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Amazon wins one for the 1st Amendment

October 26, 2010 by Leave a Comment
For those out there who trust government too much, I present to you a case of government bureaucracy gone too far, as well as the lawsuit that said “no.”

A few months back, I took note of a case wherein North Carolina was trying to force Amazon to give up records in order to collect sales tax:

North Carolina is demanding that the online retailer provide records on what was purchased by consumers in the state since 2003.  That amounts to over 50 million purchases, no small number. While North Carolina law requires consumers to pay taxes for online purchases  if buying the same item in a store would result in a sales tax, out-of-state retailers–like Amazon–can’t be forced to collect North Carolina’s tax if it has no physical presence in the state. Hence, the demand for all information on purchases since 2003.

The case was in federal court, and yesterday the United States District Court, Western District of Washington at Seattle ruled against North Carolina.

Amazon pursues summary judgment as to its First Amendment claim that the DOR’s request for all information related to Amazon’s sales to North Carolina residents violates the First Amendment. The Court agrees and GRANTS the motion.

The First Amendment protects a buyer from having the expressive content of her purchase of books, music, and audiovisual materials disclosed to the government. Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously. In the context of distribution of handbills, the Supreme Court held that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960) (protecting anonymity in handing out campaign literature). The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights. In a concurring opinion, Justice Douglas highlighted the deleterious effect of governmental meddling in the reading habits of its citizens: “Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged.” United States v. Rumely, 345 U.S. 41, 57–58 (1953) (Douglas, J., concurring).

In other words, the First Amendment protects a buyer’s right to express herself in what they purchase, and that right includes the right to anonymity. Later in the opinion, the justice notes that disclosure of purchasing habits could result in a chilling effect on the willingness of individuals to make purchases online. Ironically, the North Carolina Department of Revenue, the actual party seeking the records, admitted that they “no legitimate need or use for having details as to North Carolina Amazon customers’ literary, music, and film purchases[,]” yet still would not give up the request for that information. Therefore,

With no compelling need for both sets of information, the DOR’s request runs afoul of the First Amendment. It bears noting, too, that the DOR’s requests for information were made solely in the context of calculating Amazon’s potential tax liability. Amazon has provided all of the data necessary to determine its tax liability, except any potential tax exemptions. The DOR has failed to articulate the compelling need to calculate these possible exemptions, particularly where it has admitted that it can and will assess Amazon at the highest rate and it would permit Amazon to “challenge the assessment and … establish that exemptions or lower tax rates applied to some products.” Even assuming there is a compelling need to calculate Amazon’s tax liability inclusive of exemptions, the DOR’s requests are not the least restrictive means to obtain the information. The request is overbroad. The Court GRANTS the motion for summary judgment.

With no real need for the information, why the broad request? Why require information that is clearly personal and expressive and has no bearing on the ability to collect taxes? If there were ever a case that demonstrates the insensitivity of government bureaucrats, this is it. Ironically, it took a large corporation–Amazon–to stand up to them and tell North Carolina ”no, we won’t divulge that information.” What if it had been a smaller company, one that could not afford the costs of litigation? Would North Carolina have succeeded? Or have they already before in the past?

Amazon takes on Big Brother and wins one for the First Amendment.

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SCOTUS upholds strip club “pole tax”

October 12, 2010 by 2 Comments

Selling stuff at strip clubs costs 10% more

In 2004, the Utah legislature, being what it is (and what it is, is controlled largely by conservatives, both fiscal and social), passed a 10% tax on everything sold by strip clubs. Burgers, t-shirts, drinks, key chains, bobble heads, etc.  Everything. If you’re a strip club and you sell something, then the Utah legislature gets 10%. Because the tax was levied solely against, as the bill is labeled, Sexually Explicit Business and Escort Services, the tax came to be known as the “pole tax.”

That’s a First Amendment violation, the clubs said.

A group of strip clubs, including Denali and American Bush Inc., challenged the constitutionality of the law, arguing that it violated their First Amendment rights.

Denali features full frontal nudity, while America Bush has plans to introduce nudity into its performances.

When written, the “pole tax” was intended to pay for sex offender treatment, as well as to pay for the Utah Attorney General’s Internet Crimes Against Children Task Force.

The Utah Supreme Court has already upheld the law, and the US Supreme Court‘s refusal to hear the appeal essentially ends the clubs’ legal fight. Back then, Justice Durrant held that:

“In this case, the tax is triggered by nudity, which the (U.S.) Supreme Court has specifically declared ‘is not an inherently expressive condition,’” Durrant wrote in the majority opinion. “We find nothing in the record before us — either (in) the tax’s legislative history or in the text of the tax itself — establishing that the tax was enacted with the predominant purpose of suppressing protected expression.”

In other words, the tax doesn’t suppress protected expression.  It just makes it more expensive to see nudity.

First Amendment protections for nude dancing?

The Supreme Court dismissal aside, does the First Amendment ever cover nudity and sexually explicit businesses?

Ironically, the 10th Circuit Court of Appeals, which includes Utah, had addressed the issue of nude dancing just before the Utah Legislature’s “pole tax,” evaluating whether ordinances passed by the City of South Salt Lake could limit the extent to which exotic dancers could remove their clothes. As Justice Michael McConnell astutely noted, the Supreme Court has not been favorable to nude dancers in recent years.

Despite the theoretical uncertainties, however, the results themselves in these cases [speaking of those the US Supreme Court has ruled on]  have been consistent: the practitioners of nude dancing have lost and the ordinances have been upheld. (Heideman v. South Salt Lake City, 348 F. 3d 1182 – Court of Appeals, 10th Circuit 2003)

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(Aside: not having solicited one of these clubs before, I found it amusing that the dispute was over whether or not dancers had to wear “pasties,” which just cover their nipples, and g-strings, which just cover genitals. Really? At the point that all that is covering your skin is less than two postage stamps and a small napkin, aren’t you effectively naked, anyway? But I digress from the First Amendment discussion…)

The cases that McConnell is referring to are Barnes v. Glen Theatre, Inc., and City of Erie v. Pap’s A.M. In those cases, the court noted that, to summarize, nude dancing is expression covered under the First Amendment, “the outer perimeters,” and then “only marginally so.” (City of Erie noted that being in a “state of nudity” is not in itself expressive conduct, and so cannot merit First Amendment protections, but nude dancing is, and so falls under the “outer ambit” of the First Amendment.)

Because it is expressive behavior, then, however “marginally so[,]” the Supreme Court looks at the regulation of nude dancing under a standard that asks whether the regulation is related to suppression of speech, and if not, it receives a relatively low standard of scrutiny, and is more likely to be upheld.  If the regulation does suppress speech, a higher standard is used before the regulation can be upheld.  The Supreme Court is then likely to uphold a governmental regulation that is aimed at conduct, not speech, especially if the conduct has negative secondary effects. In City of Erie, the court notes that the Pennsylvania Supreme Court had upheld such ordinances that were explicitly targeted, in their language to nude dancing

which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects. 553 Pa., at 359, 719 A. 2d, at 279 citing the Erie, Pennsylvania ordinance.

Without dipping too far into the minutia of the Supreme Court’s opinion then, it appears that the court looked at the ordinance, determined that the activity of nude dancing is protected under the First Amendment (if just barely), but that government regulators can limit it when they have a good public policy reason for doing so, as long as that purpose is not the suppression of speech.

Utah’s tax justified?

Back to Utah: the tax on the adult clubs–the “pole tax”–doesn’t even remotely regulate or limit speech of the dancers.  It makes purchasing anything in the club more expensive, but because, ostensibly, the purpose of the tax is to support treatment for sex offender treatment and a persecutor’s task force against internet predators, the Court, like the Utah Supreme Court, didn’t see any problem with it.

So what’s the other side of this? To quote, or summarize, Ronald Reagan, if you want something to stop moving, tax it.  By placing a tax on strip clubs, Utah legislators are are acting to slow, or stop, strip clubs.  Is it appropriate? Should government be in the line of choosing what businesses are moral and which are not? In this case, it’s probably appropriate.  State legislators are selected by their constituents to pass laws that represent them. Public policy is most appropriately determined by the elected legislators, and in this case, legislators acted to protect the interests of the state at large, and yet not infringe on First Amendment rights by prohibiting the dancing.  It’s a balancing act, and whether one agrees with such clubs’ existence in the first place, the process by which this tax came about is hard to find inappropriate.

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Immigration Debate: Federal or state purview?

August 9, 2010 by 1 Comment
The Constitution in Peril
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Recently, the local Deseret News has seen debate on its opinion page, and carried over in the Facebook-sphere, on the immigration issue, especially as it relates to whether immigration policy is the purview of states or the federal government, and in many respects, it returns to Constitutional interpretation by the political right (though I am not clear that it falls on party lines).  Two opinions in particular have debate it, and because one (“Immigration a matter for the federal government, which hasn’t delivered,” August 8, 2010) is in direct response to the other (“Border security not federal purview,” August 3, 2010), I’ve posted them below.

It’s an interesting discussion, and I believe it reflects, in many ways, a growing disenchantment with the expanding reach of the federal government in to the lives of American citizens.  However, the views expressed of the authors are their own, and I present them only as food for thought and consideration.  I do not blame the growth of the federal government on either party alone; indeed, much of what the Obama Administration has been able to accomplish has only been possible because of what the Bush Administration did during its eight year tenure.

The first opinion below is by Connor Boyack (he is found on Twitter as @cboyack), a blogger, communications coordinator for the Utah County Campaign for Liberty, “a 20-something web designer, political economist, and budding philanthropist.”

In the wake of Arizona’s immigration law and “the list” of 1,300 alleged illegal immigrants, people in Utah and around the country are debating the ever-present issue of immigration at a fever pitch. For all the resulting discourse, however, it seems that nearly everybody has assumed that federal immigration law is proper.

This view is mistaken, although understandable. More than a century of precedent has led Americans to believe that the power to regulate and restrict immigration is a federal one. Time, however, does not confer authority; if an individual health care mandate is unconstitutional today, yet still implemented, the passage of 100 years does not make it right.

It is an interesting exercise to ask supporters of federal immigration law where the government derives its authority on this issue. The varying responses given are as numerous as those offered by the U.S. Supreme Court over the years. One would think that if such a power existed, we could at least agree on what text in the Constitution applies.

A common citation of constitutional authority is Congress’ power to “establish a uniform rule of naturalization,” though both a colonial-era definition of the word naturalization, as well as a litany of quotes from framers of the document in question, clarify that naturalization has only to do with the specific process that makes an alien a citizen. The stretching of naturalization to somehow encompass an individual’s travel through and residence within the United States is without constitutional support.?

Some also point to Congress’ power to repel invasions, arguing that the flood of immigrants crossing the border invade our country, use our resources, burden our social welfare programs and bring with them gang violence and drug warfare. However, this supposed invasion is no orchestrated campaign by a distinct group; Juan’s peaceful and individual migration to America cannot reasonably be classified as being part of some coordinated effort to invade America.

James Madison argued in Federalist 43, in the Virginia Ratifying Convention, and in his Report of 1800 that the power to repel invasions only was meant for protection when a state was attacked by another state, or when the country was being subjected to a coordinated military strike. While some gang activity may possibly apply here, it is patently absurd to classify all migration as a legitimate and actual invasion.

Historically, the commerce clause was used to justify federal immigration law, but this dealt mainly with slavery or state-based migration taxes, and few would try to so twist this clause as to apply to the modern migration of individuals across our borders.

The last justification often used is a vague and boundless reference to the country’s sovereignty, where it is argued that the country must “secure its borders” as a matter of “national security” and that the power to do so comes as an inherent right of being a sovereign nation. Not only are the states the sovereign entities in our federal republic, but the federal government cannot legitimately act unless it has been delegated the power to do so by the states under the U.S. Constitution.

Federal immigration laws have no constitutional authority, and unless an amendment to the Constitution is ratified by the states to delegate that power, the states should retake and affirm their power to manage immigration within their borders. Given that “illegal immigrants” have violated federal immigration laws, which exist without proper authority, the proper action for those who support and uphold the Constitution is to advocate amnesty for those whose only crime is noncompliance with these illegitimate laws.

The response to Connor Boyack’s opinion piece was published in the same publication, the Deseret News, on Sunday, August 8, 2010.  It was co-written by Ben Lusty, an attorney in private practice in Salt Lake City, Utah, and Daniel Burton (he is found on Twitter as @publiusdb), an attorney in Utah and the Chair of the Utah Young Republicans.

We recently read the “My View” by Connor Boyack (“Border security not federal purview,” Aug. 2) with great interest, and feel it necessary to respond to Mr. Boyack’s extreme views. Were we to follow his logic, we would find our country crossed and conflicted with 50 separate immigration policies, creating uncertainty and jeopardizing freedom of movement. The federal government, despite its many faults and heretofore failure to act in this arena, is best situated to secure our borders and establish uniform immigration laws. We, too, are frustrated with the federal government’s immigration policy failures, and do not object to a state’s right to enforce existing federal immigration law. However, upending the constitutional infrastructure of the nation is no solution.

Mr. Boyack’s major flaw is his narrow-minded reading of the Constitution, especially Article I, Section 8, which includes a full grant of authority to Congress to establish rules of naturalization. Mr. Boyack argues, without citing evidence, that the framers understood this grant of federal authority absurdly narrowly and meant it only to empower Congress to grant citizenship to aliens, not as power to establish comprehensive immigration law.

Hundreds of years of Supreme Court precedent refute Mr. Boyack, but he blithely dismisses the constitutional authority of the judiciary with the aphorism that a hundred years of wrong precedent is still wrong. But Mr. Boyack’s way of thinking is illogical. How can Congress logically exercise its undisputed plenary power over naturalization if it lacks the authority to admit or exclude aliens from the country in the first place? What if Congress wants to grant citizenship to an individual that the state of California refuses to admit to the nation? We doubt the Founders were so shortsighted as to create such a painfully foreseeable crisis.

Further, Mr. Boyack’s analysis ignores other important constitutional language. For example, he largely ignores the commerce clause. Congress has authority to regulate interstate and international commerce, and there is no doubt that immigration affects national commerce. Moreover, Mr. Boyack completely ignores Article II of the Constitution. Article II grants the executive branch broad power to implement foreign and defense policy. Immigration affects both, but under Mr. Boyack’s vision, the states would seize this authority from the federal government.

More tellingly, Mr. Boyack has not accounted for Article IV, which provides that a properly ratified treaty is the supreme law of the land. States cannot have paramount authority to exercise control over immigration if the federal government can likewise enact a treaty with a foreign nation affecting immigration policy.

Mr. Boyack, wearing a guise of “originalism,” simply interprets away the plain meaning and clear intent of constitutional language, attempting to substitute the words of a few founders as definitive of the collective work of the founding generation. What Mr. Boyack posits is a radical interpretation — that states (all 50 of them) have the power to set their own immigration policy.

Despite our disagreement with Mr. Boyack’s interpretation of the Constitution, we agree with the majority of the population that the federal government has not effectively addressed immigration. Most people are not sensitive to the fine distinctions between federal and state power in our Constitution, but they do care about results, which the federal government has not delivered. We suspect that many advocates for enhancing the power of states at the expense of the federal government are more concerned with the failure of federal policy generally than with Constitutional jurisprudence.

The federal government is institutionally better situated than the states to deal with immigration. The question that Mr. Boyack fails to answer is whether we want 50 immigration policies. Therefore, based on reasons of pragmatism, law, and politics — the same reasons that the Founders came together at Philadelphia to “form a more perfect union,” we refute Mr. Boyack’s myopic view of state authority. Immigration policy is, by and in large, the purview of the federal government. What we do to bring about the changes in the federal government to resolve our immigration policy problems is another discussion altogether.

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Proposition 8 overturned; next stop, the 9th Circuit Court of Appeals

August 4, 2010 by Leave a Comment

Just moments ago, the Judge Vaughn Walker of the  US District Court for the Northern District of California overturned Proposition 8, declaring it unconstitutional.  And, predictably per their promise, the legal team defending Prop 8 has sought a stay pending appeal.  

In court papers filed Tuesday night, lawyers for the Proposition 8 defense team asked Chief U.S. District Judge Vaughn Walker for a stay of his ruling if the outcome is to declare the law unconstitutional. The motion indicates that the Proposition 8 lawyers will immediately ask the 9th U.S. Circuit Court of Appeals to review the ruling if Walker rules against them.

To many watchers, Judge Vaughn’s ruling came as no surprise due to his management of the trial, leading some to go so far as to call it a “show trial.”

Yesterday, liberal California Chief U.S. District Judge Vaughn Walker issued an unprecedented ruling that will put the trial involving a challenge to the Prop. 8 same-sex marriage ban on YouTube.

The Ruling

The conclusions of law section states that

Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

The Judge goes on to find that individual’s right to marry as a fundamental right under the 14th Amendment, as determined by

(1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right.

Among characteristics Judge Walker finds relevant to marriage is consent between two people, but he dismisses Proposition 8 supporters argument that marriage is rooted in procreation, stating that sexual intercourse and procreation has never been a prerequisite to a marriage license.  He also dispensed with the arguments of supporters tied to how marriage has been traditionally seen in the United States.

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

And, apparently, in his eyes, so has passed the time for traditional marriage as the monopoly of heterosexual couples.

The ruling can be found here.  Read it, and please share your thoughts with me.

Reaction

Reaction was swift and emotional, from both sides of the debate.  On twitter, fans and foes alike rushed to gush their emotional reactions (in 140 characters or less):

  • @plaidspolitics said: How many judges does it take to screw over a million people? (Or millions or people?) #prop8
  • @elforesto noted: It ain’t over until the SCOTUS declines to hear an appeal or makes a ruling.#prop8 #winthebattlelosethewar
  • @scottstringerbp cheered: Today’s decision is a watershed moment in the fight for marriage equality and the ongoing LGBTQ rights movement. #prop8
  • @KimKardashian articulated: Prop 8 was struck down! This news is amazing!!!! Its about time! Congrats to everyone!
  • @musikologie woke from a nap and: woke up from a nap to see the *fantastic* #prop8 news. it’s one of those days that makes me love america.
  • and let’s not forget @dedanna1029 who wished the #1 a happy birthday, too: Happy Birthday #President@BarackObama, #prop8 was overturned completely in California today!! W00t!

So, welcome to the internet, and welcome to free speech.  It’s America, whether you like the ruling or not.

Oh, and by the way, a stay was issued, so no marriages will be performed, yet.

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It’s a dangerous world out there (on the internet)

July 26, 2010 by Leave a Comment
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The internet, for all the access to information and social network fun (i.e. Facebook and Twitter, among others) it provides, can be a dangerous place, especially for the unsuspecting attorney.  A colleague of mine who spends much of his career working in political consulting with candidates and elected officials has said, many times, that “once it is out there, there’s no taking it back.”  The assumption is that once something has been put up on the internet, be it video, picture or text, it is entirely possible that it will always be on the internet.  Information can be copied, cached, and printed, and then reposted on a myriad of websites and venues.  In short, once you put information  on the internet, it becomes difficult to control where it will go or how it will be used.

With this thought in mind, I recently came across an article with twelve simple tips for attorneys to help them manage their online presence.  Lawyers, in addition to the pitfalls that the average person faces on the internet, face ethical and legal obligations to clients and the court, lines in the sand that an online presence–in blogs, chat rooms, Web sites, and emails–can be crossed detrimentally if the attorney is not careful.  Originally printed in the ABA publication “Law Practice,” the article, by Web 2.0 column editor Steve Matthews and found online here,  provides some useful tips for keeping keeping clients happy, staying out of trouble, and generally safe in the online world.  While written with the legal practitioner in mind, the tips are useful to the non-legal internet users, as well.  Of those twelve, I’ve noted my favorites here, along with my comments on them.

  1. Write only what is true.  It sounds obvious, but all too often exaggeration, implication, and distortion can get the better of us, especially in the semi-anonymous world of blog comments and chat rooms.  The ABA Model Rules of Professional Conduct, adopted in most jurisdictions in whole or in part, requires under Model Rules 4.1, 7.1, and 8.4, that lawyers avoid misrepresentations, and they applies across the internet, regardless of the medium.
  2. Don’t write about clients without consent. “Ethics rules and fiduciary obligations limit what a lawyer may say about a representation without the client’s consent[,]” says Matthews. Besides, who wants their attorney saying stuff about them online, especially when that stuff may have been said in confidence (and is probably protected by client-attorney privilege).
  3. Limit investigations to publicly available information. In this case, the best example I can think of is the recent (justifiable) hubbub in Utah over the release of 1,300 names of allegedly illegal immigrants by two Department of Workforce Services employees.  While the investigation is still ongoing, it is clear that the information to produce “the List” was not made with publically available information, and that privacy laws may have been broken as a result.  Lesson: use public information, especially against a adversaries.
  4. Keep evidentiary information around. If a client puts something dumb online, the best advice is to not put anything else up, but be careful about advising what to take down, as it may violate Model Rule 3.4, especially if litigation is in process.
  5. Avoid answering legal questions. You don’t know the client, or the context, so it’s best to avoid solving their problem without appropriate in-take.
  6. Protect your own online information. A great example of this is Facebook–pay careful attention to what the public can see and adjust your privacy settings to control it as you would like it to be seen.
  7. Keep sites updated and accurate. If you have information on a law on your site, be sure to update it if the law changes.
  8. Beware what others say on your site. It’s your site, and you can be held accountable for what is said on there.  Along those same lines…
  9. Be careful what you say about others.  Remember the Golden Rule? (No, not the one about he who has the gold makes the rules, the other one.)
  10. And, most importantly: Presume everyone will know everything said or done. This brings us back to the start.  Once it’s out there on the internet, it is almost impossible to get back.

The internet is a great tool and a fun place.  But be careful out there.  The people you meet are not necessarily your friends…

(Thanks to ABA and Stem Legal Web Enterprises)

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