Blawg Review 190 – Bill of Rights Day

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By All Hands,

The Carnival of Law Bloggers has honored us with the privilege of hosting Blawg Review #190. We decided that since it was a carnival, we would just hold a freak show — no links to other Blawgs, just pictures of people with elephantiasis of the genitals.

Just kidding. We’ll stick to tradition.

The honor was tossed our way at this particular moment because today happens to be Bill of Rights Day. First proclaimed in 1941 by Franklin Delano Roosevelt in honor of the 150th anniversary of the ratification of the Bill of Rights, this day usually goes by unnoticed. How many of you have ever heard of Bill of Rights Day?

That’s what we thought.

This Bill of Rights Day is particularly special to us here at the Legal Satyricon. When we saw that the dipshit-in-chief issued a proclamation about the day, we presumed that it would be a proclamation that the Bill of Rights would be suspended. W has now reigned over eight Bill of Rights Days in a row, and he will be commemorating this one as he has the past seven, by wiping his ass with the Constitution. However, we will commemorate Bill of Rights Day as we commemorate most every day, by trying to bring you a little bit of knowledge. But, as this is Blawg Review #190, we will be educating you by proxy — bringing you links to our blawger bretheren.

To prime the pump, here is a quote discovered by our friend, Mark Kernes.

“Today, those who believe that the war on terror requires the sacrifice of our liberties like to argue that ‘the Constitution is not a suicide pact.’ In a sense, however, the Declaration of Independence was precisely that. By signing Jefferson’s text, the signers of the declaration were putting their lives on the line. If the rebel American militias were beaten on the battlefield, their ringleaders could expect to be hanged as traitors. They signed anyway, thereby stating to the world that there is something worth more than life, and that is liberty.” – Barbara Ehrenreich, NY Times, July 4, 2004 (emphasis proudly added)

This is The Legal Satyricon coming at you with links and fun, and if you’re not careful, you might learn something before it’s done. (cue Fat Albert theme song…)

FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That means you can say Kiss My Ass, Pig!

In the category of “concrete examples of what can happen even in a modern pluralistic democracy if you don’t have a First Amendment,” Popehat, tells us about the excesses of anti-“hate speech”-crusader and professional censor Richard Warman, who uses the Canadian Human Rights Commissions to attack speech he doesn’t like

Lest you think that the Legal Satyricon corners the market on First Amendment jurisprudence and cases about strip clubs, Mike Atkins at Seattle Trademark Lawyer discusses a recent First Amendment victory by a video game manufacturer over a strip club’s (a.k.a. First Amendment protected adult cabaret) objections.

Speaking of the Legal Satyricon, yours truly gives the readers of the Citizen Media Law Blog a discussion of a recent New Hampshire case in which the court held that the New Hampshire cognate to the First Amendment prohibits prosecution of pornographers for prostitution. Dr. Marty Klein’s professional opinion on the ruling is that New Hampshire gets a clean bill of health from the good doctor, but he does wish that we lawyers were a little more knowledgeable about sex. Andy Contiguglia doesn’t mention sex, but he read somewhere that naked bike riding is First Amendment protected activity.

And speaking of the Citizen Media Law Blog, if we could have just one Blawg to satisfy our First Amendment cravings, it would be CMLP. David Ardia gives us a post about a student who brought suit to overturn her suspension based upon a Facebook profile. Meanwhile, Matt Sanchez shows us what happens when you don’t have robust protection for free speech principles. Sam Bayard tells us about internet intermediaries and their role in censoring online speech, and he keeps us informed on the Jones Day vs. Blockshopper suit.

Evan Brown reports on a case where a citizen couldn’t get his emailed complaints through to county officials due to their spam filter settings. The citizen claimed that this violated his right to petition the government for redress of grievances. Evan tells us that the Third Circuit rejected the claim that this rose to the level of a Constitutional violation, and no reasonable fact-finder could have found otherwise.

Inspired by Evan’s post, Venkat Balasubramani at Spam Notes gives us an overview of similar cases that tell us that blocking annoying incoming email messages is not a First Amendment violation. Law is Cool gives us a refreshing discussion on the same issue (and links to us in the process)

At the WSJ Law Blog, Amir Efrati discussed the First Amendment claims raised in a South Carolina case concerning religious-themed license plates South Carolina Christians will still be able to use bumper stickers to proclaim their superstitions to the people behind them in traffic. The WSJ isn’t really the most staunch advocate for the Bill of Rights, as evidenced below under Fourth Amendment. If you wan’t that, you’ll have to stay closer to (our) home: Proselytizing Plates Punted in Palmetto State. In the same theme, Nobody’s Business shows us that Christians seem to believe in the First Amendment and the Eighth Commandment when it suits them and them only. Howard Friedman at Religion Clause already knew that when he reported on the City of Rancho Cucamonga’s foray into faith-based censorship.

Eugene Volokh, always good for a First Amendment discussion or ten had a couple of great First Amendment posts this week. The first considered the now seemingly dead-in-the-water auto bail-out and a provision under discussion which would have required the automakers to abandon their challenges to fuel efficiency standards. The second concerned the encroachment of contract upon free speech.

Of course, the First Amendment is our favorite thing in the world. But, our second favorite? PIRATES! With that, Phillip Gordon makes the Blawg Review by writing about the “Drunken Pirate” case wherein a court has rejected a teaching candidate’s First Amendment claims in connection with the denial of a teaching certificate based largely upon content at her MySpace page. Arrrrr.

SECOND AMENDMENT

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Douglas Berman at Sentencing Law and Policy considers whether expanded protection of Second Amendment rights post-Heller will lead to an effective diminishment of Fourth Amendment rights.

Scott H. Greenfield at Simple Justice offers a veritable cornucopia of Amendment love (1st; 2nd; and 4th specifically mentioned) in an interesting post, which poses a question some law enforcement officers have been asking themselves lately, “which constitutional amendment should we ignore today?” (You didn’t think it was, WWJD, did you?!)

THIRD AMENDMENT

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

It takes some digging to find any discussion of the Third Amendment, but dig we did. We sifted the sands of the Potomac River, and after picking out Larry Craig’s dignity and Dick Cheney’s ethics, we found this nugget by Steve Vladeck on PrawfsBlawg about student Joshua Dugan’s note presenting an interesting, and fairly original, argument that the Third Amendment protects against more than just the housing of troops during peacetime. Rather, Dugan suggests, the term “quartering” as used in Revolutionary times should be understood to prohibit military intrusion into private lives, including wiretapping by the NSA.

FOURTH AMENDMENT

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That means that cops can’t use thermal imaging equipment to try and figure out if you are growing pot in your house. Of course, we are “at war,” so these inconvenient little legal truisms can be set aside, unless someone fills a house with hidden cameras and busts the cops. See Turley.

Mark Draughn proudly proclaims that he isn’t a lawyer, and thus his baby, Windypundit is not strictly-speaking a “blawg.” Nevertheless, the Carnival gave us the keys to the car, and we’re hosting the freak show. Draughn may not be a lawyer, but he provides some of the best legal analysis in the blawgosphere. Ever the Libertarian philosopher, Draughn explains to the masses why “if you aren’t doing anything wrong, you have nothing to hide,” is not a valid excuse for the erosion of one’s Fourth Amendment rights. He has some choice words for the “bootlickers” at the Washington Times.

In a post that carries Draughn’s spirit, Timothy B. Lee doesn’t use the term “bootlickers” to describe the Wall Street Journal, but he certainly implies it when critiquing the WSJ’s astonishing kowtow to power in an editorial that all but calls for the death of the Fourth Amendment.

Radley Balko at Reason is just as perturbed that the Fourth Amendment doesn’t necessarily apply within 100 miles of a border, as is Harold Poole over the Fourth Amendment’s leaky hull in the nation’s capitol. Kip isn’t too happy either, and doesn’t think Congress should have the power to give and revoke that which the Founders intended to be a fundamental right.

FIFTH AMENDMENT

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Our lesson starts with Mark Bennett schooling a young prosecutor on how the Fifth Amendment works. Obviously, John Ashcroft could use one of Bennett’s lessons as evidenced in Jonathan Turley’s post, Ashcroft “Stunned” People Think Detainees Deserve Due Process.

Clearly there is a colorable nexus between the Fifth Amendment and life on teh internets. As Susan Brenner, over at CYB3RCRIM3, explains in this post; the Fifth Amendment essentially protects your ability to tell the cops to go pound sand when they ask for your passwords.

Thank goodness our rag-tags beat the Red-Coats all those years ago because apparently, the situation is quite different over in the UK, as the Privacy Law Blog points out.

Popehat details: the tragic death of a quadriplegic man, sentenced to ten (10) days in a Washington D.C. jail (which could not accommodate his medical needs), for misdemeanor possession of medicinal marijuana (despite his first time offender status), the substantial data available stating how the jail could not accommodate his legitimate medical needs (or the availability of alternate punishments) that may have prevented his death; which should be, but apparently isn’t, a 5th Amendment violation of his life without due process of law. See also, Eighth Amendment.

There is more than one way to skin a cat, whatever that means. The Reporter’s Committee for the Freedom of the Press serves up a story about a reporter who couldn’t convince a federal judge to allow him to protect the identity of his sources, a right the First Amendment seems to grant him. Undaunted, the reporter then invoked the Fifth Amendment.

SIXTH AMENDMENT

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

In our favorite recent post about the right to a jury trial, Eric Turkewitz educates the masses on how the right to a jury trial secured our right to free speech.

Sometimes, refusing to represent an indigent party is better than representing them incompetently. See Legal Blog Watch.

And in case you were wondering, if the defendant is a member of a minority group and the government’s key witness has swastika tattoos, it is a violation of the Confrontation Clause for the court to prohibit the defense attorney from asking the guy about the tats. Unfortunately, while the Second Circuit recognized this, the Second Circuit Civil Rights Blog and A Public Defender report that the 2d. Cir. invoked the “no harm, no foul” rule.

If you really want to eat a Big Assed Fries size helping of knowledge on the Confrontation Clause, spend some time with Professor Richard Friedman’s Confrontation Clause blog.

SEVENTH AMENDMENT

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

Apparently the RIAA didn’t get the memo on this one. One of its attempted victims in a file sharing lawsuit has had the audacity to demand a trial by jury — a move the RIAA deemed “vexatious.” Wired 27b/6.

EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In the pantheon of “cruel and unusual punishment” gods, we think getting your dick cut off is pretty much up there near the top of the list. Patrick at Popehat agrees.

Scott Greenfield and Eugene Volokh discuss a recent decision by a U.S. Magistrate that seems to suggest that Jews might be less entitled to bail that gentiles.

Jon Katz, always inspirational in his calls for compassion, implores us to humanize prisoners to make their punishment a little less cruel and unusual.

Speaking of Compassion, A Public Defender reports that a Maryland Commission has recommended that the Blue Crab State do away with the death penalty.

And for a lack of compassion, the ACLU Blog discusses how Jonathan Magbie essentially got a death sentence for possession of marijuana. The NORML blog provides more cases of this foul ilk.

Sentencing Law and Policy tells us about a Maine judge who showed a little compassion of his own, invoking the Eighth Amendment and rejecting a mandatory minimum sentence for a habitual drunk driving offender. I wonder if writing an essay is cruel and unusual punishment… probably not.

NINTH AMENDMENT

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

KipEsquire’s brings us a discussion of the Ninth’s specific and uninhibited reservation of “unenumerated” Civil Rights to the people (see some of his past posts on the subject, here; here; and, here).

Mark Kernes at Adult Video News flosses our minds with his favorite quote on the glorious Ninth, brought to us by Griswold v. Connecticut. Of course, we like his quote by Karl Kraus almost as much.

TENTH AMENDMENT

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The Tenth Amendment Center appears to be a good source for up-to-date commentary on federalism and the rights that have been reserved for the people.

This post from frequent contributor, Ron Paul (yes, thee Ron Paul), is a great place to start, for anyone who favors decentralizing the 800-pound gorilla that is our federal government.

Teh 3nd

Well, we hope that you’ve learned something from some of our favorite Blawgs. Now make sure to wish everyone a Happy Bill of Rights Day.

Blawg Review continues next week, hosted by Ron Coleman at Likelihood of Confusion.

Blawg Review has information about next week’s host, and
instructions how to get your blawg posts reviewed in upcoming issues.

*Special thanks to Turkewitz for the image of the Bill of Rights Plaza sign.