December 2012

  • December 28, 2012
    Guest Post

    by Dena Sher and Ian Thompson, ACLU Washington Legislative OfficeThe authors are, respectively, legislative counsel on issues related to religion and belief and legislative representative on issues related to LGBT rights in the ACLU’s Washington Legislative Office.

    With Congress having recently approved this year’s NDAA, we think it is important to draw attention to a provision (Section 533(a)(1)), which, though hidden away, is unprecedented, sweeping, and could invite dangerous claims of a right to discriminate against not just lesbian, gay, and bisexual service members, but also women, religious minorities, and in the provision of health care.

    This section of the conference report requires the military to accommodate the conscience, moral principles, or religious beliefs of all members of the armed forces. We strongly support accommodating beliefs -- so long as doing so does not result in discrimination or harm to others, or undermine other important objectives like military readiness or unit cohesion. 

    We think this language, however, is too broad and could be construed to not allow for the consideration of the harms an accommodation could cause and the impact it could have on others. The language, for example, could reopen longstanding prohibitions against harassment, give rise to claims of a right to proselytize other service members as well as civilians in occupied areas, and could lead to claims affecting health care services or anti-harassment training. 

  • December 20, 2012
    Guest Post

    by Dan Urman, Director of Northeastern University’s Doctorate in Law and Policy. Urman is also a member of the ACS Boston Steering Committee.

    On Dec. 12, as part of the ACS Boston Lawyer Chapter’s “Legal Legends in the Law” series, Laurence Tribe reflected on his remarkable career as a constitutional law professor and Supreme Court litigator.  Tribe, Carl Loeb University Professor at Harvard University, began by providing an overview of the Supreme Court’s decision to hear two cases related to marriage equality: Windsor v. U.S. and Hollingsworth v. Perry. Disagreeing with popular news reports already predicting the outcome, Tribe argued that more than one justice is uncertain about how he or she will vote.

    Tribe (pictured) has decades of experience writing, teaching, and litigating constitutional rights for gay and lesbian Americans, often at his professional peril. He referenced his discussion of sexual orientation in his 1978 Treatise, American Constitutional Law, taking a stance well outside of the legal and social “mainstream.”  \Tribe argued that laws discriminating against individuals based on sexual orientation were “indistinguishable from laws discriminating against individuals based on their race or gender.”  Many friends and colleagues advised him against taking such a position publicly, because it could cost him a position on the U.S. Supreme Court. These warnings resurfaced when he prepared to testify against Judge Robert Bork’s 1987 Supreme Court nomination. Senator Alan Simpson (R-Wyo.) told Professor Tribe that it would be great to see “both of them (Bork and Tribe) on the Court,” and if Tribe testified against Bork, he would be “burning a bridge.”  Twenty-five years later, Tribe said that if serving on the Court meant holding back his actual views, it was a bridge he did not want to cross. 

  • December 20, 2012

    by E. Sebastian Arduengo

    Earlier in the week, the ACSblog covered the loopy arguments that pro-gun forces are making in the aftermath of the tragic school shooting in Connecticut, including a suggestion from Rep. Louie Gohmert (R-Texas) that if the school principal had been armed, then the shooter could have been stopped before any of the children were killed. The commercial market responded to the shooting too, with an upsurge in parents buying bulletproof backpacks for their kids.

    Legislators at the federal level have responded by hinting that they might be open to moving through legislation that would more tightly regulate guns like the AR-15 style rifle that was used in the Connecticut shooting, and President Obama formed a working group led by Vice-President Biden to provide specific recommendations by the end of January. Any gun control measure, however, will stir up a political firestorm on Capitol Hill and the National Rifle Association has proven adept in the past at slowing federal legislative responses to mass shootings.

    But there are common sense measures that state and local governments could move on very quickly. Many of those states, however, would have to reverse a trend of approving laws that put the gun lobby’s interests ahead of community safety.  

  • December 20, 2012
    Brandishing the First Amendment
    Commercial Expression in America
    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 19, 2012

    by Jeremy Leaming

    The 2010 elections highlighted the strident efforts of some state lawmakers to make it much more difficult for people to vote, especially for minorities, low-income people, the elderly and college students. Texas, South Carolina, Florida, Ohio, Pennsylvania and Wisconsin are among the states that created and tried to implement voting laws requiring strict voter IDs, limiting early voting times and hampering voter registration drives.

    The Senate Judiciary Committee today conducted a hearing on the state of voting rights after the elections and against the backdrop of another challenge to an integral enforcement provision of the Voting Rights Act of 1965. Beyond bringing stories of what the new restrictive measures wrought, several witnesses provided passionate defenses of the importance of the landmark civil rights law.

    Section 5 of the Voting Rights Act requires nine states, many in the South, and counties and other localities across the country to obtain “preclearance” of changes to their voting laws from a federal court in Washington, D.C. or the Department of Justice. The states and localities required to win preclearance are those with long histories of suppressing the vote of minorities. (Shelby County, Ala., officials in a case the Supreme Court will hear this term argue that racial discrimination in voting is a thing of the past and should be invalidated. Like several of the Judiciary Committee witnesses, many argue that Sec. 5 is the heart of the Voting Rights Act and works to block discrimination before it occurs.)

    Five counties in Florida are covered by the Voting Rights Act. Charles Crist, former governor or Florida, testifying today before the Judiciary Committee, said the last few years in the state have not “been so forward thinking.”