Posts Tagged ‘constitutional law’

“You Have a Constitutional Right to Record Public Officials in Public”

Ilya Shapiro and Devin Watkins:

In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP [United States Customs and Border Protection] agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.

Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.”…

The Ninth Circuit will hear Askins v. U.S. Dep’t of Homeland Security later this fall.

Supreme Court roundup

U.K.: cross-examination before jury deemed too hard on vulnerable witnesses

New court reforms proposed by the U.K.’s Ministry of Justice would do away with many criminal defendants’ right to cross-examine accusers before a jury. The rules provide that what are deemed “vulnerable” victims and witnesses, mostly in sex cases, will instead be allowed to undergo cross-examination recorded in advance for later play in court. [BBC] Here in the U.S., the Sixth Amendment’s Confrontation Clause might have a thing or two to say about that.

Could the White House be “tyrant-proofed”?

How would one go about “tyrant-proofing” the U.S. presidency, after years in which many were happy to cheer the expansion of White House power so long as the office was held by someone *they* liked? Key point in Ben Wittes’s 3-part series at Lawfare: the hardest to tyrant-proof are not the extraordinary and covert national security powers held by the chief executive, but the everyday powers over the Department of Justice and regulatory agencies [parts one, two, three].

More: Neither Donald Trump nor his progressive opponents have shown themselves loyal to the principle of the rule of law [John McGinnis, Liberty and Law] Nature of the Presidency lends itself to authoritarianism and despite retrenchment under Coolidge and Ike, that’s been the trend for a century or more [Arnold Kling] And quoting William & Mary lawprof Neal Devins: “A President Trump could say, ‘I’m going to use the Obama playbook’ and go pretty far.” [Marc Fisher, Washington Post] And: Tyler Cowen on FDR, McCarthy, the politics of the 1930s-50s, and “our authoritarians” versus “their authoritarians.”

Constitutional law roundup

  • Ilya Shapiro on round II of Fisher v. University of Texas, the racial preferences case [Pope Center]
  • “Supreme Court Endorses Tribal Courts; Bad News For Corporate Defendants?” [Daniel Fisher on Sixth Amendment case U.S. v. Bryant]
  • “Is The Consumer Financial Protection Bureau Unconstitutional?” [Susan Dudley]
  • “Dueling perspectives on Lochner v. United States” [Andrew Hamm, SCOTUSBlog on Paul Kens vs. Randy Barnett debate, earlier]
  • First Amendment and commercial speech: “Crazy Law Allows ‘Discounts’ for Cash but Not ‘Surcharges’ for Credit” [Ilya Shapiro on Expressions Hair Design case]
  • Who ‘ya gonna call if you need a Third Amendment lawyer? [humor]

Supreme Court and constitutional law roundup

“Administrative Law Judges Are Unconstitutional”

Administrative law judges are executive-branch as distinct from judicial officers, yet the President has no power to remove them; at the Securities and Exchange Commission and many other federal agencies, they are themselves employed by the agency on whose enforcement cases they must render quasi-judicial rulings. In recent years federal judges have expressed unease about whether assigning ALJs this particular combination of adjudicatory powers and institutional affiliations is entirely consistent with the U.S. Constitution, and now a Cato Institute amicus brief, in the D.C. Circuit case of Timbervest LLC v. Securities and Exchange Commission, urges courts to take the next logical step and rule that it is not. [Ilya Shapiro and Thaya Brook Knight; earlier here, here, here here, etc.]