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Wednesday, January 19, 2022

On Jan. 14, the Supreme Court agreed to hear five cases, which present the following questions:

Does the First Amendment permit a school to bar a coach from praying on the field after games?

Can a plaintiff bring a Section 1983 damages claim based on a police officers failure to provide aMirandawarning when the interrogation results in self-incriminating statements used against the suspect at trial?

When a veterans benefits claim is denied based on a regulation later deemed invalid as contrary to the statutes plain meaning, is the denial based on a clear and unmistakable error such that the veteran can challenge the otherwise-final denial?

When, if ever, should a death-row inmates as-applied method-of-execution challenge be raised via a habeas petition rather than via a Section 1983 claim, and if it should be raised in habeas is such a challenge subject to the bar on successive habeas petitions?

May federal habeas courts use the All Writs Act to order the transportation of state prisoners for reasons other than testifying or for trial, and may such courts allow habeas petitioners to develop new evidence without first determining whether such evidence would be admissible?

After granting three cert. petitions and relisting several more following its first conference of 2022, this week the U.S. Supreme Court filled out this years docket by granting cert. petitions in five additional cases.

The Court agreed to hear cases involving: 1) the application of the First Amendment to public school coaches postgame prayers, 2) the availability of Section 1983 claims based on police officers failure to provideMirandawarnings, 3) the ability of veterans to challenge otherwise-final benefit denials on the grounds the denials violated plain statutory meaning, 4) the procedural rules that apply to death-row prisoners method-of-execution challenges, and 5) the limits on federal courts authority to issue orders allowing state prisoners to develop evidence for their claims for habeas relief.

The First Amendment case drew 10 cert-stage amicus briefs and will undoubtedly receive the most public attention of this batch of cases. All five cases received some cert-stage amicus attention and likely will find interested audiences especially among governments, civil-rights litigators, veterans-advocacy groups, and criminal-law and habeas practitioners.

InKennedy v. Bremerton School District, the Court will address a football coachs claim that his public school employer violated his First Amendment rights when it terminated him for kneeling at midfield to say brief prayers at the end of football games. This case has made its way up to the Court once before three years ago, when the coach sought review of the lower courts denial of his preliminary-injunction motion. At that time, four justices wrote separately to indicate that while they found the lower courts reasoning troubling, the ongoing factual dispute over the schools precise reason for terminating the coach weighed against the Courts hearing the case.

The Washington district court and the U.S. Court of Appeals for the Ninth Circuit have resolved the factual dispute in question, concluding that the schools sole reason for its decision was its belief that the prayers presented a risk of liability under the Establishment Clause. And the Supreme Court has now agreed to take the case.

The schools Establishment Clause rationale could lead the Court to use this case to give public schools additional clarity on how the Establishment Clause and Free Exercise Clause interact in the educational context (its recent decision inEspinoza v. Montana Department of Revenueaddressed this issue, as will its upcoming decision inCarson v. Makinlater this term). Yet this case also raises an important Free Speech Clause question, and the Court could use it as an opportunity to clarify the private-speech/official-speech distinction it drew inGarcetti v. Ceballos, where it upheld governmental regulation of public employee speech made pursuant to official responsibilities an issue of interest to all public employers.

In any event,Kennedyis a case to watch for public schools and public employers more broadly.

Another set of public employers police departments will be watchingVega v. Tekoh, where the Court will consider whether a police officers failure to give a suspect a Miranda warning can itself give rise to a Section 1983 claim if the un-Mirandizedstatements are later used against the suspect in a criminal trial. InMiranda v. Arizona, the Court applied the Fifth Amendment to hold that a self-incriminating statement made by a criminal defendant while he was in custody cannot be admitted as evidence against that defendant unless the defendant first received the You have the right warnings specified inMiranda. The question inVegais whetherMirandasexclusionary rule constitutes a constitutional right the violation of which gives rises to a damages claim under Section 1983 (which authorizes a cause of action for deprivation of any rights . . . secured by the Constitution).

To answer this question, the Court will need to address a tension in its Fifth Amendment precedents. On the one hand, the Court has repeatedly characterizedMirandasexclusionary rule as a prophylactic measure that goes beyond what the Fifth Amendment requires. Yet, inDickerson v. United States, the Court held that the Fifth Amendment barred a federal statute that purported to override the evidentiary ruleMirandaestablishes.

Accordingly,Vegawill give the Court a chance to clarify the foundation and limits of theMirandarule, as well as an opportunity to address the contours of Section 1983 claims more generally. Given how common police interrogations and Section 1983 claims are, this case will be of interest to police departments and civil-rights lawyers around the country.

InGeorge v. McDonough, the Court agreed to decide a question that affects many veterans of Americas armed forces: Can a veteran challenge the otherwise-final denial of a benefits claim if the denial is based on a regulation later deemed invalid as contrary to the governing statutes plain meaning? This question arises from a provision of federal law that permits a veteran to challenge a decision denying a claim for benefits at any time after that decision is made even long after the ordinary appellate process has been exhausted so long as the veteran can show that the decision was based on clear and unmistakable error. InGeorge, the Court will decide whether it is a clear and unmistakable error to rely on a then-applicable regulation that a federal court later determines violated the clear meaning of the governing statute.

The veteran argues that such reliance is such an error because when a federal court interprets an unambiguous statute, it is declaring what the law has always meant, not announcing a change in meaning. The federal government, meanwhile, argues that the clear and unmistakable standard is met only when the agencys original decision is inconsistent with the prevailing view of the law at the time, and insists it is irrelevant whether that prevailing view is later held to have been incorrect (on the theory that decisions invalidating agency regulations change the law).

The parties arguments will give the Court occasion to address the difficult and recurring distinction between decisions changing the law and decisions proclaiming what the law has always been. Accordingly, whileGeorgehas obvious importance for the veterans-benefits system, it may turn out to be significant for the law more broadly as well.

The Court will address the applicable procedures for Eighth Amendment challenges to execution protocols inNance v. Ward. In this case, it will decide when, if ever, an as-applied method-of-execution challenge should be raised via a habeas petition rather than via a Section 1983 claim and if it should be raised in habeas whether such a challenge is subject to the bar on successive habeas petitions. Previously, inBaze v. ReesandGlossip v. Gross, the Court held that a death-row prisoner seeking to challenge a method of execution under the Eighth Amendment must allege a feasible alternative method.

InNance, the petitioner, a Georgia death-row prisoner, filed a Section 1983 suit that alleged that lethal injection (Georgias sole statutorily authorized method of execution) would be unconstitutionally painful for him, and he identified firing squad as an alternative method. The U.S. Court of Appeals for the Eleventh Circuit held that this challenge should have been brought as a habeas petition, not as a Section 1983 claim, reasoning that because the proposed alternative method of execution was not permissible under current law, the suit necessarily sought relief that can be obtained only in habeas an injunction that would imply the invalidity of the prisoners death sentence. And it further held that if a prisoner has already filed one habeas petition, any subsequent petition raising a method-of-execution challenge would be subject to federal laws stringent requirements for successive habeas petitions.

The Supreme Court has now agreed to review the Eleventh Circuits two holdings, and its decision will have obvious importance for death row prisoners, as it will clarify how method-of-execution challenges should be brought and may have significant effects on the practical availability of such challenges.Nancecould have significance beyond the context of capital punishment as well, for the Court could go some way toward clarifying the often-hazy distinction between relief that can be obtained in Section 1983 suits and relief that can only be sought via habeas petitions and that is a distinction that affects countless criminal defendants and incarcerated persons, not just death-row prisoners.

The Courts consideration of habeas procedures continues withShoop v. Twyford, a case involving state prisoners requests for court orders to assist them in developing evidence for use in their federal habeas proceedings. InShoop, the U.S. Court of Appeals for the Sixth Circuit approved an order requiring Ohio to transport a death-row prisoner to a hospital for a brain scan that the prisoner argues will produce evidence relevant to his habeas case.

Ohio contends this order suffers from two independent problems and therefore raises two separate questions. First, Ohio notes that the federal habeas statute allows federal courts to order the transportation of a state prisoner only if necessary to bring him into court to testify or for trial, and it argues that the catch-all All Writs Act does not expand federal courts authority to include ordering transportation for the sake of developing evidence. Second, Ohio argues that federal law authorizes an order allowing a habeas petitioner to develop evidence for his case only when the sought-after evidence would be admissible in the habeas proceeding; it is not enough, Ohio maintains, that the evidence in question plausibly relates to the petitioners claims.

The Supreme Court has agreed to address both of these questions, and while the Courts answers will be of greatest importance to habeas practitioners, its discussion of the All Writs Act should draw broader attention. Since the All Writs Act is used in a variety of contexts, criminal and civil litigators will do well to consider what the Court says on this score.

Read more:
SCOTUS: School Prayer, Section 1983, Veterans Benefits, And Habeas Corpus - The National Law Review

Clements is the president of American Promise, a nonprofit advocate for amending the Constitution to allow more federal and state regulation of money in politics.

On Jan. 21, 2010, the Supreme Court decided Citizens United v. Federal Election Commission, striking down key provisions of the Bipartisan Campaign Reform Act. The court decided that corporations and unions (and, by implication, anyone who can afford it) have a free speech right to spend unlimited money to influence American elections. In practical terms, Citizens United enabled billionaires, corporations, unions, even foreign government interests, to funnel money through super PACs and other entities that dictate how American elections are financed, how candidates are selected and what information voters receive.

Today, 12 years later, election spending is overwhelmingly sourced from an unrepresentative elite donor class. Nearly half of the super PAC money in the past decade came from just 25 billionaires. Weve had a $15 billion federal election, U.S. Senate races with $200 million to $500 million in spending, and a vitriolic presidential election leading to riotous violence in the halls of Congress itself. The magnitude and velocity of the money in elections is reflected in comparing the top Senate races in the 2020 elections with the most expensive Senate races in 2010.

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Source: Open Secrets

Most of the billions go to negative, divisive, ill-informative targeted messages, intended to either boost partisan turnout through fear and rage, or depress turnout among opponents supporters through cynical attacks and misleading information. Democrats and Republicans both use these same dark money techniques. As one member of Congress recently told me, There is no way we will ever work together or be able to get anything done when we are spending billions of dollars to demonize and tear each other apart.

Citizens United is now on the list of the most famous or infamous Supreme Court decisions, which also includes Dred Scott, Brown v. Board of Education, Plessy v. Ferguson, Roe v. Wade, Korematsu, Gideon v. Wainwright and the like. These decisions were all flashpoints, fulcrums of history, moments in time when constitutional interpretation and decision-making burst out of the courtrooms and the lawyers offices and into the public square, kitchen tables and conversations of most Americans.

Before Citizens United, most Americans had not joined the legal debate about the interplay of the First Amendment, election money and corruption. But for decades they had experienced first-hand how both major parties had become dependent on a donor class who can move billions of dollars into campaigns. They had seen how government had repeatedly failed them but always seemed to answer the call of those with money.

The court can wishfully proclaim, as it did, that the obvious unfair access and influence of the big donors will not cause the electorate to lose faith in our democracy. But its too late: By 2016, fully 92 percent of Americans believed government was run for the benefit of a few big interests rather than the common good. As a Kentucky citizen explained to the Our Common Purpose Commission from the American Academy of Arts & Sciences, you have to believe that you have the opportunity to elect the people you need speaking for you. You have to trust them and they have to trust you. And I think thats really broken right now.

For many, Citizens United is shorthand to describe how Americans lost our freedom to protect our families, communities and states from corruption, and to protect our right to speak and participate on equal terms as citizens in effective representative government. Most Americans across the partisan spectrum oppose the decision and support a constitutional amendment to fix the problem with effective regulation of money in state and federal elections.

Twenty-two states so far have backed this Constitutional amendment. (You can see more on the amendment wording and weigh in with your views at American Promise). This follows a pattern in American history: Eight of our 27 constitutional amendments were in reaction to Supreme Court decisions that were viewed as dangerously out of step with the views and lives of the country at large. In these constitutional moments, the status quo no longer works or is acceptable. And a Supreme Court decision that reinforces that status quo triggers rather than resolves a constitutional debate.

In Citizens United, the court expanded a First Amendment theory that most Americans have long rejected: that increasing the influence of an aristocratic money class would bring more freedom, speech, ideas and uncorrupted, competitive elections. Americans always reject this theory, from the American Revolution and the fight against oligarchic Slave Power to the successful constitutional amendments and laws that curbed the power of Gilded Age plutocrats and the post-Watergate reforms and grassroots movement that forced Republicans and Democrats to pass the Bipartisan Campaign Reform Act in 2002.

That fight of freedom versus aristocracy is what is at stake now, and the issue is no longer about overturning Citizens United. It is about whether we will act to right the ship before its too late. It is about how we rescue free speech and the First Amendment for all Americans.

No one remembers Overturn Minor v Happersett! But we remember the 19th Amendment and the simple justice of Votes for Women. Few but the lawyers know of Chisholm v. Georgia, but we all live in a republic that reflects the 11th Amendment and the fierce response to the Supreme Courts overreach to protect creditors and federal power at the expense of the states.

So as before, we can leave the specific Supreme Court decisions that got us into this mess behind and move forward to resolve for ourselves, as a nation, this great constitutional question about power, equal opportunity and freedom. We can do this not with abstract theory but with the undeniable facts about the unjust and dangerous way money is power in our politics today.

Who has a right of free speech everyone or just a few big donors and spenders? Can we control our own destinies, our communities, our unique and various state interests by curbing the rapid transformation of every election, from the Senate to school committee, into fights between national donor factions?

With a constitutional amendment, we can answer these questions soundly. And when we do, we can end foreign government interference in our elections; each state could decide for itself how to protect its voters and interests from domination by outside billionaires or global corporations; businesspeople could be freed from extortionate demands by the politicians and parties who can make or break them; we could end super PACs, open up competition with more voices and views, and make election spending transparent; we would check the power of incumbency and the stranglehold on power possessed by aged leaders who control the money flow, enabling more real debate, compromise and problem-solving.

There is no single answer to the age-old problem of money, corruption, election integrity and an equal say at the ballot box. Instead, as with all good constitutional law, an amendment enables, but doesnt dictate, better possible outcomes.

After a dozen years of billions of dollars, systemic corruption, and an angry, dispirited, divided and alienated electorate, we know where bad constitutional interpretation takes us. But as always in America, the Supreme Court does not have the last word; it has opened, rather than ended, a great constitutional question. Now it is up to all of us to resolve it.

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Read more here:
Twelve years after Citizens United, it's past time for a fix - The Fulcrum

(New York) Today PEN America and the Literary Action Coalition sent a letter signed by 21 New York literary organizations to New York State legislators in support of Rap Music on Trial legislation (S.7527/A.8681), which would strengthen free speech protections by ending the use of art created by a defendant as evidence against them in a criminal case. Signatories include Authors Guild, Center for Fiction, Nuyorican Poets Cafe, and Asian American Writers Workshop.

When prosecutors focus solely on references to violence in rap music, they are taking the lyrics out of context and neglecting to consider the conventions of the music genre. They are equating the artists creative liberties and artistic persona as confessions of guilt, which is a severe misrepresentation of the artform and goes against the very spirit of freedom of expression, the letter reads.

The use of lyrics as evidence in criminal cases is a prosecutorial practice that is inherently dangerous to peoples First Amendment rights, said James Tager, director of research at PEN America. We also cannot ignore the fact that the submission of lyrics as evidence in criminal cases is disproportionately used to try to lock up people of color, including those in the rap community who call New York home. New York legislators need to pass this legislation now before another musical artists creative expression is weaponized against them.

Nobody understands the importance of the First Amendment quite like the literary community. Im deeply grateful for this letter from PEN America and so many other literary organizations in support of the bill I introduced with Senator Jamaal Bailey, known as Rap Music on Trial (S.7527/A.8681) that protects creative expression from being twisted into criminal evidence. Art is creative expression, not a blueprint of criminal plans. Its time to protect the First Amendment rights of all artists, said New York State Senator Brad Hoylman.

Police, prosecutors, and judges routinely engage in the damaging practice of misusing rap lyrics in criminal trials as a tool of mass incarceration of Black and Brown youth. This is not only about strengthening and protecting the First Amendment rights of artists of color; we need to stop the unjust and blatantly racist practice of using the free expression of artists against them in a courtroom. I am proud to sponsor this groundbreaking and incredibly important legislation in the New York State Assembly, and I thank the advocates and my Senate counterparts for their hard work on getting this bill passed in this years legislative session, said New York State Assemblymember Catalina Cruz.

Rap should not be treated differently from any other art form; yet in courtrooms across the country, artists have been unfairly targeted for simply exercising their right to creative expression, said New York State Senator Jamaal Bailey. With the nation-leading Rap Music on Trial legislation, New York state will protect this fundamental right by prohibiting the use of art, including rap lyrics, from being permissible criminal evidence without a strong, factual nexus between the art and the facts of the case. Presuming a defendants guilt based solely on musical genre or creative expression is antithetical to our foundational rights and perpetuates the systemic racism that is embedded into the criminal justice system through discriminatory conflations of hip-hop and rap with criminality. If we want to preserve the integrity of our First Amendment rights, combat discrimination in our courtrooms, and encourage unbounded creativity, we cannot continue to allow prosecutors to weaponize musicians own lyrics against them.

Forward-thinking legislation like this, that proactively respects and protects artistic expression, is what makes me proud to be a New Yorker. I hope that we can help pass this legislation, and set a positive example for the whole country, and world, as leaders in linguistic and creative freedom, said Lisa Ann Markuson, founder of Ars Poetica.

This is an important moment for the New York City literary community. Writers, booksellers, and literary advocates alike have come together to stand in solidarity with all artists who are affected by the criminalization of rap music lyrics, said Alejandro Heredia, community outreach manager at PEN America.

You can read the full letter here: pen.org/open-letter-new-york-literary-organizations-support-rap-music-on-trial-legislation/

More:
Literary Coalition Asks New York Leaders to Prevent Lyrics From Becoming Evidence In Criminal Trials - PEN America

Alexandria Sheriff Sean Casey says the recent actions of a deputy against a YouTuber outside the city jail are inconsistent with its policies and procedures.

In a video that posted today (Jan. 20), an Alexandria Sheriffs Deputy asked that Constitutional activist SeanPaulReyes of Long Island Audit not film outside the city jail. Reyes tells the deputy that he is an independent journalist exercising his First Amendment rights, and then refuses to provide the deputy with his full name.

This is a public area, Reyes tells the deputy. I havent committed a crime.

After refusing to provide his name, the deputy says, Well, I can also detain you, if you like.

Casey said that he is aware of the video, and that a full inquiry is underway.

The Alexandria Sheriffs Office is aware of the Youtube video posted on January 20 documenting an interaction between a deputy and a member of the public, Casey posted on social media. We are actively investigating this incident and understand the publics concern. Based on our initial review of the video, the actions of the deputy are inconsistent with our policies and procedures. A full inquiry is underway.

Reyes, who has 182,000 subscribers, and filmed dozens of other videos with law enforcement around the country.

Were here today to peacefully exercise our First Amendment right to film in public and publicly accessible areas to promote transparency and accountability within our government and to ensure that our public servants respect our rights and treat us with respect, Reyes said.

The deputy later drove away from the jail.

Oh, thank you for leaving, deputy, Reyes says as the deputy drives away. Appreciate it. Please just go.

The Sheriffs Office did not comment further.

Via Youtube

Read more:
JUST IN: Sheriff says deputy was wrong in interaction with YouTuber filming outside city jail - ALXnow

For two years now, weve seen Republicans cry My body, my choice in response to the stay-at-home orders and mask mandates put in place during the COVID-19 pandemic. A popular saying among the left, pro-choice crowd has become the new chant for the right, anti-masker agenda as if wearing a cloth over ones face is as invasive as a pregnancy.

As much as I hate to admit it, it makes sense that the political right has adopted such a saying. They claim to be, after all, the defenders of our first amendment rights defenders of our freedom of speech.

So why is it that a year since Donald Trumps presidency ended, and a year since the Jan. 6 insurrection, these supposed freedom of speech warriors are censoring themselves? Lets go Brandon is not as powerful or impactful of a phrase as they think it is. In fact, its a display of the constant irony within pro-Trump groups.

The phrase Lets go Brandon grew in popularity among right-wing circles because its a coded, clean version for F Joe Biden. The phrase started during an NBC interview with NASCAR driver Brandon Brown in October. Behind Brown and the reporter, the crowd chanted F Joe Biden, which the interviewer misheard as Lets go Brandon.

The slogan quickly took off within right-wing groups and became yet another catchphrase that Trump supporters like to stick to the bumper of their cars.

Republicans like to proclaim themselves as defenders of our first amendment rights. However, like any political party, they tend to be hypocritical from time to time. For example, When Twitter banned Trump a year ago, Republicans seethed at the idea that Big Tech was infringing upon the first amendment. At the same time, Republicans have been fierce advocates against trans people using their desired bathroom, which is just as much, if not more, of an infringement on first amendment rights.

Being freedom of speech warriors is only one of the many titles Republicans have given themselves over the years. They also used to claim to be the party that advocates for traditional familial values. However, with the rise of Republican superstars like Matt Gaetz and cheating adulterer Trump, these traditional values Republicans once highlighted during the Nixon and Reagan eras seem to be deteriorating.

And even though these traditional values are breaking down, it is apparently still too controversial to say f out loud. Ill admit, the f-word might be too strong of a word to use, I suppose it may corrupt the ears of little children around the country, after all. Oh no! For next time, it might be useful to invest in a thesaurus. There are quite literally thousands of different synonyms to replace the F in FJB.

Many Republicans claim that Democrats want to establish an Orwellian, 1984-esque communist regime. They claim their Democratic neighbors are communists, socialists and Marxists without ever fully grasping the difference between the three. There is no Big Brother waiting to smite you for going against the Democratic agenda. You will not be hunted down and slaughtered if you criticize the president or call him names. If there was a Big Brother who did these things, most people would have died a long time ago.

The reality is, I think there really is not much else to defend when it comes to our freedom of speech we already have it. With the exception of incitement, defamation and a few other kinds of speech that obviously should not be protected, most of what you say is protected under the first amendment. You could say the most heinous and disgusting things, but guess what? Hate speech is protected by the Constitution, and so is your right to cuss out the president.

So why not just say F Joe Biden? Its not a call to arms nor is it some kind of wicked battle-cry. And its definitely not some funny inside joke especially because everyones in on it. I wish I could say that this catchphrase is one big Gen-Z meme created to get a laugh out of people, but of course it isnt. Maybe we truly are living in some dystopian novel.

Representatives on the House floor are sporting Lets go Brandon merch and Florida Republican Bill Posey went as far as to end an October floor speech with the popular saying and a fist bump. Its not just in Washington either. A cryptocurrency called LGBcoin, or Lets Go Brandon Coin, attempted to sponsor Brown, whose name started this charade.

There are many Democrats and non-Trump supporters who think this whole ordeal is ridiculous. At the same time, many Republicans seem to actually enjoy the self-censorship they are participating in. Republican ad maker Jim Innocenzi said this new saying is done with a little bit of a class.

I think many would say that there really is nothing classy about this whatsoever. But regardless of whether the public thinks its classy or not, this whole ordeal just screams idiocy and highlights the hypocrisy of the GOP. The party of freedom of speech once spoke freely and didnt censor themselves on live TV. But now, months after the incident, pro-Trump Republicans are censoring themselves when that is the very thing they swore to fight against.

Honestly, if you want to criticize, ridicule or simply just cuss out the president or any other elected official just do it. There is no need to censor your language or hide behind a thinly veiled joke in order to get your point across. Its cowardly. Those that chant Lets go Brandon are playing into the exact thing they are supposedly trying to protect this country from.

Just swear next time. Itll save you from embarrassment.

Livia LaMarca mostly writes about American politics and pop culture. Write to her at [emailprotected].

Read more:
Opinion | The party of freedom of speech is censoring themselves - The Pitt News