Criminal Justice

  • January 14, 2013

    by Jeremy Leaming

    Despite the reality that President Obama took no action during his first term to advance gun safety or sensible gun control measures, gun enthusiasts convinced themselves, with the help of right-wing pundits, that the president is not only a socialist but a budding tyrant preparing to confiscate gun owners’ arsenals from coast to coast. And this caricature has been a boon for gun manufacturers and sellers.   

    Over the weekend, The New York Times reported sales of guns, “which began climbing significantly after President Obama’s re-election,” have “soared” since the mass-shooting in Newtown, Conn., and the high-profile discussion of enacting gun safety regulations. An Iowa “independent gun dealer” told the newspaper, “If I had 1,000 AR-15s I could sell them in a week.”

    And now that the president and other lawmakers, such as N.Y. Governor Andrew Cuomo, Md. Governor Martin O’Malley and Colo. Gov. John Hickenlooper, are taking steps to enact gun control measures, gun enthusiasts are becoming louder, some hysterical and others going ballistic.

    The National Rifle Association has been predictable and lame. The group blamed the arts, such as movies, for spurring gun violence and argued that more guns are the solution. In late December, the group’s Vice President Wayne LaPierre, said armed guards should be placed in the nation’s schools. James Yeager of a Tennessee company that apparently trains people to use weapons said in a YouTube video that if the president issued an executive order promoting gun safety that he would “start killing people.” Other chuckleheads have taken to the airwaves to threaten violence if the government were to take any action to curb gun violence.

    What this period of discussion about the nation’s obsession with guns and how to take some measured steps to curb gun violence has exposed, in part, is that the gun lobby is growing tired and extremists are jumping into the fray. Many of these gun lovers believe that the Second Amendment is absolute. First, very few things in life are absolute and certainly there are very few if any rights provided by the Constitution that are absolute. For instance, the First Amendment does not protect all speech and expression. Political speech is provided more protection than commercial speech, speech advocating illegal conduct is not wholly protected under the First Amendment. What about the Fourth Amendment. We know that not all government searches are illegal. Indeed the Fourth Amendment has a lot of exceptions for police officers, acting in good faith and under certain circumstances, to conduct searches and seize property that many would argue are unconstitutional.

    I could go on, but the point is that the Second Amendment does not forbid the regulation of guns. It is likely too much to ask of many of the rabid gun enthusiasts to read D.C. v. Heller, the U.S. Supreme Court decision that held an individual does have the right to “keep and bear arms.”

  • December 20, 2012
    BookTalk
    Brandishing the First Amendment
    Commercial Expression in America
    By: 
    Tamara R. Piety

    by Professor Tamara R. Piety, Associate Dean of Faculty Development and Professor of Law, University of Tulsa College of Law


     

    The Supreme Court has been very active on the First Amendment in the last few years. In 2010 it issued Citizens United, a controversial and unpopular decision which announced a robust vision of the role of corporate personhood. According to the New York Times, “[t]he First Amendment dominated” the 2011 term as well when the Court decided, among other cases, Brown v. Entertainment Merchantsa decision striking downa California statute which attempted to restrict the sale of violent videos to children, and Sorrell v. IMS Health, a decision striking down a Vermont statute which attempted to limit the sale of physician prescriber information for marketing purposes without the doctor’s permission on First Amendment grounds.  These cases, and others, taken together reflect a distinct trend, in the Supreme Court and elsewhere, toward greater protection for commercial speech. This trend is the subject my new book, Brandishing the First Amendment: Commercial Expression in America (U.  of Michigan Press, 2012). In Brandishing the First Amendment I discuss the way in which increased First Amendment protection for commercial speech has provided the intellectual foundation for increased protection for corporate political speech, which has, in turn been then used to argue for greater protection for commercial speech, thereby turning the First Amendment into a sort of all-purpose weapon against a variety of governmental regulations.            

    This is a troubling development because it is difficult to meaningfully and effectively regulate commerce if you cannot regulate commercial speech. This new and robust commercial speech doctrine threatens to undermine a good deal of the basic regulatory regime legitimized since the New Deal.In Brandishing the First Amendment I look at the various theories that have been offered for why we might want to protect freedom of expression, using as a starting point the work of the late Yale law professor

    Thomas Emerson, in particular his book Toward a General Theory of the First Amendment, and conclude that none of interests that freedom of expression is meant to protect are particularly advanced, if at all, by protecting commercial speech.  To the contrary, I argue there is good reason to suppose that offering robust protection to commercial speech may well undermine the very interests the protection for freedom of expression is thought to advance.

    In Brandishing the First Amendment I draw on work in marketing research, psychology, behavioral economics, and professional and academic work in marketing and public relations to explore marketing practices and how they work and how marketers,  driven by the imperatives of the market, may engage in promotional practices that are contrary to the public health and welfare. I also explore the attributes of corporate “personhood” as dictated by principles of corporate law and argue that an examination of all of these elements suggests that full First Amendment protection for commercial expression is likely to exacerbate many of the pressing social problems of our times, from changing consumption patterns to ameliorate global climate change to protecting the public from unsafe pharmaceutical drugs; from reining in unsafe promotional practices in the consumer credit market to regulating the sale of securities.  Those interested in the interaction of the First Amendment, commerce, commercialism, and corporate influence in modern life will want to read this book.

  • December 12, 2012

    by Jeremy Leaming

    If the Obama administration decides to move aggressively to scuttle efforts in Colorado and Washington State to take a different – many would say progressive – approach to the war on marijuana it won’t be because the administration had no alternative. Indeed plenty of academics, pundits and federal lawmakers are hoping the administration will support, not hinder, the experimentations in those two progressive Western states and are airing plenty of ways the administration could respond.

    University of Denver law school professor Sam Kamin detailed some of the possibilities the government could take with respect to the marijuana legalization initiatives that passed with strong support in Colorado and Washington. One of the possibilities Kamin highlighted was a bill recently introduced by Rep. Diana DeGette (D-Colo.) “allowing states to essentially opt of the CSA [Controlled Substances Act outlaws marijuana and is administrated by the Drug Enforcement Agency] enforcement by passing laws that conflict with the federal prohibition ….”

    Rep. DeGette in a press statement announcing the legislation said several of her colleagues were concerned “about the federal government’s ability to override these voter-approved initiatives ….”

    “In Colorado,” DeGette said, “we’ve witnessed the aggressive policies of the federal government in their treatment of legal medicinal marijuana providers. My constituents have spoken and I don’t want the federal government denying money to Colorado or taking punitive steps that would undermine the will of our citizens.”

    In a piece for Rolling Stone, Tim Dickinson writes that while the federal government “cannot force” Colorado and Washington “to impose criminal sanctions on pot possession,” the federal government “has great power” to block the states’ abilities to tax and regulate the sale of marijuana. (In an editorial, the magazine’s publisher Jann S. Wenner hopes the president won’t tap that power and urges an end to the war on weed calling it a “sham, a folly, a colossal waste of money and human potential.”)

  • December 7, 2012

    by Jeremy Leaming

    The Obama administration may be on the verge of irking large swaths of its supporters by employing scarce Justice Department resources to go after users of small amounts of marijuana in Colorado and Washington, where voters, by comfortable margins, voted to legalize limited amounts of possession.

    The New York Times’ Charlie Savage reports that senior officials in the administration “are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.” Savage goes on to describe some of the possibilities the administration could take – sue the states arguing that federal law trumps state action in this area. (The Controlled Substances Act prohibits sale and possession of marijuana.) The Justice Department wouldn’t talk to Savage about administration plans on the matter, but did highlight a statement issued recently by the U.S. Attorney in Seattle, stating that marijuana remained illegal pursuant to the CSA.

    Andrew Sullivan notes that Pete Guither views the Savage piece as a trial balloon “to see what kinds of reactions there are and what political fallout might come from action … or inaction."

    Sullivan obliges, writing that if administration officials decide “to treat the law-abiding citizens of Colorado and Washington as dangerous felons; if they decide to allocate their precious law enforcement powers to persecuting and arresting people for following a state law that they have themselves just passed by clear majorities; if they decide that opposing a near majority of Americans in continuing to prosecute the drug war on marijuana, even when the core of their own supporters want an end to Prohibition, and when that Prohibition makes no sense … then we will give them hell.”

  • November 27, 2012

    by Jeremy Leaming

    Taking the “bolder step” of legalizing a limited amount of marijuana has sparked other state lawmakers to consider similar measures, even as the Obama administration remains silent on how it will respond to the bold measures passed in Colorado and Washington.

    University of Denver law school professor Sam Kamin covers possibilities the administration could take, such as enforcing the Controlled Substances Act, which bans the sale and possession of marijuana. Another possibility, Kamin added, is to reclassify marijuana or remove it from the CSA.

    In a piece for The New York Times online commentary, Timothy Egan hopes the administration will have “the backbone” to embrace change. He also urges policymakers and pundits to dump the lame talk about the munchies and take seriously the message sent by two “progressive Western states” that “arresting 853,000 people a year for marijuana offenses is an insult to a country built on individual freedom ….” He also notes that other states, such as Maine, are likely to follow those Western states. Indeed Egan believes that it is likely “a dozen or more states will do so as well.”

    And why should the Obama administration embrace a societal change? Egan cites a litany of compelling reasons. For starters its base hypocrisy for the government to tolerate legal drugs – alcohol, caffeine and a slew of supplementary vitamins that make all kinds of “exaggerated health claims” -- but continue to arrest people for marijuana use.