First Amendment

  • July 25, 2014
    Guest Post

    by Justin Marceau and Alan K. Chen. Marceau is an associate professor at the University of Denver Sturm College of Law and a former public defender in Arizona. Chen is the William M. Beaney Memorial Research Chair and Professor of law at the University of Denver Sturm College of Law and a former staff attorney at the ACLU’s Chicago office.

    The State of Arizona’s recently botched execution of Joseph Wood is just the latest in a series of horrific events that have introduced the American public to a criminal justice problem that practitioners and legal scholars long have known about – lethal injections are an extremely troubling method for carrying out capital punishment.  Similar to the cases of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, Wood reportedly endured extensive suffering during the hour and 52 minutes it took for the drugs administered by the state’s executioners to end his life.

    The Wood Litigation Seeking Access to Information about the Drugs and Executioners

    In the days preceding Wood’s execution, his attorneys mounted an impressive campaign to overturn a lower court order denying him access to basic information about the qualifications (but not the identity) of the executioners and the source of the drugs to be used. Wood argued that he had a qualified First Amendment right of access to such information. 

    On Monday of this week, things looked promising for Wood and his legal team. An erudite panel of the Ninth Circuit concluded that it was not too much to ask of Arizona to require it to turn over the information Wood sought, or to delay the execution. Behind such litigation is the reality that without such information, of course, it would be impossible to assess whether the execution might violate the Eighth Amendment and create too great a risk of cruel and unusual punishment.  In other words, in order to know whether their client had a colorable substantive claim that the execution would be cruel and unusual, the lawyers first had to gain access to the details of the execution procedures. The procedural claim at issue in the Ninth Circuit, then, was a necessary precursor to being able to litigate the substantive legality of Arizona’s execution system.

    The Ninth Circuit panel voted 2-1 that Wood had raised a serious First Amendment claim and would suffer irreparable harm if an injunction against his execution were not granted. To be clear, all the Ninth Circuit ordered was that Arizona either turn over the information and proceed to execution as planned on Wednesday, or delay the execution until full and fair litigation regarding the right to access this information was conducted. Instead, Arizona successfully petitioned the Supreme Court, which quickly overturned the stay of execution.

    Was this Just a Gimmick to Delay Litigation?

    Some might ask why, with a thirty year track record and tacit Supreme Court approval in 2008, lawyers were inquiring about lethal injection methods.  We hear about delays in executions – we even see California’s death penalty held unconstitutional, in part, because of delay. But the reason for the litigation is clear: lethal injection is not working. 

    With drug shortages for the previous three-drug execution cocktail of choice, states have begun to experiment with the doses and types of drugs, and the qualifications of executioners are not getting any better.  In a very perverse turn on Justice Louis Brandeis’ famous quote that states may “serve as a laboratory, and try novel . . . experiments” that the rest of the country might not, states are innovating in their execution methods.  In the rush to continue with executions, Arizona and other states are using their execution chambers as laboratories for human experimentation.  What combination will create the most aesthetically pleasing execution for public consumption is the question the Departments of Correction seek to answer. 

  • July 14, 2014

    by Jeremy Leaming

    John Seigenthaler, a champion of a free speech, human rights and a courageous journalist, died July 11 at the age of 86. Seigenthaler, The New York Times in noting his death said he pursued a “muscular approach to journalism as a crusading newspaper editor and publisher and as the founding editorial director of USA Today.”

    Seigenthaler was also a close friend to Robert F. Kennedy. According to The Tennessean, the newspaper Seigenthaler reported for and eventually became editor, RFK met Seigenthaler “because the young reporter had written a number of news stories about growing corruption in the organized labor movements, particularly involving Jimmy Hoffa and his Teamsters union.” The Times also noted that as reporter for The Tennessean Seigenthaler was dogged in exposing the corruption of Hoffa’s Teamsters and “hounded the union boss.” It was some of Seigenthaler’s reporting that would help revive a federal grand jury that indicted Hoffa for jury tampering.

    When RFK became attorney general during John F. Kennedy’s presidency, Seigenthaler (pictured) was tapped to help the Kennedys work with a growing civil rights movement. In spring 1961, Seigenthaler was dispatched by RFK to help some of the first Freedom Riders; waves of youngsters in buses headed to the Deep South in what would be become a deadly and high-profile attempt to draw attention to ongoing segregation in public places. Seigenthaler was injured trying to help some of the Freedom Riders who were being beaten by a mob of rabid racists in Montgomery, Ala.

    After RFK’s assassination in 1968 during a run for the presidency, it would not be long before Seigenthaler returned to journalism, eventually leading the editorial pages of the USA Today and much later founding the First Amendment Center, part of the Freedom Forum.

    U.S. Rep. John Lewis (D-Ga.), one of the young student Freedom Riders who was beaten and jailed, told The Tennessean Seigenthaler “was a newspaper man at heart who represented the highest tradition of journalist integrity and reporting. He used the power of the pen to help make this country a better place. He was a skillful negotiator, the consummate professional, yet he was a humble, down-to-earth gentleman who was dedicated and committed to his family and friends.”

    [image via Curtis Palmer]

  • July 1, 2014
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School

    Why would you pay for something if you can get it for free?  The obvious answer is that you wouldn’t.  And after this week’s decision in Harris v. Quinn (No. 11-681), if you work as a homecare provider in Illinois, you can get all the pay raises and benefits increases that the union negotiates without having to pay a penny to support those efforts.  According to the 5-4 opinion written by Justice Samuel Alito, the First Amendment guarantees that outcome.  Here’s how he got there, and where he went off the proper constitutional track.

    In about half the states, employees who work for state agencies (including teachers) have the right to join unions, and those unions have the right to bargain with the state or its agencies over terms and conditions of work. Depending on both the state and the job, the union may be able to negotiate over pay and benefits, as well as working conditions. Many such contracts have grievances procedures in which the union represents workers in an effort to resolve disputes with the employer.  Negotiating and implementing contracts cost money, and to pay for those services, states authorize unions, where a majority of the workforce agrees to establish one, to charge all employees for those services directly related to collective bargaining.  In exchange, the union is under a legal obligation to fairly represent all individuals covered by the collective bargaining agreement. The right to organize for public employees is governed by state law, and there is another system for private sector employees that generally operates in the same way, albeit with some significant differences that were not relevant in Harris.

    The workers in Harris were paid by the state, but worked for Medicaid recipients who needed a variety of home care services. Under Illinois law, the recipients choose the person who would provide those services (many of whom are family members) and direct and control his or her assignments. There were many other distinctions between those workers and the typical state employee, but Illinois decided that it would be willing to allow those workers to form a union to bargain with the state over wages and benefits, if a majority of those who performed such services voted for a union, which would mean the mandatory payment of monthly dues to support its work.

  • June 30, 2014
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    Two things stand out to me about this morning’s 5-4 decision in Burwell v. Hobby Lobby Stores that the Religious Freedom Restoration Act (RFRA) grants “religious” for-profit corporations an exemption from regulations requiring businesses to include coverage for contraceptives in their health insurance plans:

    First, the majority opinion attempts to hold itself out as a limited, cautious one. A closer look, however, shows that it is no such thing.

    Second, even though Justice Kennedy joined the five-justice majority opinion, his separate concurring opinion indicates that he disagrees with the majority in important respects. In such circumstances, a Justice normally joins a colleague’s opinion only in part, at most. Justice Kennedy’s imprudent joinder of the majority’s entire opinion will likely lead to mischief and confusion in the lower courts.

    Applicability to for-profit corporations

    The majority’s analysis begins with the conclusion that RFRA protects the religious “beliefs” of for-profit corporations, even though it is quite doubtful that the senators and representatives who voted for RFRA expected it to extend that far.

    The majority attempts to “limit” its ruling on this issue by stating that it is addressing only closely-held for-profit corporations here, and that it is not deciding whether RFRA also covers publicly-traded corporations.  But a reading of the majority’s reasoning on this issue — including its explanation that the word “person,” as used in RFRA, is defined as covering all corporations by a law called “the Dictionary Act” — leaves no doubt that the same result will ensue in the case of publicly-traded entities.

    The majority’s real attempt to answer concerns about extending the coverage of RFRA to all for-profit entities is to say: “don’t worry about it,” it’s unlikely that a publicly-traded corporation will attempt to impose religious requirements on its employers because it probably won’t be able to agree internally on any particular religious belief. This should not be of comfort to employees.

    Perhaps smaller, minority religions will not be able to impose their religious views on employees through publicly-traded corporations. But there is no reason to be confident that the religious views held by the majority of persons wealthy enough to own stock, at least in a particular industry or field, won’t give rise to RFRA claims by large, publicly-traded entities. In other words, employees need only worry about being subjected to majority religious views, of the better-off.

  • June 26, 2014

    by Jeremy Leaming

    ACS will conduct its annual Supreme Court review tomorrow covering most of the high-profile cases that have come down this term and looking ahead to Monday when more opinions are expected. We are still waiting for opinions in Sebelius v. Hobby Lobby, regarding the contraception policy of the Affordable Care Act, and Harris v. Quinn, a case involving a First Amendment challenge to union representation of state home care workers.

    The high court today issued opinions in NLRB v. Noel Canning, involving the president’s recess appointments power, and McCullen v.Coakley, centering on a First Amendment challenge to a Massachusetts law creating buffer zones around abortion clinics.

    SCOTUSblog publisher Tom Goldstein, who will moderate tomorrow’s ACS Supreme Court Review, said of Noel Canning during live-tweeting at SCOTUSblog this morning:

    Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.

    Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law, also a panelist for tomorrow’s high court review, told ACSblog, “When is a recess not a recess? When it’s less than 10 days. Justices issue a mixed ruling in NLRB v. Noel Canning.”

    Chief Counsel for the Constitutional Accountability Center Elizabeth Wydra in press statement said, “While the Supreme Court voted unanimously to strike down the particular exercise of the Recess Appointments Clause power in the Noel Canning case, more important, the Court – by a sharply divided 5-4 vote – rejected the sweeping arguments made by the U.S. Chamber of Commerce and its allies.” (Wydra is also scheduled to participate in tomorrow’s ACS Supreme Court Review.)

    The U.S. Court of Appeals for the District of Columbia Circuit ruled early last year that President Obama’s appointments to the National Labor Relations Board in early 2012 during “pro forma sessions,” where Congress took deliberate steps to shorten the period for the president to make recess appointments. The president took the action noting that the 5-member NLRB could not function with three languishing vacancies.