The Examined Life

Birth Control and Religious Freedom

 Does a religious belief trump a law, excusing non-compliance?

I'll let Justice Antonin Scalia speak:

"Our decisions reveal that the latter reading is the correct one. We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U. S. 586, 594-595 (1940): 'Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted).'"  Employment Division, Dept of Human Resources of Oregon et al v. Smith et al, 494 U.S. 872 (1990) (Scalia, J). 

Birth Control and Religious Freedom

Does a religious belief trump a law, excusing non-compliance?

I'll let Justice Antonin Scalia speak:

"Our decisions reveal that the latter reading is the correct one. We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U. S. 586, 594-595 (1940): 'Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted).'"  Employment Division, Dept of Human Resources of Oregon et al v. Smith et al, 494 U.S. 872 (1990) (Scalia, J). 

New Hampshire: a war on women or a war on all crime victims?

A number of blogs and other publications are saying that New Hampshire is rolling back the rights of domestic violence victims. I decided to look into it. There is a bill, House Bill 1581. The sponsor is a Tea Party Republican, Rep. Dan Itse. 

As usual, my first step was to review the text of the bill. The Analysis is rather sparse: "This bill restricts the authority of law enforcement officers to make an arrest without a warrant." 

The bill adds and deletes language. 

594:10 Arrest Without a Warrant Upon Observation of a Crime.

I. An arrest by a peace officer without a warrant on a charge of a misdemeanor or a violation is lawful whenever[:

(a) he] the peace officer has probable cause to believe that the person to be arrested has committed a misdemeanor or violation in [his] the officer’s presence[; or

(b) He has probable cause to believe that the person to be arrested has within the past 12 hours committed abuse as defined in RSA 173-B:1, I against a person eligible for protection from domestic violence as defined in RSA 173-B:1, has within the past 12 hours violated a temporary or permanent protective order issued under RSA 173-B or RSA 458:16 by committing assault, criminal trespass, criminal mischief or another criminal act, or has within the last 12 hours violated stalking provisions under RSA 633:3-a.

(c) He has probable cause to believe that the person to be arrested has committed a misdemeanor or violation, and, if not immediately arrested, such person will not be apprehended, will destroy or conceal evidence of the offense, or will cause further personal injury or damage to property].

II. An arrest by a peace officer without a warrant on a charge of felony is lawful whenever[:

(a) A felony has actually been committed by the person arrested, regardless of the reasons which led the officer to make the arrest.

(b) The officer has reasonable ground to believe that the person arrested has committed a felony] the peace officer has probable cause to believe that the person to be arrested has committed a felony in the officer’s presence or in the presence of another peace officer with whom the officer is working.

III. No peace officer shall enter the dwelling or other private property not accessible to the general public without a warrant or consent of the owner, except where the peace officer has observed a person who has committed a felony or misdemeanor in the officer’s presence enter such dwelling or private property and the officer is in hot pursuit of the person.

IV. In the event an arrest is determined by a court or through a petition for redress of grievance to be unlawful, the law enforcement agency which made the arrest shall be liable for all of the arrestee’s legal and incidental costs associated with obtaining his or her freedom and expunging the record of the arrest. All records of unlawful arrests shall be destroyed by the law enforcement agency making the arrest.

5 Protection of Persons From Domestic Violence; Protection by Peace Officers. Amend RSA 173-B:10, II to read as follows:

II. [Pursuant to RSA 594:10, an arrest for abuse may be made without a warrant upon probable cause, whether or not the abuse is committed in the presence of the peace officer.] When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but [should] may arrest the person the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.

6 Annulment, Divorce, and Separation; Temporary Relief and Permanent Restraining Orders. Amend RSA 458:16, III to read as follows:

III. When a party violates a restraining order issued under this section by committing assault, criminal trespass, criminal mischief, stalking, or another criminal act, that party shall be guilty of a misdemeanor, and peace officers shall arrest the party, detain the party pursuant to RSA sec 594:19-a, and refer the party for prosecution. Such arrests may be made within 12 hours after a violation [without] with a warrant upon probable cause whether or not the violation is committed in the presence of a peace officer.

A law of unintended consequences?

The effect is to treat domestic violence cases like all other victims. In itself that may not be a bad thing. But the unintended effect is to prohibit police from making warrantless arrests for any type of offense unless the officer personally witnesses the act. What this means is that if a citizen complains to police about any sort of crime the police are unable to take any action other than to seek a warrant. Of course, by the time the warrant is obtained, the culprit will have surely fled, or perhaps eliminated the complaining witness.

It does seem that Rep. Itse was trying to eliminate the added protections, but he has also thrown the baby out with the bathwater. There is no question domestic violence victims will be at greater risk, but so will everyone else.

Of course, since he's not talking, it's hard to tell what he is trying to do.

See also HuffingtonPost. HuffPO reported that the sponsors refused to comment on the bill despite repeated requests. 

 

Newt's War on the Judiciary: He's serious

When I heard Gingrich say that he would send Marshals to arrest judges who refused to appear before Congress and explain their decisions (as if their rulings were not enough), I felt a frisson of fear, but shrugged it off as Newt being Newt and messing with our heads.

Now I've read his whole plan. I am officially scared. The man is serious. His plan is nothing less than the abasement, the humiliation, indeed the destruction, of the third branch of government.

I have gone through the whole plan and picked out some portions that really convince me Gingrich may be one of the most dangerous people ever to run for President.

The portion of the "21st Century Contract With America" I am concerned with is Item No. 9, entitled "Bringing the Courts Back Under the Constitution." After much table-pounding and partial quotations from the Founders, he gets down to brass tacks and tells us what he is going to do to the federal judiciary.

After "Electing the right Senators" and Nominating and Confirming the right Judges," both of which are political questions with which I do not quarrel, he suggests "Setting Limitations on Federal Court Jurisdiction," specifically "remove the power of the courts to hear certain types of cases that the executive and legislative branches believe the federal judiciary has simply gotten wrong in the past." (P. 20.)

Basically, he would put into a statute a specific provision that barred the lower federal courts from reviewing it. That actually has been done. The Antiterrorism and Effective Death Penalty Act of 1996 (commonly known as AEDPA) limits the courts' review powers of habeas review in death penalty cases. However, the example he offers: "the absolute rejection of judicial supremacy as a violation of the Constitution's balance of powers" appears to exceed the ability of Congress to limit judicial review. But let's assume arguendo Congress may do this.

What is Gingrich's next step? Congress and the President "could explicitly provide by statute that any federal judge that refused to adhere to the legislative limitations on jurisdiction would be subject to impeachment and removal ...."

Keeping in mind that the United States Constitution permits impeachment only for "treason, bribery, or other high crimes and misdemeanors," what Gingrich is saying here is that he would make the rendering of a judicial decision Congress found erroneous a crime. (See U.S. Const., Art. 1, Section 4.)

Just in case you think I'm exaggerating, here is it is again:

"Congress can create specific statutory measures that govern the impeachment of federal judges. The simple Congressional action itself of codifying existing constitutional authority to impeach judges on various grounds, including the issuing of unconstitutional opinions, assessing arbitrary power, and otherwise usurping the authority of the legislature would send an unmistakeable signal to all federa judges of a renewed commitment by the legislative and executive branches to defend the Constitution against oppressive and tyrannical judges." (P. 21.)

Of course, it would do much more. It would make the issuance of an opinion which the Congress found to be a mistaken interpretation of a law a crime. Keep in mind the grounds, baked into the Constitution, for impeachment.

Judges, being human, make mistakes, or simply see things differently. Those mistakes sometimes take the form of rulings which later are held by a higher court to be mistaken interpretations of the Constitution. The lawbooks are filled with such rulings. They have never, in the history of this country, been found sufficient to impeach the judge.

As if that were not enough to keep anyone but a craven coward from applying for the job of judge, Gingrich would  "establish procedures for relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing and requiring federal judges come before them and explain their constitutional resoning in certain decision [sic] and to hear a proper Congressional Constituitonal interpretation."

Can you imagine anyone but the craven being willing to go through such humiliation for the sake of a job that pays less than a first-year associate in a large law firm makes?

He's not finished yet. While admitting this solution is a "blunt tool," he suggests abolishing judgeships and lower federal courts. Yes, gentle reader, abolishing the federal courts (except for the Supreme Court, which even Gingrich admits he can't abolish).

Gingrich may not be able to abolish the Supreme Court, but he asserts "Congress ... can reduce or eliminate funding of Courts to carry out specific decisions or a class of decisions." He gives no clue as to how this defunding would take place without affecting all the other cases federal courts decide.

And there's more. "In very rare circumstances, the executive branch [that is, President Gingrich] might choose to ignore a Court decision."

This is the example he gives:

"For example, if the Congress were to enact a statute on military commissions that explicitly limited federal court jurisdiction, then the President would be warranted in ignoring any judicial decision or action that violated the limitation on jurisdiction. It is proper to do so because the Congress that enacted the law presumptively believed it was constitutional. The President who signed it (assuming no veto) thought it was constitutional and the President who ignores the court decision thought it was constitutional. Thus, it is two branches against one, in an area where the Constitution empowers the executive and legislative branches (not the judicial branch), and in a case in which the judicial branch is violating constitutional limitations on its authority." (P. 22.)

In case you were wondering what types of cases would bring down the Presidential wrath, Gingrich gives some examples: (1) a ruling (Hosanna-Tabor Evangelical Lutheran Church v. EEOC) holding that religious organizations cannot discriminate against employees (unless the employee performs exclusively religious functions); (2) cases extending judicial review to Guantanamo detainess; (3) cases affecting the definition of marriage.

One of the jewels in the crown of American democracy, and perhaps the one institution Americans should be most proud of, is our independent judiciary. Every day we read about judges in other countries being threatened, charged with crimes, removed from office. It does not happen here. Or at least it has not. All that will change if Newt Gingrich becomes President of the United States.

 

Obsidian Finance v. Cox - the Oregon blogging case

I just spent the morning studying Obsidian Finance v. Cox (CV-11-57-HZ), the instantly famous case involving Crystal Cox. I have concluded the news stories focus on the wrong part of the case. It is the second portion that bloggers (and other writers) should be concerned about.

Crystal Cox is a blogger. She was sued for defamation by an attorney named Kevin Padrick, who had been appointed as a bankruptcy trustee, after Cox called Padrick a thug and a thief in one of her posts.

Following a jury trial, which found Padrick had been defamed, U.S. District Judge Marco Hernandez wrote an opinion. 

He reached several conclusions, one of which is that Cox was not a journalist under Oregon state law (the case was tried in federal court due to diversity of residence, but the court correctly used the law of the state where the case was tried). The reason he reached this issue is that Cox asserted her accusations were true, but refused to reveal her sources, asserting the Oregon journalists' shield law.

The Oregon statute (O.R.S. 44.520(1)) provides protection to "media persons as witnesses:"

[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required by ... a judicial officer ... to disclose ... [t]he sources of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public.

"Medium of communication" is defined as including (but not limited to) "any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast stattion or network, or cable television system." (O.R.S. 44.510(2).)

Judge Hernandez found that although Cox was a "self-proclaimed 'investigative blogger' and defines herself as 'media,' the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, news or feature syndicate, broadcast station or network, or cable television system."

So basically, all the judge did was read the words of the statute and applied them. Arguably his interpretation was too narrow, as the list was not intended to be exhaustive. 

Judge Hernandez then went on to rule that the shield law did not apply to defamation actions anyway, citing O.R.S. 44.530(3), which states that the provisions of O.R.S. 44.520(1) "do not apply with respect to the content or sources of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of that information."

So the portion of the decision which held a blogger is not a journalist for purposes of the shield law is mere dictum, that is, it was an opinion which did not affect the outcome of the case, since even if she had been a journalist, she still would not have been able to assert the shield law to avoid presenting a crucial witness in her defense.

Arguably Judge Hernandez should not have "gone there," since cases should be decided on the narrowest possible grounds and judges should avoid dicta. Nevertheless, the gnashing of teeth in the blogger community is uncalled for. However, it would probably be a good idea for Oregon to expand the list of media, since the issue will probably come up in a true shield case.

It is the actual holding of the case, and how Judge Hernandez got there, that is of concern. He held "that plaintiffs are not public figures, defendant is not 'media,' and the statements at issue were not made on an issue of public concern. Thus, there are not First Amendment implications."

Cox had asserted that she was "media," so the plaintiff would have had to prove she was negligent in her publication. Judge Hernandez ruled that Cox had not presented any evidence that a "self-proclaimed 'investigative blogger' is considered 'media' for the purposes of applying a negligence standard in a defamation claim, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347 and Bank of Oregon v. Independent News (1985) 298 Or. 434, 445-446.

The judge found that Cox failed to introduce evidence of "her status as a journalist."

For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosure of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story. Without evidence of this nature, defendant is not "media."

Neither Gertz nor Bank of Oregon set forth the standards for determining who is a member of the "media." It was not even an issue in either case. The list of requirements that Judge Hernandez set forth is, as far as I can tell, completely his own.

This is the part bloggers should be concerned about. But the fact that a person chooses the blog as the medium does not affect the analysis. If Cox had written a paper broadside and distributed it in the streets, the standard for establishing herself as "media" would remain the same.

Of course, being "media" is not a "get out of jail free card." The plaintiff may still be able to prove the writer was negligent.

However, according to Obsidian Finance v. Cox (CV-11-57-HZ) if the defendant cannot prove she is a member of the media, and the plaintiff is a private person, and the publication does not involve a question of public concern (which is what Judge Hernandez found), the publication does not have First Amendment protection.

The bottom line is that regardless of the medium, when you start accusing people of committing crimes, you may get sued. And if you do get sued, you may not be able to require the plaintiff to prove you were negligent unless you are prepared to prove that you are at least as careful as a mainstream journalist.

I'm not sure that's such a bad thing.