Judicial Elections and Campaign Finance Regulations

Today's New York Times contains this article by Adam Liptak on campaign finance rules for judicial elections. From the article:

Soon after Justice O’Connor retired, in 2006, the Supreme Court embarked on a run of campaign finance decisions amplifying the role of money in politics. Those rulings are also helping transform state judiciaries. 

“At a time when concerns about the conduct of judicial elections have reached a fever pitch, the court today unleashes the floodgates of corporate and union general treasury spending in these races,” Justice John Paul Stevens wrote in his dissent in the 2010 Citizens United decision, which concerned spending in a presidential primary. 

The last three election cycles included $152 million in spending in judicial races, according to Justice at Stake, a research and advocacy group that says it seeks to protect judicial independence. “Judicial campaign cash is burning a hole in the Constitution,” said Bert Brandenburg, the group’s executive director. “You cannot pour millions of dollars into our courtrooms without having an effect.”

Liptak notes that the federal courts of appeals are split over whether states can prohibit campaign solicitations by judges. Liptak highlights one case, Williams-Yulee v. The Florida Bar, that may end up making it to the Supreme Court. The issue in that case is "Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment."

Liptak points out that recent Supreme Court cases have taken a permissive approach to campaign finance regulations in cases like Citizens United v. FEC. He notes, however, that in Caperton v. A.T. Massey Coal Co., the Court seemed to take a different approach to cases involving judicial elections.

In Caperton, the United States Supreme Court overturned a West Virginia Supreme Court of Appeals decision on the ground that one of the West Virginia Supreme Court of Appeals justices, Brent Benjamin, had accepted substantial campaign donations from Don Blankenship, the chair of A.T. Massey Coal Co., and the defendant in the case. Despite having previously received these donations from one of the parties in a case before him, Justice Benjamin refused to recuse himself and ended up being the vote that caused the West Virginia Supreme Court of Appeals to rule in favor of A.T. Massey. The United States Supreme Court held that Justice Benjamin's refusal to recuse himself violated the plaintiff's due process rights.

Liptak's article concludes that the Court would likely strike down restrictions on judicial campaign funding despite its decision in Caperton. I am inclined to agree. While the Court's finding in Caperton recognized that some instances of campaign finance may affect a judge's impartiality and violate due process, Caperton involved a clear case where one judge had previously received a notably high amount of donations from one of the parties in a case before the judge. The Supreme Court would likely distinguish the clear abuse that occurred in the Caperton case from broader questions of campaign finance regulations which do not inherently involve such blatant quid pro quo.

Moreover, the Supreme Court can appeal to its ruling in Caperton to argue that campaign finance restrictions will not have a meaningful impact on preventing judicial corruption. Having ruled that clear instances of quid pro quo can already be remedied through due process challenges, the Court may argue that any additional regulation would be an excessive restriction on the First Amendment right to contribute to political campaigns.

If the Supreme Court does indeed intend to take this approach to judicial campaigns, it is likely that the Court will end up hearing the Williams-Yulee case in order to settle the circuit split on the issue. Moreover, the Ninth Circuit's recent decision to grant en banc review to its earlier decision striking down Arizona's restrictions on judicial campaign financing may increase the probability that the Court will take up Williams-Yulee.

Circuit Splits Blog is Alive Again

I'm happy to see that the Circuit Splits Blog is up and running after being inactive since September 2013 (without any posts on circuit splits since April 2013). The new posts started in mid-April and seem to be coming at a pretty steady pace.

This blog is especially helpful for students who are interested in writing comments, since splits in authority tend to present tangled legal issues that are worthy of comment. Papers on splits that have not been taken up by the Supreme Court may be more likely to have a real-world impact, since comments and articles on these splits may get renewed attention if the Court decides to resolve the split in the future.

Legislature Will Probably Deal With Phone Surveillance Before the Courts

From Politico:

Judge William Pauley III’s Friday decision to dismiss an American Civil Liberties Union request for an injunction against Director of National Intelligence James Clapper buttresses the government’s contention that sweeping up data associated with nearly every call to, from, and within the United States is legal under Section 215 of the post-Sept. 11 PATRIOT Act.

. . . 

The provision in question is due to expire at the end of 2014, and supporters of the NSA’s surveillance powers will have to make arguments to fellow lawmakers — and constituents — who have more information about the program because of Edward Snowden’s national security leaks. 

. . . 

The provision is almost certain to be debated by Congress again before these cases make their way up the chain, through U.S. circuit courts, to the Supreme Court. Another major challenge to the program is pending before a federal court in San Francisco. While the high court can short-circuit the process to take up an issue more quickly, it rarely does.

I think that this is a good point that people should remember when wondering whether the split decisions on the constitutionality of section 215 will lead to a review of the law by the Supreme Court.  And as I mentioned here, it is most likely that split will need to survive appellate review before the Supreme Court decides to review it, and I have my doubts over whether Judge Leon's decision will be upheld on appeal.

Privacy advocates may criticize Judge Pauley's decision as upholding a system of mass surveillance that many think is unconstitutional.  But this decision may be what the legislature needs to push it to act.  If Judge Leon's decision that the program was unconstitutional were the only decision on the subject, then lawmakers might want to avoid changing the surveillance program, arguing that the courts will end up determining whether it is truly unconstitutional.  With Pauley's decision that the program is constitutional added to the mix, the unconstitutionality of telephonic metadata is a much less certain conclusion.

I think that legislative reform is an effective way for the law to better accommodate privacy concerns.  Legislative changes can be specifically targeted, and are not governed by the facts of a specific party's case.  Finally, I think that one of the biggest obstacles to this type of reform is an inflated expectation that the courts (and especially the Supreme Court) will determine the constitutionality of section 215.

Southern District of New York Holds That NSA Telephone Metadata Collection Does Not Violate Fourth Amendment

The case is ACLU v. Clapper, and the text of the opinion is available here. The New York Times reports:

A federal judge in New York on Friday ruled that the National Security Agency’s program that is systematically keeping phone records of all Americans is lawful, creating a conflict among lower courts and increasing the likelihood that the issue will be resolved by the Supreme Court.

. . .

Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies. 

“This blunt tool only works because it collects everything,” Judge Pauley said in the ruling.
“While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is,” he added.

The BBC's coverage of the ruling is available here.

Judge Pauley's ruling reaches a different conclusion from the District of Columbia District Court, which, in Klayman v. Obama, ruled that while the Fourth Amendment does not typically apply to information handed over to third parties, the breadth of the NSA's program is a significant enough development that this rule should be reconsidered in this case.

The opinion here specifically rejects the reasoning of Klayman, noting that information about phone numbers that customers dial can be accessed by the government without a Fourth Amendment search taking place under Smith v. Maryland.  There, the Supreme Court held that under the third-party doctrine, people lose a reasonable expectation of privacy in  information that is voluntarily handed over to third parties.  Judge Pauley writes that Smith controls this case:

Some ponder the ubiquity of cellular telephones and how subscribers' relationships with their telephones have evolved since Smith.  While people may "have an entirely different relationship with telephones than they did thirty-four years ago," Klayman, 2013 WL 6571596, at *21, this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating.  Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones.  The fact that there are more calls placed does not undermine the Supreme Court's finding that a person has no subjective expectation of privacy in telephony metadata.  See Smith, 442 U.S. at 745. ("The fortuity of whether or not the [tele]phone company in fact elects to make a quasi-permanent record of a particular number dialed does not . . . make any constitutional difference.  Regardless of the [tele]phone company's election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record.")  Importantly, "what metadata is has not changed over time," and "[a]s in Smith, the types of information at issue in this case are relatively limited: [tele]phone numbers dialed, date, time, and the like."  Klayman, 2013 WL 6571596, at *21 (emphasis in original).  Because Smith controls, the NSA's bulk telephony metadata collection program does not violate the Fourth Amendment.

Some commentators have argued that this type of argument is flawed because it relies on an overly "aggressive" interpretation of the third-party doctrine.  Those commentators note that in United States v. Jones, five out of nine justices seemed to support a "mosaic" theory of Fourth Amendment searches, where government actions that would not typically be deemed a "search" under the Fourth Amendment may rise to the level of being a search because.  Technological advances may permit the government to obtain so much surveillance information about people that people would not reasonably expect the government to know what it knows about them.

Judge Pauley acknowledges this theory of the Fourth Amendment, but concludes that it does not control this case.  Referring to Jones, he writes:

In two separate concurring opinions, five justices appeared to be grappling with how the Fourth Amendment applies to technological advances. 

But the Supreme Court did not overrule Smith.  And the Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.  Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties.  Inferior courts are bound by that precedent. [citations omitted]

I have previously written that the third-party doctrine as stated in Smith poses a significant obstacle to Fourth Amendment challenges of surveillance programs such as the telephone metadata program, as well as for online surveillance practices.  While the reasoning of the majority of justices in Jones indicates that Smith may stand on shaky ground, no official holding of the Supreme Court has stated this, and I think that Judge Pauley was correct in his application of Smith.

As a final note, these cases are exciting because now there is a split in authority on the constitutionality of the NSA's collection of telephone metadata.  It is early to wonder about whether the Supreme Court will take these cases (as the New York Times seems to hint).  This split in authority will need to survive to the federal appellate level before that question can seriously be considered, and I have my doubts over whether Klayman's bold approach to Smith will be upheld.

But courts that are considering the constitutionality of telephonic metadata collection now have two different types of analysis that they can cite to support differing conclusions.  It will be interesting to see how Klayman and ACLU v. Clapper proceed on appeal, and how other courts end up interpreting these rulings.

California Bill, SB 467, Seeks Warrant Protection for Emails

The ACLU of California flags a bill here that has made it through the California legislature and is now awaiting the governor's signature.  The bill, SB 467, would give emails and online documents the same warrant protection as the content of letters.

The full text of the bill is available here. It is pretty long, but one of the more important sections seems to be the proposed amendment to Penal Code section 1524.4. The proposed amendment reads:

1524.4.
(a) A governmental entity shall not obtain from a provider of electronic communication services or remote computing services the contents of a wire or electronic communication that is stored, held, or maintained by that service provider without a valid search warrant issued by a duly authorized magistrate, with jurisdiction over the offense under investigation, using procedures established pursuant to this chapter.

I agree with the bill because I think that the content of emails should receive Fourth Amendment protection partly because the content of emails is analogous to the content of letters -- which receives Fourth Amendment protection -- and also for the reasons explained by Orin Kerr's analysis here, where he notes that even though the copy of an email received by somebody else may no longer be protected, this does not imply that the copy of the email on a third party server loses protection.

This bill would reject the Eleventh Circuit's approach in Rehberg v. Paulk, 598 F.3d 1268 (2010) which Kerr summarizes and criticizes here.  The bill would confirm the Sixth Circuit's approach in United States v. Warshak, 631 F.3d 266 (2010) which Kerr describes here.

The bill seems to be consistent with Ninth Circuit precedent on the issue. United States v. Forrester, 512 F.3d 500 (2007) stated in dicta that individuals' expectation of privacy in email contents was the same as their expectation of privacy in the contents of letters, but this statement was affirmed in a holding in the text-messaging context in Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (2008).

SB 467 seems to have had bipartisan support in the legislature, and it looks consistent with several circuits' precedent, including that of the Ninth Circuit.  Hopefully it ends up being signed into law.

Appellate Division in New York Upholds "Computer Trespass" Conviction

The case is People v. Puesan, and the court's opinion is available here.

The defendant was charged and convicted of "computer trespass" among other crimes, when he entered his place of employment while on disability leave and accessed computers in the office.  The court notes the
disability leave policy and security measures the office took:

Tom Allen, Vice President of Security at Time Warner, testified that an employee who is placed on work leave is not considered an active employee; his or her access card is disabled and thus cannot be used to gain access to the company's offices. This policy is announced in employee handbooks provided to employees, and any employee placed on leave is instructed by human resources department personnel regarding that policy. Since the public is not allowed to enter Time Warner Cable's Northern Manhattan office, security guards are stationed outside to ensure that those entering the building have valid ID cards.

Nevertheless, the defendant entered the office and accessed computers, apparently by using a program that generated password keys.  He resorted to this program after requesting the use of a coworker's login and password -- a request that was denied.

The appellate division of the superior court upheld the conviction and held that defendant had gained access to the computers "without authorization."  The court noted that New York's statute defined "without authorization" as "'access of a computer service by a person without permission . . . or after actual notice to such person, that such access was without permission' (Penal Law § 156.00[8])."  The court further clarifies what it takes for there to be access without authorization:

for access to be without authorization, the defendant must have had knowledge or notice that access was prohibited or "circumvented some security device or measure installed by the user"

The court held that the defendant's knowledge that he was not allowed in the building, and his use of the program to overcome the password security violated the statute.

While this case is clear, I feel like it is worth flagging because the court's definition of "without authorization" is relevant to a current debate over the meaning of a similar provision in the federal Computer Fraud and Abuse Act, and could help inform debate on the subject.  

The definition of "without authorization" continues to be a topic of dispute at the federal level, with the case of United States v. Auernheimer in the Third Circuit being a particularly notable example.  Cases like Puesan that clarify the definition of "without authorization" are particularly important, since the definition of this term in the federal context varies widely, depending on the circuit.

(H/T: Yale Law & Technology.)

Update: Supreme Court Denies Certiorari Petition in Sixth Circuit True Threats Case

I posted previously about this case, United States v. Jeffries, which involved a man who was convicted for violating a federal criminal threat statute when he posted an online video where he sang a song about how he wanted to kill the judge and other people related to his custody battle with his wife.  This case is similar to another, recent true threat case in the Third Circuit that I described here.

The question in both of those cases was whether making a true threat requires subjective intent to threaten another individual.  Both courts concluded that subjective intent was not required -- what mattered was whether the defendant's statements caused others to reasonably fear for their safety.

Today, the Supreme Court declined to review the case.  This is not surprising, since the only court of appeals to hold that subjective intent is required is the Ninth Circuit.  While there is a circuit split, the split was apparently not deep enough to prompt the Supreme Court to decide on this issue.

(H/T: Howard Bashman at How Appealing)

New Online True Threats Case from the Third Circuit

The case is United States v. Elonis, and the opinion is available here.  The opinion affirms Anthony Elonis' conviction under 18 U.S.C. § 875(c) making it a crime to "transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another"

The First Amendment issue is the same as the one in Jeffries v. United States, a case I posted about here: whether prosecution for true threats requires proof of the defendant's subjective intent to threaten the victim.  The Third Circuit followed the lead of the vast majority of circuits that have addressed the issue and held that no proof of subjective intent is required.

Elonis' argument was similar to that advanced by the defendant in Jeffries.  Elonis cited Virginia v. Black 538 U.S. 343 (2003) - the most relevant Supreme Court case on the issue - and pointed out that in this opinion, the Supreme Court stated that:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (emphasis added)

Elonis argued that the Supreme Court's inclusion of the "means to" language indicated an intent to only include statements that speakers intended to be threats.  The Third Circuit disagreed:

we read “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence” to mean that the speaker must intend to make the communication. It would require adding language the Court did not write to read the passage as “statements where the speaker means to communicate [and intends the statement to be understood as] a serious expression of an intent to commit an act of unlawful violence.” This is not what the Court wrote, and it is inconsistent with the logic animating the true threats exception. (citations omitted)

The court then points out that the lower First Amendment protection for true threats is based on the harm that these threats cause and that:

Limiting the definition of true threats to only those statements where the speaker subjectively intended to threaten would fail to protect individuals from “the fear of violence” and the “disruption that fear engenders,” because it would protect speech that a reasonable speaker would understand to be threatening.

As I mentioned in my post on Jeffries I think that this approach is correct, especially in the online context where individuals may claim that they did not intend their statements to be threats because it is normal to say all sorts of strange things online.  Requiring subjective intent will make it easier to avoid prosecution for statements that cause real harm.

Lastly, this case is bad news for Jeffries, who is trying to get the United States Supreme Court to hear his case.  With the Third Circuit joining the vast majority of circuits that have addressed this issue (and with the only circuit reaching a different conclusion being the Ninth Circuit), the circuit split that Jeffries is trying to emphasize is now even shallower after Elonis.

(H/T: Howard Bashman at How Appealing)

Online Threats and the First Amendment

Wired reports about a petition for certiorari currently pending before the Supreme Court.  The case is Jeffries v. United States.  Here is Jeffries' petition for certiorari and here is the government's brief in opposition.  The Sixth Circuit's opinion is here.  The question presented, as framed by Jeffries is:

Whether, in light of the plain meaning of “threat” and the constitutional rule of Virginia v. Black, 538 U.S. 343 (2003), conviction under Section 875(c) requires proof of a subjective or specific intent to threaten.

Jeffries posted a video online of him playing the guitar and singing about killing the judge and other people involved in a ten-year custody dispute with his ex-wife.  Jeffries posted this video on Youtube but made sure to be diligent about spreading his message.  According to the government's brief:

Petitioner posted a link to the video on his Facebook wall and sent links to 29 Facebook users, including a Tennessee State representative, a television news station, and an organization devoted to empowering divorced fathers as equal partners in parenting.

The issue that Jeffries raises is certainly an interesting one from a First Amendment perspective.  Commentators have puzzled about the issue, with one of the most recent examples I've seen being Leslie Kendrick's article.  (Full Citation: Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 William & Mary L. Rev. 1633 (2013).  Orin Kerr also blogged about the case when the Sixth Circuit decided it, noting Judge Sutton's reservations about how common interpretations of the statute (18 U.S.C. §875(c)) essentially disregard whether intent is required for a conviction.

I think that the circuit split on this issue is far less significant than Jeffries makes it out to be, and the Sixth Circuit's opinion is in line with the prevailing approach of the circuits that have dealt with the issue.  Accordingly, I think that it is unlikely that the Supreme Court will grant this petition.

I think that Jeffries' attorney's statements in defense of his client point out why an intent requirement may be a bad way to construe the threat statute.  Wired reports:

“We think its potentially quite a significant case. People say things in the online world that they don’t mean seriously,” said the veteran’s [Jeffries'] attorney, Chris Rothfeld. “Second, it’s difficult to tell in the online world how a statement is intended. People say things and write things and they are read in an entirely different context.”

This statement shows why an intent requirement would make it a lot easier to harass people online.  Defendants who explicitly threaten the well-being of others could claim that they were not being serious.  While laws that criminalize online harassment are often poorly drafted and overbroad (see e.g., this), there should still be room to prosecute those who threaten to cause serious harm to others.

And if the internet makes a difference, this difference is accounted for by the current interpretation of the statute. Jeffries' attorney notes that statements online are "read in an entirely different context."  To be convicted under the statute in this case, the defendant's threats must be such that a reasonable person would "take the statement as a serious expression of an intention to commit bodily harm."  The statute is further limited by requiring that the threat be made to achieve some goal through intimidation.

Statements made on the internet can cause real harm and adequately narrow statutes that allow for the prosecution of these statements are crucial for combating this harm.  18 U.S.C. §875 is one such statute, and requiring proof of intent in these cases would hinder the legitimate prosecution of true threats.

Second Amendment Split in Authority Deepens

At Volokh Conspiracy, Eugene Volkh posts about the Illinois Supreme Court's unanimous decision striking down sections 24-1.6(a)(1), (a)(3)(A) of Illinois's aggravated unlawful use of weapons statute.  These sections prohibited individuals from carrying loaded, accessible firearms.  The statute also prohibits individuals from carrying stun guns or tasers that are "loaded" and accessible -- which would presumably ban the carrying of these weapons as long as they are functional.

Volokh summarizes the split in authority:

This deepens the lower appellate court on split on whether the Second Amendment secures a right to carry a gun in public. Most of the decisions say “no.” See, e.g., Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012); Woolard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); People v. Dykes, 209 P.3d 1, 49 (Cal. 2009); Little v. United States, 989 A.2d 1096 (D.C. 2010); People v. Dawson, 934 N.E.2d 598 (Ill. App. Ct. 2010); Williams v. State, 10 A.3d 1167 (Md. 2011); Commonwealth v. McCollum, 945 N.E.2d 937 (Mass. App. Ct. 2011); People v. Perkins, 880 N.Y.S.2d 209 (App. Div. 2009). Indeed, McCollum went so far as to say that possessing a gun in someone else’s home can be punished, without regard to whether the resident has allowed or even asked the gun owner to bring the gun.

On the other side are Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), plus now the Illinois Supreme Court decision, Ex parte Roque Cesar Nido Lanausse, No. KLAN201000562 (P.R. Cir. 2011), http://www.volokh.com/?p=46217, which seems to hold the same, and People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012), which so states, albeit in dictum.

Because of this split, I expect that if the state of Illinois chooses to petition for certiorari, there would be a good chance of the U.S. Supreme Court’s agreeing to review the case. But Illinois decided not to petition for review fromMoore v. Madigan, so I suspect they wouldn’t do so here.

I posted about the split in authority on the carrying of firearms here.  This case deepens the split, and it will be interesting to see if other jurisdictions end up taking the Illinois Supreme Court's approach.  While a United States Supreme Court grant of certiorari may not be immediately forthcoming, the current split may continue to perpetuate itself if courts interpret the split to indicate that there is no clear answer on the issue.