July 29, 2004

Sexual Autonomy, Lawrence, & the Constitution

Recently, I noted that authorities in Texas had abandoned a sex toy-related prosecution but that a suit challenging the law's constitutionality was pending elsewhere in the state. The prospects for such a suit have apparently dimmed. The Eleventh Circuit Court of Appeals has upheld a similar Alabama law. The appellate court's lengthy opinion, as well as a dissenting opinion, may be found here.

In my original post on this subject, I predicted that, notwithstanding Lawrence v. Texas, the court of appeals would hold the statute constitutional:

[A]t least one federal court of appeals has declared that Lawrence did not even recognize a hitherto unknown fundamental right to private sexual intimacy. Lofton v. Secretary of Dept. of Children and Family, 358 F.3d 804, 815-17 (11th Cir. 2004) (ultimately refusing to recognize a right to adopt on part of homosexuals). This same circuit had held that a ban on the sale of sex toys passed constitutional muster a couple of years prior to the Lawrence decision, and specifically noted that commercial regulations are subject only to rational basis review. Williams v. Pryor, 240 F.3d 944, 953-55 (11th Cir. 2001). Viewed in tandem, Williams and Loften create a strong (but not foolproof) counterargument to the notion that Lawrence inevitably invalidates state bans on the sale of sex toys. *

* Note: On remand, Federal District Judge Lynwood Smith, Jr. again struck the Alabama sex-toy statute down as unconstitutional. See Williams v. Pryor, 220 F. Supp. 2d 1257, 1294-96 (N.D. Ala. 2002) (recognizing "right to sexual privacy that firmly encompasses state non-interference with private, adult, consensual sexual relationships"). The case appears to be pending before the Eleventh Circuit. My hunch is that, given Lofton's holding to the contrary regarding a fundamental right to sexual intimacy, Judge Smith may well be overruled once again.

I was pleased to see my hunch vindicated by the majority of the appellate panel that heard the case once again. Writing for the court, Judge Stanley Birch observed that:

The Supreme Court’s most recent opportunity to recognize a fundamental right to sexual privacy came in Lawrence v. Texas, where petitioners and amici expressly invited the court to do so. That the Lawrence Court had declined the invitation was this court's conclusion in our recent decision in Lofton v. Sec. of Dept. of Children and Family Servs., 358 F.3d 804, 815-16 (11th Cir. 2004). In Lofton, we addressed in some detail the "question of whether Lawrence identified a new fundamental right to private sexual intimacy." Id. at 815. We concluded that, although Lawrence clearly established the unconstitutionality of criminal prohibitions on consensual adult sodomy, "it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right"—whether to homosexual sodomy specifically or, more broadly, to all forms of sexual intimacy. Id. at 817. We noted in particular that the Lawrence opinion did not employ fundamental-rights analysis and that it ultimately applied rational-basis review, rather than strict scrutiny, to the challenged statute. Id. at 816-17.

The dissent seizes on scattered dicta from Lawrence to argue that Lawrence recognized a substantive due process right of consenting adults to engage in private intimate sexual conduct, such that all infringements of this right must be subjected to strict scrutiny. As we noted in Lofton, we are not prepared to infer a new fundamental right from an opinion that never employed the usual Glucksberg analysis for identifying such rights. Id. at 816. Nor are we prepared to assume that Glucksberg—a precedent that Lawrence never once mentions—is overruled by implication.

The dissent in turn argues that the right recognized in Lawrence was a longstanding right that preexisted Lawrence, thus obviating the need for any Glucksberg-type fundamental rights analysis. But the dissent never identifies the source, textual or precedential, of such a preexisting right to sexual privacy. It does cite Griswold, Eisenstadt, Roe, and Carey. However, although these precedents recognize various substantive rights closely related to sexual intimacy, none of them recognize the overarching right to sexual privacy asserted here. Griswold, (marital privacy and contraceptives); Eisenstadt (equal protection extension of Griswold); Roe (abortion); Carey (contraceptives). As we noted above, in the most recent of these decisions, Carey, the Court specifically observed that it had not answered the question of whether there is a constitutional right to private sexual conduct. 431 U.S. at 688 n.5, 97 S. Ct. at 2018 n.5. Moreover, nearly two decades later, the Glucksberg Court, listing the current catalog of fundamental rights, did not include such a right. 521 U.S. at 720, 117 S. Ct. at 2267.

Whatever one might think of the wisdom of such laws, I think that Judge Birch's opinion accurately sets out the present parameters of the Supreme Court's jurisprudence. The commonplace that Lawrence "changed everything" is little more than a prediction about the future contours of the Court's caselaw. I have the sneaking suspicion that the aforesaid oft-pronounced prediction is more than a little shaped by policy preferences. There is nothing wrong with advocacy, of course, but commentators ought to distinguish between predictions and predilections. Too often, Lawrence is invoked in talismanic fashion with little or nothing in the way of actual legal analysis.

Posted by Curmudgeonly Clerk at 11:02 PM | Comments (9)

July 25, 2004


I will be away for a few days. New posting will likely resume after midweek.

Posted by Curmudgeonly Clerk at 11:01 AM | Comments (1)

July 24, 2004

Another Child Self-Pornography Case

Earlier this year PG of De Novo and I had a bit of debate about child pornography charges lodged against a teenage girl for photographs that she took of herself. I think such charges are likely illegal, while PG seems to think otherwise. Now I see yet another instance of such prosecution has arisen:

Two Northside High School girls who took nude pictures of themselves and e-mailed them to their boyfriends last year said they only did it to be flirtatious.

* * *

Both 16-year-olds were charged with production and dissemination of child pornography.

* * *

[Judge Phillip] Trompeter took the charges under advisement and if the girls stay out of trouble for a year, he will dismiss them.

* * *

Only one boy who received the pictures was charged with possession of child pornography. That charge was taken under advisement in May and will be dismissed if he stays out of trouble.

* * *

Trompeter disagreed that the statute was only meant for adults. He said it is to protect children from exploitation, even if it they are doing it themselves. He essentially ruled that the girls could be convicted of those crimes, but it was within his discretion to determine whether they should be.

When Trompeter launched into his final thoughts, he said one of the worst things the girls did was disappoint their parents, who sat in the audience and listened.

"I'm the only person in this room that sees them from this angle, and they are so sad," he said. "I'm really more angry about what you did to your parents."

I find Judge Trompeter's decision that these girls could be prosecuted for the aforementioned child pornography offenses to be quite mistaken. Trompeter is correct that the overarching purpose of child pornography offenses is the protection of minors from sexual exploitation. See, e.g., United States v. Whiting, 165 F.3d 631, 634 (8th Cir. 1999) ("The purpose of laws prohibiting child pornography is not to police the morals of the public, but to protect children from the injuries that accompany and flow from, sexual exploitation, particularly the production and distribution of child pornography."); United States v. Norris, 159 F.3d 926, 931 (5th Cir. 1998) ("The titles of the acts show that the focus of Congress was on protecting children, not, as Norris would have it, a general concern for society as a whole."), cert. denied, 526 U.S. 1010 (1999).

Where Trompeter is wrong is in his conclusion that such statutes may be employed to criminalize so-called "self-exploitation." The law of statutory rape, another area of the law designed to prevent the sexual exploitation of minors, demonstrates Trompeter's error. See, e.g., In re Meagan R., 49 Cal. Rptr. 2d 325, 330 (Cal. Ct. App. 1996) (holding that 14-year-old, "as the victim of the statutory rape, cannot be prosecuted on that charge, regardless whether her culpability be predicated upon being a coconspirator, an aider and abettor or an accomplice given her legislatively protected status"). The point of criminalizing sex with minors, after all, rests on the notion of protecting them from themselves. See, e.g., People v. Hastings, 938 P.2d 78, 81 (Colo. Ct. App. 1998) (noting that "the purpose underlying [the] crime of statutory rape is to protect children from the consequences of acts they cannot comprehend"). The very same thing is true of offenses concerning child pornography.

The principle that a class of victims singled out for protection be a statutory scheme cannot be prosecuted thereunder is a longstanding one in Anglo-American law. See, e.g., The Queen v. Tyrrell, 1 Q.B. 710, 712-13 (1893) (reciting the foregoing rationale for disallowing prosecution of female for aiding and abetting male to have "unlawful carnal knowledge" of her); Gebardi v. United States, 287 U.S. 112, 116-23 (1932) (rejecting Mann Act prosecution of woman transported across state lines for the purpose of prostitution advanced on theory that she was a co-conspirator in her interstate transport solely on the basis of her consent thereto). The principles at work in Tyrrell and Gebardi continue to be honored in our legal tradition. See, e.g., State v. Lucas, 795 N.E.2d 642, 644-48 (Ohio 2003) (citing both cases, as well as In re Meagan R., to similar legal effect in a differing factual context).

Moreover, quite apart from the aforementioned legal principle, prosecution is ill-advised under such circumstances. By criminalizing the conduct of the victim of the crime, the state may discourage future victims less willing to come forward. As the California court of appeals noted in In re Meagan R., allowing prosecution of "the victim" would threaten the very viability of statutory rape as an offense altogether by discouraging such persons from coming forward. See 49 Cal. Rptr. 2d at at 330 n.8 ("Confronted by the possibility of criminal prosecution predicated upon vicarious liability, it is doubtful a minor victim of a violation of the statute would be likely to report the offense to authorities."). Such prosecutions also, perhaps, lend credence to potential sentencing arguments in which criminal defendants might argue that they are less culpable for child pornography offenses by virtue of their victims' willing participation in their own exploitation.

Both consequentialist concerns and the principle that persons should not be prosecuted under statutes designed for their protection are highlighted by the fact that, if convicted, the 16-year-old girls in question might actually have to register as sex offenders under Virginia's sex offender registration statute. Va. Code §§ 9.1-902, 18.2-374.1. I stress "might" due to their status as minors, but it is by no means clear that minors are uniformly exempt from such requirements under Virginia law. In fact, the law seems to be to the contrary. See Va. Code § 16.1-309.1.

Indeed, it is by no means clear the the registration of juveniles as sex offenders is out of the mainstream in American law in general. Compare In re Derrick B., 11 Cal. Rptr. 3d 396, 399-405 (Cal. Ct. App. 2004) (holding that minor could be required to register as sex offender), with In re Bernardino S., 5 Cal. Rptr. 2d 746, 747-51 (Cal. Ct. App. 1992) (finding that minor sex offender did not have to register as such, but indicating that law could require registration by minor sex offenders under some circumstances). Review has been granted in the Derrick case, 14 Cal. Rptr. 3d 565 (Cal. 2004), so the result may be reversed. But at least two states' high courts have already determined that juveniles may be required to register as sex offenders. In re J.W., 787 N.E.2d 747, 750-62 (Ill. 2003) (12-year-old boy adjudged delinquent required to register as sex offender for two counts of aggravated sexual assault); In re Ronnie A., 585 S.E.2d 311, 312 (S.C. 2003) (11-year-old boy adjudicated delinquent required to register as sex offender for first degree sexual assault); cf. In re D.J.A., No. 99-1968, 2000 WL 1028089, at *1-2 (Iowa Ct. App. July 16, 2000) (unpublished opinion) (noting that lower court had authority to order juvenile sex offender registration under some circumstances, but reversing on the facts); In re Z.S., No. 98-2215, 2000 WL 504497, at *1-4 (Iowa Ct. App. Apr. 28, 2000) (unpublished opinion) (same); see also State v. C.M., 746 So. 2d 410, 413 (Ala. Crim. App. 1999) (discussing various state laws concerning sex offender registration as it applies to minors).

Posted by Curmudgeonly Clerk at 11:25 AM | Comments (12)

July 23, 2004

My Fellow Christians (Texas Edition)

From The Courier:

South Montgomery County police continued to investigate a report Wednesday that while quoting scripture, two teens shot at least two other children with an air soft gun at Fellowship of The Woodlands church's vacation Bible school last week.

(Link via Obscure Store.)

Posted by Curmudgeonly Clerk at 03:55 PM | Comments (0)

July 21, 2004

Mortuary-Mobile Lawsuit

Yesterday's Chicago Daily Herald featured a story about a shady automobile sale:

The Niles couple's suit alleges that Golf Mill Ford in Niles rolled back the odometer on the van after it was returned by the previous owner, a funeral director.

The funeral director, who does not know the [plaintiffs] or stand to benefit financially from the lawsuit, told the Daily Herald he put at least 1,500 miles on the van and eight bodies in it after retrofitting it by removing the back seats and putting in a carpeted platform.

* * *

"As I see it," said [the plaintiffs' lawyer] in a letter to the dealership, "my clients have paid dearly for a vehicle which they believed to be new, but in fact was used. Additionally, my clients . . . suffered great mental anguish once they found out what their van was used for prior to their purchase of it."

[The plaintiffs' lawyer] said the [plaintiffs] still have the van and he's trying to negotiate a settlement with Golf Mill Ford, but the dealer has refused.

The story does not indicate what specific causes of action have been pled. However, if the facts are accurately reported—and the article provides substantial reason to believe that the plaintiffs' characterization of events is accurate—the dealership's unwillingness to settle out of court is odd. One wonders if the plaintiffs' demands are excessive.

Even in the absence of the odometer-related shenanigans and non-disclosure of its status as a used rather than new vehicle, the plaintiffs might be able to rescind their purchase merely on the basis of the undisclosed ghoulish nature of the van's past employment. See, e.g., Stambovsky v. Ackley, 572 N.Y.S.2d 672, 677 (N.Y. App. Div. 1991) (allowing equitable rescission of contract for purchase of house that was reputed by former owner to be haunted where that fact was not disclosed to purchaser); Reed v. King, 193 Cal. Rptr. 130, 133-34 (Cal. Ct. App. 1983) (permitting suit for rescission where seller of home failed to disclose to purchaser that it was the site of grisly murders). Though it is not clear that the plaintiffs in this case are even requesting rescission.

Posted by Curmudgeonly Clerk at 01:31 PM | Comments (9)

July 19, 2004

Texas Sex Toys Prosecution (Update)

Authorities have apparently dropped the obscenity charges originally filed against Joanne Webb, reports the Dallas Morning News:

Obscenity charges will be dropped against a Burleson woman arrested last fall for selling sex toys to undercover police officers, her attorney said Saturday.

* * *

Mrs. Webb was arrested in October after selling erotic toys to a pair of undercover police officers. The state's obscenity code forbids the sale of devices designed to stimulate the genitals, although some stores avoid prosecution by promoting the products as novelties.

* * *

Ms. Sisemore said she suspects that Johnson County dropped the charges to avoid being part of a federal lawsuit filed in Dallas challenging the state's obscenity law.

* * *

Ms. Sisemore said her client is not entirely in the clear. She said there's no guarantee that the county attorney won't file the case again, and she was also told that the Burleson City Council passed its own obscenity ordinance that would be used to prosecute future cases.

This is a welcome if unexpected development. Although I have some doubt's about Sisemore's arguments concerning the unconstitutionality of the Texas statute at issue, the enactment and enforcement of sex toys-related bans are ridiculous. Nonetheless, there is no doubt that, under current Texas law, the conduct at issue is criminal. See, e.g., Webber v. State, 21 S.W.3d 726 (Tex. App.—Austin 2000, pet. ref'd); Regalado v. State, 872 S.W.2d 7 (Tex. App.—Hous. [14th Dist.] 1994, writ ref'd), cert. denied, 513 U.S. 871 (1994).

Right Side of the Rainbow apparently regards Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003), as having likely altered the legal landscape. Right Side is not alone in this belief. Nonetheless, I am not so sure.

The majority opinion in Lawrence seems to limit itself to private, non-commercial conduct. Id. at 2484. The concurrence and one of the dissents also evince a similar understanding of the conduct at issue. See id. at 2487 (O'Connor, J., concurring) (charactering Texas statute as pertaining to private conduct); id. at 2498 (Thomas, J., dissenting) (regarding statute as criminalizing "noncommercial consensual conduct").

Moreover, at least one federal court of appeals has declared that Lawrence did not even recognize a hitherto unknown fundamental right to private sexual intimacy. Lofton v. Secretary of Dept. of Children and Family, 358 F.3d 804, 815-17 (11th Cir. 2004) (ultimately refusing to recognize a right to adopt on part of homosexuals). This same circuit had held that a ban on the sale of sex toys passed constitutional muster a couple of years prior to the Lawrence decision, and specifically noted that commercial regulations are subject only to rational basis review. Williams v. Pryor, 240 F.3d 944, 953-55 (11th Cir. 2001). Viewed in tandem, Williams and Loften create a strong (but not foolproof) counterargument to the notion that Lawrence inevitably invalidates state bans on the sale of sex toys.*

* Note: On remand, Federal District Judge Lynwood Smith, Jr. again struck the Alabama sex-toy statute down as unconstitutional. See Williams v. Pryor, 220 F. Supp. 2d 1257, 1294-96 (N.D. Ala. 2002) (recognizing "right to sexual privacy that firmly encompasses state non-interference with private, adult, consensual sexual relationships"). The case appears to be pending before the Eleventh Circuit. My hunch is that, given Lofton's holding to the contrary regarding a fundamental right to sexual intimacy, Judge Smith may well be overruled once again.

Update: I should also note that at least one state supreme court has upheld a ban on the distribution of sex toys post-Lawrence. In PHE, Inc. v. State, __ So.2d __, 2004 WL 527836 (Miss. Mar. 18, 2004), the Supreme Court of Mississippi determined that there is "no independent fundamental right of access to purchase sexual devices" and likewise rejected the attempt to "redefine [or] expand the right to privacy to include distribution of sex devices." Id. at *3 (internal quotation marks and brackets omitted). Although the PHE court does not directly cite Lawrence, it did take note of the latest Williams opinion from the federal district court of Alabama.

Posted by Curmudgeonly Clerk at 12:01 AM | Comments (0)

July 18, 2004

Nudist Camp For Kids (Update)

Not too long ago, I castigated the ACLU for challenging a Virginia law that forbids the operation of nudist camps for minors without parental supervision. It appears that Federal District Judge Richard L. Williams has declined to grant what appears to be a request for preliminary injunctive relief on the part of the ACLU.

(Links via How Appealing.)

Posted by Curmudgeonly Clerk at 10:20 PM | Comments (17)


At approximately 2:15 p.m. central time today, I heard FOXNews anchor Bob Sellers make a remarkable comparison. In a segment discussing the Iraqi interim government's decision to allow al-Sadr to reopen his newspaper, which had previously been shut down during the formal U.S. occupation, Sellers likened Iraqi newspapers to American weblogs, opining that the former are:

. . . like bloggers: unrestricted in publishing things that are not true in many, many cases.*

Unlike many in the blogosphere, I am disinclined to lionize weblogs. Although I think that many legal weblogs defy such characterization, the bulk of weblogs truly are garbage. Nonetheless, mainstream journalism hardly seems well positioned to complain about the publication of "things that are not true in many, many cases."

* Note: I was copying down Sellers's remarks by hand immediately after he made them, so I could have gotten a particular word wrong. But I am confident that I accurately captured the general substance of his comments.

Posted by Curmudgeonly Clerk at 03:53 PM | Comments (4)

July 16, 2004

Section 215 Reconsidered

Section 215 is among the more controversial provisions of the USA PATRIOT Act. So controversial that at least one federal judge, the Honorable Michael B. Mukasey (S.D.N.Y.) has felt compelled to opine on the subject off of the bench. Venkat Balasubramani has a level-headed post on Section 215 that heads in the opposite direction.

Balasubramani's argument is a reasonable one. Although I am not yet fully persuaded, he did manage to capture my undivided attention. Section 215 provides reads as follows:


Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:


'(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

'(2) An investigation conducted under this section shall—

'(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and

(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

'(b) Each application under this section—

'(1) shall be made to—

'(A) a judge of the court established by section 103(a); or

'(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

'(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.

'(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

'(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

'(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

'(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.'

[Note: An additional omitted portion of Section 215 provides for semiannual congressional review of all applications submitted to FISA courts under this section.]

Balasubramani makes one especially sensible suggestion, arguing that Section 215 is best understood when compared with the pre-Section 215 state of the law. The District Court for the District of Columbia recently wrote on this very subject, observing that:

[S]ection 215 substantially expands the powers of the FBI under the Foreign Intelligence Surveillance Act of 1978 ("FISA"), to "make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information . . . or to protect against international terrorism or clandestine intelligence activities . . . ." Before the amendment, the FBI could compel only the disclosure of certain business records (rather than "any tangible things") in the possession a "common carrier, public accommodation facility, physical storage facility, or vehicle rental facility," and could only exercise its authority when it had "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." Now, the FBI need only specify in a FISA request that the "records concerned are sought for an authorized investigation" consistent with the purposes of section 215. Since its implementation, the government has provided limited information to the public regarding its use of section 215. The provision itself contains a subsection prohibiting anyone served with a section 215 order from disclosing that the FBI sought or obtained information under the provision. And, although the total number of secret surveillance warrants sought and issued under the Patriot Act is required to be disclosed annually, the number of applications submitted and approved under each provision is only shared with designated congressional oversight committees—in classified form.

ACLU v. Dept. of Justice, __ F. Supp. 2d __, 2004 WL 1162149, at *1 (D.D.C. May 10, 2004).

So it seems fairly clear that Section 215 does entail an expansion of governmental authority. Accurately quantifying that expansion is somewhat more difficult, however. Contrast, for example, the foregoing recitation by the court with this excerpt from a recent article by Adjunct Professor Paul Rosenzweig:

Perhaps no provision of the Patriot Act has excited greater controversy than has Section 215, the so-called "angry librarians" provision. The section allows the FISA court in a foreign intelligence investigation to issue an order directing the recipient to produce tangible things. The revised statutory authority is not wholly new. FISA has had authority for securing some forms of business records since its inception. The new statutes modifies FISA's original business-records authority in a two important respects:

  • First, it "expands the types of entities that can be compelled to disclose information. Under the old provision, the FISA court could order the production of records only from 'a common carrier, public accommodation facility, physical storage facility or vehicle rental facility."' The new provision contains no such restrictions.
  • Second, the new law "expanded the types of items that can be requested. Under the old authority, the FBI could only seek 'records.' Now, the FBI can seek 'any tangible things (including books, records, papers, documents, and other items)."'

Thus, the modifications made by Section 215 do not explicitly authorizing the production of library records, but by its terms it authorizes orders to require the production of virtually any business record—and that might include library records, though it would include as well, airline manifests, international banking transaction records, and purchase records of all sorts. Critics of the Patriot Act have decried this provision, but that criticism in this instance reflects an error of the first kind identified—mistaking the potential for abuse with the reality.

First, and most saliently, Section 215 mirrors, in the intelligence-gathering context, the scope of authority that already exists in traditional law enforcement investigations. Obtaining business records is a long-standing law enforcement tactic. Ordinary grand juries for years have issued subpoenas to all manner of businesses, including libraries and bookstores, for records relevant to criminal inquiries. For example, in the 1997 Gianni Versace murder case, a Florida grand jury subpoenaed records from public libraries in Miami Beach and in the 1990 Zodiac gunman investigation, a New York grand jury subpoenaed records from a public library in Manhattan. Investigators believed that the gunman was inspired by a Scottish occult poet, and wanted to learn who had checked out his books. In the Unabomber investigation, law enforcement officials sought the records of various libraries, hoping to identify the Unabomber as a former student with particular reading interests.

Section 215 merely authorizes the FISA court to issue similar orders in national-security investigations. It contains a number of safeguards that protect civil liberties. First, Section 215 requires FBI agents to get a court order. Agents cannot use this authority unilaterally to compel any entity to turn over its records. FISA orders are unlike grand jury subpoenas, which are requested without court supervision and are only subject to challenge after they have been issued.

* * *

Critics make two particular criticisms of this provision—that the judicial review it provides for is a chimera, and that the provisions of Section 215 imposing secrecy on the recipients of subpoenas issued pursuant to the section imposes a "gag rule" that prevents oversight of the use of the section's authority. Neither criticism, however, withstands close scrutiny.

Section 215 provides for judicial review of the application for a subpoena for business records. The language provides, however, that upon application, the court "shall" issue the requested subpoena. From the use of the word "shall," critics infer that the obligation to issue the requested subpoena is mandatory and, thus, that the issuing court has no discretion to reject an application. Of course, if this were true (which, as discussed infra, it is not), then the absence of any judicial ability to reject an application would reduce the extent of judicial oversight.

But critics who make this argument (even if it were the case) miss the second order effects of judicial review. It imposes obligations of veracity on those seeking the subpoenas and to premise an objection on the lack of judicial review is to presuppose the mendacity of the subpoena affiants. It is also to presuppose the absence of any internal, administrative mechanisms in order to check potential misuse of the subpoena authority. And, most notably, it presupposes that the obligation to swear an oath of truthfulness, with attendant perjury penalties for falsity, has no deterrent effect on the misuse of authorities granted.

But even more significantly, this criticism misreads the statute, which, while saying that the subpoena "shall" issue, also says that it shall issue as sought or "as modified." The reviewing judge thus, explicitly, has authority to alter the scope and nature of the documents being sought—a power that cannot be exercised in the absence of substantive review of the subpoena request. Thus, the suggestion that the provisions of Section 215 preclude judicial review is simply mistaken—to the contrary, it authorizes judicial review and modification of the subpoena request which occurs before the subpoena is issued—a substantial improvement over the situation in traditional grand jury investigations where the subpoena is issued without judicial intervention, and the review comes, at the end, only if the subpoena is challenged.

Paul Rosenzweig, Civil Liberty and the Response to Terrorism, 42 Duq. L. Rev. 663 (2004).

I am not sure which characterization is best, and I remain open to further argument.

Posted by Curmudgeonly Clerk at 08:16 AM | Comments (10)

July 15, 2004

Pin Cites

Fie, fie, I say! There is a special ring of Hell reserved for attorneys who submit motions to the courts sans the appropriate pin citation.

Posted by Curmudgeonly Clerk at 04:07 PM | Comments (15)

Ineffective Assistance

The Associated Press reports that a high-profile murder conviction has been set aside on the basis of an affair between the defendant's lawyer and the defendant's mother that was contemporaneous with the legal representation:

The court on Tuesday tossed out the conviction of Michael LaSane, 25, because his mother had an affair with his lawyer. The court said the sexual relationship amounted to "unethical conduct," though it might not have represented a traditional conflict of interest.

LaSane, who is serving a life sentence, will now be allowed to withdraw his guilty plea in the killing of Kathleen Weinstein, 45, and ask for a trial.

* * *

LaSane, who prosecutors said committed the crime the day before his 17th birthday, had previously asked to withdraw his guilty plea and stand trial.

* * *

LaSane's lawyer, Kevin E. Daniels, has acknowledged the affair but said it occurred after his client pleaded guilty and had no effect on his role as defense attorney.

The state appeals court, though, said the relationship occurred before LaSane was sentenced, and that the lawyer "failed to advise his client" of the relationship with the mother.

The case is State v. LeSane, __ A.2d __, 2004 WL 1554354 (N.J. Super. Ct. App. July 13, 2004), and the specific allegations are that the client's married public defender:

"engaged in an affair with defendant's mother," that "[o]ver the course of the relationship, counsel pressured defendant's mother to coerce defendant into accepting the plea" and that when defendant sought to withdraw his guilty plea prior to sentencing, his mother stated that "if he did so, neither she nor her family would continue to support him."

Id. at *1.

The client's mother has submitted a sworn statement corooborating her son's allegations.Id. at *3. One, of course, does naturally wonder about the veracity of such a statement from a family member. And there is evidence that suggests that one ought to be skeptical where her statement is concerned. See id. at *6 (noting contradiction between her written statement and testimony during evidentiary hearing). In addition, it seems to me that the public defender's alleged attempts to have his client's mother persuade him to plead guilty need not necessarily stem from improper motives. (I use the word "alleged," because the attorney denies exerting any such pressure. Id. at *5.) The evidence of guilt in this case, which includes a lengthy and undeniably incriminating audio recording of the events leading up to the murder, pretty much make anything other than a guilty plea nonsensical.

There is no gainsaying the fact that the defense lawyer's conduct was extremely ill-advised. Nevertheless, I also remain unconvinced that reversal of the defendant's conviction was warranted. The court of appeals places particular emphasis on the fact that the defendant was a juvenile. Id. at *4, *11. But this emphasis seems awfully misplaced given that the defendant was a single day shy of his seventeenth birthday on the date of the murder, seventeen at the time the plea was entered, and being tried as an adult. Id. at *1. As noted, the evidence of guilt is overwhelming, and the plea bargain yielded the defendant significant gains. He pled guilty to mere "felony murder," and charges of "theft, purposeful and knowing murder, armed robbery, and carjacking" were all dropped. Id. Finally, the fact that the uncontested "one-time sexual encounter" was determined to have occured after the plea of gulity was entered, see id. at *5-9, is of some significance as well.

Although the court of appeals is clearly relying on conflict of interest as the basis of its ruling, id. at *9-10, its analysis leaves a great deal to be desired. For example, it heavily relies on cases that involve affairs between defense counsel and defendants' wives, Id. at *10, which obviously entail a far greater potential for conflicts and prejudice. But even in these cases, where the possibility of conflict of interest is far more pronounced, an ineffective assistance claim is far from certain. See Hernandez v. State, 750 So. 2d 50, 55 (Fla. Dist. Ct. App. 1999) (en banc) (refusing to vacate sentence based on defense counsel's sexual relationship with defendant's wife); see also Hernandez v. Spears, No. 00-3059-CIV, 2002 WL 1205058, at *3-6 (S.D. Fla. May 9, 2002) (unpublished opinion) (denying habeas petition of same defendant); but see People v. Singer, 226 Cal. App. 3d 23, 37-42, 47-48 (Cal. Ct. App. 1990) (vacating sentence due to defense lawyer's affair with client's wife). Remarkably, the LaSane court actually relies on the lower state court opinion in Hernandez, which was subsequently reversed by Florida opinion that I cite above. See LaSane, 2004 WL 1554354, at *10.

In the end, the LaSane court even seems to acknowledge the rather unconvincing nature of its anaylsis. See id. at *11 ("This case involves unethical conduct irrespective of whether a traditional conflict of interest is involved."). While true and relevant for disciplinary purposes, it is hard to see why this matters in an inquiry about post-conviction relief premised on an alleged conflict of interest.

The LaSane court also relies on disciplinary cases, citing, for example, In re Brown, 587 S.E.2d 110 (S.C. 2003) (per curiam). See id. at *10. In Brown, an aged attorney who tendered his resignation from the bar received a public reprimand for, among many other things, engaging in a sexual relationship with a criminal "client's mother prior to representing the client at trial." 587 S.E.2d at 111. Brown, however, involves an instance of consent discipline (i.e., the attorney agreed to and did not contest the discipline), so the issues were never developed adversarily and the opinion contains no analysis beyond the attorney's admission of violating several rules. Id. at 112-13. Accordingly, it offers little support for the LaSane court's ineefective assistance ruling.

The only other cases involving sexual conduct between defense counsel and clients' mothers that I have been able to locate are also disciplinary rather than criminal in nature. All of these cases did result in discipline. See In re Anonymous, 31 Pa. D. & C. 4th 199, 200-08 (Pa. Disciplinary Bd. 1995) (private reprimand for unsolicted and undesired kissing and groping of minor client's mother and for unwanted suggestion that lawyer and mother "do fun dirty things"); Office of Disciplinary Counsel v. Campbell, 623 N.E.2d 24, 25-28 (Ohio 1993) (per curiam) (one-year suspension for a multitude of misconduct, including making sexual overtures to mother of client); Courtney v. Alabama State Bar, 492 So. 2d 1002, 1003-04 (Ala. 1986) (public censure for placing arm around minor client's mother and kissing same on cheek). Notably, however, the discpline meted out in thses cases was not for violating disciplinary rules related to conflicts of interest. See Anonymous, 31 Pa. D. & C. 4th at 203 (invoking rule pertaining to commission of criminal acts (simple assault) that reflect adversely on fitness of lawyer); Campbell, 623 N.E.2d at 25 (citing rule pertaining to conduct that adversely reflects on fitness to practice law); Courtney, 492 So. 2d at 1003 (same). Indeed, the Anonymous court rejected a conflict of interest charge. 31 Pa. D. & C. 4th at 204-05. It is likewise significant that all of these cases involved unwanted sexual behavior in terms of why discipline resulted.

Although the court's holding may be premised on other than the Sixth Amendment—it is difficult to tell given the lack of analytical rigor—it is more than analogous (i.e., former defendant sought after conviction to withdraw guilty plea allegedly obtained by way of relationship that presented conflict of interest). While sexual relationships between lawyers and third-parties with ties to their clients may present a conflict of interest requiring reversal of a conviction under the Sixth Amendment under certain circumstances, this particular case does not appear to present such a situation.

Posted by Curmudgeonly Clerk at 01:36 PM | Comments (0)

Three Fifths Of A Person

Section 2 of Article I of the United States Constitution provides that:

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.

"Other [p]ersons" included slaves, of course. While the Fourteenth Amendment abrogated the "three fifths" rule, this particular language has continued to play a rhetorical role in our national conversation on race. Unfortunately, the rhetoric really obscures the true nature of the "three fifths" rule. Gail Heriot explains why.

Posted by Curmudgeonly Clerk at 09:10 AM | Comments (4)

July 14, 2004


Mark Trapp has an imperfect but interesting article on Justice Kennedy's jurisprudential evolution. Most interesting is Trapp's discussion of the Justice's apparent 180-degree turn over time:

Less than one month after Bowers was handed down, in a speech at Stanford University, Kennedy expressed his belief that the case had been properly decided, stating:

Georgia's right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process.

For example, specifically discussing homosexual conduct, Kennedy declared in 1986 that "[t]he Due Process Clause is not a guarantee of every right that should inhere in an ideal system." In direct contrast, Kennedy wrote in Lawrence that it was "[t]heir right to liberty under the Due Process Clause" which gave homosexuals "the full right to engage in their conduct without intervention of the government."

Kennedy's 1986 speech was entitled Unenumerated Rights and the Dictates of Judicial Restraint, a gospel that I preach here with some frequency. His decision to rethink his jurisprudence cannot be understated; the leading exponent of Kennedy's new jurisprudence characterizes the change as revolutionary. Nonetheless, I think that William Watkins is unfair in essentially ascribing Kennedy's reconsideration to reputational concerns or self-regard. Is it really beyond the realm of possibility that faced with an actual case (as opposed to giving a speech about a case decided by others) that one might rethink one's pre-existing convictions simply as a normal part of the deliberative process?

Posted by Curmudgeonly Clerk at 10:15 AM | Comments (4)

July 13, 2004

Don't Ask, Don't Tell, Don't Out

It is apparently no surprise to those familiar with Rep. Barbara Mikulski that she is a confirmed bachelorette, though Mikulski may well have been surprised to see her hitherto "open secret" widely publicized. For my part, I was surprised to see Right Side of the Rainbow defend the practice of "outing" (i.e., the involuntary disclosure of one's homosexual orientation). Right Side of the Rainbow's stance is, perhaps, all the more notable given the rather conflicted viewpoint espoused by Chris Geidner, whose discourse on the politics of homosexuality is sometimes confrontational to the point of irrational belligerency. Like Anthony Rickey, I am deeply repulsed by such forced disclosures.

Right Side offers the opinion that:

[S]exual practices and sexual orientation are not synonymous, and nobody, in my judgment, has a privacy interest in his sexual orientation.

The reasoning that lies behind Right Side's conclusion (e.g., homosexuals cannot truly hide their orientation, outing may actually provide emotional relief) is singularly unconvincing. But rather than dwell on the largely non-legal reasoning of his post, I am more interested in addressing an additional legal point that Right Side makes explicit in the comments to his original post:

Legally, I don't think there's ever anything wrong with ["outing"].

I think that there is good reason for doubting the accuracy of such a categorical statement and that "outing" may, in fact, be actionable under certain circumstances. Without delving into Mikulski's specific case, which is a poor example for examining this issue due to the fact that her orientation was apparently already well-known (and, perhaps, complicated by her status as a public figure), I'd like to offer a handful of cases that lead me to believe that genuinely closted homosexuals may possess an actionable privacy interest in their orientation—at least in some states, under some circumstances.

The principal line of cases to which I would like to draw readers' attention come out of California's appellate courts. The most recent relevant case is Barbee v. Household Auto. Fin. Corp., 6 Cal. Rptr. 3d 406 (Cal. Ct. App. 2003), which did not actually involve homosexuality at all. Instead, the defendant was being sued for terminating the plaintiff's employment for dating a subordinate employee. Id. at 408. One of the causes of action (unsuccessfully) pursued was for invasion of privacy. Id. While the California court of appeals ultimately rejected the privacy claim asserted on the facts of the case, the opinion hinted that different facts might compel a different result:

Barbee claims that HAFC's termination of his employment based on his relationship with Tomita violated his right to privacy under article I, section 1 of the California Constitution.

Article I, section 1 of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

* * *

"The constitutional provision is self-executing; hence, it confers a judicial right of action on all Californians. Privacy is protected not merely against state action; it is considered an inalienable right which may not be violated by anyone."

"[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy."

* * *

The "state constitutional right [to privacy] provides protection that is distinct from, and in some respects greater than, that provided by the federal Constitution. . . ." Accordingly, in the wake of Lawrence, Barbee may have a legally protected privacy interest in pursuing an intimate or sexual relationship, guaranteed by article I, section 1 of the California Constitution. However, although we make this assumption for purposes of the analysis of this case, we need not resolve this issue because, as discussed below, Barbee cannot establish the second necessary element of his invasion of privacy claim that he had a reasonable expectation of privacy in the circumstances of this case.

Id. at 409-11 (internal citations omitted).

The court's reliance on Lawrence v. Texas is particularly noteworthy. But there were indications that California courts would entertain privacy lawsuits premised on "outing" well before Lawrence.

For example, in Leibert v. Transworld Syss., Inc., 39 Cal. Rptr. 2d 65 (Cal. Ct. App. 1995), the court of appeals rejected an "outing"-related privacy action, but only because, as with Mikulski, the plaintiff's sexual orientation was not a secret. Id. at 69; cf. Prince v. Out Publ'g, Inc., No. B140475, 2002 WL 7999, at *8-9 (Cal. Ct. App. Jan. 3, 2002) (unpublished opinion) (rejecting invasion of privacy claim of male who was only out of the closet "with certain family members and close friends" on the basis that underlying story in which his orientation was disclosed was newsworthy); Sipple v. Chronicle Publ'g Co., 201 Cal. Rptr. 665, 669-70 (Cal. Ct. App. 1984) (rejecting invasion of privacy claim premised on disclosure of sexual orientation because plaintiff was already out to many and published account was newsworthy). An excerpt from the Leibert court's opinion is worth considering:

The gravamen of appellant's cause of action was that his state constitutional right to privacy was violated when respondent used information about his sexual orientation as grounds to terminate his employment. Appellant specifically alleged that the information misused by respondent "was not improperly obtained and not confidential."

* * *

Our Supreme Court has recently held that "a plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." Although respondent's alleged actions of harassing and terminating appellant on the basis of his sexual orientation were undoubtedly legally actionable and, if true, unconscionable, we conclude that appellant failed to adequately plead facts to support the first element of his privacy cause of action: the existence of a legally protected privacy interest.

Our starting point is the recent instruction of our Supreme Court that "[l]egally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information ('informational privacy'); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference ('autonomy privacy')." Appellant contends on appeal that respondent violated both types of privacy interests.

As respondent urges, however, appellant's complaint does not support his claim. We agree that "the details of one's personal life," including sexuality, generally fall within a protected zone of privacy. Nevertheless appellant specifically alleged that his sexual orientation was not confidential. Therefore, appellant, as a matter of law, cannot state a claim for infringement of a legally protected informational privacy interest.

Id. at 68-69 (internal citations omitted and bold font emphasis added).

Similarly, another division of the same California court of appeals explictly held prior to Lawrence that employment-related inquiries into one's sexual orientation violate the right to privacy. The case, Soroka v. Dayton Hudson Corp., 1 Cal. Rptr. 2d 77 (Cal. Ct. App. 1991), stemmed from Target's practice of requiring certain applicants to submit to a psychological battery that included true-false "questions that might reveal an applicant's sexual orientation, such as: . . . I am very strongly attracted by members of my own sex." Id. at 80. Regarding the invasion of privacy claims asserted, the court concluded that:

Therefore, Target's inquiry into the . . . sexual orientation of . . . applicants unjustifiably violates the state constitutional right to privacy.

Id. at 86.

Review was initially granted by California's Supreme Court in the Soroka case, but it was subsequently dismissed as moot after the parties apparently settled out of court. See 4 Cal. Rptr. 2d 180 (Cal. 1992) and 24 Cal. Rptr. 2d 587 (Cal. 1993) respectively.

One might be inclined to argue that California's jurisprudence is out of the mainstream, that its line of privacy cases is a function of its unique state constitution. Perhaps, this is so. I have not looked deeply into the issue, but there are at least some indications that other jurisdictions would recognize a tort action for "outing" under the right circumstances. See, e.g., Sterling v. Borough of Minersville, 232 F.3d 190, 196 (3d Cir. 2000) (finding that sexual orientation was "an intimate aspect of personality entitled to privacy protection"); Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 373-74, 376-80 (Colo. 1997) (recognizing that involutary disclosure of sexual orientation and exposure to AIDS could legally support invasion of privacy claim); Greenwood v. Taft, Stettinius & Hollister, 663 N.E.2d 1030, 1035-36 (Ohio Ct. App. 1995) (reversing dismissal of invasion of privacy claim premised on involuntary disclosure of sexual prientation); Madsen v. Erwin, 481 N.E.2d 1160, 1167 (Mass. 1985) (allowing plaintiff allegedly terminated on basis of sexual orientation opportunity to replead invasion of privacy claim). Moreover, the advent of Lawrence may have fatally undermined any prior reluctance to recognize such claims. See Walls v. City of Petersburg, 895 F.2d 188, 193 (4th Cir. 1990) (declining to find privacy interest in sexual orientation solely on the basis on Bowers v. Hardwick).

One also has to be mindful that some specific factual contexts might be particularly conducive to similar legal actions. Cf. McVeigh v. Cohen, 983 F. Supp. 215, 222 (D.D.C. 1998) (concluding that Navy "impermissibly embarked on a search and 'outing' mission"). But I do not think that we have to confine our consideration to comparatively unique situations such as those concerning military employment to understand the sort of harm that can be visited on people via involuntary disclosure of sexual orientation or their understandable desire to shield an often unpopular orientation from public view. See Doe v. City of Belleville, 119 F.3d 563, 589 (7th Cir. 1997) ("And, although gays and lesbians have experience marked gains in societal acceptance in this country over the last few decades, there are still many gays and lesbians who remain closeted and would never admit to homosexual impulses.").

The issues involved in this topic are complicated under any circumstances. When public officials are also involved, their status and the press's First Amendment newsworthiness defense futher complicate matters. Supposed hypocrisy of the sort displayed by Mikulski might render her orientation newsworthy and thus preclude any potential invasion of privacy claim, for example. See Barbara Moretti, Note, Outing: Justifiable or Unwarranted Invasion of Privacy? The Private Facts Tort as a Remedy for Disclosures of Sexual Orientation, 11 Cardozo Arts & Ent. L.J. 857, 884-94 (1993) (positing that "[d]isclosures of sexual orientation are of legitimate public interest" under such circumstances but casting some doubts on this proposition). However, I am inclined to think that, under many circumstances, "outing" may well be legally actionable.

Update: Milbarge, who is guest-blogging at De Novo, offers another interesting non-legal perspective on "outing" with regard to congressional staffers in particular. Although I do not pretend to know for certain whether such campaigns targeted at mere congressional staffers would result in liability as a result of an invasion of privacy lawsuit, I do obviously think that a reasonable case can be made for liability. "Newsworthiness" strikes me as an awfully threadbare defense under such circumstances, though I could be wrong.

Posted by Curmudgeonly Clerk at 02:03 PM | Comments (5)

July 12, 2004

More On The Marriage Amendment

TalkLeft is all too frequently a repository of silly arguments. Consider this reaction to the proposed Federal Marriage Amendment:

Hey, Mr. President, the Constitution is not a rough draft. It has served us well for 200 years. Leave it alone.

One might think that a site run by a lawyer might be able to come up with a more compelling counterargument, or at least one that is not completely at odds with Article V of the Constitution (not to mention the existence of twenty-seven other amendments).

This is not to say that the FMA cannot be intelligently opposed. Others have advanced more intelligent reasons for opposition. But I am increasingly struck by how some cannot seem to bring themselves to address this issue on substantive grounds and instead resort to arguing that constitutional emendation is itself an illegitimate option.

Posted by Curmudgeonly Clerk at 02:08 PM | Comments (4)

The Mob

Timothy Sandefur chastises Orrin Hatch for inciting the passions of the mob. At the same venue, one of my own senators seconds Hatch today. Contra Senators Hatch and Cornyn, Sandefur argues that judicial imposition of same-sex marriage is not undemocratic because "the judiciary is part of the people’s government."

I think that there is some real merit to his argument, but Sandefur's commentary also threatens to mislead by omission or misplaced emphasis. After all, no one doubts the federal courts are a countermajoritarian institution. Indeed, the courts' most ardent champions celebrate judicial review on this very basis (i.e., that the courts pose a check on the majority's impulses). Sandefur himself writes that, "[t]he courts exist to put a check on the extremely dangerous power of the majority."

Sandefur quotes from the Federalist No. 51 to good effect, but, notably, No. 51 does not concern the judiciary in particular. Rather it concerns the general concept of separation of powers and explictly notes that, "[i]n republican government, the legislative authority necessarily predominates." Significantly, immediately upon noting this circumstance, Madison goes on to write that the check designed to ameliorate the legislative authority is a bicameralism. The judiciary is not even mentioned in the paragraph from which Sandefur quotes. Indeed, the judiciary barely receives any attention whatever in Federalist No. 51. Moreover, as I myself have often contended, Madison begins his discussion in the quoted paragraph by observing that, "[a] dependence on the people is, no doubt, the primary control on the government."

The judiciary received the least attention of the three branches of government in the Federalist Papers. But even those concerned with the institution, such as Federalist No. 78, acknowledge that, "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them."

The matter at issue is really whether same-sex marriage is, in Hamilton's words, one of those matters enumerated by our "limited Constitution." That is, the question is whether marriage is a right guaranteed by our Constitution such that it falls within the Constitution's "certain specified exceptions to the legislative authority." As I have argued, when the rights asserted are plainly encompassed in the constitutional text, there is nothing controversial about the courts' involvement. Federalist No. 78 foreshadows this very position:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Note the very specific and textually demonstrable examples chosen by Hamilton (viz., bills of attainder, ex post facto laws). However, when the courts announce hitherto unknown rights on the basis of substantive due process or unenumerated rights (e.g., Goodridge), their footing is considerably more tenuous. Federalist No. 81 anticipates this very difficulty in addressing the anti-federalist concern that, "[t]he power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper." Hamilton's rejoinder, however, is less and less convincing in the face of novel contemporary constitutional theories that do, in fact, provide the courts "greater latitude in this respect" than they have traditionally enjoyed.

What we have here is not demagoguery, but a good faith dispute as to which institution has been assigned authority over this matter. Federalist No. 78 gives no small indication that the courts ought to haver the final say in such disputes, but it also seems to conceive of a weak judiciary passing on matters rendered plain by the Constutition's text rather than controversial political matters, of neutral judges who apolitically exercise "judgment" rather than their "will."

What Hatch and Cornyn advocate by way of resolution is a Constitutional amendment to clarify matters. Article V of the Constitution expressly provides for such emendation. Although they may fail to advocate the amendment in temperate language, Sandefur's designation of this constitutionally sanctioned process as "mob rule" is equally intemperate. Whether it succeeds or fails, the Article V process promises one thing that the courts cannot provide: a political settlement.

Posted by Curmudgeonly Clerk at 10:10 AM | Comments (2)

July 11, 2004

The Woad Warrior

Against my better judgment, I saw King Arthur the other night. The best that can be said for it is that it was not really bad per se. Much like The 13th Warrior, it is a movie almost saved by its charming cast. The PG-13 rating rendered the battle sequences far less gripping than anything in Braveheart. Though with Guinevere (Keira Knightley) leaping about in blue facepaint and a "smashing leather combat brassiere," the film might be suitably retitled Bravetart.

Posted by Curmudgeonly Clerk at 10:46 PM | Comments (0)

July 08, 2004


Despite my cynicism, I occasionally marvel at the implausible utterances that people attempt to pass off with a straight face. Now, sometimes, these statements are just the result of thoughtlessness. But on other occasions, these statements strike me as being not so much a commentary on the speaker's cerebral shortcomings as the speaker's contempt for his audience's intellectual abilities. Determining which is the case in any given instance is a desultory process.

So what triggered these general observations? This Associated Press story:

President Bush declined an invitation to speak at the NAACP's annual convention, the group said.

* * *

NAACP spokesman John White said Wednesday that Bush has declined invitations in each year of his presidency—becoming the first president since Herbert Hoover not to attend an NAACP convention.

The NAACP received a letter from the White House three weeks ago declining the invitation because of scheduling conflicts and thanking them for understanding.

While I do not doubt that there are scheduling conflicts in the most literal sense, this is hardly the reason for the president's nonattendence. Scheduling conflicts have apparently been cited as the reason for declining to meet with NAACP president Kweisi Mfume on prior occasions as well. The president's historic avoidance of the NAACP is hardly attributable to scheduling conflicts other than those of the purposeful kind. Reporters have attempted to pin the administration down on this point to no avail.

But the response of the president's detractors is just as implausible. For example, in a post entitled "How Not To Reach Out," Unlearned Hand surmises:

[P]erhaps he has given up on the idea of wooing black voters.

I suppose that's a marked improvement over some other reactions though. Last year, Jeff Coopersmith opined that Bush's failure to meet with the NAACP "telegraph[s] an invisible approval of bigotry and ignorance."

When contrasted with reality, it's hard not to notice that Coopersmith's train of thought has jumped the tracks. It is really no secret why the president declines to interact with the NAACP. Larry Elder ably summarized the situation back when Bush turned down the NAACP's invitation to speak at its 2001 National Convention:

How dare he? Just because the NAACP spent nearly nine million dollars to "get out the black vote," an effort designed to defeat Bush?

And didn't the NAACP pay for ads attacking Bush for failing to support enhanced hate-crime legislation in Texas? This charming commercial, with foreboding music, used the voice of the daughter of James Byrd, the Jasper, Texas, man dragged to death by three white racists.

"I'm Renee Mullins, James Byrd's daughter," goes the hit piece. "On June 7th, 1998, in Texas, my father was killed. He was beaten, chained and then dragged three miles to his death all because he was black. So when Governor George Bush refused to support hate-crime legislation, it was like my father was killed all over again. . . ." (Never mind that two of Byrd's killers received the death penalty, with a third receiving life in prison only in exchange for his testimony against his codefendants.)

Had the president accepted the NAACP's invitation, Bush would have heard NAACP chairman Julian Bond declare, "[Bush] has selected nominees from the Taliban wing of American politics, appeased the wretched appetites of the extreme right wing, and chosen Cabinet officials whose devotion to the Confederacy is nearly canine in its uncritical affection."

Bond opened the 2002 annual convention with similarly unflattering rhetoric concerning the Bush administration. His most recent public remarks have, if anything, only become still more inflammatory:

In remarks to hundreds of cheering liberal activists Wednesday, NAACP Chairman Julian Bond singled out Republicans as enemies of black Americans and compared conservatives to the terrorist Taliban who once ruled Afghanistan.

"Their idea of equal rights is the American flag and the Confederate swastika flying side by side," Bond told a cheering audience. "They've written a new constitution for Iraq and ignore the Constitution here at home. They draw their most rabid supporters from the Taliban wing of American politics. Now they want to write bigotry back into the Constitution."

* * *

"By playing the race card in election after election, they've appealed to that dark underside of American culture, to that minority of Americans who reject democracy and equality. They preach racial neutrality and they practice racial division."

* * *

Even though Bond said the National Association for the Advancement of Colored People remains a non-partisan organization, he reserved some of his harshest criticism for President Bush.

Yet despite the fact that he is seemingly cast in the role of Sisyphus, Bush has apparently not given up on courting the black vote. Early in Bush's administration, his ideological backers suggested an alternative strategy of outreach. Conservative columnist Cal Thomas's thoughts are fairly typical of the ideas that were floated at the time:

In the area of race, Bush can relegate the tired old civil rights establishment to the back burner and start elevating to prominence black pastors who have real churches and minority entrepreneurs and political leaders who have resumes detailing their actual accomplishments. The so-called "civil rights establishment'' has not been ordained or elected by anyone to dictate to this president. How about a new generation of black leaders with a track record of really helping people, instead of the bunch we have had to contend with, which is mostly interested in helping themselves to the goodies at the political trough.

Rightly or wrongly, this is the very approach that the president has adopted, inviting such alternative leaders to the White House and speaking before the National Urban League. It's all so obvious that one wonders why the White House won't simply own up to it.

One also wonders why Bush's opponents cannot bring themselves to acknowledge that his avoidance of the NAACP neither reflects racism nor disregard for black voters. However ineptly it might be going about it, the GOP is clearly interested in engaging black voters. It has just wearied of trying to engage the NAACP, which is no longer content to differ on matters of public policy but instead demonizes its opponents.

For Bush, the NAACP's invitation really presents a damned-if-you-do and damned-if-you-don't proposition. Republicans almost never even receive grudging acknowledgment of their attempts at inclusion. The GOP accords minorities (including blacks) a place of prominence and honor at its convention, and the gesture is tossed aside as meaningless "window dressing" by the head of a local NAACP chapter. Bush appoints blacks to positions of power within the administration (Rod Paige, Colin Powell, Condoleeza Rice), and Julian Bond remains unimpressed. Bush reaches out to blacks outside of the NAACP, and these blacks are denounced as "hustlers and hucksters" and "ventriloquist's dummies" who "speak in their puppet master's voice" by Bond. Even laying a wreath on Martin Luther King, Jr.'s grave is an occasion for controversy as far as some members of the civil rights establishment are concerned. Frankly, castigating Bush for declining to attend the NAACP's annual convention is a little like condemning him for opting not to shake hands with a chainsaw.

Posted by Curmudgeonly Clerk at 07:01 PM | Comments (3)


Timothy Sandefur excoriates "conservatives," opening a rant with the observation that:

Conservatives, having no intelligent or logical arguments against libertarianism, rely on mischaracterizing our position, instead.

No doubt, Sandefur opens with this sentence lest the subtle title of his post—"More Conservative Lies About Libertarians"—fail to convey the message.

The odd thing, however, is that his post proceeds to criticize a single thoughtless remark in a column by Catherine Seipp. Granted, Seipp's article appeared over at National Review Online, but Seipp's columns at NRO hardly come across as "conservative," however that term might be understood. Indeed, I myself have condemned NRO's decision to carry Seipp's mediocre columns as a sign of its decline and seeming abandonment of anything closely approximating conservatism.

Posted by Curmudgeonly Clerk at 11:38 AM | Comments (1)

EDDix's Top 50 Blawgs

EDDix has compiled a list of the top fifty legal weblogs, among which my humble site is listed (and criticized). Interestingly, there are several blawgs on EDDix's list with which I was hitherto unfamiliar. The list also has a comment feature, in the event that readers think that a notable weblog has been overlooked.

Posted by Curmudgeonly Clerk at 10:35 AM | Comments (6)

Superhotties Of The Federal Judiciary

Underneath Their Robes is without qualification the weirdest legal weblog in existence. Allow me to tender Exhibit "A" in support of my thesis.

Posted by Curmudgeonly Clerk at 09:59 AM | Comments (2)

July 07, 2004

Georgy Porgy

Georgy Porgy, pudding and pie,
Kissed the girls and made them cry.
Though their damages may amount to little in tort,
Georgy Porgy will be adjudged a batterer in court.
—Apologies to Mother Goose.

Or at least Georgy Porgy should be found guilty of (civil or criminal) battery if brought to trial, for reasons that I have thoroughly explained here. But there is sometimes a gap between what should be and what actually happens. Will Baude potentially identifies such an instance, pointing out this legal story from Idaho:

Stealing a kiss is not a crime, a jury has decided.

A computer repairman who kissed a customer during a house call was acquitted of battery Wednesday.

Steven Allen Moyer, 40, said he figured the woman was lonely and might want companionship.

* * *

Victoria Franich said Moyer cornered her, grabbed her and kissed her twice—after billing her $20 for the service call. She said Moyer also asked her if she wanted to show him the bedroom.

"I said no and he left," she said. Franich then called police.

From the spare factual recitation, it is difficult to know what lies behind the jury's decision. But if one accepts the story at face value (i.e., that Franich was "cornered," "grabbed," and "kissed" withour her consent), then this was unquestionably a battery under Idaho's criminal law. See Idaho Code § 18-903(b) (defining battery as including any "[a]ctual, intentional and unlawful touching or striking of another person against the will of the other"); see also Idaho State Bar v. Williams, 834 P.2d 1320, 1322 (Idaho 1992) (unsolicted touching of client was attorney misconduct because nonconsensual touching constitutes the crime of battery under § 18-903(b)).

Idaho's definition of "battery" for purposes of civil tort actions is similar. See Neal v. Neal, 873 P.2d 871, 876 (Idaho 1994) (defining battery for purposes of civil law as "an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive"). Accordingly, civil cases may provide some useful guidance. For example, Moyer's representation that he was merely seeking to remedy Franich's apparent loneliness is irrelevant. See White v. University of Idaho, 797 P.2d 108, 109 (Idaho 1990) (reiterating "that the intent necessary to commit a battery was intent to commit the act, not the intent to cause harm"). Likewise, even rather minimal contact may constitute a battery under Idaho law. See, e.g., Pierson v. Brooks, 768 P.2d 792, 799 (Idaho Ct. App. 1989) ("The trial judge reasoned that although the actual physical contact was minimal, a battery occurred because the evidence was undisputed that Mrs. Brooks had committed an intentional and unpermitted touching of Mrs. Pierson by grabbing her shirt collar. We agree."). Indeed, in the White case, the intermediate appellate court specifically noted that "a person may commit a battery when intending only a joke, or a compliment—where an unappreciated kiss is bestowed without consent, or a misguided effort is made to render assistance." White v. University of Idaho, 768 P.2d 827, 828 (Idaho Ct. App. 1989) (per curiam).

Caselaw from multiple jurisdictions indicates that nonconsensual kissing may form the basis for a criminal battery charge. See, e.g., Commonwealth v. Morillo, No. 00-P-1391, 2002 WL 31002130, at *1-2 & n.4 (Mass. App. Ct. Aug. 29, 2002) (unpublished opinion) (finding that attempted unconsensual french kiss constituted crime of "Indecent Assault and Battery" and suggesting that any mere nonconsensual kiss would constitute simple battery); Steed v. St. Paul's United Methodist Church, 728 So. 2d 931, 940 (La. Ct. App. 1999) ("Moreover, Steed's charges that Rev. Simmons grabbed her, tried to kiss her, and physically blocked her from leaving his office, amount to accusations of at least simple battery.") (citation omitted); State v. Lachney, 621 So. 2d 846, 847-48 (La. Ct. App. 1993) (quoting with approval passage from treatise by LaFave and Scott maintaining that "offensive touchings (as where a man puts his hands upon a girl's body or kisses a woman against her will, or where one person spits into another's face) will suffice for battery except in a few jurisdictions"). There also seems to be little doubt regarding the viability of a tort action for battery premised on nonconsensual kissing. See, e.g., Reeves v. Reiman, 523 N.W.2d 78, 82 (S.D. 1994) ("So there is no question in future cases in this state, a person who touches another in an offensive manner is liable for a battery. If a male touches a female on her breasts or genitalia or buttocks or kisses her without her consent, he is subject to a civil action for battery regardless of how well intentioned."); Fields v. Cummins Employees Federal Credit Union, 540 N.E.2d 631, 640 (Ind. Ct. App. 1989) ("An attempt to kiss or fondle a woman without her consent has been held to be an assault and battery."); Johnson v. Ramsey County, 424 N.W.2d 800, 803-04 (Minn. Ct. App. 1988) (judge liable for battery as a result of kissing court reporter).

Posted by Curmudgeonly Clerk at 10:34 AM | Comments (1)

July 06, 2004

Don't Mess With Texas™

According to a story appearing in the Los Angeles Times:

The phrase "Don't Mess With Texas" is trademarked by the state Department of Transportation as part of its litter prevention campaign, you will be told. "We request that you cease and desist using the 'Don't Mess With Texas' mark for any purpose."

In the last year, 23 such letters have been sent to retailers who have used the slogan illegally, and that's just scratching the surface. Hundreds of items—including T-shirts, knives and breath mints—have carried the phrase since the anti-litter campaign was launched in 1986.

* * *
"We're not any different from any other company that has a slogan or brand," said Doris Howdeshell, director of the Department of Transportation's travel section. "This is an effort to control the dilution of the meaning of the slogan. We want people to understand that we're talking about litter prevention. We're not saying: 'I'm a macho man.' "

Of course, as the story goes on to reveal, what these disputes are really about are the royalties.

An Associated Press story reports that the Texas Abortion and Reproductive Rights Action League is among those who have received cease and desist letters for its "Don't Mess With Texas Women" t-shirts. The same story goes on to report that the DOT's efforts have already cowed the University of Texas.

Update: In the comments, "Von" states that this post should have been entitled "Don't Mess With Texas ®," as the trademarks at issue have been registered. Their registration may be confirmed here. "Von" is entirely right about this. I regret the misdesignation.

Posted by Curmudgeonly Clerk at 02:12 PM | Comments (2)

July 02, 2004

Law Clerks In The News

A legal story entitled "Richardson Decision Delayed by Clerk's Illness" caught my eye:

On Wednesday, [Federal District Judge William R.] Wilson told lawyers in the case that one of his law clerks had been ill with bronchitis last week and this week. That clerk has some expertise in employment law, the judge said, and he wants her to review his findings "with a fine-tooth comb" before he puts them in final form and releases a ruling.

That's quite the compliment. I suspect that, if I were hit by a bus, my court would manage to get along without much difficulty. This blog might fare somewhat less well in my absence, however.

(Link via How Appealing.)

Posted by Curmudgeonly Clerk at 10:39 AM | Comments (1)

Qur'an Question

This article in Slate argues that the American press is misreporting the Qur'an:

Following the recent beheadings of Americans and other foreigners in Iraq and Saudi Arabia, the U.S. press turned to various experts to identify a precedent in the Quran or Islamic history for this kind of gory murder. "Beheadings are not mentioned in the Koran at all," Imam Muhammad Adam El-Sheikh, co-founder and chief cleric at the Dar Al Hijrah mosque in Falls Church, Va., told USA Today. Yvonne Haddad, a professor at the Center for Muslim-Christian Understanding at Georgetown University agreed, telling New York Newsday, "There is absolutely nothing in Islam that justifies cutting off a person's head."

The author then goes on to cite two verses from N.J. Dawood's translation that contradict such claims. Although it would not surprise me to find that some Arabic speakers are misrepresenting the contents of the Qur'an or tenets of Islam, I think that the Slate article's argument depends on the accuracy of Dawood's translation.

I cannot say whether Dawood's translation is right or wrong, but it is always possible that it is not. The Qur'an is freely available in multiple English translations on the Internet, some of which are accompanied by search engine features. Not all of these translations agree on all points. The two verses that the Slate article highlights, for example, are variously translated throughout the different texts available online. Which one is most faithful to the original Arabic text? As a non-Arabic reader, I am unqualified to say.

Dawood certainly was willing to subject his translation to criticism, however. He put out another edition of his translation with parallel Arabic text. Does this weblog have any Arabic readers who would care to take a crack at translating the verses in question?

(Slate link via Eugene Volokh.)

Update: Ken "The Hammer" Lammers has done us all the favor of translating one of the verses at issue. His post also includes some very interesting comments on the Arabic-to-English translation process. Thanks so much for help, Mr. Lammers.

Posted by Curmudgeonly Clerk at 09:23 AM | Comments (8)

July 01, 2004

Some Thoughts On Statutory Rape

Professor Volokh is soliciting input on the age of consent and statutory rape statutes. It will be interesting to see the thoughts of his readership on this subject.

As regular readers know, I have done a fair amount of blogging about statutory rape laws over the course of the last year or so, and I have come to advocate what is essentially a descriptive approach to the law of statutory rape. That is, I think that the age of consent ought to correspond to teenage behavioral norms rather than attempting to prescribe them. To set the law up in this area in any other fashion basically criminalizes otherwise consensual sexual behavior that is not statistically aberrant.

For example, an Alan Guttmacher Institute paper indicates the following percentages among teenage females (where the % indicates sexual intercourse):

Age 15: 24%

Age 16: 39%

Age 17: 52%

Age 18: 65%

The percentages for teenage males are not dissimilar. But I assume that the female percentages are the ones that really matter in this debate, as statutory rape prosecutions most often involve female victims. Likewise, concerns about the poor judgment of teens and the possibility of adults preying on them always seem to be primarily directed towards female teens.

Of course, even from the foregoing data, one might dispute what age/percentage correlation is sufficiently high to serve as the basis for the age of consent. It seems to me though that rather large numbers of teens are engaging in sexual intercourse by the ages of 16 and 17. And, it's important to remember that the foregoing statistics apply solely to "sexual intercourse." If other sexual activities are accounted for, those percentages may rise significantly.

Admittedly, this descriptive approach may run into more difficulty in serving as a basis for "Romeo and Juliet" provisions that typically exist within statutory rape laws (i.e., the provisions that provide that, even when one of the participants has not reached the age of consent, there is no rape so long as the other participant is within a certain range of years). However, there is data on this as well. The aforementioned Guttmacher study reports that:

Nearly two-thirds (64%) of sexually active 15-17-year-old women have partners who are within two years of their age; 29% have sexual partners who are 3-5 years older, and 7% have partners who are six or more years older.

So, one can make a good case, I think, for fairly narrow "Romeo and Juliet" provisions, particularly if one is contemplating a lower age of consent. No one, I suspect, has a problem with prosecutions of the sort detailed in this Houston Chronicle article. However, a narrow age-range for "Romeo and Juliet" provisions does produce some questionable prosecutions with unexpected frequency (e.g., cases involving two teens). Though even cases involving only teenage participants are themselves not easily characterized on occasion.

Personally, I am less and less persuaded by prophylactic arguments directed at teenage wisdom. Increasingly, in the criminal justice system, we are willing to attribute a high degree of sophistication and culpability to minors (i.e., treating juveniles as adults). Statutory rape laws head in the exact opposite direction. I find it somewhat difficult to reconcile the two trends. Others hve offered additional reasons for questioning the paternalism that lies behind statutory rape laws.

The Guttmacher study does admittedly provide statistics that might be cause for concern regarding pregancy and STDs among teens, two oft-cited rationales for enforcing statutory rape laws. However, my hunch is that concerns about pregnancy and disease can be better addressed via sex education rather than through a legal prohibition that teens themselves already apparently disregard in large numbers.

Posted by Curmudgeonly Clerk at 01:05 PM | Comments (0)