Stolen Valor Act is a federal statute that made it a crime to falsely say that one had received a military medal, even if that false statement was not made as a part of any scheme to counterfeit or defraud and even if no one believed the statement. In United States v. Alvarez, a 6-3 majority of the Supreme Court agreed with the 8-1 majority of my First Amendment students that the Act violates the constitution. The government has power to punish lies that cause concrete harms (such as fraud, defamation, or perjury), but it may not punish lies simply because they are distasteful. The proper response upon hearing distasteful lies is to counter them by speaking the truth.

I believe - like a majority of my students - that the Court decided this case correctly, but the reasoning used by a majority of Justices has the potential to establish constitutional standards that are less speech-protective than meets the eye. To begin with, there was no majority opinion. The four-justice plurality opinion by Justice Kennedy (joined by Roberts, Ginsburg and Sotomayor) was joined by a two-justice concurrence by Justice Breyer (joined by Kagan). Both opinions seemed to readily accept the notion that the government had a valid interest in controlling what people think about military medals as a means to protect the "integrity" or reputation of the government's chosen symbols. As I have written previously, I do not think this kind of mind control is a legitimate government interest at all, let alone a strong one. In this, I seem to be outvoted my all nine members of the Supreme Court (and for what it was worth, all of my students).

What actually separated the plurality and concurring opinions in Alvarez was a crucial question: by what standard should courts assess laws that criminalize speech based on content that does not fall into one of the historically recognized proscribable categories (obscenity, threats, etc.)?

Health reform survives legal challenge!

By Professor Brietta Clark

Today, the Supreme Court upheld the most controversial part of the Patient Protection and Affordable Care Act - the individual mandate. The mandate requires citizens to purchase health insurance by 2014 or pay a tax, unless they qualify for an exemption. The mandate was held to be a constitutional exercise of Congess's tax and spend power. Because the mandate was held constitutional, there was no need to consider whether the other private insurance reforms would survive: they do.

The court also considered a challenge to the Medicaid expansion provision: this provision expands eligibility to all adults who fall below a certain income level. Many states like this expansion because it is generously funded by the federal government - 100% in the beginning. Other states challenged it because states that refuse to comply with these new eligibility requirements risk losing existing Medicaid funding. The court seemed to create a compromise in this case. It upheld the expansion program (and importantly the opportunity to get new federal funding to subsidize the expansion for states that want to participate), but it held that states must be given a "genuine choice" to decide whether or not to participate. This means that the federal government cannot take away states' existing funding if they do not want to participate in the expansion. Unfortunately, this means that there will be even more inconsistency among the different states in terms of the quality of and access to health care for our most vulnerable citizens.

This Supreme Court's opinion is very long, and it will likely take legal scholars some time to understand and debate the full implications of this decision for the federal government's power to create and regulate social welfare programs, as well as for constitutional law more generally. For now, though, I think the significant practical implications of this decision for health policy are clear. The Affordable Care Act is the most comprehensive attempt to increase health care access through insurance expansion, and to try to reduce health inequity for women, people with disabilities, and racial and ethnic minorities, that we have seen in decades. I also think it is safe to say that in this polarized environment this could be our last chance to try to fix the healthcare system in a meaningful way for many more decades. No one can say for sure whether this reform will work, but because of the court's decision, we will at least get the chance to find out.

That said, I will continue to follow health reform closely, as will other health care advocates and legal scholars, because there are still many questions to be answered. President Obama's health reform law offers promises of affordability, meaningful health benefits, accessibility to quality providers, and fairness in how benefits are allocated, but whether such promises will be realized depends on how public programs are administered and how closely private insurers are regulated. To follow progress on implementation, check out my blog. For the full Supreme Court opinion, click here.

Comments on EEOC Enforcement Priorities

By Associate Dean Michael Waterstone

The Equal Employment Opportunity Commission recently approved a Strategic Plan for Years 2012-2016. This is an important document. The EEOC is the primary federal enforcement agency for the nation's employment laws, with responsibility for the Americans with Disabilities Act, Title VII, the Age Discrimination in Employment Act, and the Genetic Information Nondisclosure Act, amongst others. The Strategic Plan sets enforcement priorities for the EEOC. The EEOC invited input on what the EEOC's national priorities should be for the next three years to have the greatest impact in combating discrimination in the workplace; and recommendations for improving enforcement, outreach and prevention, and customer service.

I submitted these comments, suggesting that the EEOC emphasize failure-to-hire claims in the disability discrimination context. This type of discrimination is the hardest to prove, and these are the hardest cases for the private bar to bring. Yet all evidence suggests this type of discrimination is still happening and limiting the employment opportunities of diverse categories of people with disabilities. Specifically, I advocate that the EEOC should identify cases where employers appear to have a pattern of not hiring employees with disabilities, and that the EEOC consider a testing strategy to ferret out this discrimination, a method which has proven effective in other civil rights contexts.

How the Supreme Court Protected Rupert Murdoch's Reputation

By Associate Professor Aaron Caplan

In an anti-climactic conclusion to a long-running free speech battle, the U.S. Supreme Court unanimously ruled in Fox Television Stations v. FCC (2012) that the federal government could not take action against a TV network for failing to bleep out "fleeting expletives" from excited celebrities during awards shows in 2002. It was not a free speech decision. Instead, the court found that the FCC violated due process by failing to give broadcasters fair warning, at the time of these broadcasts, that isolated profanity would violate decency regulations. As it happens, the FCC did provide such a warning in 2003, but last week's Supreme Court decision declined to rule on whether FCC actions against subsequent broadcasts would be a free speech problem.

A curiosity was hidden near the end of the opinion. One government argument was that the FCC could not have deprived Fox of an interest in liberty or property without due process of law, because the FCC never imposed a fine. Instead, it placed a document in its files stating that Fox had violated decency regulations and let it off with a warning. The Supreme Court concluded that this wrist slap from the FCC implicated a constitutionally protected interest, because the existence of a past violation might be the basis for a larger fine in the event of a future violation. Fair enough. But then the court gilded the lily:

In addition, when combined with the legal consequence described above, reputational injury provides further reason for granting relief to Fox. As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster's "reputation with viewers and advertisers." This observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the indecent material broadcast by Fox (noting the "explicit, graphic, vulgar, and shocking nature of Ms. Richie's comments") and Fox's efforts to protect children from being exposed to it (finding Fox had failed to exercise "reasonable judgment, responsibility, and sensitivity to the public's needs and tastes to avoid a patently offensive broadcast"). Commission sanctions on broadcasters for indecent material are widely publicized. The challenged orders could have an adverse impact on Fox's reputation that audiences and advertisers alike are entitled to take into account.

Citizens United gives free speech a high price

By Associate Clinical Professor Jessica Levinson

This op-ed originally appeared on Politico.

As election 2012 progresses, there's continuing hubbub about the Supreme Court's 2010 Citizens United decision, which paved the way for super PACs. Proponents of campaign-finance laws see the ruling as opening the floodgates for unlimited, often undisclosed, money to overwhelm our political system. Opponents view it as a victory of free speech over government regulation.

Where does the truth lie? While super PACs may be "speaking" up a storm, it's now difficult to hear anyone else. That can't be good in a representative democracy, which has long prided itself on protecting free speech.

A quick tour through the campaign-finance law landscape demonstrates there is much to be concerned about -- unless you're a wealthy donor or well-funded corporation.

Read the complete story here.

Solitary Confinement in U.S. Prisons and Jails: Cruel and Unusual Punishment?

By Clinical Professor Samantha Buckingham

There are an estimated 80,000 Americans in U.S. prisons and jails who are housed in solitary confinement on any given day. In recent years, there has been an increase in the use of solitary confinement for federal, state, and local prisoners and detainees. Prisoners in solitary confinement spend 23 hours a day locked down in isolation. The practice is used often for punishment and in the name of protecting prisoners.

On Tuesday, June 19, the U.S. Senate's Assistant Majority Leader, Senator Dick Durbin (Democrat-Illinois), held the first Congressional hearing ever to be held on solitary confinement. The hearing highlighted a horrific juvenile case and featured live testimony from both a former prisoner who endured the conditions and corrections officials. Sen. Durbin and his committee sought to examine the psychological and psychiatric impact on prisoners held in solitary confinement, the expense in running solitary units, the human rights issues involved, and state reforms which offer successful alternatives to the use of solitary.

To replicate what the conditions in solitary confinement are like for American prisoners, the ACLU assembled a real cell in Sen. Durbin's chambers. The cell was roughly 7 feet by 10 feet. It had nothing inside except for a bunk and a toilet. There was a small, out of reach window, which was covered, and a slot in the door just like the ones through which prisoners in solitary receive food trays.

In my written testimony, I described how the use of solitary confinement impacted two clients I have represented. The two stories illuminate some of the problems with the use of solitary confinement with vulnerable populations, particularly children who are charged as adults, the mentally ill, those who have previously endured abuse and neglect, and those who are at risk for suicide.

The Lessons of the June 5, 2012 Primary Election

By Associate Clinical Professor Jessica Levinson

Last week Californians voted in primary elections for the president, federal and state representatives, judges, and proposed ballot initiatives. Actually, let me rephrase that: Last week a small percentage of eligible voters in California weighed in on various ballot questions. About one-in-four people who could vote, did vote, which may, in fact, be the lowest in recent history for a presidential primary.

Californians, or the few of us who mailed in ballots and went to the polls, were faced with two proposed ballot initiatives. First up, Proposition 28, the successful proposal to tinker with the state's term limit laws. Now, instead of being able to serve 6 years in the state assembly and 8 years in the state senate, for a total of 14 years of service, our state lawmakers can serve for a total of 12 years in either or both houses.

Does that sound like a relatively minor change? Well, it is. It will be hard to determine whether voters approved of Prop 28 because they thought they were shortening the amount of time lawmakers could serve as state representatives, or because they thought they were giving lawmakers more flexibility. In any event, this is not the type of large-scale reform that California needs.

While we may not know why voters approved of Prop 28, we do know that it faced little opposition. Few ads were taken out to oppose it. Negative advertising matters, particularly with respect to ballot initiatives.

That brings us to Proposition 29, which may be this cycle's poster child for showing why negative advertising matters. Prop 29 looks likely to fail. That proposal would have imposed a $1-a-pack tax on cigarettes and used the revenues for cancer research. There was a great deal of advertising against Prop 29. Unsurprisingly, tobacco companies were willing to shell out great sums to defeat the measure.

So what are the lessons from primary election day? First, few of us vote, despite new "good government" reforms such as open primaries and redistricting. Second, negative advertising regarding ballot initiatives is likely quite effective.

[This post also appeared on kcet.org.]

First, decide DOMA

By Associate Professor Doug NeJaime

This op-ed originally appeared in the June 8, 2012 edition of the Los Angeles Times.

What will the Supreme Court decide first: whether states can deny same-sex couples the right to marry or whether the federal government can refuse to recognize same-sex couples' valid marriages under state law? Now that the U.S. 9th Circuit Court of Appeals has declined to rehear Perry vs. Brown, the challenge to California's Proposition 8, and the 1st Circuit has ruled Section 3 of the federal Defense of Marriage Act, or DOMA, unconstitutional, that question has taken on an increased sense of urgency. Although Perry may provide more dramatic and compelling litigation, the DOMA cases present the Supreme Court with the best way forward.

First, the DOMA cases introduce fewer political complications, teeing up the relatively limited question of whether the federal government can deny recognition to existing marriages. The plaintiffs have challenged only Section 3 of DOMA, which prevents the federal government from recognizing same-sex spouses. Section 2, which largely restates existing principles regarding interstate recognition, is not at issue. If the court agrees with the 1st Circuit on Section 3, states with marriage equality would have their laws recognized by the federal government. States without marriage equality would be unaffected; such a ruling would neither require them to issue marriage licenses to same-sex couples nor compel them to recognize marriages from other states. The political backlash, therefore, would probably be relatively limited.

Read the complete article here.