Ah, to own a liquor store near a law school last night.  There must have been some heavy drinking going on, as lawprofs held an emergency lean-in support group to come up with some spin to counter the New York Court of Appeals decision in People v. Marquan M., as it sucked the wind out of their best appeals to emotion.

The case dealt with an Albany County law criminalizing cyberbullying, a most fashionable crime.  There was no question, as there shouldn’t be, that it could cause children (though the inept language of the original law covered all “persons,” from adults to corporations) terrible distress.  But the fact that there is harm in the world doesn’t mean that we throw the Constitution under the bus to make sure it’s addressed.

[D]efendant Marquan M., a student attending Cohoes High School in Albany County, used the social networking website “Facebook” to create a page bearing the pseudonym “Cohoes Flame.” He anonymously posted photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive, prompted responsive electronic messages that threatened the creator of the website with physical harm.

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The assumption is that the more horrible the crime, the less likely a judge is to apply the law neutrally and fairly. After all, the defendant was awful, and nobody likes really awful people.  In the scheme of horribles, cooking and eating women is right up there.

Yet, SDNY Judge Paul Gardephe did exactly what he was sworn to do, pushing aside the disgusting nature of the allegations and focusing instead on the law and facts.  While those who are inclined to agree with his ruling, granting the defense’s Rule 29 motion and dismissing the count of conspiracy to commit kidnapping, you may not appreciate how bold Judge Gardephe was in doing so.  The pressure to deny the motion, when it’s the cannibal cop, must have been unbearable, and yet the judge performed his duty.

The memorandum decision is long, at 118 pages, reflecting the seriousness of the case and the response such a controversial ruling would naturally evoke. In what appears to be an “executive summary,” Judge Gardephe kindly explains up front his basic conclusions, with the legal argle bargle to follow.  The New York Times sums it up. Continue reading →

In an upcoming law review article, Orin Kerr plans to argue that the subjective expectation of privacy prong of Katz is dead. Muerte. Gone, gone, gone. I told him that wasn’t the case. It wasn’t dead. It was just sleeping. Or to be more precise, the subjective expectation of privacy prong was only honored in the breach. It was taken for granted, except when the prosecution can demonstrate that it didn’t exist. Then it was resurrected to be used against the defendant.

But as was my good fortune, Judge Richard Kopf, in the course of asking some silly questions, raises a point that goes to the heart of Orin’s issue:

Second, virtually all smart phones can be locked.  That is, they cannot be opened and operated without using a code or a fingerprint scanner. Indeed, my government iPhone locks itself when no longer than five minutes has expired after the last use and may lock as early as one minute.  At that point, I cannot use the device without unlocking it using a six digit code or a fingerprint scanner. (A terrible pain in the ass.) Continue reading →

Potter Stewart wrote an opinion in the 1974 case of Geduldig v. Aiello.  Not too many people remember the opinion, because it was mercifully murdered by changes in the law in 1978, when Congress used to enact laws.  The question before the court was whether California’s denial of disability benefits for pregnancy constituted invidious sex discrimination.  The Supreme Court held it did not, as it would be costly to pay for pregnancy-related disability, and saving money was a rational purpose.

The dissent by Justice Brennan, noted that the Court gave short shrift to the discriminatory aspect of the exclusion of pregnancy disability benefits.

When, as in this case, the State employs a legislative classification that distinguishes between beneficiaries solely by reference to gender-linked disability risks, “[t]he Court is not . . . free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means.”

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Josh Blackman, who has been on the Supreme Court’s abortion protest buffer zone speech restriction case, McCullen v. Coakley, like a fly on shit lawprof, notes some very interesting language in Chief Justice Roberts’ opinion.

On a somewhat related note, another key limitation recognized in McCullen on crimes that regulate speech, is a requirement of intent. It’s not enough that speech may have an incidental effect that harms another. Rather, the speaker must have the intent to “intimidate” or “harass” someone else.

The second supposed defect in the alternatives we have identified is that laws like subsection (e) of the Act and the federal FACE Act require a showing of intentional or deliberate obstruction, intimidation, or harassment, which is often difficult to prove. As Captain Evans predicted in his legislative testimony, fixed buffer zones would “make our job so much easier.” Of course they would. But that is not enough to satisfy the First Amendment. To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.

The tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demand­ing a close fit between ends and means, the tailoring requirement prevents the government from too readily “sacrific[ing] speech for efficiency.”

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Stephanie West Allen sent me a link to a law student, Jacqueline Horani, who, after her first year, found a peculiar niche that interested her greatly.  She describes it as “the intersection of community & the law,” which clarifies nothing for me, but to her credit, she’s going for it.  She needs $1500 to fund her summer tour, and she turned to Indiegogo to get it.

The title of her pitch is “A law student’s adventure through the U.S. to discover the intersection of community & the law.”  She describes it as

Did you know…

that there are over 1,500 Intentional Communities, planned residential communities where people live together under a common vision/values, in the United States alone? Almost all of these communities have sustainability as an aspect of their focus; many create local organic farms, local businesses, and establish land trusts to protect open spaces from development.

Even if you don’t live in an intentional community, the more we make it easier and more successful for their establishment, the more organic produce, locally made jams, clothing, and cheeses, retreat centers and nature preserves the world can enjoy!  Plus, the more we learn from these microcosms of community, social experiments in collective resources, the better we can re-define and re-organize how we live our lives in cities, suburbs, and neighborhoods.

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Ask an engineer and he may be happy to explain the theory behind the little magic black box, whose digital readout is, standing alone, sufficient to put a person in prison.  When the Breathalyzer 5000 was accepted as proof of drunk driving, it became a fixture of the law.  There aren’t many bank robbers, but there are a ton of drunk drivers. We know because the box says so.

In time, the magic science of the box became the subject of scrutiny.  Experts questioned its accuracy, both internally and theoretically.  After all, it purported to measure the alcohol in a person’s breath, while the salient information was the alcohol in a person’s blood.  It gave a number, which conclusively proved a crime notwithstanding the absence of evidence that the number, at first .10 BAC and then lower and lower, as MADD gained influence and legislators had fewer criminal dragons to slay, that condemned people without regard to any real harm.

Prohibition may have failed, but we’ve never really gotten over the moralist’s hatred of evil intoxicating beverages.  And this black box made it easy-peasy to nail the culprits. Continue reading →

He begins by assuming the problem, which is always a cool trick when you have no empirical basis of a problem in need of a solution, but have a solution you really, really, feel needs airing. Ross Douhat’s column opens:

IN the debate over sexual violence on college campuses, two things are reasonably clear. First, campus rape is a grave, persistent problem, shadowing rowdy state schools and cozy liberal-arts campuses alike.

Second, nobody — neither anti-rape activists, nor their critics, nor the administrators caught in between — seems to have a clear and compelling idea of what to do about it.

Whether, and how severe, a problem campus rape is remains a question in need of an answer.  Even the White House’s task force report, which similarly announces the problem, simultaneously concedes they don’t actually have evidence of a problem and require study,  Maybe Douhat only skimmed the report. He’s a busy guy, I’m sure. Continue reading →

Members of the Harris County Criminal Lawyers Association is handing out big yellow cards to the people entering courtroom 14.

They read in part “the judge or court staff may try to get you to plead guilty or ‘no contest’ without a lawyer.”

A fascinating concept, particularly given that whole constitutional right to counsel thing.

The Harris County Criminal Lawyers Association (HCCLA) was the group passing them out in the halls. They told Eyewitness News they’ve heard too many complaints against Judge Michael Fields in the past few weeks.

“At this point, we’re concerned. It’s gone on for too long. We feel like it’s appropriate to step in,” said group president Carmen Roe. “They have the right to an attorney. They have the right to remain silent, they have the right to a jury trial. We believe those rights are not being given to these clients.”

The group accused Judge Fields and court staff with pressuring for guilty and no-contest pleas. They argued that strips defendants of their constitutional rights.

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The Riley/Wurie decision represents what I describe as a clean break from search and seizure law as it has grown since Weeks was decided 100 years ago.  At Slate, Judge Richard Posner poo-poos the decision:

The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

Apparently, nobody told Posner he’s not on the Supreme Court, so his opinions may not carry quite the same weight. But that’s not quite the core of his complaint. Rather, it’s the insane state of Fourth Amendment law.

The abiding puzzle of “search and seizure” is the insistence of the courts, including the Supreme Court, that the Constitution requires search warrants in all but emergency circumstances, in order to protect what we now call “privacy.” That is ahistorical. The Fourth Amendment protects people against unreasonable searches and seizures, but it does not require search warrants; on the contrary, it limits them, by requiring that they be based on probable cause, on oath or affirmation by the seeker of the warrant, and on a particularized description of the premises to be searched and the items (usually contraband) to be seized.

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