The Unanimity Factor

From my perspective, one of the worst things that has happened to our federal governmental system has been the increasing efforts to apply political notions to our federal judiciary. Supreme Court nominations have been politicized for a while–although not for long as you might think; former Justice Antonin Scalia, a conservative stalwart, was confirmed by a unanimous Senate, 98-0, in September 1986–but now circuit court and even district court nominations are being treated politically, too. For example, Law360, which does daily on-line reporting on legal issues, breathlessly reports on how many judges President Biden (and before him, President Trump) is appointing, how many vacancies are open, and similar information, as if the make-up of the federal judiciary is some kind of political horse race.

And to read what some people have to say about the Supreme Court, you’d think that the Court is hopelessly divided along partisan political grounds, and that those Justices in black robes are at each others’ throats and at risk of throwing punches and karate kicks.

That’s why it’s interesting to observe that the Supreme Court has issued a remarkable number of unanimous decisions this term, for a Court that is supposed to be a festering sore of reflexive political division. And as we approach the end of the Court’s term, when many of the biggest and most controversial decisions traditionally are announced, the theme of unanimity has continued. That means that the Justices who some would contend are motivated entirely by their political affiliations have somehow managed to set aside their differences and mysteriously reach the same decision on the case presented to them.

The unanimity has occurred in a broad sweep of cases, including cases involving the authority of tribal police, whether there should be a presumption in favor of the credibility of immigrants, cases involving unlawful entry into the United States and an environmental clean-up dispute between the U.S. government and Guam, and cases involving the interpretation of a federal statute involving efforts to block collection of a tax and the scope of an exception to the Fourth Amendment prohibition on warrantless searches and seizures. And just this week, the Court issued another unanimous decision on whether the City of Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless that organization certified same-sex couples as foster parents violates the free exercise of religion clause of the First Amendment.

The issue here isn’t whether the Court’s decisions are right or wrong on their merits, or as a matter of public policy. The key point is that a Court that is supposed to be on the verge of ideological fisticuffs is somehow managing to reach complete agreement on how to resolve a slew of controversial cases. And people have noticed the many instances of unanimity, and some have wondered whether the Court is trying to send a message to those who view its work in political terms.

Maybe, just maybe, the women and men who make up the highest court in the land are simply acting as impartial, fair-minded judges deciding the cases before them, on their merits and without regard to politics. It would be wonderful if the media, and the politicians, and the pundits and commentators who want to turn the federal judiciary into another political arm of government could just assimilate that reality–but in our current hyper-politicized times, that’s probably just too much to ask for. If only they were as objective and fair-minded as our jurists.

Taxing Remote Workers

Many of us have been working remotely since the coronavirus pandemic hit in earnest last March. If your place of work and place of residence are in the same state, there’s no problem. But what if you live in one state and would work in another state — that is, if you were still going into the office? Which state gets to share in the tax revenue on your income?

New Hampshire is asking the U.S. Supreme Court to directly answer that very question, in a challenge to a Massachusetts law that says Massachusetts may tax nonresidents who used to work in the state but now work from home instead. Other states are interested, too — some because they have tax laws similar to Massachusetts (like New York and five other states) and some because they are losing tax revenues as a result of such laws (like New Jersey and Connecticut).

The stakes are high, because the treatment of remote worker taxes can mean big bucks for state budgets. New Jersey, for example, estimates it will credit thousands of New Jersey residents who used to work in New York City, but now work remotely, for about $1.2 billion in income taxes paid to New York starting in March 2020. In an era where COVID shutdowns have cost countless jobs, and many state budgets are dealing with the lower tax revenues generated by the decreased economic activity, the treatment of taxes to remote workers could tip the balance between a balanced state budget and a budget that is in the red.

The Massachusetts law being challenged in the Supreme Court was adopted in April 2020; Massachusetts said the law just maintains the status quo income tax treatment of remote workers so Massachusetts won’t have to determine precisely where they are working during the pandemic. New Hampshire, which doesn’t have an income tax, says that by taxing New Hampshire residents who formerly commuted but now are actually working from home, Massachusetts is invading New Hampshire’s sovereignty and violating the due process and commerce clauses of the Constitution. New Hampshire has invoked the Supreme Court’s original jurisdiction, which allows one state to sue another state directly in the high court, without going through lower courts, if the Court gives them permission to do so. The Supreme Court has asked the Biden Administration to weigh in on whether it should take the case. There’s some urgency to this issue, both because of the budget crisis in many states and because tax season is just around the corner.

Taxation of remote workers is just one of the many interesting legal issues that are going to be addressed as a result of the pandemic, the governmental shutdown orders, and the resulting disruption of what used to be normal practices — practices that now may be morphing into a “new normal” where remote work is much more commonplace. And you can be sure of one thing: when a legal issue raises the prospect of shifting billions of dollars of tax revenue, you can expect cash-hungry states with their eyes on their budgets to fight like cats and dogs for every cent.

Only In France

For all of the talk about globalization, every once in a while we get a reminder that there are still a lot of differences between countries.  One such reminder came this week, in a news story about a court ruling from France.

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It’s a story about the unfortunate Xavier. a security technician who worked for a railway company near Paris.  Xavier was sent on a business trip to central France by his employer.  One night on the trip, the amorous Xavier had an extramarital relationship with a woman at her home one night — and then keeled over, dead, from a heart attack apparently related to the encounter.  A health insurance fund concluded that Xavier’s demise was the result of a work-related accident, making the employer liable.  The employer appealed, saying Xavier should be viewed, instead, as having interrupted his work-related trip for his tryst, so that the company was not responsible for his post-coital death.

Earlier this year a French court rejected the employer’s arguments.  Under French law, any accident that happens on a business trip is considered to be work-related, even if the activity is not closely related to the purpose for the trip.  The court ruled that French law protects employees engaged in everyday activities during business trips, unless they interrupted planned business activities, and the employer couldn’t show that Xavier was supposed to be working when he was having his fatal sexual encounter.  And get this:  the court noted that the insurance fund argued that sex was part of everyday life, “like having a shower or a meal.”

Casual sex with a stranger while you’re on a business trip is akin to taking a shower or eating breakfast?  Only in France.

Reining In Excessive Fines

Yesterday the Supreme Court ruled that the Eighth Amendment to the U.S. Constitution — which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — imposes limits on the abilities of state and local governments to seize assets and property and impose financial penalties.  And the Court’s ruling applying the “excessive fines” clause of the amendment to state and local governments was a unanimous one, which is a welcome development in our era of increasingly divided politics.

gettyimages-1066751830The case involved an Indiana man who was arrested for selling several hundred dollars’ worth of heroin, had his $42,000 Range Rover seized as part of the process — even though the maximum fine for his crime was $10,000 — and sued to get his car back.  The Indiana Supreme Court ruled that the “excessive fines” clause of the Eighth Amendment did not apply to the states, even though the “excessive bail” and “cruel and unusual punishment” clauses have long been applied to the states.  The Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, disagreed.

The decision yesterday addresses a significant real world issue — namely, how far can states and local governments go in imposing monetary penalties and seizing property from people who violate the law . . . or, in some cases, are only accused of violating the law.  Because raising taxes isn’t popular with voters, state and local governments have increasingly looked to aggressive forfeiture practices to fund part of their operations.  Briefs filed in the Supreme Court noted that more than half of municipal and county agencies who participated in a survey said reliance on forfeiture profits was a “necessary” part of their budgets, and that, in 2017, 10 million people owed more than $50 billion in criminal fines, fees and forfeitures. And the aggressive penalties aren’t limited to drug offenses.  One brief in the Supreme Court, for example, described how a $100 ticket for a red-light violation in California results in another $390 in fees.

In holding that the excessive fines clause applies to the states and local governments, Justice Ginsberg noted that “[e]xorbitant tolls undermine other constitutional liberties,” and added:  “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

Now that the states know that they can’t impose excessive fines, it will be up to the courts to determine whether the aggressive property forfeiture and fining practices, like the seizure of the Range Rover, are “excessive” or not.  We’ll have to see how that works out, but for now it’s nice to know that Americans have another constitutional protection against potentially overreaching governmental actions.

Primate Rights

A New York state appeals court has rejected a request to issue a writ of habeas corpus to free two chimpanzees who are kept in cages — one in a warehouse in Gloversville, New York, and the other in a storefront in Niagara Falls, New York.  The writ sought to have the primates moved from their cages to an animal sanctuary.

article-2034439-0dbb7fa500000578-543_306x338In the case, the New York courts were presented with expert evidence “that chimpanzees exhibit many of the same social, cognitive and linguistic capabilities as humans and therefore should be afforded some of the same fundamental rights as humans.”  In a nutshell, however, the court of appeals concluded — correctly, in my view — that the fact that chimpanzees exhibit some humanlike characteristics is simply not enough to make them “persons” in the eyes of the law.  The court reasoned that “[t]he asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions.”  And, the court added, the flip side of personhood would mean that chimpanzees could be held criminally accountable for killing or injuring humans — something that has not been done, obviously, because chimpanzees do not have moral culpability for such acts, nor do they have the capacity to understand the proceedings against then or to assist in their own defense, which is what courts typically look for in deciding whether a defendant is competent.

You can read the court of appeals decision here.

Although I think the law cannot recognize primates like chimpanzees as “people,” with all of the rights of people, that doesn’t mean they shouldn’t be afforded some rights, beyond being viewed as mere property.  The court of appeals’ decision summarizes expert evidence that indicates that chimpanzees have an impressive array of qualities that we associate with thinking beings, such as “recognizing themselves in reflections,” “setting and acting toward goals such as obtaining food,” “communicating about events in the past and their intentions for the future, such as by pointing or using sign language,” “protecting others in risky situations, such as when relatively strong chimpanzees will examine a road before guarding more vulnerable chimpanzees as they cross the road,” “making and using complex tools for hygiene, socializing, communicating, hunting, gathering, and fighting,” “counting and ordering items using numbers,” “showing concern for the welfare of others, particularly their offspring, siblings, and even orphans they adopt,” and “resolving conflicts” and “apologizing.”

At some point, we need to ask ourselves — do creatures that exhibit these kinds of qualities and characteristics really deserve to be put into cages at the whim of whoever purchases them?

The End Of Privacy As We Know It

The right to personal privacy isn’t a right that is specifically recognized in the Constitution or the Bill of Rights, but it has been a recognized area of the law for decades, as well as a treasured ideal for many Americans.  For many people, the right to be left alone is an important one.

But this is another area where technology is simply changing the game.  Whether it is cookies left on personal computers that lead to pop-up ads that are specifically targeted to your website viewings, search engines that can sift through mounds of news stories, photos, and data in split seconds whenever a name is entered, tracking mechanisms on cell phones, surveillance cameras on every street corner, drones in the air, computer hacking, or listening devices that are routinely used by governmental entities, technology makes the ability to maintain some zone of privacy harder and harder.

20130203_adde1Social media also has had a significant impact.  Anyone who likes the convenience of Facebook as a way to keep in touch with their old friends, family members and colleagues is giving up a piece of their privacy.  And when technology and social media meet, the erosion can become even more pronounced.

Consider the news that a software developer has used the advances in facial recognition software to develop an app that allows you to take a photo of a stranger in a public place and immediately run a search for the identity of that person through Facebook.  It’s called Facezam, and it’s apparently going to launch on March 21, although Facebook is raising questions about whether the software is in compliance with the Facebook privacy policy.  But even if Facebook quashes the idea as to Facebook, you would imagine that the app could be modified to be applied to search through other sources of photos.

It’s creepy to think that random strangers, simply by taking your picture in a public place and unbeknownst to you, could then find out who you are and, if they’re so inclined, track you down.  One person in the story linked above describes that concept as the end of anonymity in public places, and I think that’s right.  If you want to guard against it, you can withdraw from any social media, refuse to get your photo taken, avoid going out in public except in disguise, avoid any travel, and stay in your room.  Those aren’t especially attractive options, are they?

Welcome to the Brave New World!

 

Looking To Fill The “Stolen Seat”

Last night President Trump nominated Neil Gorsuch, a judge on the federal 10th Circuit Court of Appeals, to fill the vacant seat on the United States Supreme Court.  His formal nomination triggers the start of what will undoubtedly be a bruising confirmation process, with some Democrats already promising to do everything they can to prevent seating Gorsuch on the high court.

US-POLITICS-COURT-NOMINATIONThere are three reasons for this.  First, the Supreme Court has assumed an increasingly important role in the American political process over the last 70 years, with people at all points on the political spectrum looking for the judiciary to recognize a new right, provide a remedy, issue an injunction, or overturn a statute or executive action.  The Supreme Court is the head of the judicial branch, and every year, the Court accepts and decides cases that require it to tackle difficult issues — some constitutional, some statutory, some procedural — that can have broad ramifications for people, businesses, the legal system, and how government works.

Second, as the importance of the Supreme Court has increased, the process for nominating, reviewing, and approving potential Supreme Court justices has changed.  Republicans blame Democrats for the growing politicization of the Supreme Court confirmation process, and Democrats blame Republicans, but no one doubts that we have moved into a new era of “extreme vetting.”  Nominees not only have their credentials, backgrounds, and prior opinions scrutinized for the tiniest kernel of a potential argument against nomination, but advocacy groups immediately declare sides and start their scorched-earth campaigns before the nomination speech is even completed.  Last night, only a few minutes after Gorsuch was nominated by President Trump, an anti-confirmation demonstration began on the Supreme Court steps, and opponents of the Gorsuch nomination appeared on the cable news shows, describing him in the darkest, most ominous terms imaginable.

And third, the atmosphere has become even more poisonous because the seat on the Supreme Court Gorsuch has been nominated to fill has been vacant for almost a full year, and the Republicans in the Senate refused to take any action on Merrick Garland, the jurist that President Obama nominated to fill that seat.  That’s why the New York Times, in an editorial today, calls the vacancy the “stolen seat” — reasoning that if the Senate had just acted properly last year, Garland would have been confirmed, and the balance of power on the Supreme Court would already be changed.  The Times editorial castigates the Senate Republicans for obstructionism and abuse of power in their treatment of the Garland nomination, but seems to also implicitly encourage — with a wink and a nod — Senate Democrats to respond to the Gorsuch nomination in kind.

So now we’ve got a Supreme Court nominee who has served on the federal appellate bench for 10 years, has all of the educational bona fides you would wish, and is classified by some as a “very conservative” judge.  I’m interested in seeing how the confirmation process plays out and what is brought out about Gorsuch’s background and judicial opinions — but that means the confirmation process has to actually start.  Here, too, as in other areas I’ve pointed out recently, Congress needs to do its job.  The Republicans need to shut up about the “nuclear option” that Harry Reid unwisely imposed, and the Democrats need to get over the Garland nomination inaction, and both sides need to acknowledge that the Supreme Court has nine seats that can only be filled if the Senate acts and start to address the Gorsuch nomination on its own merits.

One other thing:  as the current Supreme Court justices age, delay and inaction is not an option.  If we don’t get over this self-imposed roadblock to the proper functioning of our government, we might soon have another vacancy to fill, and another.  If the Republicans and Democrats don’t get over their political titting for tatting, we might end up with a gradually vanishing Supreme Court.

Peanuts Envy

Should people who have peanut allergies be permitted to pre-board airplanes, along with the folks in wheelchairs?

That’s the subject of a complaint filed last week with the Department of Transportation by Food Allergy Research and Education (“FARE”), a group that advocates on behalf of people with food-borne allergies.  It alleges that American Airlines is breaking the law and discriminating against those who have adverse physical reactions when exposed to peanuts by not accommodating them and allowing them to pre-board with others.

90634998-280x186For its part, American Airlines — which doesn’t serve those little bags of peanuts to its passengers, incidentally — notes that it limits pre-boarding to people with physical disabilities that require them to get assistance in making it down the jet bridge and into their seats.  AA states that its planes are cleaned regularly, but the cleaning efforts, and for that matter the air filtration systems on the planes, are not designed to remove all traces of nut allergens. The airline states that it cannot establish “nut-free zones” on its planes, and it does not prevent other passengers from bringing nuts on board.

FARE contends that people with peanut allergies, and those who are traveling with them, should be permitted to pre-board so they can wipe down the seats, armrests, and trays, or even cover them.  It notes that, unlike American Airlines, Delta allows peanut allergy sufferers to pre-board upon request.

It’s one of those weird issues that seem to crop up more and more in the modern world.  There’s no doubt that people who have peanut allergies can have severe reactions when exposed, up to and including going into anaphylactic shock.  At the same time, it doesn’t seem like people with peanut allergies really need pre-boarding to the same extent that, for example, people in wheelchairs do.  People with peanut allergies don’t require physical assistance, and even if they need to wipe down their seats, there seems to be no reason why that can’t be done when they board with everyone else, as part of the settling-in process that inevitably occurs when people board planes.

If people with peanut allergies can pre-board, doesn’t that open up pre-boarding to people with other conditions who could plausibly claim they should be accommodated, too?  People with fear of crowds, for example, could argue that they shouldn’t be required to wait in the packed-in throng on the jet bridge, which could provoke an anxiety attack.  And peanut allergy pre-boarding seems to open the door to potential abuse, because airlines have no way of knowing whether someone who claims to have an allergy really does.  Speaking as someone who has seen fellow travelers push the envelope on carry-on items and in jostling for early boarding, I’m guessing that if FARE prevails on its complaint we’re going to see a huge spike in claimed peanut allergies.

Sick Subculture

In case you missed it, there’s a trial underway in Florida in which Terry G. Bollea — better known to the world by his stage name of Hulk Hogan — is suing Gawker.com for posting a grainy, secretly recorded video on its website that purportedly shows the retired wrestler having sex with a friend’s wife.

ap_651364014819_-_h_2016Normally I wouldn’t care about a tawdry legal clash between a fringe celebrity who claims invasion of privacy and a website like Gawker.com, but yesterday I happened to read a news story about one piece of testimony in the case that stopped me in my tracks.  The testimony came when a former Gawker editor-in-chief, Albert J. Daulerio, was being questioned about what he considered newsworthy and where he drew the line when it came to posting sex videos of celebrities.

“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” the lawyer asked.

“If they were a child,” Daulerio answered.

“Under what age?” the lawyer asked.

“Four,” Daulerio responded.

Gawker later said that Daulerio was being “flippant” because, you know, people are always flippant when they are being questioned by a lawyer in a legal proceeding.

Have we really come to this point?  I can’t imagine why any adult would record a sex tape, much less why anyone would want to watch it — but to suggest, even in a “flippant” way, that sex tapes of children would be newsworthy and should be posted on the internet is, in a word, sick.  Any website that would articulate such an editorial policy isn’t really a “news” website at all, but just a mechanism for feeding the voyeuristic interests of a seamy underside of American culture.

There are important legal issues to  be explored at the intersection of the internet, the First Amendment, and the privacy rights of celebrities large and small.  No doubt the Hulk Hogan lawsuit against Gawker will help to develop the law in that area, but it’s also obviously exposing something equally important about the internet — something that is small and sick and sad about our society.  Have we touched bottom yet?

Vets End

For decades it squatted on the west bank of the Scioto River, directly across from downtown Columbus — a bland, nondescript, hunched building, instantly forgettable to all who drove past it, noteworthy only for its absolute, unflinching genericness.

The Franklin County Veterans Memorial was home to trade shows and auto shows and generic meetings of groups.  No one really cared much about it, one way or the other.  And when Franklin County Commissioners voted to demolish the building as part of a plan to add some much-needed dash and character to the west bank of the river, no one really cared much one way or the other about that, either — with one striking exception.

For one group, Veterans Memorial was a grotesque living reminder of a horrible few days — a period in their lives that was so terrible that just looking at the building and parking lot brought back soul-crushing recollections of angst and strain, panic and pressure, and the ultimate in testing nightmares.  That is because, for years and years, every new law school graduate who wanted to be licensed to practice law in Ohio had to come to Veterans Memorial in Columbus and sit in its cavernous main room to take the multi-day bar exam.

After three years of law school, your professional and financial future rode entirely on your performance on one test.  It was an all-or-nothing proposition:  pass, and you went on to become a practicing lawyer; fail, and . . . well, failure was unthinkable.  Everyone who has taken the bar exam remembers the sense of suffocating pressure, the grim expressions of their fellow test-takers, and the oppressive atmosphere in that testing room.

Some lawyers who successfully navigated the bar exam make jokes about it now, much like people who’ve been through a painful divorce attempt awkward humor about it.  But the jokes aren’t funny, and every lawyer knows it.  Deep down, every lawyer in Ohio is secretly thrilled that Vets Memorial has been reduced to rubble, and that the ugly physical reminder of their ugly rite of passage is no more.  We are free.

Good riddance!  May the rubble itself burn in hell.

Forcing Adherence To The Law

We may be on the verge of a new era in personal choice and personal responsibility:  Ford is getting ready to roll out a new car that simply will not allow you to exceed the speed limit.

From a technology standpoint, the Ford S-Max is an interesting step forward.  The car will come equipped with a camera that will read speed limits posted on roadside signs.  The S-Max will then automatically adjust the amount of fuel to the engine to prevent the car from reaching speeds above that posted limit.  So, rather than using braking action to control speed, the S-Max will use the operation of the engine itself to prevent any lawlessness by the lead-footed driver.

The Ford S-Max is in line with a recent trend to use technology to force adherence to the law, whether it is through electronic ankle bracelets that control where people can and cannot go or proposals for cars that require you to pass a breathalyzer test or to fasten your seat belt before the ignition will engage.  Leave aside the issue of whether requiring complete compliance with the law at all times is always safe and smart — there are circumstances, for example, when exceeding the speed limit to get out of the way of other vehicles in a merging situation is the only prudent course — and consider, instead, what such technological controls do to affect concepts of personal morals and to encourage governmental intrusion into personal choice.

If you have no ability to break certain laws, do you even need to develop a personal code of ethical behavior that will apply to your daily life and help to guide your actions?  If you can’t make the wrong choice, what does the concept of personal choice really mean?  And if we start to accept routine technological controls on our behavior, will government entities be tempted to increase the range of controls, by enacting new laws that regulate behavior and by requiring further technological limitations on our ability to act freely?

The Ford S-Max is a long way from futuristic, sci-fi worlds where computer chips are implanted into human brains to rigorously control behavior, but every journey begins with a single step.  I’m not going to be in the market for an S-Max — if the choice is left up to me.

The Lake County Courthouse

IMG_4501Yesterday I was in Painesville for a visit that took me to the Lake County Courthouse.  As I’ve mentioned before, Ohio is blessed with many beautiful county courthouses, and Lake County has one of them.

IMG_4500Located across from Veteran’s Memorial Park in the center of Painesville, the courthouse is a magnificent structure with the inevitable clock tower, topped with an eagle, and inscriptions about the majesty of the law.  The structure was renovated recently, and it shows.  Inside on the courtroom floor are a grand hallway wide enough to host a marching band, gleaming hardwood floors, half-marble walls, beautiful wooden benches, and a fabulous skylight.

My favorite feature of the courthouse, however, are the large statues placed on either side of the staircase entrance.  Rather than the more standard historic figures or representations of blinded justice with scales and sword, the statues are of two deep-eyed, toga-clad figures, depicted as if they are just beginning to rise from a seated position.  Their entire demeanor conveys seriousness and skepticism — which is not a bad theme for a courthouse.

The Rapper Defense

Should the standards of what constitutes an actionable threat of physical violence be changed in the era of the internet and social media?  Next week the Supreme Court will consider that question, which probes the tender intersection of the First Amendment, criminal law, and society’s interest in protecting people from impending harm.

For years the prevailing standard has been that “true threats” to harm another person are not protected free speech and can be punished under the criminal law.  The issue raised by the Supreme Court case is whether prosecutors should be required to prove that the speaker had a “subjective intent” to threaten, as opposed to showing that an objective person would consider the statements to be threatening.  A requirement of subjective intent obviously would be harder to prove.

In the Supreme Court case, the defendant created Facebook posts about his estranged wife, writing about “a thousand ways to kill you” and asking whether the protection from abuse order she received was “thick enough to stop a bullet.”  His lawyers contend that the statements are simply “therapeutic efforts to address traumatic events” and references to the violent, misogynistic imagery of the defendant’s favorite rappers.  The defendant also argues that other actions like the placement of an emoticon — a face with its tongue sticking out, purportedly to indicate “jest” — must be considered in assessing whether the speaker truly intends menacing behavior or is just blowing off steam.

I’m a big supporter of free speech, and exercises in line-drawing are always difficult, but I don’t see any need to revisit long-time legal standards just because the internet has been developed.  Domestic abuse is a huge problem, and we need to protect the abused.  If prosecutors are required to prove “subjective intent,” and the placement of emoticons or the couching of unambiguous threats of violence in the context of rap lyrics become viable defenses, the ability to protect the abused will be diminished.  I don’t know of any real “therapy” that encourages disturbed people to make specific threats of violence, and I don’t buy the argument that standards of lawful behavior should be reduced simply because some anonymous people treat the internet as a kind of free-for-all zone.

Standards exist for a reason, and we shouldn’t be in a hurry to lower them.  It’s not unfair to hold people whose behavior already has given rise to legitimate concern — like the defendant in the Supreme Court case who was the subject of a protection from abuse order — accountable for specific violent statements, on social media or otherwise.

Protecting Cell Phone Privacy

The Supreme Court issued an important ruling yesterday.  In a 9-0 decision, the Court ruled that police must obtain a warrant before they search the cellphones of people they have arrested.  The ruling won’t directly affect most of us — unless you’re planning on being arrested in the near future, that is — but it represents a significant recognition of the central role of cellphones in our lives and an important bit of line-drawing in the ongoing battle between personal privacy and law enforcement.

IMG_6186In the ruling, Chief Justice John Roberts addressed both the pervasiveness of cellphones in modern America and the sweeping extent of information that people store on them.  From photos and video to address books, emails to calendars, financial information to maps, and other records of where we have been and who we have communicated with, cellphones are a handheld repository of huge amounts of very personal information about our private lives.  The Chief Justice thus reasoned that allowing warrantless searches of cellphones would be akin to the hated “general warrants” executed by the British authorities during colonial times that allowed them to rummage freely through homes in an effort to find some evidence of some kind of otherwise uncharged criminal activity — which is what drove the creation of the warrant clause of the Bill of Rights in the first place.

The Court also rejected arguments that a search of cellphones is needed to protect police officers or prevent the destruction of evidence.  When an arrest is made police can examine the cellphone to ensure that it can’t be used as a weapon and secure it, and if there is concern that evidence on the phone might be destroyed the officer can turn off the phone, or remove the battery, or place it in a foil bag to prevent any exchange of signals.  But before the police can access the cellphone and begin reviewing recent emails, the logs of recent calls, and other information, they must make the probable cause showing required by the Fourth Amendment and convince a judge to issue a warrant.

Two other points about the opinion seem worth emphasizing.  First, it was a unanimous decision.  For all of the fretting about political fracturing and the liberal and conservative wings of the Court, all of the Justices were able to agree on how to resolve a very central issue of how the Constitution works in modern life.  There’s nothing wrong with members of the Supreme Court disagreeing about legal issues — that’s why there are nine of them and the majority wins — but it’s nice to see the different perspectives coalesce around a simple, common approach to protecting individual liberty and privacy rights.

Second, many people have criticized jurists who return to the intent of the Framers of the Constitution and seek the meaning of its provisions in the historical context in which they were adopted, arguing that the Constitution should be a living document with meaning that changes in response to the realities of modern life.  Others contend that such an approach strips America’s core founding document of any objective significance and leaves it to mean whatever five Justices of the Supreme Court say it means.

The Court’s cellphone opinion, with its reference to the history of general warrants, shows how it is possible to draw upon historical context to identify the basic motivating principles underlying the Constitution and then apply those principles to the modern world.  Those observers who poke fun at purportedly hidebound efforts to discern “original intent” likely are happy with the opinion yesterday, but not about how the Court got to that result.

Mascot Liability

In an interesting ruling, the Missouri Supreme Court held yesterday that a spectator at a Kansas City Royals baseball game could get a new trial on a lawsuit against the team for an injury he suffered at a game in 2009.  According to the allegations in the case, the fan was hit in the eye by a wrapped hot dog thrown into the stands by the Royals’ mascot, Sluggerrr.  The lawsuit further alleges that the incident caused the fan to experience a detached retina and required him to undergo two surgeries to try to repair the damage.

In Missouri, as in many other states, the “baseball rule” applies to fans who go to a professional sports event.  Teams are protected from claims for injuries arising from the inherent risks involved in watching the event in person — like the possibility that a foul tip might come your way.  The Missouri Supreme Court said, however, that a hot dog thrown by a mascot is not an inherent risk — and thus the “baseball rule” doesn’t apply.

Some legal observers say the decision might cause sports teams to reassess their use of mascots, like Sluggerrr.  Wouldn’t that be wonderful?  I despise lame, furry, meaningless mascots and deeply regret how they have assumed increasingly prominent roles in virtually every sporting venue.  When I was a kid, the organist would play between innings at a ball game, and you could have a conversation and eat some peanuts; now every spare moment is cause for loud music, stupid contests, and idiotic mascots firing cheap t-shirts into the stands and engaging in other antics.  If the Missouri Supreme Court’s decision about Sluggerrr and his hot dog have brought that appalling era to a close, the judicial system has done a very good thing for society.