Category Archives: Fourth Amendment

A majority of independents and Republicans believe red flag gun laws will likely be abused by the government as the Senate works to clear a bipartisan package including such laws, a new poll reveals.

The Trafalgar Group and Convention of States Action conducted a survey and asked participants whether they believe red flag gun control laws designed to temporarily take guns away from individuals has the potential to be abused by local authorities and government officials to disarm their political opponents and/or citizens who disagree with them?

Among all the respondents, 46.7% said yes while 22.5% said they were unsure. Roughly 30% said no.

When broken down along political parties, 16.4% of Democrats said yes, 30.1% said not sure and 53.5% said no.

Republicans overwhelmingly thought the laws were open for abuse, with 72.2% saying yes and just 14.1% saying no. Independents similarly believed the laws have potential for abuse, with 52.3% responding yes and 24.3% saying not sure.

The survey was conducted between June 16 and June 19 amongst 1,084 respondents with a +/- 2.9% margin of error. (RELATED: Law Abiding Folks Shouldnt Have Any Fears, Republican Rep. Fred Upton Claims About Gun Control Bill)

Americans want real, workable solutions to the mass shootings we are seeing in this nation, but its obvious that they dont see the proposed red flag laws as the answer, President of Convention of States Action Mark Meckler said in a statement. Government officials at all levels have spent the last two years demonizing their opponents and using whatever means possible to censor or threaten those who disagree with them, so the idea that we should now trust those same people to not abuse a law that could infringe on basic constitutional rights is laughable.

More and more Americans are coming to the conclusion that the government abuses any power its given, and they are responding accordingly, he continued.

The Senate voted64-34 Tuesday to start debate on a bipartisan gun control package that includes $750 million that would in part help states implement extreme risk protection order programs, also known as red flag laws. These laws allow a court to confiscate a firearm from an individual who is believed to pose a violent threat.

In the Supreme Court case of Canglia v. Strom, the high court ruled seizing a citizens gun violates search and seizure rights protected under the Fourth Amendment.

Read the original:
Republicans, Independents Fear Red Flag Laws Will Be Abused By Government, Poll - Daily Caller

How are you doing today? asked Retired Circuit Judge Susan Whitlock, presiding over the newly formed Culpeper County Circuit Drug Court during the April 12 hearing.

She frequently starts her interactions with drug court participants in this way.

Looks like you had a good week, Whitlock said. 25 days substance-free.

Applause in the galley from the Drug Court Team for participant Brandon, a 21-year-old white male. He was close to moving to phase two of the five-phase structured program focused on providing a variety of services and consistent supervision for individuals battling addictionversus incarceration.

I am excited, Brandon responded. I actually started liking going to classes. Its good to talk about it.

Part of being in drug court is attending regular treatment offerings and meetings through community services and others. Theres a focus on building trust with the drug court team and being honest.

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Are you going to the gym? Whitlock asked.

Not this week, responded the young man, saying he played basketball instead. Brandon said he was not going out of his way to talk to people, especially old associates.

I want to focus on myself, he told the judge. A lot of people are still drinking and smokingdont want to be around that crowd right now.

Thats a good decision, the judge said.

Brandon started drug court in early March in connection with a 2020 drug possession charge of sedative and Xanax-like pills.

He admitted to abusing drugs after being found by police slumped over a steering wheel in the parking lot of a local business. Brandon told cops he had used the highly addictive opioid, OxyContin, according to court records.

He met requirements for referral to drug court and was assessed as being at high risk/high need and to having moderate to severe substance abuse disorder. Brandon must abide by 15 requirements including not possessing or being around people with drugs, random drug tests and not owning or using a gun.

Drug court participant William, in the program since February, is a 56-year-old Black man and ex-con in the system for a while, most recently for a drunk in public charge and possessing PCP, back in 2019.

Im fine, he told Judge Whitlock, asked how he was doing at the April 12 hearing.

She said, You have done really well33 days substance-free.

Applause from the galley. The team granted him permission to go on a few-day vacation at a local ski resort with his daughter.

You are close to going on to phase two as well, Whitlock said of the 14-month program.

William said 2022 was going to be his year, that he was starting his own business.

I design mountain bikes, he told the judge, to which she responded, We are really proud of you.

Retired Charlottesville Circuit Judge Edward Hogshire filled in for Whitlock at drug court on May 2 with William and Brandon checking in, and a new participant enrolled, 29-year-old Wayne, a white male with a history of substance use disorder.

Hogshire, who works as a University of Virginia School of Law lecturer, recalled his 16 years presiding over the Charlottesville-Albemarle Drug Treatment Court. He said he was not a believer in the program at first.

But after a year or two or watching people grow and change and have a life, I became a convert, Hogshire said. I am so excited Culpeper has a drug treatment court.

He commended participants, saying it was taking the hard way with all the hassle, testing and accountability drug court involves.

Hogshire said its worth it, especially with access to treatment and care options. He cited 400 graduates of the Charlottesville program.

The majority go on to have productive lives they never would have had without the program, the judge said. I encourage you to stay with it.

Encouragement, support and focus

Brandon told the substitute judge hes trying to help himself, that he was living in Richmond prior to getting enrolled in drug court. He said he talks weekly talks with a mentor and was going to the Outer Banks with his family.

Will you stay away from people, places and things that might be a problem? Hogshire asked.

Yes, Brandon replied. They know my situation and have been supportive, he said of his family.

Hogshire came off the bench in the general district courtroom to present a certificate to the 21-year-old for completing phase one of the program. The judge shook his hand, Congratulations.

Culpeper County Criminal Justice Services Director Andrew Lawson, acting drug court coordinator, stood up in the courtroom to tell Brandon how proud everyone is of him for the progress.

Youve done really wellbeen really honest with people, trying to help yourself and it shows, Lawson said.

Two months ago, Brandon did not think that was possible, commented a social worker part of the drug court team.

He has been responsible and easy to work with, added drug court team member, defense attorney Monica Chernin.

Hogshire encouraged camaraderie among drug court participants, saying they can offer strength when things get tough.

Checking in from vacation via video conference, William addressed Brandon: Im proud of you, man, love you man, be safe.

Looks like you are working hard in the program, and remaining drug and alcohol-free, Hogshire addressed the TV screen.

William responded he was trying to get his life back. The 14-month program will be accomplished together, as a group, he added. He mentioned his young daughter and said he just got his drivers license back.

Trying to be a better father for my kid and member of society, William said. I love church, been in NA for yearsI am just trying to stay focused for the rest of my life.

Hogshire wished him good luck in the program and said he looked forward to his successes.

Last to check in at drug court was the newbie, Wayne. He told the retired judge he wanted to live a sober life and be a productive member of society.

The freedom, being able to see my kids whenever I want is the best thing in the world, said the 29-year-old, who spent time in jail for a heroin possession conviction in 2017, according to court records. Additional charges from 2015 include accepting stolen property and another probation violation for use of opioids, LSD and Fentanyl, according to court records.

Wayne said he was grateful to be in the drug court program and attending recovery classes 12 hours per week. He completed the program at Boxwood Recovery Center in Culpeper, 30 days, following a probation violation in 2021.

It works if you work, Wayne said.

Good for you, Hogshire replied. This program will need for you to help with the others. You will help each other through because its not easy.

The social worker commented if participants commit themselves they will do very well.

All three Culpeper drug court participants remain in compliance with the program as they work toward the next level.

In the final chapter, phase five, participants go to court monthly and continue to engage with treatment, supervision, medical needs and changing people, places and things.

In the final phase, participants continue to review their case plan, with monthly office visits and visits from the team to their home. They are to maintain housing, be subject to random drug testing, engage in a criminal thinking program, develop a continuing care plan and maintain a pro-social activity and sober network, according to the participant handbook developed by the team. Job training, parenting and family support and vocational training are also addressed at this phase prior to graduation.

In addition to recognition from the drug court team, as shown at hearings, other incentives are gift certificates, medallions, movie passes, sobriety coins and early program release. Sanctions include reprimands, writing essays, volunteer hours, curfew restrictions and increased supervision and drug testing.

Drug court participants also waive Fourth Amendment rights against unreasonable search and seizure, according to the handbook.

This is the second in an occasional continuing series following the progress of the Culpeper Drug Court and its participants, whose real names are not used.

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Continued here:
Getting their lives back: Culpeper Drug Court participants start strong - Culpeper Star-Exponent

Rep. Bennie Thompson opened his committees hearings on the Jan. 6 insurrection by discussing not just the recent memory of the Capitol riot, but something that happened over 150 years earlier: the Civil War. He was born, he said, in a town midway between Jackson and Vicksburg, Mississippiboth sites of major Union victories that helped turn the tide of the war in 1863. Im from a part of the country where people justify the actions of slavery, Ku Klux Klan, and lynching, Thompson explained. Im reminded of that dark history as I hear voices today try and justify the actions of the insurrectionists of January 6, 2021. And he pointed to the oath of office sworn by himself and his fellow committee members, and highlighted its origin story: The words of the current oath taken by all of usthat nearly every United States Government employee takeshave their roots in the Civil War.

The role of the oath, and the historical lineage behind it, has come up again and again during the select committees hearings on its investigation into the Jan. 6 riot. During the first hearing, not just Chairman Thompson but also Vice Chair Liz Cheney and Capitol Police Officer Caroline Edwards referenced oaths throughout the hearingemphasizing the importance of the solemn promise they made to support and defend the Constitution of the United States against all enemies, foreign and domestic. And in his prepared statement released before the committees third hearing on June 16, retired Judge Michael Luttig wrote, Todays politicians believe that they never have to choose between partisan party politics and country, when in fact they are obliged by oath to choose between the two every day[.] Greg Jacob, counsel to Vice President Mike Pence, likewise referenced Pences commitment to his own oath.

On one level, focus on the oath might seem strange. Why spend this time discussing the matter of the oath sworn by government officials, when every minute spent on that topic is a minute not spent talking about the lawbreaking committed by insurrectionists or the culpability of President Trump and those around him in the violence? But the references made to the oath throughout the June hearings speak directly to how the committee seems to understand the nature of its work and its responsibility to the public. In broadcasting the truth of what happened on Jan. 6, the select committee is underlining the extent to which Trump breached his own presidential oath by encouraging the attack on Congressand what this breach represented as a betrayal of the countrys democratic traditions. And the committee, made up of members of Congress who also swore an oath, is taking the opportunity to play a unique role in reflecting on the nature of the promise that government officials make to the American people.

The president is the federal governments most prominent swearer of an oath, and the presidential oath is the only one whose language is set out explicitly in the constitutional text. But as Thompson reminded viewers, the presidents pledge to preserve, protect, and defend the Constitution is not the only such oath required by that document. The Constitution also provides that members of Congressalong with state legislative officials and judicial and executive officials at both the federal and state levelsshall be bound by Oath or Affirmation, to support this Constitution. The committee portrayed the constitutional oath as the sine qua non of government service, and it put forward its own argument for what fidelity to the oath and the Constitution mean. As Cheney said at the hearings closing:

In our country, we dont swear an oath to an individual, or a political party. We take our oath to defend the United States Constitution. And that oath must mean something. Tonight, I say this to my Republican colleagues who are defending the indefensible: There will come a day when Donald Trump is gone, but your dishonor will remain.

The committee chair and vice chair told the story of Jan. 6 as a day of oaths upheld and broken. Oath talk aboundedThompson, Cheney, and the witnesses uttered the word almost 20 times. For Thompson, the police officers who held the line that day honored their oath, including Edwards, who objected to rioters calling her a traitor to my country, my oath, and my Constitution. Cheney hinted at then-Vice President Mike Pences oath adherence when she spoke of his higher duty to the United States Constitution, which Pences chief of staff made explicit in prerecorded testimony played at the hearing: I think [Vice President Pence] ultimately knew that his fidelity to the Constitution was his first and foremost oath. Cheney also praised Trump-appointed lawyers Jeffrey Rosen and Richard Donoghue as oath faithfuls. These men honored their oaths of office, Cheney said. They did their duty, and you will hear from them in our hearings.

As Thompson said, the oath currently sworn by members of Congress and federal law enforcement like Edwards has its origins in the Civil War. But the preeminence of oaths in American government goes back to its founding. Even before the Constitution was drafted, the Continental Congress adopted in 1778 a requirement that federal officers swear an oath of loyalty to the United States. A few years later, the framers mandated oaths in Article I, Article II, Article IV, and the Fourth Amendment of the Constitution. And the first Congress of the United States passed as its very first law a statute regulating the administration of oaths.

From 1789 onward, officials swore simply to support the Constitution of the United States." During the Civil War, however, Congress developed this language into the far more involved Ironclad Test Oath, committing swearers not only to support and defend the Constitution of the United States, against all enemies, foreign and domestic but also to promise that they had never voluntarily borne arms against the United States or engaged in other acts of disloyalty. The oath was later revised further to make room for service by former Confederatesbut the change to the text in the midst of the fighting speaks to the importance of the oath in affirming a commitment to certain core principles undergirding the nation. Likewise, Congress reaffirmed the sanctity of oaths through the passage of the 14th Amendment, which, in Section 3, bars from holding office any individual who had previously sworn an oath to support the Constitution but then engaged in insurrection or rebellion.

Perhaps the most well-known commentary on the oath comes from Justice Joseph Story, who wrote in Commentaries on the Constitution that oaths have a solemn obligation upon the minds of all reflecting mena proposition that he considered too clear to render any reasoning necessary in support of it. The necessity of the oath, according to Story, comes from the plain right of society to require some guaranty [sic] from every officer, that he will be conscientious in the discharge of his duty. Writing over a century later, Chief Justice William Rehnquist similarly argued that the Constitutions oath requirement aims to assure that those in positions of public trust [are] willing to commit themselves to live by the constitutional processes of our system.

Oaths are solemn, ceremonialized promises tied to institutions and made before witnesses. In that sense, they are political statements. But oaths, as Storys and Rehnquists words suggest, are more than that. To make an oath is to swear not only to do what one has promised to do, but to do ones part to ensure that oaths carry a moral weight that surpasses all other promises.

For this reason, the Jan. 6 committees emphasis on oaths actedsometimes implicitly and sometimes explicitlyas a rebuke of Trump. As one of us has written, the former presidents self-regard and strained relationship with reality arguably makes him a person incapable of understanding or shouldering the moral weight required by the oath. Its telling that, when he spoke at the Ellipse on Jan. 6, Trump rhetorically embraced the Constitution before suggesting that it wasnt binding after all. At first, he referred to the Constitution that he had sworn to protect and defend again and again: Mike Pence is going to have to come through for us, and if he doesnt, that will be a sad day for our country because youre sworn to uphold our Constitution, he said. Were supposed to protect our country, support our country, support our Constitution, and protect our constitution, he added. But near the end of his speech, he effectively conceded that he is willing to dispense with the Constitution when, in his judgment, something has gone wrong: When you catch somebody in a fraud, youre allowed to go by very different rules.

In the first hearing, Cheney contrasted loyalty to the Constitution with the fealty Trump demanded to himself alone when she commented that, In this country, we dont swear an oath to an individual or a political party. We take our oath to defend the United States Constitution. The argument the committee is making here is not just that those opposing the big lie and battling the insurrection honored their oaths; its that Trump, and those who supported him, betrayed those promises. Or perhaps they were incapable of swearing them honestly in the first place.

Trump was not the only person involved in the attack on Congress who swore an oath. According to the latest count from the George Washington University Program on Extremism, 101 of the rioters so far charged by the Justice Department had military experience, meaning they swore a similar oath. Some of these were members of the perversely named Oath Keepers, one of the two extremist groups frequently mentioned throughout the first Jan. 6 hearing. Founded in 2009, the Oath Keepers actively recruit current and former members of the military, law enforcement, and other public safety positions to defend their extremist interpretation of the Constitution.

In a sense, the committee is presenting its own understanding of the oath as historically and morally rooted in a way that Trumps shallow invocation of the Constitutionand the Oath Keepers violent vision of governanceis not. And as members of Congress, the investigators are uniquely positioned to weigh in on that meaning. Or as Thompson put it of the committee members:

All of us have one thing in common. We swore the same oath, that same oath that all members of Congress take upon taking office and, afterwards, every two years if they are reelected. We swore an oath to defend the Constitution against all enemies, foreign and domestic.

They believe themselves to be acting in service of their oath by conducting this investigation. As Thompson put it: I come before you not as a Democrat, but as an American who swore an oath to defend the Constitution. And in their argument, they, not Trump and not the Oath Keepers, are the true guardians of the oaths significance.

Understanding this helps untangle the main questions at the heart of the committees investigation: What is its aim? What would success look like? When these hearings end or when a report is released, there will be no formal pronouncement; Congress already failed to impeach Trump, and there is no jury to deliver a verdict. Besides, the committee has not defined its intended audience beyond vague and predictable references to the American people. Who is it trying to convince, and of what?

Some commentators have argued the committees work is primarily about marshaling the facts and telling the story, with an eye toward creating a historical record. More of them, though, are focused on how the committees work may translate into a criminal case that could be referred to the Justice Department for prosecution. This view implies that the committees investigation will have failed if, at the end of the day, it does not provide enough evidence or build a strong enough case to result in the indictment of Donald Trump.

But Thompsons and Cheneys repeated invocations of oaths suggests that the committee has a differentor at least an additionalpurpose. The first branch of government, after all, is neither a judicial power nor a body meant to take care that the laws be faithfully executed through criminal prosecution. And that is precisely why the committee can use the oath to frame its inquiry. An oath is not justiciable. The FBI cannot investigate adherence to oaths because they are not enforceable as codified law. A prosecutor cannot establish that an oath has been broken by proving certain legal elements beyond a reasonable doubt, and a judge cannot adjudicate it.

What the committee can do, though, is make a public case for Trumps having broken his oath of office and his manifest inability to swear that oath honestlyin other words, for the inconsistency of his actions on Jan. 6 with the Constitution, and for his unfitness to hold positions of public trust. It is not only an effort to prove the supremacy of their own interpretation of the oath or the Constitution it promises to support, but a plea to restore the sanctity of oaths in general. As Cheney said, [O]ur oath to defend the Constitution ... must mean something.

Just as the law lacks legitimacy unless those who make, enforce, and interpret it share a genuine commitment to treat it seriously, so too does an oath lack sanctity unless those who violate it are held to account. The committees emphasis is as much a referendum on Trumps fidelity to the constitutional oath as it is a commentary on the broader importance of oaths to the United States national identity as a country governed by the rule of law. To the committee, it seems the very future of the Republic depends in part on the oathif its leaders can keep it.

Read this article:
The Jan. 6th Committee on Why Oaths Matter - Lawfare

[This month, I'mserializingmy 2003Harvard Law Reviewarticle,The Mechanisms of the Slippery Slope.]

From Legislative Decisions.So far, I have argued that a legal rule may change some people's attitudes: People may apply the is-ought heuristic and conclude that if the rule exists, its underlying justifications are probably sound. And this conclusion may in turn lead people to accept other proposals that rest on these justifications.

Attitudes, however, are altered by the law's justifications as they are perceived. Say people conclude that A's enactment means that A is probably good, and that another proposal B is probably also good if it is analogous to A. Whether B is seen as analogous to A turns on which particular justification people ascribe to A, and see as being legitimized by A's enactment.

Consider, for instance, the tax for the support of Christian ministers that Madison condemned in his Memorial and Remonstrance. Madison reasoned:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

People should therefore be wary, Madison argued, of power "strengthen[ing] itself by exercise, and entangl[ing] the question in precedents"they should recognize "the consequences in the principle," and "avoid[] the consequences by denying the principle."

But Madison's argument implicitly turned on the justification the public would infer from the law and accept as a "precedent" for the future. If the justification was, to borrow part of the statute's preamble, that the government may properly coerce people to do anything regarding religion, so long as such coercion supposedly has a "tendency to correct the morals of men, restrain their vices, and preserve the peace of society," then Madison's fears would have been well-founded. But if the justification was, to borrow another part, that the government may properly require people to pay a modest tax that will be distributed without "distinctions of preeminence amongst the different societies or communities of Christians," then his concerns would be less plausible.

Unfortunately, we often can't anticipate with certainty which principle a statutory scheme will eventually be seen as endorsing. Sometimes, the debate about a statute will focus on one justifying principle, and for some time after the statute is enacted, that will probably be seen as the principle that the statute embodies. But as time passes, the debates may be forgotten, and only the law itself will endure; and then advocates for future laws B may cite law A as endorsing quite a different justification.

Consider the installation of cameras that photograph people who run red lights. If the policy's existence will lead people to conclude that the policy is good, and will thus lead them to view analogous programs more favorably, what justification for the policyand thus what analogywill people accept?

Some people will infer the justification to be that "the government may properly enforce traffic laws using cameras that only photograph those who are actually violating the law" (J1). Others, though, may draw the broader justification that "the government may properly record all conduct in public places" (J2). Decision A (cameras aimed at catching red light runners) might thus increase the chances that decision B (cameras throughout the city aimed at preventing street crime), which J2 would justify, will be implemented. {This result would be especially likely if public opinion on B were already so closely divided that influencing even a small group of voters could change the result.} And if you strongly oppose B, this consequence would be a reason for you to oppose A as well.

This possibility suggests that Madison might have been right to consider the worst-case scenario in assessing how the tax for support of the Christian ministers might change people's attitudes. People might have seen it as endorsing only a very narrow principle, to which even Madison might not have greatly objected, but they might also have seen it as endorsing a much broader principle. And if one thinks that one of the potential B's that can flow from A is very bad, this may be reason to oppose A even if the chances of A facilitating that particular B are relatively low.

From Judicial Decisions.Judicial decisions, unlike many statutes, explicitly set forth their justifications, and might therefore have more predictable attitude-altering effects. But people might still interpret a decision as endorsing a certain justification even if that's not quite what the decision held, partly because many people don't read court decisions very closely or remember them precisely (again because of rational ignorance).

All of us have some experience with this phenomenon, where a decision is boiled down in some observers' minds to a brief and not fully accurate summary. Thus, for instance, in Zacchini v. Scripps-Howard Broadcasting Co., the Supreme Court held that an unusually narrow state "right of publicity" claim didn't violate the First Amendment, but repeatedly stressed that "[p]etitioner does not merely assert that some general use, such as advertising, was made of his name or likeness; he relies on the much narrower claim that respondent televised an entire act that he ordinarily gets paid to perform." Nonetheless, Zacchini is regularly cited for the very proposition that the Court explicitly refused to decide: that the more common version of the "right of publicity"the right to control many uses of one's name or likenessis constitutional.

Consider also Justice Holmes's statement that "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic." This aphorism has entered common usage as an argumentendorsed by one of the great Justices, and one of the Court's earliest advocates of strong free speech protectionthat some kinds of speech ought not be constitutionally protected.

But most people quoting the phrase omit the "falsely," which changes the meaning substantially. {A LEXIS search in the NEWS;US file for "(shouting fire in a theatre or shouting fire in a theater or shouting fire in a crowded theatre or shouting fire in a crowded theater) and date(< 1/1/2002)" yielded 333 results. The same query with "falsely" before each "shouting" yielded only 72. Some of these results were false positives (for example, stories that used the metaphor more broadly than just in a free speech context, and the occasional story discussing the common omission of "falsely"), but only relatively few.} Under modern doctrine, for instance, falsely shouting fire would be punishable under the false statements of fact exception to free speech protection, while accurately shouting fire probably wouldn't be punishable. If Holmes's point were quoted precisely, it would provide little support for, say, restricting advocacy of anarchy, allegedly racist statements, or communication of private information about people. Many commentators, though, seem to have absorbed the principle in a form that's broader than its literal boundaries.

{See, e.g., Ad Generates Free Speech Debate at U. Colorado, Colo. Daily, Mar. 21, 2001 ("William King, a professor of Afro-American studies at CU, said that while free speech allows for ads [stridently denouncing the calls for reparations for slavery] to appear in print, common sense should keep them out. 'It's a whole lot like shouting "fire" in a crowded theater,' said King."); William Claiborne, Community vs. Klan in a Contest of Rights: City of Gary Seeks To Stave Off Rally by "Spewers of Filth", Wash. Post, Jan. 19, 2001, at A3 ("For his part, [the mayor of Gary, Ind., Scott L.] King on Wednesday said that for the Ku Klux Klan to come to Gary, where the population is 85 percent African American, 'gets pretty close to shouting "Fire!" in a crowded theater, which in my view is not constitutionally protected speech."'); Michael Ko, Kirkland Sues over Police Data: Web Site with Officers' Personal Details Abuses Free Speech, City Manager Says, Seattle Times, Apr. 3, 2001, at B2 ("The release of home addresses and Social Security numbers is like 'shouting fire in a crowded theater."'); Carrie Smith, Board Denies Request for School Anarchy Club, Charleston Daily Mail, Oct. 30, 2001, at 5A ("A Sissonville High student's request to start an anarchy club at her school was overthrown by board members, who likened it to shouting fire in a crowded theater.").}

This tendency may be exacerbated when decision A is justified by a combination of factors, because it's easy for people's simplified mental image of the decision to stress only a subset of the factors. Consider, for instance, the pen register decision (Smith v. Maryland), which let the government getwithout probable cause or a warranta list of all the phone numbers that someone has dialed. The decision rested on three main justifications: the Court began by pointing out that the phone numbers didn't reveal that much about a conversation (J1); it ended by arguing that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties" such as the phone company (J3); and in between, it included the following argument about people's actual expectation of privacy (J2):

[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud, and preventing violations of law." Pen registers are regularly employed "to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling." Most phone books tell subscribers that the company "can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls." Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. [I]t is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

When the Internet tracking question arose more than twenty years later, however, justification J2 was nowhere to be seen, though the analogy to Smith was a big part of the debate. Had J2 been absorbed into people's attitudes, people might well have resisted the analogy, since J2 doesn't apply to Internet communications. But apparently Smith led people to believe that the warrant requirement should be relaxed whenever J1 and J3 were applicable. J2 was largely forgottenperhaps "[t]he people [did] not comprehend such subtleties." And the Smith decision may have thus led many people to accept a justification broader than what the opinion itself relied on.

What can judges who see this possibility do? Making their justifications explicit, and perhaps giving some examples in which the justifications don't apply, might help, but it might not be enough: consider, for instance, Zacchini, which explicitly refused to decide the constitutionality of the broad right of publicity, but which has nonetheless been read as deciding just that.

Another option is to ignore this risk. I have a duty to decide the case as best I can, a judge might conclude, without changing my reasoning based on a speculative (even if sensible) fear that some people in the future might oversimplify the reasoning.

A third option, though, is to consider the possibility of oversimplification in close cases. A judge who feels strongly about, for instance, a broad vision of free speech or the Fourth Amendment, might adopt a rebuttable presumption against changewhen it's a close question whether to create a new exception to speech protection or the warrant requirement, the judge might vote against the exception, because of the risk that even a carefully limited exception might later be oversimplified into something broader.

The rest is here:
Attitude-Altering Slippery Slopes: Just What Will People Infer from Past Decisions? - Reason

Associate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021 in Washington, D.C.

The Supreme Court of the United States ruled 6-3 in a fractured opinion Wednesday in Egbert v. Boule, a case from the U.S. Court of Appeals for the Ninth Circuit about a federal agents alleged mistreatment of a bed-and-breakfast owner. The case was the latest attempt to create an extension of allowable Bivens claims in which individuals may sue federal actors for violations of constitutional rights.

U.S. citizen Robert Boule is the owner of the Smugglers Innin Blaine, Washington a town near the Canadian border. The Smugglers Inn has long been known to law enforcement as a potential site of illegal border crossings. As the Court mentioned in a footnote in its decision, Boule was recently convicted in Canadian court for engaging in human trafficking after pleading guilty to trafficking 11 Afghanis and Syrians into Canada.Boule has also worked as an informant for the U.S. Immigration and Customs Enforcement (ICE).

The claims Boule sought to bring against the federal government stemmed from an altercation between U.S. Border Patrol agentErik Egbert and Boule in 2014. Egbert had heard that a suspicious guest was due to fly in from Turkey and check into the Smugglers Inn. Egbert, who did not have a warrant, drove to the inn and waited.

When the guest arrived, Egbert entered Boules private driveway and attempted an interception. Boule asked Egbert to leave, but Ebert refused, and the confrontation became physical. Boule refused to move away from Egberts car, and Egbert grabbed him and pushed him onto the ground.

Egbert ultimately concluded that the guest was lawfully present in the United States. Boule, however, complained about Egberts actions to a supervisor and later sought medical attention for back injuries he said he suffered as a result of the incident. Egbert then allegedly retaliated against Boule in a number of ways, including calling the Internal Revenue Service and asking the agency to perform a tax audit on Boule. According to Boule, compliance with the audit cost him $5,000 in accounting fees, and the audit itself yielded no evidence of wrongdoing on Boules part.

Boule waged a federal lawsuit claiming that Egbert violated both his Fourth and First Amendment rights. The claims, known as Bivens claims, are federal analogs to a 42 U.S. Code 1983 civil rights action against state actors. They require that a plaintiff either assert an established set of rights that were violated or that a court allow an extension of allowable Bivens claims. The name of these claims isderived from the 1971 SCOTUS case Bivens v. Six Unknown Named Agents, in which SCOTUS found an implied cause of action against federal officials who violate constitutional rights.

Justice Clarence Thomas began the Courts 17-page opinion by reminding readers that the high court has consistently (indeed, 11 times over the past 42 years) declined to extend Bivens. Primarily, Thomas and the majority rested their holding on the special nature of U.S. Customs and Border Protection (CBP) agents work. The Court reasoned that because CBP handles cases involving national security risks, Egberts actions fall outside the scope of Bivens reach.

Thomas included the photo below in his opinion to underscore his observation that any person could easily enter the United States or Canada through or near Boules property. The justice expounded on the inns history of cross-border smuggling of everything from people to myriad drugs to money to items of significance to criminal organizations.

The location of the Smugglers Inn is shown.

Thomas, clearly no fan of Boules, detailed, Ever the entrepreneur, Boule saw his relationship with Border Patrol as a business opportunity. According to Thomas, Boule would host unlawful entrants at his inn, then charge for shuttle service as he drove them around while simultaneously informing Border Patrol about anyone of interest.

Thomas explained the incident between Boule and Egbert as a tale born of good law enforcement. When Boule told Border Patrol about a Turkish national, Agent Egbert grew suspicious, as he could think of no legitimate reason a person would travel from Turkey to stay at a rundown bed-and-breakfast on the border in Blaine.' Thomas included the photo below of the accommodations at the Smugglers Inn to emphasize the reasonableness of Egberts suspicion.

A bedroom at the Smugglers Inn is shown.

Thomas then warned against judiciary overreach. Allowing Bivens actions in new categories should be a disfavored judicial activity, Thomas said, and argued that Congress is the appropriate entity to do so. The justice held fast to his message of judicial restraint, and wrote, Congress is better positioned to create remedies in the border-security context, and the Government already has provided alternative remedies that protect plaintiffs like Boule.

Thomas rejected the claim that Egberts actions as a CBP agent should be treated the same as any other law enforcement officer. Rather, Thomas reasoned, CBPs work has national security implications, rendering its officers actions distinct from those of a typical police officer. Thomas wrote at length about the recent Hernandez case, in which SCOTUS similarly refused to extend the right to file a Bivens action to the parents of a Mexican child fatally shot by CBP at the U.S.-Mexico border; the ruling in the Boule case, said Thomas, should fall in line with the one in Hernandez.

The majoritys second bit of reasoningthat a Bivens action simply isnt needed in this casehad been anticipated by Boules counsel. Boules argument was that the grievance process within CBP is inadequate, because it does not allow him to participate as a party. Thomas dismissed this point out of hand, and wrote, we have never held that a Bivens alternative must afford rights to participation or appeal. Rather, Thomas said, the goal is simply to deter unconstitutional acts of individual officers. So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy, Thomas wrote.

Thomas also rejected Boules claim of a Bivens action based on deprivation of First Amendment rights. His reasoning was much the same as it was for Boules Fourth Amendment claim:

Now presented with the question whether to extend Bivens to this context, we hold that there is no Bivens action for First Amendment retaliation. There are many reasons to think that Congress, not the courts, is better suited to authorize such a damages remedy.

Justice Neil Gorsuch penned his own brief concurrence, in which he stressed the importance of separation of powers and called out the Bivens case itself for being a misstep. Gorsuch wrote that he struggle[s] to see how [the Boule] facts differ[] meaningfully from those in Bivens itself, given that both raise constitutional violations committed by federal law enforcement officers. To Thomas point that CBPs work raises unique immigration concerns, Gorsuch asked: But why does that matter?

Gorsuch pushed the majoritys analysis a step farther, and argued that if the analysis applicable to new Bivens actions always requires a contest of courts versus Congress, then Congress will always win. Therefore, wrote Gorsuch, In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false hope, and in the process invite still more protracted litigation destined to yield nothing.'

Justice Sonia Sotomayor wrote a partial dissent which was joined by Justices Stephen Breyer and Elena Kagan. Sotomayor wrote that Wednesdays decision inBoule, combined with recent precedent, enables SCOTUS to close the door not just to Boules claim, but also to others that fall squarely within Bivens ambit.

Although Sotomayor agreed with the decision to reject Boules First Amendment claim, she would have allowed Boules action to proceed on his Fourth Amendment claim. Sotomayors take on the incident between Boule and Egbert was that it looked a lot like the facts of Bivens itself:

Boules Fourth Amendment claim does not arise in a new context. Bivens itself involved a U.S. citizen bringing a Fourth Amendment claim against individual, rank-and-file federal law enforcement officers who allegedly violated his constitutional rights within the United States by entering his property without a warrant and using excessive force. Those are precisely the facts of Boules complaint.

The only difference, argued Sotomayor, was that the offending officers worked for different federal agencies.

The dissenting justice, however, did find significant differences between the recentHernandez case (on which the majority relied in its reasoning) and the Boule case. This case [] does not present an international incident that might affect diplomatic relations, unlike the cross-border killing of a foreign-national child, Sotomayor wrote. She continued to explain that while some CBP agentslike those involved in the Hernandez caseare stationed at the border to prevent illegal entry, Agent Egbert was not attempting to prevent illegal entry or otherwise engaged in activities with a strong connection to national security.'

Sotomayor had harsh words for the majoritys analysis, which she said was selectively quoting our precedents and presenting its newly announced standard as if it were always the rule. She dismissed Thomas claims of national security interests afoot as sheer hyperbole, and noted that what was central to the Boule case was physical assault by a federal officer against a U.S. citizen on U.S. soil.

As for Congress role, Sotomayor was satisfied that Congress has spoken, in that it set out the rules for how immigration officers must act.

Mere proximity to a border, in other words, did not give Agent Egbert greater license to enter Boules property, she wrote, Nor does it diminish or call into question the remedies for constitutional violations that a plaintiff may pursue, particularly where, as here, an agent unquestionably was not acting for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.

Sotomayor argued that the SCOTUS decision will put many at risk of rights violations by unscrupulous law enforcement officers.

The consequences of the Courts drive-by, categorical assertion will be severe, she warned. Absent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury.

Sotomayor also had words of guidance for the lower courts. Despite what she called the Courts thinly veil[ed] disapproval of Bivensand despite the Boule decision making it harder for plaintiffs to bring a successful Bivens claimthe justice insistedthe lower courts should not read it to render Bivens a dead letter.

[Smugglers Inn images via SCOTUS, Image of Justice Thomas via Drew Angerer/Getty Images]

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Liberal Dissenters Warn Border Patrol Is Absolutely Immunized from Liability as SCOTUS Refuses to Allow Fourth Amendment Claim Against Agent - Law...

By Brian Dowling (June 10, 2022, 4:53 PM EDT) -- A full slate of First Circuit judges could not agree Thursday on whether long-term camera surveillance of a suspect's home requires a warrant, but said prosecutors in the drug case could nonetheless use the eight months of footage.

The six judges considering U.S. District Judge William G. Young's order tossing the warrantless video evidence split evenly on whether the camera's use amounted to a Fourth Amendment search. But they agreed for differing reasons that the government should still be able to use the tapes against Nia Moore-Bush and her mother, Daphne Moore, who face federal drug and gun charges....

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1st Circ. Split On Lengthy Video Surveillance Of Home - Law360

The FBI searches through databases of foreign communications in a program that Congress created specifically to catch foreign terrorists and spies. But the FBI uses this same program to glean private information about American citizens and our communications. These so-called U.S. person queries are transforming one of the most powerful and invasive surveillance authorities Section 702 of the Foreign Intelligence Surveillance Act into a means for FBI agents to spy on Americans without a warrant, gutting the Fourth Amendment of the Constitution.

Section 702 has become increasingly controversial since its passage in 2008. Congress passed it only to authorize the surveillance of non-Americans outside the United States. It was promoted as an authority designed to counter terrorists. Instead, it is being used in Orwellian ways that make America a little more like Russia or China.

Through declassified Foreign Intelligence Surveillance Court (FISC) opinions and other government disclosures, the public has learned that Americans personal information is also swept up by what intelligence agencies call incidental collection. After our information ends up in government databases, the FBI intentionally searches it to learn more about Americans, our communications, and what were up to. This means the FBI can warrantlessly obtain, review and use the private communications of Americans who are not suspected of criminal activity or any wrongdoing.

One could be forgiven for assuming that the FBI would violate the Fourth Amendment in such a way in only the most extreme cases. This is not the case. As early as 2014, the Privacy and Civil Liberties Oversight Board disclosed that FBI agents searched through this database as a matter of routine practice.

A declassified FISC opinion from 2020 reveals that FBI agents have used 702 information to snoop on individuals who asked to participate in the FBIs Citizens Academies a program for business, religious, civic and community leaders to better appreciate the role of federal law enforcement in the community. (Yes, that joke writes itself.) Section 702 also was used without warrants to search the personal information of repair workers entering field offices, people providing tips, and victims reporting crimes.

The same FISC opinion describes the FBIs systematic failure to obtain court orders before reviewing the contents of Americans communications. Congress established this requirement in 2018 after an outpouring of public concern that Section 702 information might be used wrongfully in criminal contexts. The cases in which the FBI failed to abide by Congresss express requirement to get a court order before accessing the contents of communications included suspected health care fraud, hardly the stuff of national security. These and similar violations were discovered during oversight reviews of seven out of 56 FBI field offices.

A recent report released by the Office of the Director of National Intelligence (ODNI) is cause for grave concern. From December 2019 through November 2020, the FBI conducted U.S. person queries up to 1,324,057 times. The government reports this as a maximum figure because of continued weaknesses in the FBIs ability to track their own agents use of this information. From December 2020 through November 2021, the FBI nearly tripled its U.S. person queries, conducting up to 3,394,053 searches.

The governments explanations for these astounding numbers create more concerns than they answer. The ODNI cites, for example, almost 2 million FBI queries relating to Russian cyberattacks against Americans. Accepting this explanation at face value, Congress and the public are left to ask: Why did the FBI conduct the other million or so U.S. person queries, and for what reason? How many innocent Americans emails did the FBI read in its millions of searches? Will the increasing frequency of cybersecurity incidents mean the FBIs U.S. person queries will triple again?

As former chairman of the House Committee on the Judiciary, I have seen firsthand the tendency of law enforcement and intelligence agencies to use surveillance laws to sweep up more information for more purposes especially when there isnt adequate transparency.

It would be nave to expect transparency around U.S. person queries to stop improper surveillance. But transparency would give Congress and the public insights to better understand the impact of foreign intelligence surveillance on Americans privacy. Thus, Congress should require the FBI to continue reporting on an annual basis how many times it knowingly searches for information about Americans and their communications.

It is in the enlightened interest of the FBI to cooperate on transparency. Another surveillance authority, Section 215 of the USA Patriot Act which allowed for the collection of personal information from business transactions was so routinely abused that Congress allowed it to expire in 2020. Section 702 yields insights essential to national security. But dont be surprised next year, when Section 702 is up for reauthorization, if some in Congress argue that it should expire if the FBI continues to stonewall and run roughshod over the Fourth Amendment.

Bob Goodlatte represented Virginias 6th District in Congress from 1993 to 2019 and chaired the House Judiciary Committee. He is a senior policy adviser to the Project for Privacy and Surveillance Accountability.

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How the FBI uses laws to spy on foreign terrorists to spy on you - The Hill

Re Portsmouth church to give away $20K worth of gas Saturday (March 30): As an adult college student who works 40 hours a week, I was pleasantly surprised about the gas funds. Since January, gas, rent, property taxes and food prices have risen tremendously. I remember when I first started to drive in 2010. Gas prices were $2.77 a gallon.

To have the Grove Church volunteer to help the struggling community is amazing. I hope other churches or businesses see this and are inspired to do the same. This idea would lighten the burden from peoples wallets and pocketbooks.

Maria Godfrey, Chesapeake

Re Pedestrian deaths reach record highs in Norfolk despite citys initiative to reduce fatalities (June 2): A week or so ago, I was proceeding down a city street and came to a spot with cars parked on both sides of the street, another car approaching, and a pedestrian walking in the street, around the parked car on my side of the street. There really wasnt enough room for both parked cars, both traveling vehicles and also the pedestrian. I honked my horn at the pedestrian, and he glared at me as if I was the one at fault.

There is a city ordnance against impeding traffic by walking in the street when there is a sidewalk available. However, I see pedestrians walking in the street every day, ignoring the sidewalks. My only conclusion is that they are candidates for a Darwin Award.

Weekly

The week's top opinion content and an opportunity to participate in a weekly question on a topic that affects our region.

William Melgaard, Hampton

President Joe Biden pledged more than a month ago, and I quote, to work like the devil to bring gas prices down to ease the hardship on the working and blue collar residents of our country. For after all the Democratic Party is the party of the working class, the blue collar workers who are the very backbone of our economy and country, but alas circumstances beyond his control have prevented the keeping of promises made.

Who could have predicted the Ukrainians successful and fierce defense of their country against the Russian invasion or the reluctance of the foreign oil-producing countries to flood the market with their oil to lower the price of crude oil as requested by our president? All of these reasons for the current administrations lack of fulfillment of its promise to deliver lower gas prices to the American public would be mute if Biden would work smarter, not harder by allowing oil companies to easily drill for oil on publicly owned land and to begin work again on the Keystone XL pipeline extension. I think you will find the most effective solutions to the oil supply problem are here within our countrys boundaries. Oil independence is the key to a prosperous and secure America.

L.P. Howell, Yorktown

Re Regulate ammo (Your Views, June 6): Walter Coopers letter seems to have hit upon a novel solution to the problem of violence in America: ignore the Constitution. OK, lets see how that works. There are 27 amendments. Which other one would you like to ignore? How about the First Amendment, as another writer on the same page, Social media, seemed to suggest needed tweaking to be read, suppressed. There would be no more letters to the editor; no newspapers, magazines, pamphlets, etc., except those allowed by government; no more expressing ones opinion in public; no more criticism of government; etc.

Cooper cites government regulation of tobacco and alcohol as examples of successful restraints on society. Funny, I cant find any constitutional right to those products. Maybe my copy of that document is a misprint. How secure in your home (Fourth Amendment) would you be if government were allowed to ignore the Constitution? If it can ignore the Second Amendment, it can ignore the other 26. Government has a veracious appetite. Be careful what you wish for. Semper Fi.

Jim Lewallen, Chesapeake

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Letters for June 11: Let's hope others copy Grove Church and its $20K gas giveaway - The Virginian-Pilot

The US Supreme Court is poised to consider a question with seismic consequences for online speech. Over the past year, laws in Texas and Florida have set up a legal battle over whether the First Amendment protects social networks right to curate user-generated content or whether these sites should be treated more like phone companies, required to host nearly any speech their users post. The courts split reflects a deepening shift in how to interpret a basic constitutional right, filtered through a political culture war and backlash against large web platforms.

For years, sites like Facebook and YouTube have broadly assumed that moderation decisions are protected by the First Amendment. But, last month, the Fifth Circuit Court of Appeals made a surprise ruling over Texas HB 20, a law that bans large apps and websites from moderating content based on viewpoint. The court ruled against NetChoice and the Computer & Communications Industry Association (CCIA) and let the law go into effect, sending the groups scrambling to file an emergency Supreme Court petition. That petition was granted temporarily blocking the law but also offering a preview of a seemingly inevitable Supreme Court battle.

I would be surprised if the court doesnt take this up, says Ari Cohn, counsel at the libertarian-leaning nonprofit TechFreedom one of roughly 30 groups that supported the petition. The Fifth Circuit still hasnt decided on the laws merits, but it seems highly sympathetic to Texas reasoning. And that reasoning conflicts directly with a May ruling from the Eleventh Circuit Court of Appeals, which blocked Floridas similar law. Barring a sudden and massive shift, its almost inevitable this is going to create a circuit split and go up next term, says Cohn.

The central issue is whether the government can regulate how social networks sort and remove legal content. Opponents argue that curating posts and setting community standards involves private companies exercising a constitutional right to speak (or not speak, in the case of content bans). Supporters compare the sites to shopping malls or telephone networks, whose First Amendment rights are limited.

But both sides so far are leaning on old cases involving non-digital spaces and tech, and the Texas law in particular repurposes legal terms outside of even relatively recent judicial context. It designates social networks as utility-like common carriers, a label that federal rules explicitly avoid applying to internet service providers let alone websites. And it also bans viewpoint discrimination, a term the Supreme Court has used to describe unlawful government restrictions on speech but that Texas lawmakers have treated as synonymous with private companies moderating conservative content.

A Supreme Court ruling in favor of Texas could make that legal repurposing stick, and its implications would go far beyond Facebook banning former President Donald Trump. Democratic politicians have discussed punishing the spread of health misinformation or other harmful but legal speech. And, depending on how its written, the ruling wont necessarily just apply to the biggest social media companies. Even Texas law, which applies to services with 50 million monthly active users, would likely scoop up non-Big Tech sites like Yelp or Tumblr.

Texas and Florida politicians have also taken the unusual step of describing their bills as conservative weapons against the alleged liberal bias of tech companies. To Nora Benavidez, senior counsel at media advocacy group Free Press, that makes them a risky place even for good-faith debate over the First Amendment and makes any Supreme Court decision particularly fraught. This is not a great opportunity to talk about free speech, because this is not the way to appropriately regulate the First Amendment. There are ways that that can be done, Benavidez says. A states partisan interest in protecting certain speech is not one of those avenues.

Benavidez acknowledges real concerns around large social networks, which have tremendous power to shape speech online in some cases literally changing the way a generation talks. But a ruling that their community standards arent protected speech, she argues, would have catastrophic consequences. People who are supportive of HB 20 imagine that the law will help protect speech, she says. In reality, governments dictating what private actors can and cant do, and essentially picking and choosing speech that is acceptable, is a precursor in every country around the world to totalitarianism, authoritarianism, and the demise of democratic engagement.

For a hugely consequential law, however, HB 20 has moved between courts with a marked lack of explanation. The Fifth Circuit declined to offer a rationale for its decision, and the case flowed through the Supreme Courts shadow docket emergency petition system something NetChoice and the CCIA called a necessity after the Fifth Circuits abrupt decision but that resulted in only a short dissent from Justice Samuel Alito and no majority opinion.

This case has been anything but normal, says Cohn. There has definitely been a dearth of information from the majorities at every level except the district court level.

Thats left court watchers speculating about what last weeks 54 vote means. Its really hard to make predictions on the basis of the decision we have so far, because the majority didnt issue an opinion, says Alex Abdo, litigation director at the Knight First Amendment Institute at Columbia University. Alitos dissent, which was co-signed by the Republican-appointed justices Clarence Thomas and Neil Gorsuch, emphasized that he hadnt reached a conclusion on the law. Former President Barack Obama appointee Justice Elena Kagan voted against the decision without signing a move several experts suggested might be a protest against the controversial shadow docket itself but also said was still open to interpretation.

Columbia Law School professor Philip Hamburger, who filed one of the two legal briefs supporting HB 20, believes that this early vote simply doesnt say much about the laws prospects. Justice Alito hinted that the Supreme Court vacated the stay simply because the case is so important, he tells The Verge. It did not resolve the constitutional question.

CCIA president Matt Schruers contends that theres little ambiguity. I think we have five members of the federal judiciary who have made unmistakably clear their views, and theyre all aligned that a Fairness Doctrine for the internet is not constitutional. He also disagreed with the idea that courts havent spoken clearly on the law. We have gone three for three in federal court, he said referring to district court opinions in Texas and Florida plus the appeals court decision in Florida, all of which have largely rejected the states reasoning.

Other critics of the law arent as optimistic. I dont agree with every First Amendment argument the platforms are making, but the central argument they make that they have a right and their users have a right for the platforms to enforce community norms of their choosing is an incredibly important right for free speech online. And the three justices in the dissent seem ready to reject that argument, says Abdo. Justice Thomas in particular is a well-known proponent of some novel legal theories about internet law, and he seems likely to favor arguments for regulating social media.

Beyond the pressing question of whether sites can be required to carry certain content, the court could address more nuanced questions about what the First Amendment might protect. As Will Oremus of The Washington Post discusses, the Eleventh Circuit let parts of Floridas law stand, saying that limited regulation like transparency requirements doesnt necessarily violate speech rights. The Knight Institute in particular has praised that nuance, saying it properly rejects the platforms argument that the First Amendment insulates them from all regulation.

The recent court decisions are part of a political and cultural landscape where the First Amendments interpretation may be increasingly up for grabs. In a recent University of Chicago Law Review Online analysis, law professors Evelyn Douek and Genevieve Lakier noted that First Amendment politics are more complicated, uncertain, and, well, just plain weird than they have been in a long time partly because of things like the Fifth Circuits surprising decision and partly because of larger cultural and technological shifts.

Abdo compares the brewing Supreme Court showdown over speech to the past decades fights over digital privacy and surveillance culminating in decisions that set a promising precedent for a new era. Over the past 15 years, the Supreme Court has been called on to answer the question of how the Fourth Amendment applies in the digital age. What are our privacy rights in the digital age? Do Supreme Court precedents from the 1960s and 70s and 80s decide the question of state power to surveil in the 2000s? he says. The Supreme Court said emphatically, no technology has changed. The governments ability to surveil has changed. Peoples expectations of privacy have changed. And we have to answer these questions.

In a best-case scenario, Abdo believes that could happen here. I think we may be witnessing something similar in the First Amendment context that courts will have to analyze anew how the First Amendment ought to apply to new technologies, he says. And what I hope they will keep as their guiding point is whether their interpretation of the First Amendment ultimately serves the values that free speech is meant to serve.

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A Supreme Court speech showdown is coming, and nobody knows what to expect - The Verge

Photo: Getty (Getty Images)

The Supreme Court has long been lauded as the pinnacle workplace of the legal profession. Its employees enjoy a collegial-meets-combative atmosphere wherein clerks and justices are free from the prying eyes of the public. Its employees regularly go onto plum private practice gigs with fat bonuses commensurate to their time spent denying rights to the plebs.

Not anymore!

My god, since the leak of the abortion opinion draft in early May, the reported inner workings are turning the Court into a horrible screenplay about a naughty tech startup, and I cant look away from the chaos. I dont know how on earth the Court is going to finish up its work this term, one source close to the justices told NPR. Another source, who described the current atmosphere inside the marble palace said, the place sounds like its imploding.

But thats just an anonymous source. Can it really be that bad? Yes, it can. Even Justice Clarence Thomasa man best known for not speaking and then pretty much pushing his own wacko beliefs into precedentwants the public to understand the Court is in crisis. When you lose that trust, especially in the institution that Im in, it changes the institution fundamentally, Thomas said in a conversation with torture memos author John Yoo. You begin to look over your shoulder. Its like kind of an infidelity that you can explain it, but you cant undo it.

That infidelity, though, was never a crime. Leaking an opinion isnt illegal, as opinion drafts are not classified documents; the Court simply keeps them secret.

This hasnt stopped Court security (whose main duties are keeping justices safe, not investigating) from taking steps to require law clerks to provide cell phone records and sign affidavits attesting that they are not the source of the leak, CNN reported. Its led to clerks exploring whether or not they need to hire outside counsel. Leaking the document isnt illegal, but signing a false affidavit is a crime. Plus, clerks are trying to balance their desire for legal representation with the possibility that not cooperating could fuck up their future legal careers. Remember those plum partnerships and professorships?

Imagine worrying if your boss or your bosss equally powerful colleague suspects you are guilty because you want a lawyer to advise you on your Fourth Amendment right to not turn over your phone. A right against unreasonable search and seizure, by the way, that was decided by your bosss boss, Chief Justice John Roberts.

Honestly, this place sounds like an absolute nightmare full of stressed, type-A overachievers working under people who are enraged about the fact that they cant just take away rights from everyone in peace.

As NPR reported:

The clerks, he explained, are sort of the courts diplomatic corps. Especially at this time of year, they talk to each other, with the approval of their bosses, to find out how far the envelope can be pushed in this case or that one or conversely, how can we soften language to get five justices on board. But at the moment, he noted, the clerks are terrified that their whole professional lives could be blown up, so they arent able to do that.

Oh no, what if this atmosphere keeps the justices from releasing opinions? What will we do then? Continue having a tenuous legal grip on abortion rights in America? Dang. Oh well! Its much more important that the Supreme Court start working on its internal workings. After all, you never know when court expansion might become more politically tolerable. Maybe this is the time to unionize the Supreme Court clerks.

I, for one, personally love the gossip! It keeps me from curling into the fetal position every time a new opinion release day is announced. And if anybody wants to gossip about it....my secure email is caitlinrcruz@protonmail.com.

Read more:
The Supreme Court Is Reportedly 'Imploding.' Just in Time! - Jezebel