Alabama Sexual Devices Case

In connection with the long essay question on the recent exam, you may enjoy reading the following recent case out of the 11th Circuit: Williams v. Attorney General, 378 F. 3d 1232 (11th Cir. 2004).

Have a great break and a very merry Christmas (or other holiday of your choice).

Should Liberals Stop Defending Roe?

Sandy Levinson and Jack Balkin debate the politcs of Roe for the Democrats over at Legal Affairs debate club. Here is the link.

Judge Friendly's Unpublished Opinion

In the first abortion rights case ever filed in federal court. Judge Randolph of the D.C. Circuit discusses this interesting historical "what if" in the Barbara K. Olson Memorial Lecture. Here is a link.

EXAM INFO--IMPORTANT!!!

Since the exam is CLOSED BOOK, the essay portion of your exam must be typed on your laptop (or lab computer).

You will need to load the latest version of EXAM 4 which should be available about a week before exams begin.Check with Dean Pierce or Vicki Lill if you have any questions about Exam 4 software. If you need to use a lab computer, please see Vicki ASAP to reserve one for the day of the exam.

Remember, our next class will be Wed. Nov.30, when we will have a question/review session for those who wish to attend.

Terri Schiavo & Rights of Disabled

An interesting article, written by Nat Hentoff and published by the Council for Secular Humanism, noting that "twenty-nine national disability-rights organizations... filed legal briefs and lobbied Congress to demonstrate that Terri Schiavo's was a disability-rights case, not a right-to-die case. They included the National Spinal Cord Injury Association; the National Down Syndrome Congress; the World Association of Persons with Disabilities; and the largest American assembly of disability-rights activists, the American Association of People with Disabilities." If you are interested, the article can be found at this link.

Judge Alito: "Free Speech Libertarian"

Prof. Eugene Volokh has an article at WSJ online about Judge Alito's views of the First Amendment. Click here.

The New "Chief"

Linda Greenhouse has a great article in the New York Times about the impact of the new Chief Justice, John Roberts, on the culture of the Supreme Court.

Censoring Narnia

Con Law II preview!

Here is a press release about an interesting attempt by Americans United to censor the reading of The Lion, the Witch and the Wardrobe in public schools:

SCOTTSDALE, Ariz. - Attorneys with the Alliance Defense Fund say they will offer free legal representation to any Florida schools threatened with lawsuits for participating in the governor's reading contest involving The Lion, the Witch, and the Wardrobe by C.S. Lewis.

On Oct. 20, Americans United for Separation of Church and State issued a press release condemning Gov. Jeb Bush's "Just Read, Florida!" campaign, which this year encourages public school students to read the Lewis novel in conjunction with the release of the Disney movie based on the book Dec. 9. AUSCS claims this year's campaign is designed "to promote a religious story."

"The governor's campaign is clearly designed to promote reading in conjunction with a much-anticipated film; it is not designed to promote religion," said ADF Senior Counsel Gary McCaleb. "ADF will defend any school district in the nation that gets sued by AUSCS, the ACLU, or any other group for having students read The Lion, the Witch, and the Wardrobe, as long as the school allows students to opt out of reading it if they or their parents don't want to."

According to the 2001 executive order establishing the "Just Read, Florida!" program, the campaign is "a comprehensive, coordinated reading initiative aimed at helping every student become a successful, independent reader." Nonetheless, AUSCS called it "an offense to the First Amendment."

Abortion: Two Interesting Articles

1. Abortion and the Law What would a world without Roe look like?

2. Pro-Wife Extremism: Judge Alito was right on spousal notification

Good Alito Links

The University of Michigan Law Library has posted numerous links to information on Judge Alito and his record. Click here.

Alito aka "Scalito"

One of my favorite Ciruit Court judges, Samuel Alito of the 3d Circuit, is the new nominee. The SCOTUS blog has a good post. Some pundits refer to Judge Alito as "Scalito" because of his Scalian judicial philosophy. This is a good pick by the President, and although the Democrats will huff and puff, they won't be able to blow this house down.

Alito will be confirmed by January 1.

Americans Decry "Judicial Activism"

An ABA Journal survey has found that "More than half of Americans are angry and disappointed with the nation’s judiciary." Here are some money excerpts:

A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."

....

Several legal scholars responding to the survey results were startled by the numbers.

Georgetown’s Tushnet says he didn’t realize the level of dissatisfaction was so high. "What I had thought was the case was that there was a significantly higher residue of general respect for the courts," he says. "And these numbers suggest that that’s not true."

Geyh of Indiana University says the survey suggests "a trajectory" upward in the number of people unhappy with the American judiciary—apparently simply because these critics disagree with the law that judges have a duty to apply.

The idea that judges should "somehow follow the voters’ views really reflects a fundamental misunderstanding of what judges are supposed to do," he continues. "They should only be criticized when they ignore the law and start infusing their own values into the law regardless of the law."

Hmmm. Maybe voters believe that the judges are not following the law, but rather are making the law, ruling a free and self-governing people from the Bench, based upon the judges' own beliefs and moral preferences.

I am not shocked by this survey. I am pleased and encouraged. Bob Bork may have lost the "great debate" in the law schools, but it looks like he is winning with the People.

Scrappleface on the Miers' Nomination

The always amusing Scrappleface has a very funny post on the Miers' nomination. Check it out for yourselves. Here is a money excerpt:

"Meanwhile, White House sources said, Miss Miers 'pulled an all-nighter' preparing responses to a follow-up questionnaire from the Senate Judiciary Committee due today.

The nominee reportedly consulted several familiar legal reference works, including Cliffs Notes, U.S. Constitution for Dummies and the Schoolhouse Rock video on American history."

Class Schedule

Update: Please notice additional class (Mon. Oct. 31) on which we will not meet (see below):

As we discussed earlier, because our class meets for 60 minute hours, we have 7 class periods to cancel. Here are 5 dates on which we will not meet:

1. Tuesday October 4
2. Wednesday October 12
3. Monday October 31
4. Monday and Tuesday November 21 & 22 (Thanksgiving Week)

Should Polygamy Be Legal?

Gary Becker and Judge Posner are discussing this over at the Becker-Posner Blog (link and link)

Astros in Six

Sorry, Prof. Lenich, but I think the Astros will win the WS in no more than 6 games.

They have an edge in starting pitching (Clemens, Pettitte, Oswalt) and a substantial edge in the bullpen.

It will be Astros in 5 or 6 games!

1917 is still a magic number.

Same-Sex Marriage debate

There is some great discussion about the same-sex marriage issue taking place this week on the Volokh Conspiracy blog. Check it out if you are interested.

Great Blog

The one "must read" blog every day for a lawyer wanting to stay informed is Howard Bashman's How Appealing. Check it out and, if you like it, bookmark it.

Oregon Assisted Suicide Case

Over at the ACS blog, Lauren Saunders has a nice summary of the Supreme Court oral arguments in the Oregon physician assisted suicide case. Here is the link.

Roberts and Bork

Over at the Volokh Conspiracy blog, Juan Non-Volokh has an interesting post comparing the Roberts nomination to the Bork nomination. Here it is:

Deja Vu All Over Again?

This all seems familiar. The Senate Judiciary Committee is preparing to hold hearings on a prospective Supreme Court justice nominated by a conservative, tax-cutting president with sagging approval ratings who is derided as unintelligent by his critics. The nominee, a judge on the U.S. Court of Appeals for the D.C. Circuit, has impeccable credentials and an impressive intellect, but nonetheless is opposed by various liberal interest groups warning he could turn back the clock on civil liberties and equal protection.

Like the politics, aspects of today's music scene have a distinctive 1980s feel. There has been a marked resurgence in 1980s-style alternative pop music in bands like The Killers, The Bravery, Franz Ferdinand, The Stills, VHS or Beta, Razorlight, and Kasabian, among others. These bands were heavily influenced by 80s acts like The Cure, New Order, Echo & the Bunnymen, and the Smiths. There was even a massive transcontinental benefit concert featuring classic band reunions and Duran Duran is on tour. How much more '80s can you get?

Of course, the parallel is less-than perfect. Among (many) other things, Republicans control the Senate, the Cold War is over, no one buys Michael Jackson albums anymore, and I think we're safe from thin leather ties and ozone-depleting hairstyles. I also expect Judge Roberts will be confirmed, perhaps proving that history never really repeats itself.

Thank You

I just wanted to thank you guys for a great class. I have never enjoyed the classroom dialogue as much as I have this summer. Indeed, participation was so generally excellent that I can not single out one or two students for special recognition. Thus, when grading exams, I will modify the curve upwards (by one grade point) to reflect the general excellence of your hard work this session.

Thanks again. And have a great one week summer vacation!

Rick Duncan

Hentoff Chapter

How should the Constitution apply to a case like that of the religious students who refused to read Studs Terkels' excellent, but raw book, Working? Should the school be required under the First Amendment to allow the dissenters to read a substitute book? Or should the courts leave this decision to school authorities and the school board (and ultimately to the political process)?

If you were a school district attorney, what would you advise your client to do? Why?

Must Student Religious Groups Allow Nonadherents To Be Members?

Consider this press release announcing a settlement of a constitustional rights lawsuite brought by the Christian Legal Society against Washburn University:

PRESS Release

January 18, 2005

WASHBURN UNIVERSITY CHANGES STUDENT ORGANIZATION POLICIES TO RECOGNIZE RELIGIOUS GROUPS’ RIGHT TO BE RELIGIOUS
Grants Exemption From “Nondiscrimination” Policy

TOPEKA, KS – Washburn University’s Board of Regents voted on Friday, January 14 to amend its Student Organization Policy to no longer require the Christian Legal Society (CLS) chapter and other recognized religious groups to abide by the university’s standard “Nondiscrimination” Policy. The policy would have forced the CLS chapter and other campus religious groups to accept members and officers who oppose their Christian beliefs.

CLS' Center for Law & Religious Freedom and local attorney Craig Shultz filed a lawsuit against the university in September 2004 after the Washburn Student Bar Association (WSBA) revoked the CLS chapter’s funding. The WSBA de-funded the CLS chapter in response to the charge of religious discrimination a Washburn law student filed against the chapter.

The law student, a member of the Church of Jesus Christ of Latter-day Saints, had led a CLS Bible study earlier in the fall 2004 semester and taught doctrine inconsistent with CLS’s statement of faith. As a result, chapter leaders informed him that he would no longer be asked to lead CLS-sponsored Bible studies. Although the student admitted he could not agree with the statement of faith, he nonetheless demanded that the WSBA revoke the CLS chapter’s funding on the ground the chapter violated the university’s nondiscrimination policy.

Following the lead of other major universities, such as Ohio State, the Washburn Board of Regents voted on January 14 to revise the policy to allow religious student groups to adopt nondiscrimination language in their organizational constitutions that is consistent with their members’ sincerely held religious beliefs. The policy now reads, “Organizations must comply with the University's EEO policy and applicable federal, state and local laws in all their activities… [except that] organizations formed to foster or affirm the sincerely held religious beliefs of their members may adopt a nondiscrimination statement that is consistent with those beliefs.” However, such religious organizations “must comply with the University's EEO policy in all other respects."

“Christian Legal Society and other campus faith movements are thankful that Washburn’s leadership has recognized their right to retain their distinctively religious character in leader and member selection and in sharing their message to the broader university community,” said CLS Center Chief Litigation Counsel Steven H. Aden. “Washburn’s thoughtful approach to this controversy, and its respectful and expeditious decision to affirm the First Amendment rights of its religious students, should be applauded and held up as an example to other universities who are likewise seeking to balance equality for all students with true religious diversity.”

The Christian Legal Society, founded in 1961, is the national membership organization of Christian attorneys, judges, law professors and law students, as well as supportive laypeople in all fifty states. They are organized in more than 1100 cities into attorney chapters, law student chapters, and fellowships throughout the United States.

What are your thoughts? Should student groups be allowed to exclude as members and/or leaders students who don't share the expressive purposes of the organization? Or should all student groups be required to grant membership to all who apply for membership? May the NAACP exclude from membership applicants who hold racist beliefs, such as an applicant who is also a member of the KKK? How would it hurt the abilty of the NAACP to express its message of racial equality and tolerance if it was discovered that one of its discussion leaders was a member of the KKK? Would, say, Billy Graham be a convincing spokesman for the Student Atheists Society?

Selman v. Cobb County School District

Here is a link to the opinion of the federal district court (Judge Clarence Cooper).

And here is a summary of the case from the liberal ACS blog:

Court Says Evolution Stickers in Textbooks Are Unconstitutional
Judge Clarence Cooper, of the U.S. District Court for the Northern District of Georgia, declared that evolution stickers placed in textbooks by a public school board are unconstitutional. Cooper held that the stickers violate the 1st Amendment's establishment clause. The stickers proclaim, "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully and critically considered." In his decision Cooper explained, "the distinction of evolution as a theory rather than a fact is the distinction that religiously motivated individuals have specifically asked school boards to make in the most recent anti-evolution movement, and that was exactly what parents in Cobb County did in this case." He added, "The school board has effectively improperly entangled itself with religion by appearing to take a position. Therefore, the sticker must be removed from all of the textbooks into which it has been placed."

Ten Commandments Opinions

Here is the SCOTUS opinion in the McCreary County case (the Kentucky case).

Here is the SCOTUS opinion in Van Orden (the Texas case).

For Judge Roy Moore's views of these cases, see his article here.

RLUIPA Upheld by SCOTUS: Cutter v. Wilkinson

On Tuesday, May 31, 2005, the Supreme Court of the United States unanimously upheld the prison provisions of RLUIPA against an Establishment Clause challenge.

You can access the Supreme Court opinions here and the oral argument transcript here.

And here and here are law professor commentary on the opinion. And here is an article from the Christian Science Monitor that views Cutter as a significant boost for the rights of minority religious groups.

Power To The Planners, Right On: Kelo Case Decided

With apologies to John Lennon.

The opinion of the Supreme Court in Kelo is here.

The transcript of the oral argument in the case is here.

Here is an article on Kelo by law prof Richard Epstein.

And here is an interview from Reasononline with Kelo's attorney Scott Bullock on what lies ahead for property rights in the wake of Kelo.:

Never Mind the Kelo, Here's Scott Bullock
The attorney who argued the landmark eminent domain case surveys the blightin the wake of the Supreme Court's decision. A Reason interview.

Tim Cavanaugh

Scott Bullock, senior attorney at the Institute for Justice, represented the plaintiffs before the U.S. Supreme Court in the landmark eminent domain case Kelo vs. City of New London. He spoke with Reason in the wake of yesterday's decision in favor of the city.

Reason: Are you surprised by the decision?

Scott Bullock: Well I was surprised. It was rather shocking that a majority of the Supreme Court would permit this type of abuse. We're in an America where, as Justice Sandra Day O'Connor points out, church property can be taken for a Costco, a farm can be turned into a factory, and a neighborhood can be leveled for a shopping mall. Most people cannot believe that this can happen in this country and the Supreme Court gave sanction to that with their decision.
Reason: What did you make of Justice Anthony Kennedy's vote against the plaintiffs?
SB: Yeah, it was surprising. I mean here's a guy who once wrote "individual freedom finds tangible expression in property rights." For him to be in a decision that fundamentally violates the right to own and enjoy your property, I think, is disgraceful.

Reason: Is there any recourse to the plaintiffs now?

SB: There is. There are going to be battles on two fronts. One, we're going to do everything in our power to keep these people in their homes. And we're going to explore all options to do so. But one thing that's coming out of this opinion that's very clear is that people are furious about this. And the anger comes from the left, right, libertarians, and everybody in between. People cannot believe that the court sanctioned something like this. So, I think that the growing grassroots rebellion against this is going to gain momentum. And I think that you'll see litigation about this in state courts, where the battle will largely be, at least for the time being. And you'll see a number of legislative changes though both legislatures and then also through the initiative process, as well. And we'll be there every step of the way to make sure that these abuses stop.
Reason: Given how many frivolous Constitutional amendments get proposed there days, why isn't there a serious movement for an amendment that would more narrowly define eminent domain powers?

SB: There's already discussion of doing so. And, as I said, this is a time to really think big about these issues because it's clear that a narrow majority of the Supreme Court has given the potential for businesses and local governments to work together to take people's land. And I think it was a real wake-up call to people that something has to be done about this. And hopefully we'll see some major changes.

Reason: How is this going to affect lower court decisions in other eminent domain cases, such as the Michigan Supreme Court's reversal of the Poletown decision last year?

SB: What's important to point out is that even the majority admitted that state courts are free to interpret their own provisions in a manner that's more protective of property rights. Thankfully, every state Constitution has prohibitions against private takings and a requirement that takings be for public use. And, only six states have held that economic development condemnations are Constitutional. Nine have held that they are not. And most states have not addressed it.

Reason: States that have ruled in favor include Connecticut, presumably?

SB: Connecticut, Kansas, Maryland, Minnesota, New York and North Dakota: Those are the states that have said that this is acceptable to their state constitutions. Nine states have said that it's not. And then, most states have not addressed it. So, state courts, when this issue comes before them, are free to give greater protections to property owners and hopefully stop this practice in their states.

Reason: Speaking of private economic development, the import of the decision has largely been seen as clearing the way for seizures for private economic development, but that's not really unprecedented. Even railroads were private endeavors. So are we seeing something new here or does this decision just affirm the status quo?

SB: It's very different from something like a railroad. A railroad typically follows a very narrow strip of land. Railroads and utilities are what are known in the law as something called common carriers. So even though they might be privately owned, they're really the equivalent of public bodies because everybody, the public, has an equal right to them. Everybody has a right to the utility line. And they're very tightly controlled by public officials, so they're really the equivalent of public bodies; that's why the court upheld them. Here, we're talking about ordinary private uses of land—taking somebody's home for a Costco, taking Church property to give to another private owner. That's why this opinion is so sweeping and it's so far removed from even what the courts did in the railroad cases, or even in the situations involving blight. Because even in those cases, the government had to show that there was some type of harmful condition to that land before it was justified for condemnation. Here, the court said, whatever land the developers happen to desire is up for grabs.

Reason: The irony is that we're in this period of resurgence for American cities. Most major cities are doing better now than they have in decades, and arguments about urban blight are a hard to make. Given yesterday's lifting of the need to prove an area is blighted, how do you expect that to play out?

SB: I think it puts more and more properties up for grabs because here it will be dependent, not on whether or not the property is blighted, but whether it happens to be desired by private parties. So you're going to see people of less economic means, poorer folks, middle class folks who happen to live in the city and live in desirable neighborhoods that are going to be targeted by these types of takings. That's the real travesty of this, and that's one of the strongest points made by Justice O'Connor and Justice Thomas, that this is going to fall hardest on people of limited financial means. And it's going to be to the benefit of the wealthy and government.

Reason: One of the disheartening aspects of this decision is that two of the four dissenters are not long for the court. Justice William Renquist is pretty ill and Justice O'Connor is said to be close to retiring. Do you have any predictions about how a change in the Supreme Court composition will affect property rights?

SB: Well, I don't know. These things are always hard to predict. Look at Justice Kennedy's track record on property rights. But this is also the case where you could have a member of the court that might be more of the left, but might come to a very different decision from what some of the more liberal members of this court decided. As I mentioned, there are a number of people who are concerned about civil liberties, concerned about decisions that affect the poor, minorities, who are outraged about this.

One point you hear from some people who are trying to defend this decision is that the government went through a planning process in this case and this is part of a well-developed plan. The idea that having a plan and going through a planning process protects property owners in any way is completely disconnected from reality. I mean, every development in this country has a planning process. You can't just show up in an open field one day and say, "Well I'm here to build my office park." Everything in this country has to go through a process, has to be announced, has to have hearings, and to think that this provides any protection for property owners who face the loss of their homes and small businesses is nonsense. And it shows how some members of this Court and how some defenders of this policy don't understand how these things really pan out in the real world.

Reason: Can you give some examples of other eminent domain abuses among the 10,000 cases you guys have cited?

SB: I'll give you one primary example that's brewing in Long Branch, New Jersey right now, where a group of people want to hang on to their working-class beach homes. They've worked very hard to get their modest bungalows along the shore. These houses were purchased just by working class folks in Newark and other places, and now many of the elderly residents live there full-time; these are their dream homes. And the City of Long Branch is just proposing taking these people's homes and transferring them to wealthier home-owners. They want to tear them down and build million-dollar condominiums for people right along the shore in northern New Jersey. And so it's a classic example of taking the property of poorer folks and giving it to wealthier folks, and using it for the same purpose. It's just a transfer of wealth between home owners. It's a classic example of eminent domain abuse and one that I think will be litigated in the very near future.

Reason: Is that going to be a new wrinkle, that the property is going to be used for the same purpose?

SB: Well, possibly. There are a number of ways to challenge these types of takings. And I'm sure there will be many issues that are brought up in that case and some of the other ongoing controversies.

Reason: Where are the real outrages happening? Is New London more typical, or is something like Washington, D.C.'s stadium grab a more characteristic situation?

SB: The problem is that there are so many examples of eminent domain abuse. It's hard to find one that captures it entirely. New London was a classic example of this, but there are several others as well. They typically fall under two categories: One, is when the government takes land just simply to produce more tax revenue. That was the situation that was going on in New London. The other thing is what we call the abuse of blight laws. An example of that is a case we were involved in in Lakewood, Ohio, where the government uses blight laws simply as a means to an end. They're not really concerned about conditions in the neighborhood; they simply want to have it declared blighted so they can get the property and transfer it to private developers. The criteria that the City of Lakewood used to get the neighborhood declared blighted included such things as that the homes were lacking central air conditioning, didn't have an attached two-car garage, or lacked full bathrooms. It was really a means to an end, and the abuse of blight laws is an ongoing controversy and also encompasses a lot of the examples we point to of eminent domain abuse.

Tim Cavanaugh is Reason's web editor

7th Circuit College Student Speech Case

From How Appealing:

En banc U.S. Court of Appeals for the Seventh Circuit announces ruling in Hosty v. Carter: You can access today's 7-4 ruling at this link. The Student Press Law Center previously referred to this case as "The Latest Battle for College Press Freedom."

A unanimous three-judge Seventh Circuit panel had ruled in favor of the student-plaintiffs in a decision you can access here, thereby affirming the federal district court's ruling in the case. Today's en banc majority reaches the opposite conclusion, holding that the U.S. Supreme Court's ruling in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), applies in the setting of a university.

Oral Argument in 9th Circuit School Speech Case

From How Appealing:

Access online the audio of the Ninth Circuit's oral argument in appeal filed by high school student suspended for wearing T-shirt condemning homosexuality: You can download the oral argument audio (Windows Media format) in this interesting case by right-clicking on this link and saving the audio file to your computer.

Supreme Court Nomination Blog

Check it out here. Here is a recent post analyzing possible Bush Supreme Court nominees and the probable degree of opposition from the Democrats:

Wednesday, June 08, 2005
The Most Often Mentioned Candidates And The Prospects For A Senate Fight
Posted by Tom Goldstein at 06:45 AM

Here is my previous list of potential nominees, sorted into categories reflecting my sense of whether they would produce a moderate, substantial, or severe confirmation fight. Note that the premise of these categories is that each of the widely discussed potential nominees is likely to produce Democratic opposition - some, very substantial opposition - because each is quite conservative.

In the Judiciary Committee, I expect that all these nominees would be successfully recommended to the floor, although in a few instances with very considerable difficulty and under great pressure from the Senate leadership. Those in the Mild category would receive a few Democratic votes; Substantial would receive a few (and perhaps none); Severe would receive none.

On the Senate floor, I expect that all these nominees would receive a majority vote, although again in a few instances with some difficulty and as a consequence of loyalty to party. Those in the Mild category would not be subjected to an attempted filibuster; Substantial would be subjected to the discussion of a filibuster and possibly an attempt, with the outcome uncertain except that Republicans would regard the recent pact as having been violated and would successfully impose the nuclear option; and Severe would be subject to a successful filibuster with the outcome regarding the nuclear option uncertain.

To reiterate, because the blog is new, the list doesn't represent any view on whether a particular nominee should be supported or opposed. Rather, it represents my prediction of what would occur.

Moderate

Alberto Gonzales - Attorney General

John Kyl - U.S. Senate

Larry Thompson - General Counsel, PepsiCo (former Deputy Attorney General)

Substantial

Samuel Alito - Third Circuit

Edith Brown Clement - Fifth Circuit

John Cornyn - U.S. Senator

Emilio Garza - Fifth Circuit

J. Michael Luttig - Fourth Circuit

Michael McConnell - Tenth Circuit

Ted Olson - Gibson, Dunn & Crutcher (former Solicitor General)

John Roberts - D.C. Circuit

J. Harvie Wilkinson - Fourth Circuit

Severe

Janice Rogers Brown - California Supreme Court (soon to be on the D.C. Circuit)

Edith Jones - Fifth Circuit

No (Free Speech in) Canada

The CBC has this report about "hate speech" laws in Canada.

Police investigating Christian activist for hate crimes

Last Updated Wed, 08 Jun 2005 12:52:47 EDT
CBC NEWS

Two thousand leaflets attacking gays and lesbians have put a Christian activist in western Canada under investigation by Edmonton police for hate crimes.
The flyers by Bill Whatcott of Regina refer to gay marriage as "sodomite marriage" and use graphic language to describe the alleged sex practices of homosexuals.
The handouts also used derogatory terms to describe federal Defence Minister Bill Graham.
Whatcott stuffed his pamphlets into mailboxes in the riding of Deputy Prime Minister Anne McLellan, and some recipients complained to police.
"The material is offensive and it's an affront on the basic tenets of our society, which is about multiculturalism, tolerance and peaceful co-existence," Const. Steve Camp, of the Edmonton police hate crimes unit, said.
The Pride Centre of Edmonton said it would take the case to the Alberta Human Rights and Citizenship Commission if no criminal charges arise from the police investigation.
Whatcott has led protests across Saskatchewan and Alberta against abortion and gays.
He says he was a gay prostitute until age 18 to pay for a drug habit, then became leader of a small group called the Christian Truth Activists.
Last month, the Saskatchewan Human Rights Tribunal fined Whatcott $17,500 for handing out similar material.
But he has refused to pay the fine, calling the tribunal a "kangaroo court."
Whatcott doesn't sidestep responsibility – he prints his name and telephone number on his material – and he says he's had at least 50 angry callers.
But he says he won't stop because he has a right to free speech.
He told opponents: "Tough, you live in a democracy."

Query: If "peaceful co-existence" is one of Canada's basic values, shouldn't the law permit speech from all points of view on issues of public concern (such as gay rights and same-sex marriage)?

Or should the violence of the law be employed against some groups that engage in peaceful expressive activities that other groups find offensive?

Do these kinds of "hate speech" laws codify intolerance in the name of tolerance? In other words, do these laws effectively say "everyone must tolerate everyone else, and if you disagree and say something critical about someone else, you will go to jail, you miserable, Bible-thumping cretin"?

Is Canada truly a "tolerant" country that respects "diversity" and pluralism? Or does it merely tolerate certain subgroups (those it likes) while suppressing others (those it dislikes)?

Important 11th Circuit RLUIPA Case

Konikov v. Orange County. The opinion is here. And here is a local newspaper article on the case. Here is a key excerpt from that article:

A rabbi who angered his neighbors by holding religious services in his south Orange County home has won a temporary, but empowering victory, thanks to a federal appeals court decision.

On Friday, the U.S. Court of Appeals for the 11th Circuit decided that the case involving Rabbi Joseph Konikov and Orange County zoning officials should head back to federal court in Orlando.

The decision could prolong a case that places religious freedoms at odds with the rules governing strictly residential neighborhoods in Florida. The issue could even head to the U.S. Supreme Court.

But, for now, Konikov and his lawyer are savoring the court's ruling.

"Today, with the help of God, the matter has been resolved," Konikov said Monday.

"Yes, as a peaceful, law-abiding citizen, I do have the right to worship. I do have the right to assemble. I do have freedom of speech -- all in the privacy of my home," he said in a prepared statement.

Three years ago, the Orange County code-enforcement board slapped Konikov with fines for refusing to stop religious services at his home in the Sand Lake Hills subdivision. Neighbors had complained the services caused traffic and parking problems.

After Konikov started getting fined in 2002, he filed a lawsuit challenging the county's zoning code and calling it unconstitutional.

A federal court in Orlando issued a summary judgment in the case, siding with Orange County and dropping Konikov's complaint. But Konikov appealed. Friday's appellate court decision partially reverses the lower court's ruling and notes potential problems with the county's code.

The appellate court found that nonreligious gatherings, such as biweekly scout meetings or regular parties to watch sports on TV, would not violate the county code, while Konikov's gatherings would.

"In other words, a group meeting with the same frequency as Konikov's would not violate the code, so long as religion is not discussed," the court's opinion states. "This is the heart of our discomfort with the enforcement of this provision."

In another part of the 31-page decision, the court stated that by applying different standards for religious and nonreligious gatherings with the same effects on the neighborhood, the code enforcement board "impermissibly targets religious assemblies" under federal law.

2005 Takings Case

The Supreme Court's opinion in Lingle v. Chevron can be accessed here.

Welcome

Welcome to the Duncan Course Blog, the web log I use to keep in touch with my classes. I plan to use this blog to communicate with students in my classes, to post assignments,or links, or notes, or hypotheticals. From time to time, I will ask students to post comments on the blog in response to various questions or issues that arise during the class.

This is an experiment, but I think it will make the class more enjoyable and interactive.

So long for now. Rick Duncan