Law Links ~ SCOTUS: Filming the Cops, Gay Marriage, Facebook Copyright, Jindal and School Vouchers

I'm starting a new weekly feature called "Law Links" to alert readers to legal actions here and around the world. This has always been an interest of mine, and even more-so now that my daughter is a new attorney who just passed the Bar Exam and is in court every day.

SCOTUSBlog Gears Up for Supreme Court Rulings Next Week

Editor's Note: On Tuesday, December 4, we expect one or more opinions at 10 a.m. We will be live blogging.
On Friday, the Court has granted two new cases, Mutual Pharmaceutical Co. v. Bartlett (12-142) and Association for Molecular Pathology v. Myriad Genetics, Inc. (12-398 ). The Court did not act on the same-sex marriage cases. Additional orders are expected Monday at 9:30.

Bloomberg: A Free Market Fix for the Copyright Racket

Even as digital technology has made reproducing, remixing and repurposing creative works easier -- with potentially enormous benefits for consumers and producers of new works -- the monopoly privileges of copyright have expanded. The result is a bizarre combination of rampant copyright violations, frequent encroachment on legitimate fair use, suppression of new technologies and business models, and the ever-present threat of draconian penalties.

Ars Technica: Supreme Court Backs 7th Circuit Over Filming Police

The United States Supreme Court rejected a request from a Chicago-area prosecutor to review a recent ruling that the First Amendment protects a right to record the actions of police officers as they perform their public duties.
. . . The Supreme Court's decision to let the Seventh Circuit's ruling stand is a victory for the American Civil Liberties Union of Illinois, which spearheaded the case. The ACLU's chapter in Massachusetts also had success vindicating a First Amendment right to record the actions of public officials. The First Circuit Court of Appeals ruled police violated the rights of a Boston man when they arrested him for using his cell phone to record the arrest of a suspect. In March, the city agreed to pay $170,000 to settle his civil rights lawsuit.

Louisiana Judge Rules Against Bobby Jindal's School Voucher Program

The Associated Press said that (Judge) Kelley’s 39-page ruling concluded that the voucher program violates provisions in the state constitution regarding the Minimum Foundation Program, or MFP, which determines how public schools are funded. “The MFP … was never meant to be diverted to private educational providers,” Kelley’s ruling said.
What Jindal’s team has been doing is implementing a voucher program, potentially the country’s largest, as a result of a new law that in part allows the state to offer vouchers to more than half of its students, or some 450,000 students. About 10,000 have applied, with most of the slots given to Christian schools, some of which didn’t really have the resources to handle the influx. They also use curriculum that promotes Young Earth Creationism, the belief that Earth is no older than 10,000 years old — and that human beings lived alongside dinosaurs — despite definitive scientific consensus that it is billions of years old.

Wired: Magical Copyright Hoax Debunked by Facebook

A silly copyright notice is sweeping Facebook . . . with users attaching pseudo-legalese to their status updates in a misguided effort to prevent Facebook from owning or commercially exploiting their content. The notice incorrectly implies that Facebook has recently changed the copyright provisions of its user agreement. It then unnecessarily asserts a user’s copyright over his Facebook posts (you retain such copyright without posting a notice) and cites the “Berner Convention,” an irrelevant international treaty properly spelled “Berne Convention.” The notice then instructs Facebook to get written permission to make commercial use of the user’s content, which is pointless as Facebook users agree to let the social network make money off their posts when they sign up for the service.
Popular hoax-debunking site Snopes addressed this copyright notice in the spring and updated their refutation today. Also, Facebook has taken the further step of putting out a statement of its own:

There is a rumor circulating that Facebook is making a change related to ownership of users’ information or the content they post to the site. This is false. Anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. They control how that content and information is shared. That is our policy, and it always has been.

Federal Judge Strikes Down Defense of Marriage Act

Big News: A federal judge appointed by George Bush has struck down the GOP's landmark Defense of Marriage Act, which states that the only real marriage is that of one man and one woman.

This ruling comes one day after it was reported that John Boehner and the House Republicans had spent $1.5 million defending DOMA.

From Huff Post

House Republican leaders have effectively spent all the money they allotted themselves: BLAG members House Speaker John Boehner (R-Ohio), House Majority Leader Eric Cantor (R-Va.) and House Majority Whip Kevin McCarthy (R-Calif.) last year signed a $1.5 million contract with attorney Paul Clement to represent them in cases involving DOMA, or the federal ban on same-sex marriage.
To date, Republican leaders have intervened in 14 DOMA cases. They have lost five in a row.

And now they've lost again, in a huge victory for equal rights.

Today's ruling marks one step closer to the day when all American families can enjoy the blessings of equal protection under the law. #DOMA

— Nancy Pelosi (@NancyPelosi) October 18, 2012

Complete Ruling Here (PDF)

W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

From Think Progress

This is a really big deal. Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification. This is the same very skeptical standard afforded to laws that discriminate against women. If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.

One unfortunate caveat is necessary: Judge Chester Straub, a Clinton-appointee, dissented. Nevertheless, this marks the second time that a prominent conservative court of appeals judge declared DOMA unconstitutional, and it relies on a sweeping rationale in doing so. Supporters of equality have a great deal to celebrate today.

Court in Ohio Restores Early Voting

This is great news for the Obama Administration, who filed the lawsuit against Ohio and Secretary of State Jon Husted. Judge Peter Economus ruled that the state had no good reason for closing the polls that last weekend before the election. Yay!

Interesting side-note about Judge Economus:

Judge Economus and his father, who immigrated to America in 1916, were featured in a segment of "Gasoline Alley," a nationally syndicated comic strip. The theme of the comic emphasized the spirit of America and the naturalization process that we all hold dear. Judge Economus and his wife, Marie, have three daughters and three granddaughters.

How nice that he is playing a role in making the vote more accessible, too!

Reuters Story

Ohio, a prized swing state in the November6 presidential election between Obama and Republican Mitt Romney, allows voting in person to begin on October 2. But the state cut off early balloting on the Friday before Election Day, except for members of the military, saying that would prevent fraud and give election boards time to prepare for voting.

In granting a preliminary injunction, U.S. District Judge Peter Economus wrote that lawyers for Ohio's Republican Secretary of State Jon Husted failed to "articulate a precise compelling interest" in establishing a Friday deadline for non-military voters.

"On balance, the right of Ohio voters to vote in person during the last three days prior to Election Day -- a right previously conferred to all voters by the state -- outweighs the state's interest in setting a 6 p.m. deadline," Economus wrote.

Ohio Attorney General Mike DeWine said in a statement that he would appeal the ruling.

My previous posts about Ohio's voter suppression:

Ohio's Secretary Husted Fires Democratic Officials
True the Vote Poll Watchers are Dangerous Vigilantes
State Senator Nina Turner D-Ohio On Fire Over Voter Suppression
Ohio's Racist Voting Agenda on Display

Pennsylvania Voter ID Law Upheld

I'm sad about this . . .

Philadelphia Inquirer Story

Even before Commonwealth Court Judge Robert E. Simpson Jr. released his decision, lawyers on both sides of the case had pledged to appeal the ruling.

A petition to the Pennsylvania Supreme Court is expected within days, if not hours. More legal briefs and courtroom arguments are expected. Others have been eyeing a parallel challenge in federal court.

Simpson denied a request for a preliminary injunction blocking the state from implementing the law, which requires voters to show state-issued identification before casting ballots.

Opponents complained the new law will unfairly bar as many as 1 million Pennsylvanians from the polls. Supporters say it was necessary to cut down on election fraud.

From Think Progress:

Voting rights advocates plan to appeal the case to the Pennsylvania Supreme Court, which will likely issue its own ruling before the November election. There is currently an even 3-3 split between Democrats and Republicans on the Court; the 7th Justice, Republican Joan Orie Melvin, is under suspension because of an unrelated corruption scandal.

Since Simpson ruled to uphold the law, Democrats will need one crossover vote to win a majority and strike down the law. Chief Justice Ronald Castille, a moderate Republican from Philadelphia, is most likely to side with the Democrats.

The federal Justice Department is also looking into whether Pennsylvania’s voter ID complies with federal law.

Pennsylvania's Voter ID Law: "A Solution in Search of a Problem"

Pennsylvania has a problem with their voter ID laws, but it's not because of rampant voter fraud as the Republicans want us to believe. In fact, as in most states, everyone agrees that voter fraud is almost non-existent. Yet state legislatures keeping passing laws forcing everyone to get a picture ID or lose their right to vote in the Presidential election this year. This will put the burden mainly on urban dwellers who use public transportation and therefore do not have a driver's license, as well as the elderly who have been voting for years, thank you very much, without a picture ID.

Unlike Florida and Texas, Pennsylvania is not a state covered by Section 5 of the Voters Rights Act which requires preclearance from the Justice Department before voting laws can be changed. Only states that had low voter turnout under 50% in the early 60s were required to follow the preclearance rule. So Pennsylvania will be a test state, and possibly ground-breaking for other "swing" states that might try to suppress the African American vote using Voter ID Laws.

The ACLU is taking the State of Pennsylvania to court, while the Feds are looking into whether the law will impede voting.

Philadelphia Inquirer: Voter ID Fight Heads to Court

Lawyers for the American Civil Liberties Union of Pennsylvania and other groups will spend the next week in Commonwealth Court trying to persuade a judge to grant a swift and immediate injunction. The Republican-controlled legislature passed the law four months ago with the stated purpose of discouraging election fraud.

*snip*

The ACLU is suing on behalf of 10 Pennsylvanians who do not have driver's licenses and who contend that the photo-ID requirement violates the state constitution, depriving them of their right to vote.

In legal papers filed last week, the civil liberties group says that those 10 are the tip of a human iceberg, that as many as a million or more Pennsylvania voters lack the types of photo ID that the law requires.

The ACLU included in its filing a surprising concession from state officials: a written stipulation that the state cannot pinpoint any instance of the kind of voter-impersonation fraud the new law aims to prevent.


The state stipulated that it is "not aware of any incidents of in-person voter fraud in Pennsylvania," and has "no direct knowledge of in-person voter fraud elsewhere." State officials also said they would offer no evidence that "in-person voter fraud is likely to occur in November 2012 in the absence of the photo ID law."

Talking Points Memo: DOJ Investigates ID Law

In a three-page letter sent to Pennsylvania Secretary of the Commonwealth Carol Aichele on Monday, DOJ requested state data on registered voters as well as the state’s list of individuals with driver’s licenses and ID cards.

Additionally, DOJ requested information on the state’s efforts to educate voters about the new law as well as documents and records supporting a March 14 statement from the office of Gov. Tom Corbett (R) which claimed “99 percent of Pennsylvania’s already have acceptable photo IDs.” (The state’s own data did not support that figure.) Assistant Attorney General Thomas E. Perez requested Pennsylvania send the information to federal authorities within 30 days.

Pennsylvania has said that over 750,000 voters lack an adequate form of voter ID, a number greater than President Obama’s margin of victory in the state in 2008. One top Republican even said the voter ID law would help Mitt Romney win the state. As TPM reported, the public relations firm contracted to educate the public about the new voter ID law is stacked with Republicans.

Good discussion of this story on Hardball yesterday:

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Eric Holder Strikes Back ~ Voter ID Laws are Poll Taxes

At the NAACP conference in Houston, Texas, Attorney General Eric Holder struck back by calling voter suppression laws "Poll Taxes."

This is great stuff, and I would love to see all these laws get struck down by the courts before the election.

Huffington Post Story

Under the law passed in Texas, Holder said that "many of those without IDs would have to travel great distances to get them – and some would struggle to pay for the documents they might need to obtain them."

"We call those poll taxes," Holder added spontaneously, drawing applause as he moved away from the original text of his speech with a reference to a fee used in some Southern states after slavery's abolition to disenfranchise black people.

The 24th amendment to the constitution made that type of tax illegal.

Holder spoke a day after a trial started in federal court in Washington over the 2011 law passed by Texas' GOP-dominated Legislature that requires voters to show photo identification when they get to the polls.

Under Texas' law, Holder noted, a concealed handgun license would serve as acceptable ID to vote, but a student ID would not. He went on to say that while only 8 percent of white people do not have government-issued photo IDs, about 25 percent of black people lack such identification.

Context: Via Infoplease

In the United States, the poll tax has been connected with voting rights. Poll taxes enacted in Southern states between 1889 and 1910 had the effect of disenfranchising many blacks as well as poor whites, because payment of the tax was a prerequisite for voting. By the 1940s some of these taxes had been abolished, and in 1964 the 24th Amendment to the U.S. Constitution disallowed the poll tax as a prerequisite for voting in federal elections. In 1966 this prohibition was extended to all elections by the U.S. Supreme Court, which ruled that such a tax violated the “equal protection” clause of the 14th Amendment to the Constitution.

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Obama Backs Barrett on Twitter

President Obama tonight tweeted support for Tom Barrett in the Wisconsin Recall Election:

It's Election Day in Wisconsin tomorrow, and I'm standing by Tom Barrett. He'd make an outstanding governor. -bo

— Barack Obama (@BarackObama) June 4, 2012

Barrett told voters tonight that the race is close.WIFR.com reporting:

PORTAGE, Wis. (AP) -- Democratic Milwaukee Mayor Tom Barrett says he thinks the recall race against Republican Gov. Scott Walker is now a dead heat heading into Tuesday's election. An exuberant Barrett spoke to about 100 of his volunteers in Portage in one of several stops he made on the final day of campaigning before the recall vote.

Also this breaking News tonight from Wisconsin Dems:

June 04, 2012 BREAKING: Scott Walker's Closest Aide Revealed in Court as Source of Damaging Leak; Flips on Embattled Governor
Scott Walker's closest political aide has just been named in Milwaukee County Circuit Court Monday as the source of damaging revelations that undermine Walker's claim that he has cooperated with the John Doe criminal corruption probe into his current and former administrations.
Tim Russell, who was hired or promoted by Scott Walker even after he was fired for stealing from a state agency, was said in court Monday to have given Milwaukee Journal Sentinel's Dan Bice information that showed that, contrary to Walker's claims, Walker was stonewalling investigators all along.
The shocking revelation that Scott Walker's closest aide sought to damage Walker on the eve of Tuesday's historic recall election indicated that Russell was cooperating with a prosecution against Walker himself.

Ex-Justice Stevens Blasts Citizens United & Bush v. Gore

Yesterday, President Obama gave Retired Justice Stevens the Medal of Freedom Award in a group that included singer Bob Dylan, author Toni Morrison, astronaut John Glenn, Tennessee basketball coach Pat Summit, and the first woman Secretary of State, Madeleine Albright.

Then last night, Stevens rose to greatness again when he made a speech in Little Rock, Arkansas, pointing to "cracks" in the 2010 Supreme Court Ruling known as Citizens United, which gives corporations the same rights as individuals and has led to secret Super Pac money used in elections. Stevens was a dissenter in the decision, and said that when President Obama criticized the ruling during a State of the Union Address, he was right on. In fact, President Obama's quote was the first line of Steven's speech! PDF Here

President Obama said in 2010:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests "“- including foreign corporations "“- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.’”

When the cameras panned over the Supreme Court Justices that night, Samuel Alito shook his head and mouthed the words "Not true." And Stevens made reference to that in his comments last night.



From American Bar Association Blog:

The majority opinion stated that the government may not restrict political speech simply because some speakers are disfavored. But “somewhat inconsistently,” Stevens said, the majority also said it was not reaching the question of whether foreign individuals or associations could be prevented from influencing the political process.

...“Justice Alito's reaction does persuade me that in due course it will be necessary for the court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion,” Stevens said. “For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises. ...

“It will be necessary to' explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters.”

Story from USA Today:

Speaking to hundreds of people at a Wednesday night event in Little Rock, the retired justice said President Obama accurately criticized the ruling for reversing a century of law and allowing special interest groups to pump money into elections. He cited Justice Samuel Alito's reaction to Obama's criticism . . .

. . . He also pointed to televised debates when moderators try to allow candidates equal time to express their views. He said candidates and viewers wouldn't like it if there were an auction giving the most time to the highest bidder.

"Yet that is essentially what happens during actual campaigns in which rules equalizing campaign expenditures are forbidden," he said.

In answer to an audience question, Stevens also mentioned the Court's tainted legacy over the Bush v. Gore decision that essentially stopped vote recounts in Florida after the ill-fated 2000 presidential election and handed the victory to George W. Bush.

"I think you have to have confidence that the justices will do their best to not make that same mistake again," he said to laughter and applause.

Let's hope not, but thanks to Judge Stevens for reminding us that even the Surpreme Court isn't infallible and for giving us hope that some of these bad decisions might be overturned someday. Of course the only way to actually change the Supreme Court for the better is to keep Obama in the White House for four more years. We have no choice.