Notes from Sarah and an Event Recap

Birthday Bun by redpangolins via Flickr. CC 2.0.

Happy Birthday, Co-Blogger Bunny!!!!!

Good morning, Readers! It's been quite awhile since I (Sarah) have written here. I started blogging on constitutional law and civil rights in a separate blog for a legal blogging class at law school, and have continued to write there. But the Intermediate Scrutiny team still wants to write together, so we're going to keep writing here, writing on separate blogs, and sometimes post things to both blogs.

I've started attending a lot of events—conferences, symposia, talks—and I'm going to start writing about them on these blogs, as well as the cases or issues that they inspire me to research and read and write more about.

The following originally appeared on my other blog. I wanted to make sure I got it up in time to let readers know about the Twitter chat this afternoon at 2PM EST!

Bunny On: Radical Nuns

Bunny writes:

This past Friday, republican presidential candidate Trump added 11 new names to his existing list of potential Supreme Court Nominees. A couple of the names are very familiar to me, including the Hon. Judge Amul Thapar of the Eastern District of Kentucky. Admittedly, I have yearned for an excuse to write about the wonderful opinion Judge Thapar penned in the B Girls lawsuit when he sat by designation in the Eleventh Circuit this past summer. The B Girls (short for Bar Girls) are women who lured men into drinking establishments in Miami Beach under false pretenses, with the alleged intent of compelling them to run up outlandish bar tabs. Par for the course, I say. Of course, there was more to the scandal, with tales of a Russian scam ring absconding the men's credit card numbers to make fraudulent charges. Wire-fraud came into play, and the women were convicted under the corresponding federal statute. The question on appeal was whether the District Court erred in the issued jury instructions on the element of "intent to defraud."

Judge Thapar's opinion is chock full of delightful musings, including a nod to Mr. Spock and a footnote lesson on bourbon:

“Pappy’s,” as it is often called, is a particularly rare bourbon varietal: nearly impossible to find, and nearly impossible to afford when one finds it.” ... “Although Old Crow has a venerable pedigree—reportedly the go-to drink of Mark Twain, Ulysses S. Grant, Hunter Thompson, and Henry Clay—it is not Kentucky’s most-expensive liquor. Its “deluxe” version, “Old Crow Reserve,” retails for approximately $15 per bottle. United States v. Takhalov, 827 F.3d 1307, 1313 n.5-6 (11th Cir. 2016)

I would be remiss to omit Sarah's favorite part:

Thus, to get from the given instruction to the requested one, the jury needed to infer only one thing: that a person cannot lie “knowingly and willfully” if he speaks what is in his view the truth. That inference, too, hardly requires Holmesian feats of deduction.* *Sherlock or Oliver Wendell: either Holmes will do here. Id. at 1318

A Man Holmes for All Seasons

Photo of Justice Holmes is an original by Harris & Ewing, stored in the Library of Congress
LC-USZ62-47817, now in the Public Domain. Sherlock Holmes illustration by Sidney Paget,
which appeared in The Strand Magazine in December 1891, now in the Public Domain.

Aside from a reputation for writing excellence, Judge Thapar has found himself ruling on a variety of headline-grabbing cases of controversy (as any federal trial court judge has experienced at some point in their career). One such notable case of recent years was the case of U.S. v. Walli, where a catholic nun, Sister Mary Rice, was convicted with two other individuals in a jury trial for causing injury to, interfering with, or obstructing the national defense, and for depredation of government property. During sentencing, Sister Rice pleaded with Judge Thapar to "[p]lease have no leniency on me ... To remain in prison for the rest of my life would be the greatest honor you could give me." The government recommended a sentence of 6.5 years, which Thapar referred to as "overkill," and he ultimately sentenced her to 35 months instead. The 6th Circuit eventually overturned the charges, finding "as a matter of law, [defendents] lacked the intent necessary to violate the Sabotage Act." With that, Sister Rice and her comrades were set free. And yet, Judge Thapar will continue to be known as "that judge who put a nun in jail."

As Sarah remarked to me, "It sounds like this nun could handle it." Sarah's comment reminded me of the nun character in the Netflix series Orange is the New Black, and it occurred to me that since the series was based on true events, perhaps so was the character of Sister Ingalls, who was in minimum security prison for repeated radical protest efforts.

And so began the internet rabbit hole on a Friday night. Indeed, the show's character is based on real-life Sister Ardeth Platte:

On Oct. 6, 2002, the two sisters and another nun - armed with bolt cutters, a hammer and baby bottles filled with their own blood - broke into an unmanned Minuteman III missile site in northeastern Colorado and painted bloody crosses on the silo. It was the day before the one-year anniversary of the war in Afghanistan. - Washington Times

Hang on, this sounds awfully familiar:

In the dark of night on July 28, 2012, in Oak Ridge, Tennessee, an 82 year-old nun and two Army veterans, ages 57 and 63, cut their way through four layers of fences and reached a building where the Department of Energy stores enriched uranium. There the trio spray-painted antiwar slogans, hung crime tape and banners with biblical phrases, splashed blood [with baby bottles], and sang hymns. When a security guard finally arrived, the group offered him bread and read aloud a prepared message about “transform[ing] weapons into real life-giving alternatives to build true peace.” Then the group surrendered to the guard's custody. United States v. Walli, 785 F.3d 1080, 1083 (6th Cir. 2015)

Reforming Habits

Catholic sisters join clergy in the March 10, 1965 march in Selma, Alabama. The marchers walked for less than a block before police stopped them. Pictured from left to right are Sr. Roberta Schmidt, CSJ, Sr. Antona Ebo, FSM, Sr. Rosemary Flanigan, CSJ, and Sr. Eugene Marie Smith, FSM. (© Bettmann / CORBIS), from http://globalsistersreport.org/news/selma-effect-catholic-nuns-and-social-justice-50-years-21201

As a Catholic, this notion of radical nuns was fascinating. Admittedly, I was previously unaware of protesting nuns, outside of women like Mother Theresa who illegally snuck bibles into certain locations to disperse to the locals. Apparently, these brave women are quite common with several accounts dating back to the civil rights movement.

Interviewing Dr. King about the sisters’ participation, journalist John L. Wright Jr. wrote that King believed the “participation of the nuns in the Selma demonstrations ‘had a special significance’ in arousing the national conscience to the plight of the Negro because the public knows a nun to be a woman of ‘great sacrifice and dedication.’” As Wright reported, King believed that the presence of religious people “identified the church with the struggle . . . in a way that has not existed before and has made it clear that civil rights is, at the very bottom, a moral issue.” - Global Sisters Report

For a recent example of radical sisters, see this story of nuns protesting voter purge. Not only are these great examples of symbolic speech, they are bolstered by the fact that we are talking about sworn servants of the Catholic church, which obviously brings religious freedom of expression into play. I don't have a particular point that I want to make at this time, and simply wish to offer this rabbit hole adventure as food for thought.

Scrutinize This!

Sarah Says:
Hello!  Welcome to Intermediate Scrutiny, a blog by three law students (so if we write something incorrect, remember--students--and please, real attorneys, feel free to correct us in the comments or in an e-mail to intermediatescrutiny@gmail.com) interested in constitutional law! The following is a post we drafted back in July, and then got stuck somewhere in the revision stage and did not post.  So as to not let perfect get in the way of good (or at least, extant), we are publishing this six-week-old post today. Our follow-up, with more detailed facts, more legal analysis, and the some commentary on media coverage, will appear shortly--I promise, within less than six weeks.  Please feel free to comment (but please, do so civilly) on this post or, if you're shy, write to us!  Finally, if you know where we can find the documents I mention later in this post, such as the Defendant's Answer, the Superior Court opinion, or any briefs filed in the case, please let us know.

Without further ado, here's what we worked on between July 11th and 16th!

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Bunny Says:
Greetings! I want to [finally] break the hermetic seal of this blog! We had the best intentions to do so on the 4th of July, but got too caught up in figuring out what would be the ideal case to be the first to analyze on such a special day.

Also, Sarah was busy making the most incredible rainbow flag fruit topped cake (from scratch) to commemorate all of our brothers and sisters being recognized by our nation to enter into matrimonial union with whomever they please! Here is Sarah and her beautiful cake on the 4th:

Sarah Kelsey, July 4th, 2015 © Bunny Sandefur

So, this morning I attended the oral arguments for an interesting case before the Georgia Court of Appeals where a certain KKK group was rejected from the Adopt-A-Highway program. The State's central argument is that the program and its signage are a feature of the State's own speech. Initially, the KKK won the dispute in the Superior Court (the lower trial court) on the grounds that their group was being discriminated against by the Department of Transportation. The State appealed the decision, bringing us to where we are now.

I'm not going to say much more about the case for two reasons:

1. I am currently employed [temporarily] by the Georgia Court of Appeals.

2. I most certainly don't have anything brilliant to say at this moment, and in general I do not anticipate that I will contribute a great deal of wisdom. Sarcastic commentary, definitely, but far from illuminating gems. I am, however, extremely interested in First Amendment issues, and in the future I will probably contribute a bit more to these sorts of conversations when I do not have a conflict of interest in doing so.

Here is a link to a Reuters article, summarizing the case and what happened today.

With that, I'd like to hand this off to Sarah or Rebecca, if they have any comments....

Sarah says:

I had a great, lengthy, silly thing drafted on Thursday night, which mysteriously did not get saved.  (In case it was one of my co-authors who read it, horrified, don't worry, I planned to edit it!)  Perhaps that is for the best, as it involved a colorful description of motorists rioting on the 285 upon seeing the KKK's Adopt-A-Highway sign, stopping in the middle of the freeway to get out of their cars while others careened off the road, some smashing into each other, all motorists yelling at once variations of, "I AM SOCIALLY NOT AT REST RIGHT NOW!"

As you can see, I had a lot of intelligent thoughts on the subject.  For one thing, according to this Huffington Post article from 2014, the highway in question is not the 285 or any interstate whatsoever, but Highway 515 in the Appalachian Mountains.  Incidentally, there is a Highway 515 that traverses part of the Appalachian Mountains where I grew up, in rural New Jersey. 

This failure to comment intelligently on the case is also because my First Amendment background is pretty patchy, and my knowledge of the Georgia State Constitution is even worse.  You see, mistakenly believing my dreams of a career in constitutional law were pie-in-the-sky, practically hopeless, unless I wanted to move to DC or California or something, I dropped the fall semester First Amendment class.  I dropped it to take Real Estate Finance.  I'm not saying that was a mistake (property law is my other love), but as I come across cases such as this, I really wish I had taken that First Amendment class.

[Brief Bunny Interjection: Oh good! I didn't take it last year, either. We can take it together! First Amendment Party!]

My knowledge of First Amendment is a jumble of phrases, like, "Content-neutral!" "NOT Content-neutral!"  "Time Manner Place" (easy to remember because I took German in high school and that is a rule of German grammar!) "STRICT SCRUTINY!" "Limited Public Forum!" "Compelled speech!"  I Googled the story, hoping to find some opinionated legal blog posts about it, to help me cheat inform me more about the subject, and was surprised to find limited national news coverage and mostly local news coverage, which from a cursory reading of their Google summaries, seemed to be the same exact story.

In order to comment intelligently, I would first like to read the lower court's opinion, which I hope to find on LexisNexis on my lunch break.  I would also like to read the complaint and any briefs filed (hopefully also on LexisNexis for Law Students).  I would like to read similar cases, especially a recent Supreme Court opinion (which I believe Rebecca will write more about.)

Updated: Unfortunately, I am not able to find the lower court's opinion anywhere on the Internet.  If you know where readers and I can find it, please email us!  In the meantime, here is a link to the ACLU of Georgia's website about the case, and here is a link to the Complaint (PDF).  This post may go live before I have finished reading these, in which case I'll post a follow-up so as not to delay content on this blog any further.

To acknowledge the bias in my heart, which I feel is important to presenting you with information that I will endeavor NOT to cloak in bias, I am a big fan of free speech, even speech I don't like, because I think it's important to know what people are thinking.  It's important to know who is hateful, so I have notice of what their actions might be.  But a little voice in my heart says, "I would not be very sad if the KKK did not get their sign."  However, after reviewing the legal documents and improving my First Amendment knowledge, I am very likely to both make up my mind, and change the mind of that little voice in my heart.

[Another Brief Bunny Interjection: Yes! Exactly! I, too, want people to be upfront about their bigotry so I can chose to avoid them! And I might be sad if they don't get their sign, because it would be a great photo opportunity! I don't want to live in a pristine, white-washed world. I want some outrageous things to occur so I may avoid boredom.]

I pass this on to you, Rebecca, who actually took First Amendment and wrote her Comment about First Amendment issues and knows stuff.  I might write a follow-up after I do some research.  NOW TO YOU REBECCA:

Rebecca Says:

Sarah, you’ve set the bar too high, but I will do what I can. From the little I know about First Amendment law, and what I have gleaned of the facts of this case, I think the government has the better of this argument. I’ll go ahead and note that I’m operating under the assumption that the Georgia Constitution free speech analysis is the same as federal free speech analysis. Though technically state courts can construe their state constitutions as granting broader free speech protection than the federal Constitution, the sources that I’ve run across indicate that Georgia courts have declined to do so with the Georgia Constitution.

So now to the analysis: if “normal” First Amendment law applied, the normal rules could present a problem for the government’s regulation. As I will explain in a minute, however, special rules apply when government speech is involved or when the government is providing a platform for speech.  

I’ll start with a brief primer on First Amendment law so that I can better explain the special rules around government speech and how they apply to this case. The general rule when it comes to free speech is that any restriction on speech must pass strict scrutiny – meaning that the restriction must be narrowly tailored to further a compelling government interest. There are, however, a number of historical categories that are exceptions to this general rule. United States v. Alvarez, 132 S. Ct. 2537 (2012) is the most recent Supreme Court precedent articulating these exception categories.  The Alvarez plurality states “[c]ontent-based restrictions on speech have been permitted only for a few historic categories of speech, including incitement, obscenity, defamation, speech integral to criminal conduct, so-called ‘fighting words,’ child pornography, fraud, true threats, and speech presenting some grave and imminent threat the Government has the power to prevent.” If the speech in question falls meets the specific requirements of one or more of these categories, then the government can regulate it without having to pass strict scrutiny. If the speech does not fall into any of these categories, then generally strict scrutiny applies.

Another important aspect of free speech doctrine is the distinction between content-based discrimination and viewpoint discrimination. Content-based discrimination is when the government restricts speech on an entire subject. Viewpoint discrimination is a subcategory of content-based discrimination where the government restricts speech on only one side of an issue, thus either explicitly or implicitly supporting one side of a debate. An example of content-based discrimination would be a regulation that suppressed all speech on US military involvement in the Middle East, regardless of the position the speaker took. An example of viewpoint discrimination would be a regulation that allowed speech supporting US military intervention in the Middle East while suppressing speech opposing it.  While both content and viewpoint discrimination will trigger judicial red flags, viewpoint discrimination is usually considered to be particularly invidious.  In fact, in the 1992 SCOTUS opinion of R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) the Court held that the government could not ordinarily engage in viewpoint discrimination even in unprotected categories of speech (though it should be noted that this opinion has been criticized by many commentators).

The exception to this prohibition against viewpoint discrimination is when the government itself is the speaker, which brings us back to the case at hand. The government in this case is in fact arguing that the speech at issue is government speech and therefore exempted from the normal rules about viewpoint discrimination. The other option, and what I’m assuming the KKK is arguing, is that the government is not itself speaking but providing a forum for the public to speak.  

To Be Continued in Part II!

Coming soon

Content coming soon. We will post after our final exams are over!