Mediaboss Marketing

Editor's Note: This post also appears on Just Security.

The U.S. governments prepublication review process for written works by certain current and former government officials is a mammoth system of prior restraint that impacts the speech of millions. We and others have highlighted the problems with this system, including its scale, lack of adequate process, arbitrariness, violation of the First Amendment, massive chilling effect, and adverse consequences for national security.

The challenge has been figuring out a way to fix the system. Almost six years ago, the House Permanent Select Committee on Intelligence (HPSCI) expressed its concerns with the pre-publication review process and directed the intelligence community (IC) to issue a policy within 180 days that was more consistent with due process and the First Amendment. Though the IC normally takes steps to comply with such non-legislative HPSCI directives as a matter of comity, six years later the IC has not implemented a change in prepublication policy. Another route to change litigation to challenge the constitutionality of the prepublication review system has been rare. The main reason is the widely held belief that the Supreme Court blessed the modern massive prior restraint system in the 1980 case Snepp v. U.S.

This belief is false: the Supreme Court did no such thing in Snepp. In explaining why this is so, this post and a subsequent one draw on an amicus brief that we filed in support of the pending cert. petition in Edgar v. Haines. The petition asks the Court to overrule Snepp or to clarify that lower courts should not read the decision to preclude meaningful scrutiny of the federal governments current prepublication review regime under the First Amendment. The thrust of our amicus brief is that Snepp is an illegitimate foundation for todays prior restraint system. (David Zimmer and Benjamin Hayes of Goodwin Procter, to whom we are very grateful, drafted and filed the brief, which we rely on here in part.) The first reason for this conclusion, discussed in this post, is that the Supreme Court in Snepp decided the foundational First Amendment issue in a brief footnote in the procedural history section of a shadow docket summary reversal without merits briefing or oral argument, and with other procedural irregularities. The second reason, discussed in subsequent posts, is that the illegitimate decision in Snepp became the foundation for a massively broader, different-in-kind, and worse system of prepublication review than was in place at the time of Snepp.

The Background to Snepp

The prepublication review system in place when Snepp was decided in 1980 is nothing like the one that today restricts the speech of many millions of current and former government employees. Prepublication review began in the 1950s as a small and casual system in the Central Intelligence Agency and the National Security Agency. With the increase in writing by current and former officials amidst the 1970s upheavals sparked by Watergate and the Church Commission, the CIA in the late 1970s established a Publication Review Board to review the writings of current and former agency officials. In 1980, the year Snepp was decided, only 148 publications were submitted for review.

The Snepp decision grew out of former CIA analyst Frank Snepps publication of a book about CIA activities that Snepp declined to submit to the Publication Review Board. Snepp thus defied his employment contract pledge to not . . . publish . . . any information or material relating to the [CIA], its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the [CIA]. The Government sued Snepp to enforce the agreement and obtain a constructive trust for the Governments benefit on Snepps profits. The district court enjoined Snepp from future breaches of his secrecy agreements, imposed the requested constructive trust, and dismissed in a few sentences a claim that Snepp had raised under the First Amendment. The Fourth Circuit also rejected Snepps First Amendment argument. But it declined to impose a constructive trust and reversed the district court on that issue.

Snepp filed a petition for a writ of certiorari that raised the issue of whether a system of prior restraint sanctioned by the court of appeals impermissibly burdens the First Amendment rights of thousands of government employees and the public. The government opposed the petition but filed (separately) a cross-petition conditioned on the grant of Snepps petition. The governments cross-petition stated that the contract remedy provided by the court of appeals appear[ed] to be sufficient . . . to protect the [CIAs] interest. The only reason for filing the cross-petition, the government explained, was so the Supreme Court may review the entire judgment of the court of appeals if it granted Snepps petition. The government made clear that, [i]f [Snepps] petition . . . is denied, this petition should also be denied. The constructive trust issue, the government made clear, was not independently certworthy.

Snepps Illegitimacy

What this Court did next was highly irregular, as our brief says. Three months after cert-stage briefing closed, the Court issued a per curiam opinion without oral argument and without any merits briefing. The Supreme Court summarily reversed the Fourth Circuit on the constructive trust issue that the government said did not warrant independent review, and, in a footnote in the procedural history section of the opinion, it addressed the issue on which Snepp had sought certiorari. The totality of the Courts First Amendment analysis, in footnote 3, is as follows (citations omitted):

[This] Courts cases make clear thateven in the absence of an express agreementthe CIA could have acted to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment. . . . The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service. The agreement that Snepp signed is a reasonable means for protecting this vital interest.

These three sentences became the sole foundation of all subsequent First Amendment scrutiny of prepublication review.

What made Snepps First Amendment discussion irregular was not (just) that it occurred as a brief aside in a per curiam summary reversal on another issue (the constructive trust). As Justice Stevens explained in his three-Justice dissent, the decision contained other unprecedented elements.

Justice Stevens noted that the majority obviously does not believe that Snepps claims merit this Courts consideration, for they are summarily dismissed in a footnote. The Courts cursory treatment of the First Amendment issue, Stevens added, makes clear that Snepps petition would not have been granted on its own merits. Against this background, Stevens argued that it was highly inappropriate for the Supreme Court to grant the Governments conditional cross-petition while in essence denying Snepps petition. In other words, it was inappropriate to grant Snepps petition, which was independently uncertworthy, only to reach an issue that the government said in its cross-petition need not be reviewed, since its interests were adequately protected on other grounds. The Court had reach[ed] out to decide a question not necessarily presented to it.

The context of these untoward procedural shenanigans made them much worse, since the Court in its throwaway footnote fashioned a drastic new remedy . . . to enforce a species of prior restraint on a citizens right to criticize his government. Justice Stevens accurately predicted how the government would deploy the new reasonableness standard for prior restraints: the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. Justice Stevens acknowledged the national interest in maintaining an effective intelligence service and the possible need for some system of prior restraint. But he bemoaned the fact that this critical First Amendment issue was decided in the absence of full briefing and argument.

So too did Archibald Cox in the Harvard Law Review. One would have supposed that the extent of the governments authority to silence its officials and employees and thereby deprive the public of access to information about government activity was not too obvious to deserve deliberate judicial consideration, he said. Diane Orentlicher noted at the time that the majoritys summary treatment of the first amendment issues raised by Snepp and its decision to forego oral argument and briefs are particularly noteworthy in view of the fact that Snepp was the first occasion on which the Supreme Court considered the enforceability of the CIA secrecy agreement. Unfortunately, it was also the last occasion on which the Court addressed the issue. For over four decades, Snepps footnote has governed.

* * *

We have not said a word in this post, and we do not say a word in our brief, about how out of step Snepps reasonableness test is with the Courts First Amendment, and especially its prior restraint, jurisprudence. That issue is fully covered in the petition. The emphasis in our amicus brief is on the procedural context of Snepp and the decisions original legitimacy. One would think that the colossal system of prior restraint that inheres in the governments prepublication review system would have been subject to careful scrutiny from this Court, the Introduction to our brief notes. This is especially so since, as the Supreme Court has emphasized, [a]ny system of prior restraint . . . bear[s] a heavy presumption against its constitutional validity. To the contrary, as our brief explains, the federal governments publication-review edifice rests on the shakiest of judicial foundations: a footnote in the procedural history section of a case this Court decided without merits briefing or oral argument. This is one important reason why Snepps drive-by constitutional ruling should not be the last word on this vitally important issue.

Visit link:
Prepublication Review and the Quicksand Foundation of Snepp - Lawfare

New concerns over a bill that was crafted to safeguard Mainers right to privacy have emerged, leaving its status in the Legislature uncertain.

The bill would add privacy as a natural right in Maine and protect electronic data and communication from unreasonable seizure by the government. The opponents, who filed objections recently, include advocates for the First Amendment as well as the Christian Civic League of Maine.

Members of the Legislatures Judiciary Committee met virtually with the bills chief sponsor, Rep. Maggie ONeil, D-Saco, on Thursday, nine months after the legislation was first introduced. A public hearing on L.D. 1529, an amendment to Maines Constitution to create a right to privacy, was held in May 2021, but no action was taken.

ONeil came before the Judiciary Committee in an effort to advance the legislation. But committee members voted to table action on the bill, giving the committees chairwoman, Sen. Anne Carney, D-Cumberland, more time to determine whether there should be a second public hearing. Committee members did not set a date for a workshop or a second public hearing on the bill.

It has been a year and I wanted to take this opportunity to refresh everyones memory a bit, Carney said before ONeil made her presentation.

ONeils right-to-privacy proposal has been amended since it was first drafted last year, but until now had not faced any opposition. A similar constitutional amendment was proposed last year by a Republican lawmaker, former Rep. Justin Fecteau of Augusta. ONeil said she worked with Fecteau to combine the bills, producing the amended version.

L.D. 1529 is supported by the American Civil Liberties Union of Maine, among others. To be enacted, it would need the approval of two-thirds of the Legislature and a majority of Maine voters.

Constitutions in 13 states including Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, New Hampshire, South Carolina and Washington contain specific provisions related to a right to privacy. Constitutions in Michigan and Missouri also provide protection from unreasonable searches and seizures for electronic communications or data.

The real world impact of the right to privacy amendment is unclear. But advocates like ONeil said it would lay the legal foundation to begin setting limits on the types of personal information that can be collected and who can access it, including law enforcement.

There is no explicit right to privacy in the U.S. Constitution.

SEEKING A BACKSTOP

The proposed constitutional amendment would add privacy as a natural right in Maine and states that law enforcement must secure a warrant before searching or seizing an individuals electronic data or electronic communications. All natural persons have an inherent right to privacy that is free from intrusion, including privacy of a natural persons personal life, personal communications, private affairs and personal thoughts or inner life, it reads.

We want this (amendment) to be a backstop. We want to make it more explicit, ONeil said of the constitutional amendment.

ONeil said that advancements in technology, such as mobile phone apps, virtual reality, social media and wiretaps have exposed everyones personal data to abuse.

The privacy risks we face today are more complex and more impactful than ever, she said.

Shoshana Zuboff, a Harvard business professor and author, was invited by ONeil to address the Judiciary Committee. Zuboff said a persons posts on Facebook are just one example of why an amendment protecting a persons privacy is needed.

This is a very fraught arena, Zuboff said, adding that social media sites like Facebook are connected to a much broader and organized personal data collection system.

Zuboffs book, The Age of Surveillance Capitalism, offers a picture of how Silicon Valley and other corporations are mining users information to predict and shape their behavior.

We need to codify a persons right to privacy, Zuboff said.

Though ONeils bill generated no opposition last year, new concerns were raised recently by First Amendment advocates and a group concerned that the legislation would expand abortion protections.

FIRST AMENDMENT CONCERNS

Judith Meyer, representing the Maine Press Association, the New England First Amendment Coalition, the New England Newspaper & Press Association, the Maine Association of Broadcasters and the Society of Professional Journalists Maine, filed an objection to the bill on Thursday.

We understand the need for personal privacy, particularly from government intrusion, but we have grave concerns that the language contained here is overly broad and will implicate First-Amendment protected activities and entitlements under the Freedom of Access Act. Logistically, it will create havoc for businesses and organizations that collect and use personal information, Meyer wrote in Thursdays filing with the Judiciary Committee.

Meyer said her groups recommend the legislation be revised to address only governmental intrusion upon ones privacy, and not private intrusion. The term private intrusion can be interpreted to include the First Amendment-protected activities of news organizations, she said. Journalists rely on personal information, personal communications and a persons thoughts as a standard part of news gathering.

Mike McClellan, policy director for the Christian Civic League of Maine, also filed an objection to L.D. 1529. McClellan said that the bills text regarding a persons personal life and private affairs is almost exactly the kind of constitutional language used by the U.S. Supreme Court to enshrine abortion rights in the U.S. Constitution. The league said the bill needs to be reworked to make sure that the language is limited to a right to preserve personal communications and will not extend to abortion.

The world is changing, and technology has become an integral part of our day-to-day lives, McClellan said. While we see the need and desire of the sponsors to stay ahead of these changes, the Christian Civic League of Maine is unsure if this bill would help or will just move the balance in a different direction. There are already laws that govern our rights to privacy. Perhaps, instead of adding another law we should better enforce the ones we have.

Invalid username/password.

Please check your email to confirm and complete your registration.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

Previous

Next

Here is the original post:
Concerns emerge over bill proposing privacy amendment to Maine Constitution - Press Herald

This article is part of the Debatable newsletter. You can sign up here to receive it on Tuesdays and Thursdays.

The fields of the national discourse are everywhere polluted with falsity, lies and propaganda, we are told, and in the absence of a functioning regulatory state to appeal to, culture is called upon to clean up the mess.

The cycle is by now familiar: A private company usually a tech company with a market capitalization in the tens or hundreds of billions lends a provocateur a microphone, and sometimes a paycheck to boot. (In an attention economy, the distinction between the two can prove elusive.) The provocateur goes on to amplify claims that are inaccurate, inflammatory, even harmful. Objectors call for the provocateurs microphone to be taken away, which invariably invites accusations of censorship, illiberalism and, of course, cancel culture.

The embattled speaker of the week is Joe Rogan, the host of the worlds most popular podcast. A few weeks ago, 270 doctors, physicians and science educators signed an open letter calling on Spotify, with whom Rogan has a $100 million contract, to establish a clear and public policy to moderate misinformation after Rogan broadcast false and misleading claims about Covid and coronavirus vaccines. Soon after, artists no less iconic than Joni Mitchell and Neil Young announced they would be withdrawing their music from Spotify because of its association with Rogan.

What does the furor over Rogan suggest about the merits and flaws of pressuring tech platforms to combat misinformation? How should a company balance the values of free speech and public health when one of its biggest moneymakers puts them in tension? Heres what people are saying.

Rogan, a self-described moron, has a habit of stoking controversy. (Just last week, he claimed it was very strange for anyone to call themselves Black unless theyre from the darkest place of Africa.) But amid a public health crisis, the signatories of the open letter argue, his Covid statements are not only objectionable and offensive, but also medically and culturally dangerous.

The reason for their concern is evident. Covid is still killing more than 2,500 Americans a day. Despite having first access to the best vaccines in the world, the United States ranks behind some 60 countries with respect to vaccination and booster rates, and has a much higher death rate per capita than its peers.

In a matter of days, the United States will reach the ignominious number of 900,000 confirmed deaths, more than half of which occurred well after vaccines were widely available to high risk (by age or immunocompromised) status, Eric Topol, a professor of molecular medicine at Scripps Research, writes. It is now inevitable that well soon see that toll rise to more than a million American lost lives, and we know that well over 90 percent of these deaths were preventable with vaccination.

Some of the speech at issue:

Of the coronavirus vaccines, Rogan said, If youre a healthy person, and youre exercising all the time, and youre young, and youre eating well, like, I dont think you need to worry about this.

When Rogan himself came down with Covid, he claimed he was treating himself with ivermectin, a drug that has become a popular vaccine alternative despite opposition from federal health authorities.

In Rogans final episode of 2021, he interviewed a scientist named Robert Malone, who likened the vaccine mandates to Nazi-era oppression and said Americans were trapped in a mass formation psychosis.

Just how many Americans Rogans pronouncements might have dissuaded from getting vaccinated is impossible to know. But with an estimated 11 million listeners per episode, his influence is tremendous, the signatories say.

In the throes of similar controversies, social media networks like Facebook have argued that they are merely platforms, not publishers, and arent responsible for moderating content that doesnt violate their (shifting) terms of service. But commentators have pointed out that Spotify, unlike those other companies, directly paid $100 million for the exclusive rights to Rogans podcast, and the company has noted that his show has increased its ad revenue.

Spotify doesnt get to just put a content warning on Rogans episodes and treat him like they would any other podcast because hes not any other podcast, the tech journalist Ryan Broderick writes. Hes their podcast.

Appealing to tech companies to curb the spread of speech deemed dangerous has proved effective in some cases. You can see it with villains as diverse as ISIS, Milo Yiannopoulos and Alex Jones, the Times columnist Michelle Goldberg wrote last year. Peter W. Singer, a co-author of LikeWar: The Weaponization of Social Media, told her, Their ability to drive the conversation, reach wider audiences for recruitment, and, perhaps most importantly to a lot of these conflict entrepreneurs, to monetize it, is irreparably harmed.

[Read more: Deplatforming: Following extreme internet celebrities to Telegram and alternative social media]

With Rogan, though, Spotify has options besides canceling his podcast, Jill Filipovic writes. They, obviously, dont want to be a censorship machine, but they could remove episodes that further dangerous untruths, something theyve already done with Rogan in the past, taking down an episode featuring his interview with conspiracy theorist Alex Jones and another that featured fascist sympathizer Gavin McInnes, she argues on CNNs website. Otherwise, if Rogans podcast is more akin to music than a truthful exploration of ideas featuring serious experts, then the company should categorize it as fiction or fantasy, and make clear to listeners that what theyre hearing is as divorced from reality as Major Tom was from planet Earth.

Its wrong. Asking Spotify to crack down on Rogan may offend those who subscribe to the traditionally liberal view that the answer to bad speech is more speech. Joe Rogan has a right to be wrong, and I have a right to hear him and his guests be wrong, if I want to, Rod Dreher of The American Conservative writes. Of course Young and Mitchell have the right to pull their music from Spotify, but do they really want to start this war? As artists, do they really want to put themselves in the position of playing self-righteous censors (because thats what theyre trying to do: compel Spotify to cancel Rogans show).

[Read more: The Dangerous Appeal of Neil Youngs Righteous Censorship]

Its unsustainable. It should be said that Young denies that hes trying to censor anyone; hes merely exercising his right to free association. Private companies have the right to choose what they profit from, just as I can choose not to have my music support a platform that disseminates harmful information, he wrote.

But what other commitments might such a principled stance compel? As Nick Gillespie of Reason points out, Young has an official channel on YouTube, which Joe Rogan is also on. Should Neil Young, in the name of consistency, issue an ultimatum to YouTube and then bolt when the service refuses to yield to his demand? he asks. The logic, taken to its conclusion, would end with all of us at our own paywalled sites, secure in our purity of association but with much less to talk about, he adds.

Its a superficial solution. In Jacobin, Branko Marcetic argues that Rogan is a symptom of a larger problem of institutional mistrust. How, after all, did people come to look to him for medical advice in the first place? In Marcetics view, the blame falls at least in part on the political and public health establishments, which failed to communicate effectively during the pandemic. If Spotify booted Rogan and the U.S. government banished him to the Arctic, you would still get Covid misinformation and mistrust, because of both these factors and the messaging failure thats been endemic to U.S. institutions throughout these confusing, frustrating two years, he writes.

[Read more: Bad News]

It entrenches corporate power. Social media giants may be private companies, but theyve also become points of entry to a de facto public square. For some, like the Times Opinion writer Jay Caspian Kang, thats all the more reason to refrain from begging that they more rigidly enforce boundaries of socially acceptable speech.

Nothing a tech company will do to suppress content on its platform will violate the First Amendment, but thats also the problem were facing: Theres very little recourse for the silenced, he wrote last month. Cheering on the dismissal of toxic politicians, celebrities and thinkers, and arguing that private companies like Twitter can do whatever they want if they are following their own terms of service, he added, give social media companies license to do just that: whatever they want.

Would it be preferable more democratic, perhaps if the power to moderate content belonged to the government rather than tech companies? At least governmental speech restrictions are implemented in open court, with appellate review, Eugene Volokh, a First Amendment expert, wrote in The Times last year. Speakers get to argue why their speech should remain protected. Courts must follow precedents, which gives some assurance of equal treatment. And the rules are generally created by the public, by their representatives or by judges appointed by those representatives.

Of course, as Emily Bazelon has written for The Times Magazine, Americans are deeply suspicious of letting the state regulate speech, too: We are uncomfortable with government doing it; we are uncomfortable with Silicon Valley doing it. But we are also uncomfortable with nobody doing it at all. This is a hard place to be or, perhaps, two rocks and a hard place.

For Ben Wizner, the director of the A.C.L.U.s Speech and Privacy Project, the solution may lie not in transferring Big Techs power to the state but in breaking it up. We need to use the law to prevent companies from consolidating that amount of power over our public discourse, he said last year. That does not mean regulation of content. It would mean enforcing our antitrust laws in the U.S. We should never have allowed a handful of companies to achieve the market dominance they have over such important public spaces.

Do you have a point of view we missed? Email us at debatable@nytimes.com. Please note your name, age and location in your response, which may be included in the next newsletter.

Spotify Isnt Really About the Music Anymore [The Atlantic]

Spotify Is Getting the Full Joe Rogan Experience, and Its Awkward [The New Republic]

The Spotify Backlash Never Had a Chance [New York]

Read more from the original source:
Opinion | What the Joe Rogan Backlash Reveals About How We Handle Misinformation - The New York Times

GRAND RAPIDS, Mich. On Tuesday, Chicago Police Commander Eric Winstrom stayed true to his reputation as a community-based cop upon his official introduction to the city whose police force he will now lead.

I plan to be the most exhausted person in the city of Grand Rapids in the first 30 days, he said inside the City Commission Chambers during his official introduction Tuesday afternoon. There's dozens of communities here, there are dozens of neighborhoods, I think there's something like 24 or more neighborhood associations. I'd love to meet with every single one of them.

Winstrom comes to Grand Rapids from the Windy City, where he served on the CPD force for nearly 20-years. In that time, he served as a patrol officer, on tactical teams, as an investigator and administrator, as an instructor at the Chicago Police Academy, and as a barred attorney with a J.D. from the Brooklyn Law School. In his most recent command role, he oversaw 200 employees including 40 homicide detectives.

I'll be brand new here in Grand Rapids, he added Thursday. There's a lot of people that I need to meet internally as well. So I'm going to be busy, I'm going to be tired, but it's going to be wonderful.

Commander Winstrom was joined at the press conference by his family. He said they were in the process of moving to Grand Rapids.

Winstrom comes from a family with deep ties to the criminal justice system, on both sides of it. In Ottawa County, Winstrom Park is named for the commanders great-grandfather, who served as a deputy sheriff there in the 1960s. But when he was young, Winstrom recalls the arrest and treatment of his brother after he was jailed on drug charges as a teenager in Austin, Texas. Winstrom said it affected his decision to enter law enforcement, and his policies as an officer of the law.

It gave me the insight to see not only the impact incarceration has on an individual, somebody that obviously I love very much, but also family, he said. So I'm excited where I am now. We're working on things like the Narcotics Diversion Program, where we try and divert people out of the criminal justice process. It's really impacted me; it's impacted my whole philosophy on policing."

Winstrom said hed eventually like to bring the citys jail numbers down by turning to more forms of alternative sentencing.

He also touted his work during racial injustice protesting in 2014 and 2020 in Chicago, saying protestors were allowed their First Amendment rights without excessive use of force.

When asked about his approach to mending racial divides in Grand Rapids, after a 2017 study found Black and Hispanic drivers were more likely to be pulled over versus white drivers, and several high profile incidences that garnered national attention, Winstrom said the answer required two approaches.

It goes to recruitment and retention. You want a diverse workforce, no one with a diverse background is going to want to be at a place that tolerates that sort of bias, he said. My approach, just in general, is I'm going to get out of the community. I'm going to meet everyone and I want to hear input like this.

Excerpt from:
Winstrom on first 30-days as Chief: I plan to be the most exhausted person in the city of Grand Rapids - Fox17

Supreme Court Justice Breyer to retire

Justice Breyer has been facing calls to retire while Democrats can fill his seat in the highest court in the land.

Associated Press, USA TODAY

WASHINGTON Associate Justice Stephen Breyer is expected to step down this year after nearly three decades on the Supreme Court, opening a rare opportunity for President Joe Biden to name a replacement whocould influence the court for a generation.

Breyer, who usually votes with the high court's liberals, has had a profound impact on the American legal system, crafting landmark opinions on abortion rights, the First Amendment and the inner workings of government. He has also written biting dissents on the death penalty, campaign finance and Second Amendment issues.

Here's a look at some of his more memorable opinions:

Mahanoy Area School Districtv. B. L. (2021): Held that a Pennsylvania school district violated the First Amendment when it punished a student for avulgar social media post written off-campus. Writing for an 8-1 majority, Breyer rejected the idea that schools may never regulate off-campus speech but said the school's interests were not sufficiently implicated to justify penalizingthe student's speechin this case.

"It might be tempting to dismiss (the student's)words as unworthy of the robust First Amendment protections discussed herein," Breyer wrote. "But sometimes it is necessary to protect the superfluous in order to preserve the necessary."

Read: MahanoyArea School Dist. v. B.L.

June Medical Services v. Russo (2020):Struck down a Louisiana law that required doctors performing abortions to have admitting privilegesat a hospital within 30 miles of the abortion clinic. Writing for the plurality, Breyer found the law placed burdens on women without providing any "significant health-related benefits," and he laid out the burdens in detail.

"A Shreveport resident seeking an abortion who might previously have obtained care at one of that citys local clinics would either have to spend nearly 20 hours driving back and forth to (a) clinic twice, or else find overnight lodging in New Orleans," he wrote. "Both experts and laypersons testified that the burdens of this increased travel would fall disproportionately on poor women, who are least able to absorb them."

Read:June Medical Services v. Russo

What's next: What is the process for Supreme Court nominations? Here's what's next and how long it could take.

Whole Woman's Health v. Hellerstedt (2016): In aprecursor toJune Medicaldealing with similar circumstances, the court struck down a Texas law that required abortion providers to have admitting privilegesat nearby hospitals. Writing for a 5-3majority, Breyer said that courts must balance the ostensible benefit of abortion restrictions againstthe burdens the law imposes on access to abortion.

"We have found nothing in Texas record evidence that shows that, compared to prior law (which required a 'working arrangement' with a doctor with admitting privileges), the new law advanced Texas legitimate interest in protecting women's health," he wrote.

Read: Whole Women's Health v. Hellerstedt

Stenberg v. Carhart (2000): Yearsearlier, Breyer wrote for a 5-4 court striking down a Nebraska law banning late-term abortions. Physicianswho performed the procedure could have their medical licenses pulled and face prosecution. Breyer wrote that the law was unconstitutional under Roe v. Wade and other cases because it put an undue burden on a woman's right to choose whether to have an abortion. Specifically, the majority concluded the law also could be used to prosecute doctors who also performed second-trimester abortions using the most common method to terminate a pregnancy.

"Allthose who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment," Breyer wrote. "Theresult is an undue burden upon a woman's right to make an abortion decision."

Read: Stenberg v. Carhart

Denver Area Educational Telecommunications Consortium v. FCC (1996): Writing for a 6-3 majority, Breyer struck down a provision of a 1992 federal law allowing cable companies to ban offensive or indecent programming on public access channels. The court upheld another provision allowing cable providers torestrict the transmission of "patently offensive" programming on leased access channels.

"The upshot, in respect to the public access channels, is a law that could radically change present programming-related relationships," Breyer wrote. "In doing so, it would not significantly restore editorial rights of cable operators, but would greatly increase the risk that certain categories of programming (say, borderline offensive programs) will not appear."

Read: Denver Area Ed. Telecommunications Consortiumv. FCC

Dissenting opinions may reflect the losing side of a case butthat doesn't mean they're unimportant. Well-crafted dissents are often cited in future litigation. And the Supreme Court's history is replete with situations where a majority of the justices revisited an old controversy and found an earlier dissent influential in arriving at their decision.

Dissenting and concurring opinions can also signal a justice's thinking on a given issue to astute lawyers who may craft future challengesto address that approach.

NFIB v. Occupational Safety and Health Administration (2022):Breyer wrote a dissent, joined by the court's other liberals, in the recent challenge to Biden's COVID-19 vaccine-or-testing mandate for large employers. In an unsigned opinion, the court ruled that OSHA likely didn't have the authority under a 1970 law that authorizes the agency to impose those requirements and it blocked the mandate's enforcement. Breyer argued the text of the law, while broad, seemed to give OSHA the power to impose the requirements. And he asserted that the court's opinion could have longstanding effects on the government's ability to respond to emergencies.

"It stymies the federal governments ability to counter the unparalleled threat that COVID-19 poses to our nations workers," Breyer wrote. "Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies."

Read: NFIB v. OSHA

Cedar Point Nursery v. Hassid (2021):In a6-3 ruling, the majority concluded that a California law that permitted labor unions to organize on private farms was ataking ofprivateproperty without justcompensation in violation oftheFifth Amendment. Writing for court's liberals, Breyer asserted there was no "physical appropriation" of property and raised concerns about the decision'simpact on safety inspections.

"I do not believe that the court has made matters clearer or better," Breyer wrote. "Rather than adopt a new broad rule and indeterminate exceptions, I would stick with the approach that I believe the courts case law sets forth. 'Better the devil we know...'"

Read: Cedar Point Nursery v. Hassid

Glossip v. Gross (2015): A 5-4 majority of the court held thatOklahoma could use midazolam as an initial drug to administer a death sentence, despite some evidence that it risked subjecting a death row inmate to pain. In an often-cited dissent, Breyer called for a broader reexamination of the death penalty.

"Rather than try to patch up the death penaltys legal wounds one at a time, I would ask for full briefing on a more basic question: Whether the death penalty violates the Constitution," he wrote. "At the very least, the court should call for full briefing on the basic question."

Read:Glossip v. Gross

Parents Involved in Community Schools v. Seattle School District No. 1 (2007): A divided court struck down an effort in Seattle to use race as one factor in deciding which schools students would attend to promote racial diversity. Breyer wrote an impassioned dissent asserting the plurality opinion worked against the vision laid out in the court's landmark 1954case Brown v. Board of Education, which ended school segregation.

"What of the hope and promise ofBrown?" Breyer wrote. "In this courts finest hour,Brownv.Board of Educationchallenged this history and helped to change it... The pluralitys position, I fear, would break that promise. This is a decision that the court and the nation will come to regret."

Read: PICS v. Seattle School District

Clinton v. New York (1998): Having worked in all three branches of government, Breyer seemed to enjoy delving into intergovernmental disputes. In this case, a 6-3 court struck down a president's ability to veto certain provisions of legislation approved by Congress, known as the line-item veto. Breyer wrote in dissent that nothing in the Constitution prohibited the power.

"In a sense, it skirts a constitutional edge. But that edge has to do with means, not ends. The means chosen do not amount literally to the enactment, repeal, or amendment of a law," he wrote. "Those means do not violate any basic separation-of-powers principle. They do not improperly shift the constitutionally foreseen balance of power from Congress to the president."

Read: Clinton v. New York

Go here to read the rest:
Justice Stephen Breyer's notable majority opinions and dissents, from abortion to the death penalty - USA TODAY