Lawrence Lessig: Citizens Unite: Via Huffington Post.

There has been a growing fury about the Supreme Court's decision in the Citizens United case, but much of that fury hangs upon an odd reading of the Court's opinion. The Court, it is said, has given corporations all the rights of "persons." It has elevated these artificial beings into entities "endowed by their Creator" (us) "with certain unalienable rights," including the right to free speech.

No doubt the Court has a long history of recognizing the "person" in "Inc." But this current wave of criticism is hard to understand, because the Court's entire Citizens United opinion hung upon the fact that the First Amendment says nothing about who or what is to get the benefit of its protection. It simply bans certain kinds of regulation. As Justice Scalia put it in his concurrence: "The Amendment is written in terms of 'speech,' not speakers." Thus, the government is blocked by the First Amendment from constraining the free speech of any entity, whether that entity is a corporation or a dolphin. [ Read more ... ]

The majestic petulance of John Roberts: Via Salon: Glenn Greenwald.

The petulance and sense of self-importance on display here is quite something to behold:

U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama's State of the Union address was "very troubling" . . . . Obama chided the court, with the justices seated before him in their black robes, for its decision on a campaign finance case. . . . Responding to a University of Alabama law student's question, Roberts said anyone was free to criticize the court, and some have an obligation to do so because of their positions.
"So I have no problems with that," he said. "On the other hand, there is the issue of the setting, the circumstances and the decorum.
"The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court -- according the requirements of protocol -- has to sit there expressionless, I think is very troubling."

Supreme Court Takes ‘Informational Privacy’ Case: Via Threat Level.

The U.S. Supreme Court is agreeing to decide how much personal information the federal bureaucracy may acquire on its workers.

The justices, without comment, decided Monday to review a lower-court decision surrounding the concept of so-called “informational privacy.” The 9th U.S. Circuit Court of Appeals in San Francisco struck down intrusive background checks last year on nearly three dozen National Aeronautics and Space Administration contractors as being too invasive — calling them an unconstitutional, “broad inquisition.”

The checks sought information from any source surrounding their sex lives, finances and even drug use. The contractors being investigated were not privy to classified information. [ Read more ... ]

Supreme Court to Decide Case Involving ‘Right of Informational Privacy’: Via News - ABA Journal.

The U.S. Supreme Court has agreed to decide whether the First Amendment protects demands for personal information from government contract workers at NASA’s Jet Propulsion Laboratory.

The case asks whether the Constitution protects a “right of informational privacy,” SCOTUSblog reports. “The Supreme Court mentioned such a right in a 1977 decision, and has seldom mentioned it since,” the blog says.

The case could affect how the federal government investigates the background of its employees, the Associated Press reports. [ Read more ... ]

Funeral Flap: Justices Weigh Religion, Speech Rights: Via Threat Level.

The Supreme Court agreed Monday to delve into the sensitive question of whether the First Amendment protects anti-gay protesters carrying placards outside military funerals saying “America is Doomed,” “Thank God for 9/11″ and other volatile phrases like “Thank God for dead soldiers.”

The messages and picketing are part of a Kansas church’s belief that the United States’ tolerance for homosexuality is cause for soldiers’ deaths in Iraq and Afghanistan.

The case the justices decided to review Monday tests the boundaries of free speech versus freedom of religion — doctrines embodied in the First Amendment.

Without comment, the justices agreed to review last year’s federal appellate decision overturning a $5 million verdict (.pdf) in favor of a Baltimore father who sued the Westboro Baptist Church of Topeka and its pastor, Fred Phelps, in 2006. The father of Marine Lance Cpl. Matthew Snyder was awarded damages for, among other things, invasion of privacy and emotional distress for the events that occurred outside his son’s funeral at a Catholic church in Maryland. [ Read more ... ]

Rulings Leave Online Student Speech Rights Unresolved: Via Threat Level.

Do American students have First Amendment rights beyond the schoolyard gates?

The answer is yes and no, according to two conflicting federal appellate decisions Thursday testing student speech in the online world.

“Ultimately, the Supreme Court is going to have to decide if there ever is a time students have full-fledged First Amendment rights,” said Frank LoMonte, executive director of Virginia-Based Student Press Law Center. He’s one of the attorneys in the cases the 3rd U.S. Circuit Court of Appeals decided.

The U.S. Supreme Court has never squarely addressed the parameters of off-campus, online student speech, but might soon. So far, lower courts appear to be guided by a 1969 high court ruling saying student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.”

In that landmark case, the Supreme Court said students had a First Amendment right to wear black armbands to protest the Vietnam War. But that precedent, which addressed on-campus speech, is now being applied to students’ online speech four decades later.

One of the cases favoring student speech decided Thursday concerns a senior and honors student. In 2005, the Pennsylvania high school student was suspended 10 days after he created a mock MySpace profile of his principal. [ Read more ... ]

Susan Collins spreads central myth about the Constitution: Via Salon: Glenn Greenwald.

Over the weekend, Sen. Susan Collins released a five-minute video in which she sounded as though she were possessed by the angriest, most unhinged version of Dick Cheney.  Collins recklessly accused the Obama administration of putting us all in serious danger by failing to wage War against the Terrorists.  Most of what she said was just standard right-wing boilerplate, but there was one claim in particular that deserves serious attention, as it has become one of the most pervasive myths in our political discourse:  namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners.  Focusing on the DOJ's decision to charge the alleged attempted Christmas Day bomber with crimes, Mirandize him and provide him with counsel, Collins railed:  "Once afforded the protection our Constitution guarantees American citizens, this foreign terrorist 'lawyered up' and stopped talking" (h/t).  This notion that the protections of the Bill of Rights specifically and the Constitution generally apply only to the Government's treatment of American citizens is blatantly, undeniably false -- for multiple reasons -- yet this myth is growing, as a result of being centrally featured in "War on Terror" propaganda. [ Read more ... ]

Follow-up on the Citizens United case: Via Salon: Glenn Greenwald.

(updated below - Update II - Update III)

As one would expect, a substantial number of commenters yesterday disagreed with the Supreme's Court ruling in the Citizens United case case and with my partial defense of it.  I say that's to be expected because, in our political discourse, it's virtually always the case that opinions about court rulings perfectly coincide with opinions about the policy whose constitutionality is being adjudicated (e.g., those who favor same-sex marriage on policy grounds cheer court rulings that such marriages are constitutionally compelled, while those who oppose them on policy grounds object to those court rulings, etc. etc.).  When a court invalidates Law X or Government Action Y on constitutional grounds, it's always so striking how one's views about the validity of the court's ruling track one's beliefs about the desirability of Law X/Action Y on policy grounds (e.g., "I like Law X and disagree with the Court's ruling declaring Law X unconstitutional" or "I dislike Law X and agree with the Court's striking down Law X").  Campaign finance laws are popular with readers here, and thus a court decision striking down those laws inevitably will be unpopular (though the public at large -- including 2/3 of Democrats -- overwhelmingly agrees with the Court's ruling).  It's critical always to note that these are two entirely distinct questions:  (1) is Law X/Government Action Y a good thing?, and (2) is Law X/Government Action Y Constitutional?  If you find yourself virtually always providing the same answer to both questions -- or, conversely, almost never providing opposite answers -- that's a very compelling sign that your opinions about court rulings are outcome-based (i.e., driven by your policy preferences) rather than based in law or the Constitution. [ Read more ... ]

The Turducken Approach to Privacy Law / A Call to Clear the Tangled Thicket of Privacy Law : Via NYTimes.com > Privacy.

In June, the metaphor of the turducken made its first appearance in American jurisprudence.

“It’s a bit like building a dinosaur from a jawbone or skull fragment,” a dissenting federal appeals court judge wrote of his colleagues’ expansive reasoning, “and the result looks more like a turducken.”

[...]

The dissenter was Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in San Francisco. He is a master of the dissent that might as well be a petition for Supreme Court review of the majority’s decision. This one, protesting his court’s refusal to rehear a case about the privacy rights of employees, said the law in that area had become a tangled thicket. [ Read more ... ]

GPS and Privacy Rights: Via Editorial - NYTimes.com .

A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.

Antoine Jones was charged with being part of an interstate drug conspiracy. The government obtained evidence against Mr. Jones by putting a GPS device on his Jeep. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. The government responded that the evidence was admissible because it did not need to get a court order at all. [ Read more ... ]

A really ugly case risks making some really bad law: Via CDT - PolicyBeta.

CDT and the ACLU have joined a “friend of the court” brief filed in the Supreme Court by the DKT Liberty Project in what is a very ugly case. As the adage goes, “bad cases make bad law,” and this is especially true in First Amendment cases involving unseemly (or worse) speech. There is a great risk that this case – U.S. v. Stevens — will yield some very bad law.

Stevens was convicted and sentenced to prison for distributing over the Internet videos depicting cruelty to animals. The videos including depictions, for example, of dog fights in Japan (where, as it happens, such activities are legal). Dog fights and other acts of cruelty to animals are (and should be) illegal in all fifty states, but this case raises the question of whether depictions of such dogfights should be wholly unprotected by the First Amendment. [ Read more ... ]

EPIC - The Nomination of Judge Sotomayor: Via EPIC - Electronic Privacy Information Center.

On May 26, 2009, President Obama nominated Judge Sonia Sotomayor to replace Justice David H. Souter on the Supreme Court. Judge Sotomayor graduated summa cum laude from Princeton University where she also was elected to Phi Beta Kappa and won the Pyne Prize, the top prize for undergraduates. She attended Yale Law School where she was an editor of the Yale Law Journal. She joined the New York District Attorney's Office immediately upon graduating. Judge Sotomayor then entered private practice, eventually becoming a partner at Pavia & Harcourt. She specialized in intellectual property litigation, international law, and arbitration. [ Read more ... ]

Supreme Court Serves Up Remote-Recording Victory: Via Threat Level.

The Supreme Court on Monday let stand a copyright case testing whether cable operators may permit customers to store television programming on company servers to be viewed at a later time.

The issue concerns an August ruling by a federal appeals court, which lifted (.pdf) an injunction against Cablevision Systems blocking it from offering customers a recording service that stores programming on the cable company’s own servers instead of on viewers’ in-house playback devices.

Hollywood and television programmers maintained Cablevision’s service directly infringes their exclusive rights to both reproduce and publicly perform their copyrighted works. [ Read more ... ]

SCOTUS: Safford school search violated Fourth Amendment, but qualified immunity applied: Via FourthAmendment.com.

Search of a school students underwear for over-the-counter painkiller was unreasonable because it lacked reasonable suspicion under T.L.O. Safford Unified School District #1 v. Redding, 08-479 (June 25, 2009). ScotusWiki here here; News: NYTimes here, WaPo here, LATimes here, Eastern Arizona Courier (Safford AZ) here.

The Syllabus: [ Read more ... ]

Civics 101: Via Blog of Rights: Official Blog of the American Civil Liberties Union.

Savana Redding and her mother, April, are plaintiffs in the case Safford Unified School District v. Redding, decided by the U.S. Supreme Court today. The Court ruled that school officials violated Savana’s constitutional rights when they strip searched her based on a classmate’s uncorroborated accusation that she previously possessed ibuprofen. Savana was 13-years-old at the time of the incident. [ Read more ... ]

High Court: Convicts have no right to DNA tests : Via USATODAY.com .

WASHINGTON — Convicted prisoners have no constitutional right to biological evidence from their cases for DNA testing, the Supreme Court ruled Thursday by a 5-4 vote.
The high-profile dispute from Alaska, one of several closely awaited cases of the 2008-09 term that will end later this month, involved the modern testing technology that has led to the exoneration of more than 200 individuals.

Chief Justice John Roberts, writing for the majority, acknowledged that DNA testing "has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." But he said prisoners simply have no constitutional right to a state's biological evidence after conviction. [ Read more ... ]

Court won't hear case of man with porn on computer: Via SignOnSanDiego.com > News > AP News.

WASHINGTON (AP) -- The Supreme Court won't stop Pennsylvania officials from prosecuting a man whose computer was found to contain child pornography while it was at Circuit City being upgraded.

Kenneth Sodomsky wants the high court to suppress the videos found on his computer, which he had taken into a Circuit City in Wyomissing, Pa., to get a DVD burner installed into it.

While the computer was in the store, a worker looked through some of the files and found movie files with "questionable" names referring to boys of various ages. [ Read more ... ]

Appellate judge asks Supreme Court to clarify privacy rights: Via Los Angeles Times .

The inquiry involves a U.S. 9th Circuit Court of Appeals ruling that the government cannot review financial, psychiatric and medical records of employees at JPL and other aerospace contractors.

Is there a constitutional right to informational privacy?

That is a question that Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals is asking the U.S. Supreme Court, saying that the justices hinted at such a right 32 years ago and "never said another word about it."

Kozinski urged the high court Thursday to clarify what, if any, right a citizen has to shield medical and mental health records from an employer's inspection. [ Read more ... ]

Obama Urges Justices to Avoid ‘Cablevision’ Copyright Case: Via Threat Level.

The Obama administration is urging the Supreme Court to let stand a copyright case testing whether cable operators may permit customers to store television programming on company servers to be viewed at a later time.

The issue concerns an August ruling by a federal appeals court, which lifted an injunction against Cablevision Systems blocking it from offering customers a recording service that stores programming on the cable company’s own servers instead of on viewers’ in-house playback devices.

Hollywood and television programmers maintain Cablevision’s service directly infringes their exclusive rights to both reproduce and publicly perform their copyrighted works. On appeal, they told the high court that the copyright case was the most important lawsuit following the justices’ 1984 ruling declaring American consumers had a fair use right to use videocassette machines and record copyrighted movies at home. [ Read more ... ]

High Court Nominee Adopts RIAA Stance: Via Threat Level.

When it comes to financial damages in copyright infringement cases, Supreme Court nominee Sonia Sotomayor embraces the Recording Industry Association of America’s party line.

The RIAA, which has sued more than 30,000 individuals for file-sharing copyrighted music, routinely seeks hefty monetary awards well beyond the financial losses associated with the pilfered music in question. That is why one music download — costing about $1 retail — can run defendants $1000 or more to settle a music infringement suit.

President Barack Obama’s pick for the Supreme Court appears to back the RIAA theory — a false one at that — that large money damages deter copyright infringement. [ Read more ... ]

S.G. to Supreme Court: Don’t Revisit “Remote Storage DVR” Case: Via CDT - PolicyBeta.

The Solicitor General filed a brief with the Supreme Court on Friday that is good news for anyone who likes the idea of being able to record digital television without having to acquire and install a digital video recorder (DVR) box in the home. More importantly, the brief significantly reduces the chances of a decision that could cast a legal cloud over a wide range common network and computing technologies. [ Read more ... ]

Supreme Court: Feds Abusing Identity Theft Law: Via Threat Level.

A unanimous Supreme Court ruled Monday the government has been overstepping the boundaries of identity theft legislation when targeting immigrants who use phony citizenship documents to acquire jobs.

The 2004 legislation, which typically carries a two-year maximum term, has also been threatened against illegal immigrants in exchange for them agreeing to be deported, like the 400 illegal immigrants working under false pretenses at an Iowa meatpacking plant last year. [ Read more ... ]

Strip-Search for Advil Case Before Supreme Court Today: Via ACLU Blog.

Today, the Supreme Court heard arguments from ACLU attorney Adam Wolf in the Savana Redding case. When Savana was 13 years old, she was strip-searched for allegedly possessing prescription-strength ibuprofen. School officials violated Savana’s rights and called into question basic constitutional protections for all students in schools across America. Savana and her mother April recorded a short video with Graham Boyd, an attorney here at the ACLU who is working with them. Learn about this case by watching this video: [ Read more ... ]

Strip-Search First, Ask Questions Later: Via Blog of Rights: Official Blog of the American Civil Liberties Union.

The New York Times, in a front-page article today, takes an in-depth look at Redding v. Safford, an ACLU case, and one of the most appalling items on the Supreme Court’s docket this term. Savana Redding, a then 13-year-old eighth-grade honor student, was strip-searched by school officials based on nothing more than a classmate’s claim that Redding had given her prescription strength ibuprofen – the equivalent of two over-the-counter Advil capsules. The school made no attempt to corroborate the accusation, and had no further evidence that Redding was in possession of ibuprofen or that she might be concealing something in her undergarments. Without taking the most basic step of contacting her mother, school officials forced Redding to strip to her underwear and then to expose her bare breasts and genitalia. [ Read more ... ]

Adam Thierer on the First Amendment Twilight Zone Via Freedom to Tinker :

Thursday's lunch talk here at CITP was by my co-blogger Adam Thierer of the Progress and Freedom Foundation. Adam is a leading voice in the debate over online free speech, with a particular focus on how to protect children from harmful online material while preserving First Amendment freedoms. In his lunch talk, Adam focused on the implications of technological convergence for First Amendment law. Traditionally, we've had completely separate regulatory regimes and constitutional standards for different media technologies—broadcast, cable, satellite, and Internet. The courts have repeatedly struck down efforts to censor the Internet. In contrast, in cases such as FCC v. Pacifica, the Supreme Court has given Congress and the FCC free rein to censor the airwaves. Adam calls broadcasting's second-class citizenship the "First Amendment Twilight Zone." [ Read more ... ]