Legal Commentary

9th Circuit declares Cal. Pen. Code Sec. 148.6 unconstitutional

In Chaker v. Crogan, U.S. Court of Appeals for the 9th Circuit declared that section 148.6 of the California is unconstitutional because it violates the First Amendment.  That statute provides that anyone who knowingly makes a false complaint against a peace officer is guilty of a misdemeanor.  The 9th Circuit struck down this statute on the ground that it criminalizes false complaints against police officers, while does not provide similar sanctions against cops and / or third-party witnesses who make knowingly false statements in the course of investigaiton of a police misconduct complaint:

"Only knowingly false speech critical of peace officer conduct is subject to prosecution under section 148.6.  Knowingly false speech supportive of peace officer conduct is not similarly subject or prosecution.  California has no such authority to license one side of a debate to fight freestyle, while requiring the other follow Marquis of Queensburry rules."

The opinion is clear and straightforward.  Making knowingly false statements in a course of a police misconduct investigation should be a crime no matter who makes the offending statement.

As a side note, this habeas case could have been derailed by a statute of limitations problem I described earlier in this post regarding U.S. Supreme Court decision in Mayle v. Felix.  Fortunately for the petitioner, he had competent counsel (Walter K. Pyle of Berkeley, California and ACLU (as amicus curiae) who was able to file an amended habeas petition that properly related to the original timely petition under Fed. R. Civ. Proc. 15(c)(2)  (the original petition did not have the First Amendment claim).  The fact that the AG blew the issue did not hurt either.

First Amendment at the Airports

It is entirely possible that the plaintiff in this case behaved like a jerk and deserved the $700 fine imposed on him by the TSA.  It is also understandable that the Court has sympathy for TSA screeners, who may just have one of the worst jobs in the world.   Be that as it may, the Sixth Circuit produces an opinion that shows little regard for the First Amendment.

According to the opinion, the plaintiff was trying to rush through the security line at an airport, but the metal detector went off.  The screener thought it was probably the plaintiff's watch, but would not let him walk back and through the detector; instead, he had to wait for someone with a hand-wand to screen him.  The plaintiff was late for a plane, so he started getting a bit antsy, and said a few things he should not have said.  The opinion lists the plaintiff's worse outbursts as "this is bullshit, man" and "if you don't like profanity, you are in a wrong line of work."  Eventually, the screener had it, so he called the supervisor, who called a cop, and the guy was removed from the screening area.  I am guessing he probably missed his plane, too.  Not a good day for him.

At issue in the case is constitutionality of 49 C.F.R 1540.109, which prohibits "interfering with, assaulting, threatening, or intimidating screening personnel in the performance of their screening duties."  The court concludes the regulation was not content-based, as applied to the plaintiff, because it prohibited conduct (interfering with a screener).  With all due respect to the Court, I just don't see what conduct (as opposed to speech) was punished.  The most can be said about the plaintiff's behavior was that he was loud and using profanities.  If that is interference, I do not see what speech directed to a screener would be allowed under these circumstances.

Furthermore, at least as applied in this case, the regulation seems vague.  According to the Court, good-faith grumbling about TSA is o.k., even laced with profanities, but speech resulting in interference with performance of duties is prohibited.  Unlike the Court, I am not entirely clear where the imaginary line between allowed speech and prohibited conduct would lie in that situation.  Like the plaintiff, I read the regulation as saying that whenever speech gets to the TSA screener to a point where he or she are annoyed and could no longer due their job, it rises to a level of interference.  But isn't that a textbook definition of constitutional vagueness?

Thanks to How Appealing for reporting about this case.

Reporter's Privilege

Several months ago, I wrote about a a D.C. Circuit opinion, denying reporter's privilege claims for the New York Times and Times' Magazine reporters Matt Cooper and Judith Miller.  Now, Goldstein & Howe's Supreme Court weblog reports that the reporters filed petitions for a writ certiorari in the Supreme Court, seeking recognition of a constitutional and / or federal common law reporter's privilege not to reveal confidential sources.

It remains to be seen whether the Court has enough votes to reconsider Brazburg v. Hayes.  But each of the petitions also raises a very important Due Process issue, challenging the contempt finding based on the fact it was made in reliance on secret evidence the petitioners were not able to see.

Federal court finds teacher does not have a First Amendment right to incorporate his religious beliefs into classroom discussion.

Here is the decision of the federal court in San Jose, tossing most of the lawsuit by an avowed Christian teacher, who claimed the school's restrictions on incorporation of his religious beliefs into classroom discussion violated his First Amendment rights.  While Judge Ware allows the plaintiff's Equal Protection claim to go forward, the plaintiff is restricted to claiming that the school allowed other teachers to use supplemental religious materials in their class, while denying the plaintiff a similar supplemental material use because of his Christianity.  While the Alliance Defense Fund claims this as a victory of sorts, I suspect that the guts of that lawsuit were the tossed First Amendment claims.  Moreover, the Equal Protection claim survives only due to the rule requiring liberal construction of pleading allegations for the purpose of a motion to dismiss.

I think Judge Ware gets this one right.  At first glace, the substance of the religious materials the teacher brought into the classroom was somewhat mild, by adult standards - Easter Handout, a Bush speech (why torture young minds with these materials is another question).  But the plaintiff is a fifth-grade teacher, where he is got a young and captive audience, very susceptible to indoctrination.  Such a class room is not a public forum, where the teacher has expansive First Amendment rights - it is a non-public forum, where the school could restrict his speech for legitimate pedagogical concerns.  Fear of indoctrination and / or of condoning an Establishing Clause violation qualifies as a legitimate pedagogical concern.

Thanks to How Appealing for the link.

First Amendment and web logs - take 2

Several weeks ago, I wrote about a CA trial court decision allowing Apple to obtain in discovery documents that would reveal the source of online posts regarding a new Apple product.  The case, Apple v. Doe, is a trade secret infringement claim, which Apple filed against several unidentified individuals who allegedly leaked Apple's confidential trade info. to news sites.  On a motion by Apple, the trial court allowed it to obtain from the non-party authors of the web posts information and documents identifying confidential sources of those posts.

The authors of the subject posts have now filed an emergency appeal, which the Court of Appeal may be inclined to hear (it asked Apple for an opposition to the petition, which usually signals that the appellate court is inclined to reverse, at least to some degree).  This page on the Electronic Frontier's foundation web site provides links to the trial court's decision, petition for the writ of mandate, and several amici curiae briefs filed on behalf of the petitioners.

I plan to attend oral argument in this case (if the Court schedules one) and will report again, after the argument.

This case raises several interesting First Amendment issues.  One is existence and scope of constitutional and statutory (shield law) privilege of the media to resist civil discovery.  Another, more sexy, issue is whether web loggers qualify as "journalists" for the purpose of constitutional and statutory protections given to media.

9th Circuit upholds a 2-foot limit on lap dancing

Gammoh v. City of LaHabra is an opinion, which the 9th Circuit originally issued in January, but has now amended and refused to grant a petition for en banc rehearing.  In the original opinion, the court upheld the district court dismissal of the plaintiff's lawsuit, whcih challenged a local ordinance imposing a 2-foot limit on lap (or, as the court called them, one-on-one) erotic dancing.  The court rejected appellant's various First Amendment and constitutional takings challenges.

The opinion itself seems like a reasonable interpretation of existing law, but the existing law itself does not sit well with me.  There is a long line of cases that a content-based restriction on adult businesses / dancing requires only an intermediate standard of review if the restriction is combating secondary effect of adult business.  Typically, local municipalities submit volumes of "studies" (declarations from cops, the infamous 1986 Ed Meese study on pornography, materials about dangers of sexually-transmitted disease), which show that adult businesses lower property values, depress economic development, and increase crime levels.  The courts accept those at face value, and they really should not.  Municipalities are usually very good about zoning in such a matter, as to put the adult businesses in the most economically-depressed, crime-ridden areas.  The City of La Habra, one of the poorest cities in Northern Orange County, is a good example of that tactic.  So, in reality, you can have a Vatican Embassy and a shrine to Mother Theresa in LaHabra, and the property values would be down and crime levels would be up.  And if the City Fathers in LaHabra are really looking to improve morale, they should try banning WalMart and Blockbuster Video.

Also, the judges who write these opinions obvously have never experienced a lap dance:)  Otherwise, I do not think the court would written the following: “While the dancer’s erotic message may be slightly less effective from [two] feet, the ability to engage in the protected expression is not significantly impaired.” 

7th Circuit holds 10th Commandment display does not violate the Establishment Clause

In Books v. Elkhart County, Indiana, the 7th Circuit reversed, in a 2-1 decision, the district court's ruling that a display of 10 Commandments at the County Administration Building, along with 10 other historical documents, did not violate the Establishment Clause.   Along with the 10 Commandments, the display included copies of items like the Magna Carta, the Bill of Rights, the preamble to Indiana Constitution, Lady Justice, etc. 

Both the majority and the dissent by Judge Easterbrook are rather interesting reads.  The majority writes a very reasoned opinion, concluding that the display does not violate the Lemon test because the display was merely an educational exhibit whose purpose was to educate citizens about a historical role of religion in formation of Western legal thought.  The court appears right from both legal and policy standpoints.  As far as the constitution is concerned, the word "educate" is not synonymous with "endorse" or "indoctrinate" or "preach."  Plus, from a common sense prospective, the court is equally correct - in this particular case, the display of 10 commendments is no more government endorsement of religion than teaching a class on religious history at a public university.  I previuosly wrote in my own weblog that the real danger of entanglement of state and religion does not lie in art or document displays (just look at Europe), but in the hearts and minds of the individuals.

However, I am much more ambivalent about Judge Easterbrook's dissent, in which he would not even get to the merits of the appeal because the plaintiff only suffered the indignation of facing the "offending" display.  He would stricly apply Valley Forge and limit standing to those with "concrete" injuries.  As a practical matter, such strict construction of the standing requirement would cut off public ability to raise Establishment Clause challenges and I am not sure that this is a good idea.

Copyright in Headlines and Story Leads?

Howard Bashman reports that Agence France Presse ("AFP") is suing Google in federal court in D.C. Circuit for copyright infringement.  Here is the link to the complaint and it is a remarkable document.  Apparently, AFP accuses Google of using its news aggregator service (Google News) to collect AFP's headlines, storyleads, and photos, and distribute it to Google News customers.  But I am still confused as to how this conduct amounts to violation of copyright.  For starters, there is no copyright in the factual portion of any news article.  But more importantly, I think Google could only aggregate materials that AFP puts into public domain.  I believe a news article loses any copyright once it is published.

9th Circuit holds there is no First Amendment right to inform the jury of their right to nullify.

Turney v. Pugh is a very interesting case that pits two vital interests (free speech and right to a fair trial) against each other.  The facts are as follows.  During a 1994 Alaska state court jury trial, Mr. Turney (a proponent of jury nullification) approached the jurors and handed them cards asking them to call the toll-free number of the Fully Informed Juror Association.  At least one juror called and found out, from a recorded message, that the jury had an unfettered right to nullify, regardless of the law, and it could not be punished for it.  The juror so informed other jurors and, eventually, the judge was forced to declare a mistrial.  In turn, the state convicted Mr. Turney under a jury tampering statute, which prohibits knowing communications with the jury, intended to influence outcome of a trial.

On appeal, Mr. Turney contended that Alaska jury tampering statute facially violated the First Amendment because it was overbroad.  The Ninth Circuit affirmed the state appellate courts' and the district court's rejection of this argument.  The court reasoned that the statute, at least as interpreted by the Alaska Supreme Court, narrowly applied only to traditionally unprotected speech - speech directed to jurors outside the courtroom, during a pendency of a trial, with the intent to change the outcome of that trial.  While the court acknowledged that the statute might, in some extreme circumstances, be stretched to apply to innocent speech protected by the First Amendment, it was not enough to facially invalidate the entire statute.

Two editorial observations:  One - habeas corpus is not the greatest forum to deal with the First Amendment issue because lower federal courts could reverse the state court's federal constitutional interpretation only if it clearly violates established Supreme Court precedent.  What this means is that a federal circuit court of appeals cannot reverse the state court's ruling on federal constitutional issue just because the circuit court wants to make some novel interpretation on that issue, which the state court declined to make.

Two - it would be interesting to find out how other states deal with jury nullification issue.  As far as I know, California adopts the "don't ask, don't tell" approach, which seems very practical and in line with the purpose of the power.  It seems that jury nullification works as intended in our system of government only if the jurors fear non-compliance with the law, yet, cannot, in good conscience, vote to convict.  But if the jurors know in advance of their right to nullify, their nullification would not be an act of civil disobedience, but an easy out of any case the juries whimsically cannot or do not want to decide based on existing law.

CA trial court rules there is no First Amendment / Media Shield privilege to violate criminal law.

Last Friday, Judge James P. Kleinberg of the Santa Clara County Superior Court issued a ruling in Apple Computer, Inc. v. Doe, et al, which forces a weblogger to comply with the subpoena to produce documents identifying the source(s) of its posting regarding new Apple products.  Although the opinion has no precedential value and sort of ducks key free speech issues, it is interesting as to the level of protection afforded to journalists, particularly in its blog form.

For those unfamiliar with the case, it is a lawsuit by Apple against several unnamed people, who allegedly leaked trade secrets about new Apple products to several weblog sites.  The aim of Apple's subpoena was to identify the individuals who provided that confidential trade information to the webloggers.

The decision generated quite a news buzz (at least locally), and one of our NPR-affiliates did a one-hour panel discussion with lawyers and journalism professors regarding possible implications of this decision for webloggers.  Frankly, I think they are overreacting because this ruling barely implicates those concerns.  The judge ducked a dicey issue of whether a weblogger is considered a "journalist" by concluding that even if he is, journalists do not have either a constitutional or a state media shield law privilege to violate penal laws prohibiting publishing of confidential trade secrets. 

If anything, the ruling is more interesting on the issue of whether any journalist has more First Amendment rights (or rights under media shield law) that an ordinary citizen.

Update:  On further reflection, Judge Kleinberg's decision may not be as straightforward as it initially seemed.  True enough, on the First Amendment issue, he towed the line pretty close to Branzburg v. Hayes, though he did not mention a recent D.C. Circuit opinion that supports the ruling. 

But the ruling on the shield law warrants more discussion.  I am no expert in this area, but it seems that our Legislature could have, if it wanted to, give the journalists (including, presumably, webloggers) at least a qualified discovery privilege against a civil discovery request (as opposed to a terrorism investigation).  The decision does not coherently explain why the media shield law does not apply here (i.e., statutory language, leg. history, case citaiton, etc).  Also, in balancing the competing interests, the court treated the plaintiffs' alleged trade secret misappropriation as if it were a crime against national security, which automatically trumps any free speech interests.  This approach might have worked in In re Grand Jury Subpoenas, where there was a criminal investigation in a matter of national security, but not in a routine civil discovery dispute.