Lawyering Is About Service, Not Self-Actualization

Around a quarter-century ago I was slouching through Evidence class when the professor called on me and posed a question about the admissibility of some witness statement. I gave a rule-bound answer: the admissibility was governed by a particular rule and would turn on specific factors and in my view weighed in favor of excluding the statement. The professor made a face and said "that wasn't a particularly profound answer." "It wasn't a particularly profound question," I replied, and the class laughed and the professor threw a piece of chalk at me. That semester I got a B- in Evidence (which at that institution was the equivalent of hauling you behind the barracks and shooting you) and an A+ in Tax. Requiescat in pace, my ability to take grades seriously.

The professor was unhappy because he was looking for an answer that interrogated the arbitrary dichotomies between admissible and not-admissible and illuminated the ways that purportedly neutral rules are socially constructed in the context of various social hegemonies and so on and and so forth. I thought all of that was swell but mostly wanted to learn how to try cases. I went on to learn actual evidence elsewhere; the professor went on to have unfortunate experiences trying to apply the rules-don't-matter attitude to actual litigation.

I repeat this story because last week Scott Greenfield and Jordan Rushie curmudgeoned it up about law schools focusing on "social justice" as a subject of instruction. That ideological bent is far more common in modern law schools, but Scott and Jordan could also have talked about schools that seek to impart a Christian view of law or a law-and-economics perspective.

Consider this exhortation by UW students Jordan quotes:

We demand a curriculum more clearly focused on the mission of creating leaders for the global common good. Such courses will provide a foundation of social justice for graduates in careers of all types, and will work synergistically with the demands above.

. . . .

Create and incorporate a new “capstone” course into the 1L curriculum with more big-picture elements of history, philosophy, critical legal studies, implicit bias, and critical race/feminist theory. The traditional 1L curriculum focuses so intensely on the minutiae of case law that it is easy to lose sight of why many of us came to law school in the first place. This course would serve to break the cycle of indoctrination and redirect student focus to the global common good.

This was, more or less, the attitude of Professor Chuck-Chalk: rules and caselaw are mundane, a distraction from Big Ideas about the common good.

Now, I have no objection to students spending three years and $150,000 learning about Big Ideas. How else are we going to manufacture the next set of people to teach about Big Ideas?

But I do have a strong objection to law schools tolerating — let alone cultivating — a disdain of the nuts and bolts of competent law practice. I especially have an objection to that disdain being cultivated in the name of "social justice." People traditionally recognized as being in need of social justice are also the people in most dire need of competent legal representation. When they have a few days to contest an eviction or they've been arrested and may lose their job, they don't need someone who is exquisitely prepared to explain and denounce the racist and oppressive structures that led to their unfortunate predicament. They need someone who knows what he or she is doing. They need someone who knows all of the petty substantive and procedural rules of landlord-tenant law and how the local court actually operates. They need someone who can swiftly assess whether an arrest or interrogation was unlawful and formulate a plausible and effective plan for dealing with it. They need someone who knows how to get things into evidence in court even under pressure on their feet when the judge is being difficult and the opposing counsel is making nonsensical objections. They need a grubby little practitioner.

People are quicker to understand this in other contexts. If a hairdresser could argue movingly that gendered hairstyles are based on antiquated stereotypes, but had no idea how to cut hair, people would generally accept that he was a poor hairdresser. If you encountered a woman in labor experiencing dangerous complications who had been too poor to get prenatal care, you'd seek a skilled high-risk pregnancy physician, not someone who had focused on learning what socioeconomic forces deprive poor women of adequate care. But for some reason — perhaps because so many dramatic social changes have come through the legal system — people don't seem to understand that lawyering requires actual tradesman skills too. Thurgood Marshall appealed to social justice when he successfully argued Brown v. Board of Education before the Supreme Court, but he didn't get there by Big Ideas alone; he got there by developing the sort of meticulous legal skills that led to an almost unprecedented win record before the court. He worked, and he didn't think he was too good to grub around with rules and precedents.

Our system is mediocre at best at delivering justice to society's least powerful. Do you want to be able to explain why? That's fine, go do that. But if you plan to address social injustice as a lawyer by actually representing its victims, it is absolutely perverse and self-indulgent to focus on theory rather than skills and rules.

Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights?

I have a question.

Of course you do.

You know that dude James Tracy?

The Florida Atlantic University professor who's a crazy conspiracy theorist? The dude who thinks that mass shootings like Sandy Hook were faked by the government? The dude who sent a certified letter to the parents of a murdered child demanding proof that the child had ever existed? Yeah. I know of him.

So I see that FAU fired him.

Yes. In December they sent him a notice of intent to fire him, with a ten-day window to respond. They claim he didn't respond. So on January 5 they sent him a letter firing him.

Can they do that?

Can who do what?

Stop being so obtuse. Can FAU fire James Tracy?

The question's way too vague. Can they fire him for what, under what?

Why are you so damned pedantic? Can they fire him for being a sicko grieving-parent-abusing whacko-conspiracy-theorist? Or is that some sort of First Amendment violation?

Okay. That's easier. I was worried you were asking me whether the termination violated FAU's collective bargaining agreement with its professors.

Oh! Good point. Did it? Can you read the CBA and tell me?

I would rather stick needles in my eyes. But, since CBAs for educators and law enforcement are generally designed to insulate them from any consequences for their actions, I would not be the least bit surprised if Professor Tracy has a decent argument that he was wrongfully terminated under the CBA. But I'm not going to research it for you.

Ok. But what about the First Amendment? Um . . . I have an embarrassing question.

Imagine my shock. What?

This dude on Twitter was saying that the First Amendment is irrelevant because it says "Congress shall make no law" and FAU isn't Congress.

Yes, that's the "let's pretend the last 100 years don't exist" argument. He's wrong.

The First Amendment by its plain language only restricted Congress. Section 1 of the Fourteenth Amendment, ratified after the Civil War, says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Beginning in the 1920s, the Supreme Court held that the Fourteenth Amendment necessarily applied the strictures of most of the Bill of Rights to the states, because those rights were necessary among the "liberties" protected by the due process clause of Section 1 of the Fourteenth Amendment. That process is called incorporation, and the rule that applies it is the incorporation doctrine. The Supreme Court "incorporated" the First Amendment in 1925, finding that free speech was one of the fundamental liberties protected from state infringement by the due process clause of the Fourteenth Amendment. Now most (but not all) of the rights in the Bill of Rights have been applied to the states under the doctrine.

So, Twitter dude's argument lost 90 years ago.

So, does James Tracy have a First Amendment right not to be fired from Florida Atlantic University for his speech?

Sort of.

That's not helpful.

It's a complicated doctrine, because FAU is wearing two hats: the hat of a state actor (fully restrained by the First Amendment), and the hat of an employer (not fully restrained by the First Amendment). The government has much more freedom to fire people for speech while wearing its employer hat than it has to punish people while wearing its government hat.

I discussed the issue at length in 2013, if you want cites and quotes.

In brief: when the government fires an employee for speech, courts go through a multi-step doctrine. First, they ask whether the speech was on a matter of public concern. If it wasn't — if the speech was about some petty internal squabble not of interest to the public — the First Amendment doesn't prevent the firing at all. If the speech in question is on a matter of public concern, courts engage in an alarmingly touchy-feely balancing test, weighing the government employer's interest in an orderly and efficient workplace against the speech rights of the employee. Courts take into account things like whether the speech restriction is content-based (that is, whether it censors some viewpoints but not others), the circumstances of the speech, the strength of the employee's interest in the speech, whether the speech genuinely disrupts discipline and order and interferes with workplace relationships, and so forth.

Wow. How can a government employee tell how that balancing act is going to come out?

Excellent question. They can't. But the cases allow some broad generalizations. Courts will give very substantial weight to a government employee's speech outside of work on outside public issues (as opposed to, say, speech attacking coworkers or supervisors), and will require a very substantial showing of resulting workplace disruption to allow discipline based on it. Courts will give public employers much more freedom to regulate workplace speech (by, for instance, banning pornography in the workplace) and more freedom to punish speech that threatens workplace harmony by attacking supervisors, coworkers, or "customers" (like, for instance, a teacher's blog insulting her students.)

And that ain't all. It gets more complicated.

How?

Well, there's a doctrine under which a government employer can fire you for your speech, without using the balancing test, if your speech was "pursuant to official duties." In other words, if the speech is part of your job, you're not protected by the First Amendment. That's called the Garcetti doctrine, after the Supreme Court case that announced it.

Wait a minute. Doesn't that mean a university could fire a professor if they didn't like what the professor taught?

Sounds like it, doesn't it? Fortunately, the Garcetti court didn't resolve whether the doctrine applies to universities, and one federal appeals court has already held that it doesn't.

But if James Tracy makes a First Amendment claim against FAU, the court may not reach any of these questions.

Why?

Well, FAU claims they didn't fire Tracy for being one of America's most prominent public lunatics. They say they fired him because he refused to turn in conflict-of-interest forms listing his outside activities (like blogging and speaking), gave inconsistent statements about whether he used FAU resources for those activities, and didn't respond to requests to remedy the problem.

So is Tracy out of luck?

No, but it makes his case harder.

First, a court isn't obligated to accept FAU's claims about the reasons Tracy was fired. Tracy could argue that FAU's offered reasons were pretextual — that the real reason was his unpopular speech. Tracy might do that, for instance, by showing that other professors weren't fired for not turning in their forms, or that FAU only became concerned about the forms once public outcry about Tracy reached a recent crescendo. Tracy doesn't have to prove that his speech was the only reason he was fired; he only has to prove that it was a "substantial" or "motivating" factor in the decision. If he can make that showing and prove that FAU was actually substantially motivated by his speech (and he's got pretty good circumstantial evidence of that, I think), then a court would have to go through the balancing test described above.

(Of course, since FAU has fully committed to the we're-not-firing-him-for-speech argument, it would be much harder for them to argue that Tracy's speech was also so disruptive of the university that it justified his termination.)

Second, I suppose that Tracy could argue that FAU's conflict-of-interest-form requirement itself violates the First Amendment — that it's a violation of his free speech rights to require him to disclose and describe his outside speech about matters of public interest. In his favor, he's got the fact that courts will probably protect speech of instructors in a university environment more vigorously than any other public employee speech. But the conflict-of-interest form requirement is content-neutral (that is, it doesn't say anything like "disclose all Republican affiliations" or "explain all psychotic blogs you write") and directed towards something in which FAU has a legitimate interest. I'd be interested to see how someone fleshes that argument out.

Don't you think it's good that they fired him?

My heart says yes, but my head says no.

He seems to be a truly awful human being, or a truly disturbed one. It's hard for me to comprehend how anyone can rely on his instruction on any topic when he holds such bizarre conspiracy-theory views.

But American state universities will suppress viewpoints they don't like in a hot second if you let them. I believe in very strong barriers against them doing so, which necessary protects some evil people, just as the First Amendment protects evil speech by people who aren't professors. Also, I think that you can generally count on schools to find a pretext to fire professors for unpopular speech if you let them. That doesn't mean that professors should be able to insulate genuine misconduct by uttering unpopular speech, but it does mean that we should scrutinize academic firings very carefully when they occur in the context of public outcries about disfavored speech.

President Obama And The Rhetoric Of Rights

Today the President of the United States gave a speech about gun control measures. I don't intend to critique those measures. Nor do I mean to critique his rhetoric about gun violence. I do intend to critique his language about rights, because how our leaders discuss rights can have a powerful impact on how Americans understand rights.

Here we go.

Now, I want to be absolutely clear at the start. I have said this over and over again — this also becomes routine. There is a ritual about this whole thing that I have to do. I believe in the Second Amendment. It is there, written on the paper, it guarantees a right to bear arms. No matter how many times people try to my words around, I taught constitutional law, I know a little bit about this.

The President is invoking my Trope Eight, appeal to the authority of a law professor. Here's the problem: law professors have a habit of taking what they think the law should be and portraying it as what the law is. There are many principled law professors who make a sincere effort to avoid such disguised advocacy. But the fact that the President is a law professor doesn't make his views on the contours of rights reliable.

I get it. But I also believe we can find ways to reduce gun violence consistent with the Second Amendment. I mean, think about it — we all believe in the First Amendment, the guarantee of free speech. But we accept that you cannot yell "fire," in a theater. We understand there are some constraints on our freedom in order to protect innocent people.

Here the President invokes two tropes. There's Trope Three, "rights aren't absolute." This is perfectly true. Moreover, at the risk of calling down ten thousand butthurt commenters, there's no colorable basis to view the Second Amendment as absolute when courts have recognized exceptions to the rights conferred in other amendments. The Supreme Court only very recently recognized that Second Amendment rights are individual rights, and jurisprudence exploring the boundaries of those rights is therefore decades behind.

But observing that rights aren't absolute doesn't establish that any given law is constitutional. It's at best a start to the discussion, not an end.

The President also invoked my least favorite trope, Trope Two, "shouting fire in a crowded theater." He didn't even fully invoke it, only mentioning "fire in a theater," calling to mind a malicious effort to disrupt a showing of Glitter or something. The important thing is that the trope is just a rhetorical flourish used to repeat that not all speech is protected, culled from a case in which the Supreme Court contemptibly approved of jailing a man for protesting the draft in World War One. It's a throwaway line from a case that is now universally recognized as wrongly decided. It's a line about rhetoric, not law. Using it doesn't send the signal "I will propose principled, text- and history-based exceptions to the rights conferred by this amendment." It signals "exceptions to rights can be shaped by the whims of the majority and by the fears of the moment." That's a foolish message in this instance.

We cherish our right to privacy, but we accept that you have to go through metal detectors before being allowed to board a plane. It's not because people like doing that, but we understand that is part of the price of living in a civilized society. And what's often ignored in this debate is that the majority of gun owners actually agree — a majority of gun owners agree that we can respect the Second Amendment while keeping an irresponsible, lawbreaking feud from inflicting harm on a massive scale.

Here the President is again invoking "rights are not absolute" with another example. And it's a terrible example. The TSA offers security theater, not security. When we give up our right to privacy to be groped and scanned, we're giving it up so that politicians can say they are doing something, not to make ourselves safer. It's therefore a poor comparison to use to support a gun control program already being criticized as mere window-dressing.

The President also offers an appeal to the masses, citing the constitutional wisdom of a majority of gun owners. I should find a First Amendment example and add that to my trope list. Rights protect us from the majority; they aren't curtailed by the views of the majority, thank God.

All of us should be able to work together to find a balance that declares the rest of our rights are also important. Second Amendment rights are important, but there are other rights that we care about as well. And we have to be able to balance them, because our right to worship freely and safely — that right was denied to Christians in Charleston, South Carolina.

And that was denied Jews in Kansas city, and that was denied Muslims in Chapel Hill and Sikhs in Oak Creek. They had rights too.

Our right to peaceful assembly, that right was robbed from moviegoers in Aurora and Lafayette. Our inalienable right to life, and liberty and the pursuit of happiness, those rights were stripped from college kids in Blacksburg and Santa Barbara, and from high- schoolers in Columbine, and from first graders in Newtown.

Here the President is invoking the Second Amendment equivalent of Trope Five, saying that Second Amendment rights must be balanced with other rights. If he said that about the First Amendment, I'd say he's flat wrong. Is he wrong with respect to the Second Amendment? That's too big a question for this post. I'll just point out that it's rhetorical move that you should notice — that the proposition that we determine individual rights by balancing them with other interests is not true of at least some rights and not self-evidently true about Second Amendment rights.

The President's invocation of the rights of crime victims is a variation on the "balancing" trope. He accomplishes it by deliberately conflating different meanings of the word "rights." A constitutional right — like the one recognized by the Second Amendment — is a right to be free of government interference, a negative right. The right not to be subjected to criminal behavior by non-government actors is something else. It's not just invoked as a negative right — that is, President Obama isn't saying "you have the right to sue the estates of the killers because you had the right not to have your loved ones murdered by them." It's an ambiguous kind of positive right — the purported right to have the government do something to other people. In that sense it's like a right not to be offended, which must necessarily be enforced by the government silencing people who offend you. It's also familiar to criminal defense lawyers, who have seen it in the guise of "victim's rights."

What do you have the right for the government to do to support your right not to be attacked by crazed killers? I submit that there's no way to tell, and that the purported right impacts many parts of the constitution. Does your right not to be killed mean you have a right to demand that the government prevent me from having a gun, because (as I've discussed openly) I fight depression? Does your right to life create an obligation for the government to sentence criminals to longer sentences and not to let them out on parole? Does your right to life mean that more mentally ill people should be involuntarily confined and treated? I don't know, and I don't think that you know, either — because I think the right to have the government do things to other people for you is made up.

How broad is the individual right recognized by the Second Amendment? I don't know. I don't pretend to be a Second Amendment scholar, and we're starting nearly from scratch with the analysis. I suspect that the courts will find that the Second Amendment doesn't let you do whatever you want in connection with weapons, that it allows some forms of regulation of their ownership and use, and that both gun control advocates and Second Amendment advocates won't like the result.

But rights matter. The way we talk about them matters. You can't engage in unprincipled analysis of one amendment and expect it won't impact our rights under another amendment. The President's rhetoric was moving and heartfelt and, as a matter of what policy should be, ably argued. But it wasn't a good discussion of rights.

Tea and Unaccountability: Bureaucracy and the Drug War

Last week Radley Balko described a Kansas case in which loose-leaf tea led to a police raid. One law enforcement officer saw someone shop at a hydroponics store, and another officer conducted trash searches at the shoppers' house and found leaves, and a "field test" suggested (falsely) that the leaves were marijuana, and it was off to the races with an armed incursion into the shoppers' home, which did not in fact contain any marijuana. A federal judge in Kansas recently ruled that the officers were entitled to qualified immunity in the resulting lawsuit.

Orin Kerr took Radley to task for his rhetoric and carefully reviewed the federal judge's order. The investigation may be bungled, Orin argues, but all the judge really did is find that an officer can rely on a positive field test for drugs in establishing probable cause, at least when the officer didn't know that such field tests are notoriously inaccurate.

Radley's perfectly right to be outraged. And Orin's perfectly right to note that Radley's outrage is directed at a feature, not a bug, of the system. Law enforcement has become increasingly bureaucratic, in the sense that actors are insulated legally and politically from the consequences of their actions, and those actions are treated as dictated by circumstance rather than chosen by accountable humans.

Consider, to start, the utter lack of accountability for taxpayer money displayed in this case. The whole case arise from "Operation Constant Gardener," a Sheriff's initiative to conduct marijuana cultivation raids on April 20th because that date is considered an "unofficial holiday among marijuana users." One officer was tasked to sit in the parking lot of a hydroponics store and take down license plates and pass those plates along to another law enforcement agency in a custom-made spreadsheet. Another officer matched those plates to individuals and addresses, and another officer evaluated which addresses to visit. Having chosen a suspect and an address, two other officers visited three times to root through the trash and look for evidence. Those two officers brought the "plant material" they found to a supervisor, in part because it was "hard to identify," to solicit his input. Upon a false positive "field test" for marijuana (though the material was actually tea), an officer drafted a search warrant, a deputy prosecutor reviewed and approved it, and seven law enforcement officers conducted an armed raid on the suspect's house. When the seven officers could not find evidence of marijuana cultivation, they extended the search for a couple of hours in an effort to find personal use amounts of marijuana. They found none. The Sheriff's Office later conducted a press conference bragging of the success of Operation Constant Gardener, presumably referring to other raids.

How much did all of that cost the taxpayers? Tens of thousands of dollars, at least. Was it worth it? Would it have been worth it even if law enforcement had found a private-residence-sized marijuana grow at the house? That's not a question you'll hear asked. The War on Drugs means never having to say "sorry I wasted your money." Certainly nobody who's paid to sit in a parking lot taking down license plates, or paid to raid trash cans and squint (quite literally) at tea leaves, or paid to devise cleverly-named gestures of defiance at marijuana users and then give press conferences about it, will ever ask that question. Financially, law enforcement is unaccountable.

They're also unaccountable in terms of basic competence. There was no incentive for the officers to learn, and know, that field tests are unreliable. What does it matter to them? They get paid whether or not they're reliable, paid whether the search turns up marijuana or tea. Moreover, they're insulated from any civil liability for relying on junk science. Nor do they have any incentive to conduct corroborating investigation. The officers here could have subpoenaed the house's electrical bills to watch for unusual consumption, a tell of indoor marijuana cultivation. They could have investigated whether the house has unusual foot traffic, or whether there had been any tips about the homeowner selling drugs. Faced with hard-to-identify plant material, they could have sent it to the crime lab for a test — after all, they had already waited seven months after the initial sighting of the suspect at the hydroponics store. But why do any of those things? The bar for probable cause is set extremely low — low enough that a visit to a hydroponics store and a questionable field test result on a small amount of leaves clears it. The small amount of leaves in the trash is consistent with mere personal use of marijuana, and some would argue that a seven-officer armed raid is a disproportionate use of law enforcement force to investigate such use, but nobody's asking about proportionality and nobody's being held accountable for the lack thereof. Why not just phone in your investigation, shrug at the result, and show up for a time-and-a-half raid on the dude's house? If a hypothetical officer could objectively conclude that there's enough evidence for probable cause, why give a shit about whether the person really did it or not?

When seven armed agents of the state raid your home at gunpoint in front of your spouse and young kids, it is traumatic. But arguably the homeowner should feel relieved that nothing worse happened. The officers didn't shoot the kids' pet dog, or mistake the X-Box controller in somebody's hand for a gun and shoot them, or stumble on a step and shoot someone, or shoot the homeowner when he reacted to what he might have thought was a home invasion robbery. The officers were relatively low-key — only seven officers, only one AR-15, no flashbang grenades thrown into a baby's crib to soften the place up first. Lucky! If any of those things had happened, it's likely that the officers would not have been accountable for it. The law usually doesn't hold them accountable for such "mistakes" in the course of a raid. And nobody even talks about holding them accountable for making the decision to conduct an armed raid on an occupied dwelling — a raid in which deadly mistakes are a distinct possibility — based on the aimless, good-enough-for-government-work suspicion that maybe they're growing pot in there. Nobody's asking whether the game is worth the candle — whether the known risk to lives is justified by the ends of the War on Drugs.

Nobody asks those questions because it's a bureaucracy, and you don't ask such questions in a bureaucracy. Asking questions might make you accountable, and the whole point of the law enforcement edifice is to insulate actors from accountability and to separate cause from effect. Someone chooses to harass marijuana users on April 20 to make a point and someone decides that you can find marijuana users shopping at hydroponics stores and someone decides that a field test of an unknown substance is good enough and someone decides to get a warrant and a family winds up held at gunpoint in their own home for drinking tea. These events are treated as if they are disconnected; nobody stops to say "the end result of this will be a man prone on the floor under the barrel of an AR-15 in front of his children, so act accordingly." Nobody's responsible, say the police. It just happens. I just work here.

What Happened In The Hammond Sentencing In Oregon? A Lawsplainer

Much ink has been spilled amount United States v. Hammond, the federal criminal prosecution cited by militia members as one of the motivations for taking over a federal facility in Oregon. The increased sentence imposed on the Hammonds has been cited as a sign of government abuse. But the sentencing itself is not remarkable.

In 2001 Steven and Dwight Hammond set a fire on their property that spread to public land. In August of 2006 they set a back burn near the boundary of their land to respond to a lightning-kindled fire; that fire burned a small amount of public land. The federal government charged the Hammonds with various crimes, including Title 18, United States Code, section 844(f)(1):

(f)
(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

The Ninth Circuit summarized part of the trial evidence as follows:

Although the Hammonds claimed that the fire was designed to burn off invasive species on their property, a teenage relative of theirs testified that Steven had instructed him to drop lit matches on the ground so as to “light up the whole country on fire.” And the teenager did just that.

A jury convicted the Hammonds of the Section 844 charge, acquitted them on other charges, and failed to reach a verdict on additional charges. While the jury continued to deliberate on the remaining charges, the Hammonds and the government reached a deal: the Hammonds would not appeal the verdict and the government would recommend that the Hammonds could stay out on bail pending sentencing and that the government would recommend that their Section 844 sentences be served concurrently — that is, that though the Hammonds were convicted of multiple counts of Section 844, each carrying a mandatory minimum five-year sentence, the government would recommend that those five-year terms not "stack," but result in just one five-year sentence.

At sentencing, the United States District Judge on the case refused to impose the five-year mandatory-minimum sentences required by Section 844, ruling that to do so would violate the Eighth Amendment's prohibition on cruel and unusual punishment. The court instead imposed sentences of twelve months and a day on the father1 and three months on the son.

The government appealed the sentence, and the United States Court of Appeals for the Ninth Circuit reversed and sent the case back, instructing the trial court to impose the statutory mandatory minimum sentence. The Court found — rather convincingly, given the precedent — that a five-year sentence for arson does not violate the Eighth Amendment:

Given the seriousness of arson, a five-year sentence is not grossly disproportionate to the offense. The Supreme Court has upheld far tougher sentences for less serious or, at the very least, comparable offenses. See Lockyer v. Andrade,
538 U.S. 63 (2003) (upholding a sentence of fifty years to life under California’s three-strikes law for stealing nine
videotapes); Ewing v. California, 538 U.S. 11 (2003) (upholding a sentence of twenty-five years to life under California’s three-strikes law for the theft of three golf clubs); Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding a forty-year sentence for possession of nine ounces of marijuana with the intent to distribute); Rummel v. Estelle, 445 U.S. 263 (1980) (upholding a life sentence under Texas’s recidivist statute for obtaining $120.75 by false pretenses). And we and other courts have done the same. See, e.g., United States v. Tolliver, 730 F.3d 1216, 1230–32 (10th Cir. 2013) (upholding a 430-month sentence for using arson in the commission of a felony); United States v. Major, 676 F.3d 803, 812 (9th Cir. 2012) (upholding a 750-year sentence for offenses under 18 U.S.C. § 924(c)), cert. denied, 133 S. Ct. 280; United States v. Meiners, 485 F.3d 1211, 1212–13 (9th Cir. 2007) (per curiam) (upholding a fifteen-year sentence for advertising child pornography); United States v. Uphoff, 232 F.3d 624, 625–26 (8th Cir. 2000) (upholding a five-year sentence for arson of a building).

So the district court resentenced the Hammonds. The government asked for the five-year mandatory minimum but kept its deal to recommend concurrent sentences (rather than stacking two counts of Section 844 to form a ten-year sentence), and the court agreed and imposed that sentence. The Hammonds will necessarily serve 85% of that sentence, less the time they've already served.

Was the five-year sentence cruel and unusual?

It's arguable whether the five-year sentence is colloquially cruel and unusual, or whether the law should treat it as a violation of the Eighth Amendment. But there's no serious argument that the sentence is cruel and unusual under existing Eighth Amendment precedent. The Supreme Court and lower courts have upheld far harsher sentences for far less serious conduct. The Eighth Amendment still has vigor when applied to the death penalty and some conditions of imprisonment, but under modern jurisprudence it does not place any significant limit on the length of imprisonment that may be imposed for convictions. That may not be what the law should be, but it's what the law is, and has been for some time.

Was the mandatory minimum sentence unusual, or unusually imposed?

The Hammond case provided a straightforward application of a statutory mandatory minimum sentence. If you accept the premise of the jury's verdict — that the jury found that the Hammonds maliciously burned government land — then the case does not stand out. Longer mandatory minimums are routinely imposed for less culpable conduct. That doesn't make it right; it just makes it banal.

Was it unusual for the government to appeal the sentence, or for the Hammonds to be returned to jail after serving the original sentence?

Absent a waiver, both the government and the defense have the right to appeal a sentence. Federal prosecutors generally must seek approval from "main Justice" — the Department of Justice in Washington D.C. — before appealing a ruling. That's so the feds don't make what they see as "bad law" by appealing "bad cases," and so the feds' legal stance remains relatively consistent across circuits.

Back in the 1980s and 1990s, before the Supreme Court ruled that the United States Sentencing Guidelines must be treated as recommendations and not as mandates, the government routinely appealed sentences when they concluded that the judge had mis-applied the Guidelines in the defendant's favor. Now that the appellate standard is "reasonableness" of the sentence, the government appeals on that basis less often, but still does so. The United States has always routinely appealed sentences when a district judge has refused to impose a mandatory minimum sentence. Traditionally the Department of Justice has jealously guarded the mandatory nature of mandatory minimum sentences, appealing judicial defiance of them even in otherwise unappealing cases.

It's therefore not unusual at all that the government appealed the Hammonds' sentence.

Nor is the Hammonds' return to prison unprecedented. If the trial court imposes a short sentence and the appellate court overturns that ruling and requires a longer sentence, that's the result. The alternative would be that trial judges could avoid appellate review of sentences by making them short enough that defendants would be done with them by the time the appellate court could review them. That might be appealing to defense lawyers, defendants, and judges who believe in the primacy of trial court discretion, but it's not the law.

The U.S. v. Hammond appeal, reversal, and resentencing are not remarkable in the context of federal criminal law. Maybe they should be, but they aren't. Any suggestion that the proceedings represent a departure from the norm are incorrect.

That's not meant as an endorsement of the result. It's meant to question why this particular exercise of federal criminal authority strikes people as so outrageous, when in fact (as we often discuss here) it's routine.

Ohio Judge Tim Grendell Is Popehat's Censorious Asshat of 2015

The votes are in. With a commanding lead of 10.2% over the nearest challenger, Ohio Judge Tim Grendell is Popehat's Censorious Asshat of 2015.

2015CensoriousAsshatWinner

Congrats, Judge Grendell.

Honestly Grendell wasn't my choice. But I can see how he won: he's emblematic of the vapid pettiness of power. Grendell abused his contempt power in a fit of pique at insignificant criticism and offered smug Youtube-commenter-level justifications when challenged. Like many censors, he wraps himself in the First Amendment when it suits him. Electing Tim Grendell isn't about just Tim Grendell; it's about how many censorship stories are the result of authority conferred upon mediocre minds and small spirits. Never stop fighting them.

Popehat 2015 Year In Review

As the year ends, here's a small collection of the 2015 posts that got the most traffic, notice, abuse, or idiosyncratic fondness from me:

Reason commenters still haven't forgiven me: Our series on the Department of Justice's abuse of a grand jury subpoena to uncover commenters engaged in political hyperbole drew a lot of attention, as did the follow-ups.

Millennials are all our fault. They learned it by watching us.

Stubby golf pencils are hilarious in the right circumstances. Also, you can feel better.

How can I make my old-man cantankerousness about free speech idiocy more hip and "with it"? I know, a listicle! In which I attempt taxonomy of media blather about free speech issues.

Trollin' ain't easy. When a target of your satirical column shows up to emphasize that it's a satirical column, that counts as a win.

There are not enough fucks around here. How can we generate more fucks? I know! Let's invite Marc Randazza to join us! Here he is on the "Man in the High Castle" advertisements, the first of many First Amendment posts.

Also, how can I get us sued? That would be awesome. Adam Steinbaugh joins the 'hat and continues his tradition of savaging censors.

Entirely unsporting: Censors put down by Patrick stay down for good.

Old Faithful: Prenda Law will always be there for us.

Who Will Be Popehat's Censorious Asshat of 2015?

It's time for Popehat's annual-when-I-get-around-to-it Censorious Asshat of the Year contest!

As always, only asshats we have written about are eligible. Candidates have been narrowed down through a process involving caprice, short attention spans, and alcohol.

It's a strong field this year, ladies and gentlemen. Here are the candidates:

The New York Times: An institution that won't print satirical cartoons at the heart of worldwide murders and death threats because they might hurt feelings. In aggravation: A complete abdication of support for free speech, badly supported by a appeal to feels that is not consistently applied across potentially offended groups. In mitigation: This is only self-censorship, which isn't really censorship at all, properly. The Times has a right to be craven and unserious if it wants.

Ohio Judge Tim Grendell: An overpromoted, thin-skinned thug who abuses the contempt power to harass critics and offers bad excuses for it. In aggravation: Proudly and wantonly abusing judicial office out of personal spite. In mitigation: Deserves the obscurity that his mediocrity had previously earned him.

Dr. Mario J. Saad: Saad was sad about the part of peer review where someone questions his work, and unsuccessfully sued to suppress scientific dialogue on breathtakingly frivolous grounds. In aggravation: Actually interfered with the peer review process that helps promote human scientific knowledge. In mitigation: As a doctor, probably completely unfamiliar with anyone telling him no.

Michigan Judge Lisa Gorcyca: This evil, vicious brute reviled and threatened children who didn't want to meet with their estranged father. In aggravation: “You want to have your birthdays in Children’s Village? Do you like going to the bathroom in front of people?" In mitigation: Really more of a regulation of conduct than speech.

The U.S. Attorney's Office for the Southern District of New York, U.S. Attorney Preet Bharara, Assistant U.S. Attorney Niketh Velamoor: Issued a grand jury subpoena to Reason Magazine to determine the identity of commenters making patently hyperbolic political comments on the pretext that they were threats, and sought and obtained a gag order preventing Reason Magazine from reporting on the fact that it was being subpoenaed and gagged on no rational grounds whatsoever. In aggravation: The part where they silenced a magazine that writes about government abuse of power from talking about their government abuse of power. Seriously. In mitigation: Total failure of substantive judicial oversight was akin to bad parenting. It's sort of like affluenza, except with unchecked prosecutorial power instead of weath and shrugging judges instead of awful parents.

Donald Trump: Prone to issuing frivolous defamation threats and filing bogus defamation suits to soothe his chafe over being criticized. In aggravation: Career abuser of the judicial system. In mitigation: Surrounded by sycophants who encourage his misunderstanding of free speech.

City of Inglewood, California: Filed an abusive and unsuccessful copyright infringement suit to attack someone who put city council proceedings on YouTube. In aggravation: In addition to harassing a critic, wasted a vast amount of taxpayer dollars in a predominantly impoverished city. In mitigation: Low expectations of local government has cultivated lawless atmosphere.

Eric Posner: Long-time dedicated foe of the First Amendment continued his unprincipled assault on it. In aggravation: America's most prominent academic champion of censorship. In mitigation: Has never actually persuaded anyone to censor anything.

Turkish President Recep Tayyip Erdoğan: Tirelessly employs the mechanism of his brutal government to harass and oppress even the most mild and lighthearted of critics. In aggravation: Actual tyrant who actually has people imprisoned for speech. In mitigation: Check your Western privilege. He's not from a culture with a tradition of freedom of expression.

Mecosta County District Court Judge Peter Jaklevic: Ordered clearly unconstitutional arrest of jury nullification advocate in a fit of pique. In aggravation: Abuse of judicial office. In mitigation: As a recent former prosecutor, never taught to view rule of law as a set of mutually agreed-upon limitations on power, as opposed to an obstacle.

Goddamn college students on my lawn: Doing their best to push the idea that universities should punish and silence people who say things they don't like, think that hurty words are "silencing" but closing student newspapers or forcing students into reeducation classes isn't. In aggravation: Insufferably fanatical; fanatically insufferable. In mitigation: Never taught any better.

Chuck C. Johnson: Bumbling his way through a frivolous lawsuit against Gawker, and others, for making fun of him. In aggravation: Incessantly wraps himself in the First Amendment while simultaneously making frivolous defamation threats. In mitigation: Gawker is awful. Also, he's pretty good comic relief.

Who is Popehat's Censorious Asshat of 2015?

Jessica Valenti Calls For Jailing of Critics Of War And The Draft

Jessica Valenti of The Guardian thinks that, just as we jailed people who protested and criticized the draft during World War I, we should be able to jail people who release unflattering videos about Planned Parenthood. Both, she believes, are justifiable.

Well, she doesn't say that explicitly. But that's the necessary implication of column today in The Guardian, in which she says that releasing undercover videos about Planned Parenthood should not be protected as free speech.

Freedom of speech is one of America’s most cherished rights, but we’ve always had limits on what’s acceptable: in 1919, the US supreme court ruled that the right doesn’t apply to speech that incites action that would harm other people.

At the time, the example presented by the court was that falsely yelling “Fire!” in a crowded theater doesn’t count as protected speech.

Like many people who favor censorship but have a cookie-sheet-shallow grasp of its history, Valenti is misquoting Oliver Wendell Holmes dropping a rhetorical aside in Schenck v. United States. Holmes invoked that image to justify the prosecution and imprisonment of a man who criticized and questioned the draft during World War I. Of course, in the century since, American courts have abandoned Holmes' sloppy and unprincipled stand, narrowing the "incitement" exception to intended to and likely to cause imminent lawless action. But Valenti speaks approvingly of the original ruling because, in her mind, it justifies censoring speech she doesn't like.

Just as she misleads her readers about history, Valenti misrepresents the present. She suggests that a federal judge in the Northern District of California prohibited the distribution of the Planned Parenthood videos because they posed a risk of danger to clinics. "Now, in the wake of the release of secretly taped and deceptively edited videos of abortion providers, a judge has issued a temporary restraining order because of the very real threat of violence that the videos pose." Valenti either doesn't understand the legal issues or is lying about them. In the Northern District case, the National Abortion Federation learned from the mistakes of Stem Express and explicitly couched their lawsuit and injunction request against the defendants in terms of breach of confidentiality agreements and fraud, not wrongful content. As Eugene Volokh explained, such content-neutral grounds may support prior restraint on speech, because they aren't about the content of your speech, they're about enforcing your promise not to reveal the information you're revealing.

To secure an injunction, a plaintiff must show — among other things — that they are likely to prevail on the merits of the suit and that the "balance of hardships" weighs in their favor. The NAF did not invoke the threat of violence as evidence that they would prevail. Instead, they argued that they would prevail because the defendants fraudulently obtained access to NAF events and violated confidentiality agreements. Only then did they argue that the balance of hardships was in their favor because of the atmosphere of threats and violence against abortion providers. The judge's temporary restraining order did not say that NAF was entitled to prior restraint because the risk of violence allows prior restraint. Rather, the court said that NAF had shown it would prevail on its substantive claims of fraud and breach of confidentiality agreements, and that the threats of violence went to the balance of hardships. Valenti is misleading her readers.

Valenti asserts that the Planned Parenthood undercover videos have caused violence against Planned Parenthood clinics. The only evidence she cites are the statements of the crazed and evil Colorado shooter. Valenti asserts that the videos are "secret" and "deceptively edited," but she does not explain how we know that the "deceptive" parts are what (allegedly) incited threats and violence, as opposed to the parts of the videos that are admittedly true.

Valenti's goal is clear: a broad, unprincipled rule that would punish rhetoric she doesn't like:

The frenzied language surrounding the video’s release – including out-and-out lies on national television by Republican presidential hopeful Carly Fiorina – has stoked harassment and violence. And though preventing the release of more footage may not stop lies and violent speech, it could help curb it and would send the message that anti-choice activists will not be allowed to spread lies without consequence.

Some social controversies do lead to death threats and violence. Both are utterly unacceptable; I wish that more political death threats were investigated and punished. But note that Valenti's eager advocacy for censorship is not tethered to illegally recorded videos or misleading videos or even videos with explicit lies: it's an explicit call to censor political speech that makes people mad, whether or not it's intended or likely to cause imminent violence. It's an vague call for someone in the government — perhaps people who agree with Valenti? — to decide what bits of political rhetoric and hyperbole are "lies" and suppress political speech accordingly.

Everyone who reads Jessica Valenti's column and believes it is now stupider about First Amendment law. Remember: free speech has enemies. Fight them.