Location, Location, Location

John Entick was annoying.  His prose was not particularly good and he used it often to criticize the government of the day, sometimes writing blistering attacks in The Monitor.  But the solution to this annoyance was relatively simple:  On November 11, 1762, four messengers of the King acting on warrant orders of Lord Halifax broke into Entick’s home to seize his private papers.  It didn’t matter that boxes and desks were locked; the locks were easily broken so that their confiscation of anything troublesome could be complete. 

Entick challenged the lawfulness of the search in the case of Entick v. Carrington.  It would prove to be one of the more important cases in English law that helped to shape the Fourth Amendment to the U.S. Constitution, which asserts the right of individuals not to be subjected to unreasonable searches or seizures by the government without the issuance of a warrant that is based upon probable cause and that is reasonably particular in describing what is to be searched or seized.

Entick prevailed in the case, with the court ruling that the warrant issued by Lord Halifax was defective because there had been no demonstration of probable cause that Entick had committed a crime and because the warrant was too broad in allowing such a general confiscation.  While the language in the ruling is somewhat archaic, it can be read here

The Fourth Amendment to the U.S. Constitution is the most important constraint on the ability of the government to engage in fishing expeditions for evidence of wrongdoing.  We all recognize the need for the government at times to engage in searches for evidence; it is a necessary part of the process of law enforcement.  But it cannot do so capriciously.  There is otherwise too great a potential for misuse of police powers by the state. 

At times, it seems as though this fundamental principle is forgotten. 

There have been reports in the news over the last several months regarding the use of GPS tracking devices by the police.  The pattern is generally the same:  the police attach such a device to a vehicleand then keep track of everywhere its owner goes.  It is astonishing how much can be inferred about a person’s private life just by having access to that information.  What is alarming is not so much that the government makes use of this technology in law enforcement, but that these devices are being used without a warrant ever being issued and that this practice is being sanctioned by at least some courts. 

The facts considered in United States of America v. Juan Pineda-Moreno are clear:  Drug Enforcement Agency officers saw a group of men buy a large amount of fertilizer often used to grow marijuana and so snuck into the driveway of one of them at about 4:00 AM, attached a GPS device to his Jeep, and then monitored his whereabouts with the device.  They had no warrant. 

The Ninth Circuit found that this did not violate the Fourth Amendment, even though the Jeep was parked in the man’s driveway at the time.  A copy of the opinion can be read here.  Other jurisdictions have come to a different view, finding instead that these types of actions — attaching tracking devices to vehicles without a warrant so that a person’s movements can be monitored — do violate the Fourth Amendment,  and I find myself in greater sympathy with them. 

At issue is what the scope of our rights to be free from “unreasonable” searches should be when technological advances enable the police to monitor people in ever more intrusive ways.  An important dissent in the Ninth Circuit case spells out some of the ramifications.  A copy of that dissent can be read here (the dissent is technically to a request for en banc rehearing and not to the deciding opinion itself).  It is not just GPS devices snuck onto our cars in the dead of night that are used to monitor us.  Consider the use of cellular telephones, whose location may also be readily determined.  At the request of the government, cell-phone providers will obligingly ping a cell phone to determine its location and provide that information to the police.  The provider Sprint has disclosed that last year it provided 8 million such location ping results to the police.  The number of requests became so great that Sprint developed an automated web site to enable the police to check on the location of cell phones at will.  Services such as LoJack or OnStar are also used by the police to identify the location of vehicles.  Credit-card suppliers will inform the police where the cards have been used. 

Entick v. Carrington warns us of the potential for abuse when governments are given unfettered power to conduct searches.  As the U.S. Supreme Court noted more than a hundred years ago, that case “was welcomed and applauded by the lovers of liberty in the colonies … it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the constitution .”  Boyd v. United States, 116 U.S. 616 (1886).  It is a mistake to trust governments with that kind of unrestricted power.  Not because they will necessarily be malicious in using it — although we are too well aware that that does also happen at times — but more broadly because the natural temptation in pursuing even legitimate ends may perniciously encroach on the rights of those who have done nothing wrong. 

As technology continues to advance, we need to be vigilantly on guard to resist that encroachment when we give power to those who govern us.

The Test of Democracy

I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think; but I am not going to say anything that I do not think. I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.

Words are powerful. 

The words above were uttered by Eugene Debs on June 16, 1918 as part of a speech in which he urged resistance by American men to the military draft of the first World War, and praising those who had been imprisoned for obstructing it.  He was not prudent enough.  Despised by President Wilson, his words earned him charges under the newly passed Espionage Act, leading to his imprisonment and stripping of his U.S. citizenship.  At the time, every branch of government supported this suppression of speech:  the Espionage Act was passed by the legislative branch, was enforced by the executive branch, and Debs’s conviction was upheld by the judicial branch.  In a unanimous opinion, the Supreme Court found that his First Amendment rights had not been violated by punishing him for his words.  Ironically, it was Justice Oliver Wendell Holmes who authored the opinion — the same man who reminded us that the “very aim and end of our institutions is just this:  that we may think what we like and say what we think.” 

The full text of Debs’s speech can be read here.

The brief Supreme Court opinion can be read it its entirety here

Debs was a socialist, who had four times before run for the office of President of the United States.  He would run for a fifth time in 1920, from his jail cell, and win nearly one million votes.  Many view the level of support he received as an expression of disapproval by the people of the United States against a policy that has been described as the greatest infringement on liberty in the history of that country.  Under the Espionage Act and its companion, the Sedition Act, hundreds of people were imprisoned, including the poet E.E. Cummings, who spent months in a military detention camp for speaking openly of his lack of hatred for the Germans. 

The Sedition Act was repealed in 1921, but provisions of the Espionage Act remain very much in force today.  And its relevance is potentially even stronger today because of the technological advances that have vastly increased the ability of speakers to reach listeners.  The rise of the Internet has made it easy for all of us to express our thoughts — in writing, through sound recordings, and even with video that was barely conceived of at the time of the Act’s original passage. 

As is well known, it was about a month ago that WikiLeaks, a web site generally acknowledged to have been founded by Australian Julian Ansage, published some 76,000 classified U.S. military documents relating to operations in Afghanistan; it has promised to release an additional 15,000 documents soon.  It claims to adopt a practice of “principled leaking,” with the goal of holding governments accountable for their actions by providing a measure of protection to those who leak sensitive information.  It provides a platform for activists that could not have existed even a short time ago, and there is no doubt that it will continue to evolve as governments struggle with how to address its activities. 

Even among the strongest advocates of free-speech rights, there has always been angst over whether there should be limits to those rights.  Most thoughtful people believe there should be, and many believe that WikiLeaks steps over the line.  The Pentagon, for instance, has alleged that those involved with publication of the “Afghan War Diary” have “blood on their hands” because of consequences to individuals named in the released documents that flowed from their leak and publication.  The U.S. government has suggested that those involved with WikiLeaks might be prosecuted under the Espionage Act. 

How successful would they be? 

Even without considering the considerable difficulty that may exist in establishing jurisdiction, there has been an evolution in the way speech issues are viewed.  While there are a number of bases under which suppression of speech is considered justified in modern times, they generally derive from the harm doctrine, which is a principle that says that freedom of speech should not extend so far that it causes certain direct harms to others.  Holmes’s famous example of falsely shouting “Fire!” in a crowded theater is clean illustration of the doctrine that most accept, although it becomes more difficult to draw the appropriate line when the harm is less direct or less choate. 

When Daniel Ellsberg and Anthony Russo released classified documents to the New York Times for publication in 1971 — the so-called “Pentagon Papers” — the U.S. administration argued that they were guilty of treason under the Espionage Act.  Irregularities in the government’s case led to a mistrial so it remains unclear whether a conviction might have succeeded in a properly constructed case.  But in considering whether the government could restrain the New York Times from printing the leaked material, the Supreme Court struggled deeply with the issue.  So much so that the nine justices produced ten opinions!  (To be fair, there was a single per curiam opinion and each justice also wrote separately.)  Those opinions can be read here.

Ben-Gurion famously said that the test of democracy is freedom of criticism.  Perhaps the most important aspect of being free to speak is the right to criticize the government, particularly a government like the United States that formally rejects that its authority derives from a monarchy or other heriditary structure but is instead founded on the basis that its power derives directly from “the people,” in whose name it acts.  And there is the crux of the issue, particularly if we accept that our right to speak out is legitimately constrained by the harm doctrine. 

In the early cases involving the Espionage Act, the infringement on speech was direct.  Eugene Debs was imprisoned because of his criticism of government policy involving the draft and his advocacy of resistance to that policy.  It is difficult to imagine his conviction being upheld today.  Even acknowledging that his criticism and incitement to resistance could lead to harms, those potential harms are sufficiently displaced from his speech that it would be hard to sustain its suppression — if we did, the same logic could be applied to almost any criticism of the government because all such criticism at least has a remote possibility of causing harm. 

In the WikiLeaks incident, the issue is not direct criticism of government policy.  But at the same time, and as WikiLeaks would no doubt point out, it is impossible to formulate a full criticism of policy without an accurate understanding of the underlying facts.  The question ultimately is whether the cost of the leaks is too great — or whether the cost of suppressing them is too great.  And there is no easy answer to that.

Embers of the Dead

The very thought that a man could do it to his own family is horrific.  And yet we know there are people like that.  Twisted and cruel, without respect for the true dignity of human life.  Such men deserve to be punished, and many think that only the ultimate punishment of death is fitting when evidence of the horror is so plain. 

What could really go through a man’s head as he takes charcoal starter fluid and spreads it within his home?  Spreads it especially near his children’s bedroom and near the front door so that when he ignites it it will be that much more difficult to rescue the children being burned alive inside? 

There was no one with Cameron Todd Willingham in his home to see him spreading the starter fluid, but there was evidence that he had done so, and this evidence was considered at his trial.  Char patterns on the floor in multiple spots in the shape of puddles.  Melting of the aluminum threshold at the front door that was a morbid reminder of the extreme heat generated.  The presence of crazed glass that confirmed the extreme heat of the fire.  All of these were things that arson science said were  characteristics of fires started deliberately with the use of accelerants. 

The science just happened to be wrong.

 Although the National Fire Protection Association published a seminal report as early as 1992 that dispelled much of what had been thought to be understood about the science of arson detection, it has taken many years for those conclusions to become accepted.  The fact is, though, that many of the earmarks that arson investigators confidently believed to be conclusive evidence of arson are, in fact, also caused from accidental fires. 

Willingham was convicted of murder and executed by lethal injection by the State of Texas on February 17, 2004.  Last year, the New Yorker published an article by David Grann that examined the evidence in light of modern understanding of arson science, concluding that there was no evidence for arson that can be sustained under modern critical examination.  His full article can be read here

To be sure, there was other evidence considered at Willingham’s trial in addition to the forensic arson evidence that pointed to his guilt, but the conclusions of the arson investigators were a substantial factor in his conviction.  So much so that the modern understanding of what was found at his home is undeniably sufficient to raise a “reasonable doubt” whether he was guilty of the crime for which he was executed. 

Many are concerned that this case is just a hint of a gross injustice that has been inflicted on many men.  Flawed arson science has been applied in at least hundreds of cases and probably thousands of cases so that it seems likely at least some of those convicted were, in fact, innocent. 

In discussions about the legitimacy of the capital punishment, one of the arguments that those opposed frequently make is that  the death penalty is final; there is no way to correct an error if it is later discovered and at least restore a portion of life to the person convicted.  This argument is very often dismissed.  Surely, the counter-argument goes, there are cases where the evidence is so strong that there can be no doubt at all the person is guilty.  Those are the cases in which it should be applied, proponents say.  After all, those accused are given many, many opportunities to refute the evidence against them, so much so that the appeals of their convictions routinely take a decade or more.  Indeed, in the case of Kansas v. Marsh in 2006, Justice Scalia dismissed criticism of the death penalty in the United States as coming from “sanctimonious … finger-waggers” and suggests that there has not in recent years been “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.” 

But there was that level of certainty in the Willingham case, seemingly backed by the best scientific understanding of those who examined the evidence.  And still the conclusion seems to have been wrong.  Last month, the Texas Forensic Science Commission acknowledged in a preliminary report that there were flaws in the arson evidence that was used in the case.  But the controversy has not ended.  The Commission’s founding chairman, Samuel Bassett, was removed from that position in an abrupt move by the governor of Texas, Rick Perry.  In a memorandum to the Commission publicized in the last few days, Bassett has urged that the investigation into flawed arson science be expanded:  How long has such flawed science been applied?  Did the Fire Marshall’s Office wait too long in adopting more modern scientific standards? 

These are not questions whose answers we should fear.  Indeed, answering them is critical to moving forwards in a positive way.

My Very Excellent Mother Just Served us Nine … What?

When I was growing up and learning about the planets of our solar system, many children used a mnemonic like the title of this post to remember the order of the planets, finishing it with something like “Pizzas” or “Pies.”  It was something we all accepted as part of the natural order of the universe — that we live in a solar system that has nine planets, with us on the third. 

But on August 24, 2006, the International Astronomical Union (“IAU”) finally provided a formal definition of a planet and poor Pluto did not make the cut.  There are only eight planets that orbit our Sun.  Some of the reaction to the change was strongly negative.  Petitions were organized online to implore the IAU to reconsider its decision and to reinstate Pluto to its “rightful” place as a planet.  Protests were held, with people marching with placards proclaiming that “Size Doesn’t Matter” and wearing T-shirts announcing their “Protest for Pluto.”  The State of New Mexico — where Clyde Tombaugh was working when he discovered Pluto in 1930 — passed a resolution declaring that Pluto will always be considered a planet when in the skies of New Mexico.  Illinois — where Tombaugh was born — did the same thing a couple of years later.  A resolution was introduced in California denouncing the IAU for “scientific heresy.”  And many astronomers I know, who remembered with deep fondness how they discovered the sky as children, felt a sentimentally wistful loss at the change.  Even now, four years after the IAU decision, protests are still occasionally being held. 

It is heady stuff, whether Pluto is rightfully part of the club of planets or not. 

The decision of the IAU is one that emblemizes how brutal science rightfully is as new information and understanding is developed.  Old ideas that no longer fit with modern evidence and knowledge are to be summarily executed in favor of concepts that do comport with what we have learned through our investigations into nature.  And even though some astronomers felt some nostalgia, they also know that this ruthlessness is a necessary part of the scientific method that they embrace. 

I was reminded of Pluto — and of both the strict demand that science has for evidence and its willingness to reject old ideas wholesale — when I read the decision in Perry v. Schwarzenegger, the federal court decision from last week holding that prohibiting same-sex marriages violates both the due-process and equal-protection clauses of the federal Constitution. 

One of the strongest reasons for opposition to same-sex marriages is rooted in the traditions of this and other countries that marriages are between one man and one woman.  Those traditions very much reflect a moral and often religious view of what marriage is, and a judgment that homosexuality is “wrong.”  But as Thomas Jefferson famously noted in his 1802 letter to the Danbury Baptists, the United States seeks to maintain a “wall of separation” between church and state through the First Amendment to the federal Constitution.  As the judge in Perry noted, a “state’s interest in an enactment must of course be secular in nature.” 

And so the judge — who interestingly had difficulty with his original appointment by Ronald Reagan because he represented the U.S. Olympic Committee in prohibiting use of the term “Gay Olympics” — demanded that there be some evidence that a legitimate state interest is promoted by limiting marriage to opposite-sex couples.  Like the IAU and Pluto, it would not be enough that there was a long history of such a limit, and the evidence had to be real and solid. 

There are many reasons that have been suggested by those who are opposed to same-sex marriage and that were considered in Perry.  The interest of the state in promoting procreation.  The commonly held belief that children’s emotional development is most stable when raised in a household with both a father and a mother as role models for each sex.  The risk that opening up marriage to same-sex couples will erode its value, even in perception, of providing stability for heterosexual couples.  If true and supported by evidence, it is difficult to argue that these are not legitimate interests of the state. 

But that is where the proponents of a traditional definition of marriage fell short.  Much evidence from social scientists was presented during the trial that these reasons are not supported by evidence — that children develop emotionally with as much strength when raised by same-sex or opposite-sex households and that relaxation of restrictions on the physical characteristics of parties who marry is unlikely to erode the respect that heterosexual couples have for marriage.  A strong analogy was made to the 1967 decision of the Supreme Court in Loving v. Virginia that miscegenation laws banning interracial marriage were unconstitutional. 

It is widely accepted that the parties wanting to preserve the traditional definition of marriage did a poor job in presenting their case during trial, even as the judge nudged and implored them to do better and to present their case more persuasively.  They didn’t call nearly as many witnesses as the other side and the witnesses that they did call were less well-credentialed and credible.  There is still a significant belief that some of those interests articulated in support of limiting marriage to opposite-sex couples do actually have evidence among social scientists.  And no matter which side one falls on the issue, we should all acknowledge one fundamental fact:  the contrary evidence deserves to have been presented in its strongest and most persuasive form.  It is when the strongest possible evidence is considered and still found to be lacking — just as the IAU did with Pluto — that we have the greatest confidence in decisions, particularly when they seem to run counter to tradition and intuition.

The full opinion in Perry can be read here.

Come On! Jesus Murphy!

The National Hurricane Center sets the “official” start of the hurricane season as today, June 1.  At the moment, all eyes are on the Gulf of Mexico and the failure of “top kill” to stop oil from spilling into the sea.  There will undoubtedly be many legal actions developing from that oil spill, and there is no doubt that the possibility of hurricanes developing in the Gulf during the next several months that the spill may continue is on people’s minds. 

In that case, though, there are very definite parties to identify as having potential culpability:  the oil company BP, certainly; perhaps some subcontractors of BP; at a stretch, maybe certain officials in the current government Administration. 

But consider the case of Comer v. Murphy Oil, which arose from Hurricane Katrina’s devastation five years ago, the memory of which is still fresh in people’s minds.  Canal-levee breaches that flooded more than 80% of New Orleans.  Thousands housed in barely livable conditions in the Superdome, with reports of fighting and rapes.  Widespread looting and a breakdown of law enforcement, communications, and transportation infrastructures. 

In Comer, a class of a dozen Mississippi property owners sued a range of about 30 corporate defendants involved in the energy and chemical industries for compensation for the damage caused to them by Hurricane Katrina.  Incidentally, one of the defendants was BP, the company struggling to control the Gulf of Mexico’s current oil spill.  Their liability theory is essentially as follows:  the defendants’ operation of their industries caused the emission of greenhouse gases, which in turn contributed to the climate change that is currently underway on the Earth, which in turn caused the hurricane to be more ferocious and devastating, which resulted in the destruction of their property. 

That the Earth’s temperature is increasing as a result of human activity is not seriously disputed.  It is, in fact, one of the most widely accepted conclusions that science has reached, certainly among those scientists who have examined and evaluated the evidence directly.  But any discussion of the Earth’s climate is necessarily a complex one and the Earth is sufficiently large that the impact of human activities on its climate proceeds relatively slowly.  These two factors — the complexity of the system and the slowness of its response — make it difficult to point to any particular event and establish the precise link to what human beings have done or are doing. 

The lower court in Comer dismissed the case.  One of its bases for doing so was that the issue was a “political question.”  This doctrine is one that courts use in implementing the separation of powers that defines the government structure in the United States.  Just as there are issues decided by the judiciary that the legislative and executive branches of government cannot interfere with, so too there are questions that are beyond the purview of the courts.  Such “political questions” require resolution by the other branches of government. 

It is difficult to fault the district court’s determination.  Fossil fuels provide a critically important source of energy that drives the national economy and alternative sources of energy are not as well developed at this point in time.  There are consequences to limiting the use of such energy sources that are significant and far-reaching.  And there are consequences to failing to limit the use of such energy sources that are equally significant and far-reaching.  Furthermore, the United States does not even have control itself over the level of greenhouses gases within its borders — the use of fossil fuels elsewhere on the planet also raises the concentration of such gases in the United States so that even if the U.S. did take some action unilaterally, the positive impact on its own atmosphere may be far less than the negative impact on its economy. 

It seems very much that the appropriate way to reach a solution to the issue is through the democratic mechanism of government.  It is through that structure that the collective thinking of the many different groups impacted by any approach may at least be considered, even if any solution will garner criticism.

But the panel on the appellate court for the Fifth Circuit disagreed with the district court, reversing its dismissal, and essentially telling the plaintiffs that they are at least entitled to present their evidence in a court to determine whether there is liability on the part of the defendants for the damage to their property. 

Where things became especially interesting procedurally in Comer was when the full court decided to hear the case en banc.  Each of the federal appeals courts has a relatively large number of judges — somewhere around 15 — and most appeals are heard by three-judge panels of the court.  When an issue is of significant importance, it is possible for the entire court to hear the case and render a decision.  There was considerable interest in Comer because of its potential in bringing some clarity to the ability of plaintiffs to sue oil companies and other large emitters of greenhouse gases for damage to property caused by severe weather. 

But several of the judges recused themselves from the case.  While the specific reasons for the recusals are not publicly known, the likelihood is that each of those judges had some investment in one of the defendant corporations so that he or she could not ethically participate in a decision.  Initially, seven of the sixteen judges of the court recused themselves.  This left a quorum that vacated the panel decision when the court agreed to rehear the case en banc.  But then an eighth judge also recused himself, leaving only eight judges on the court — a number insufficient to establish a quorum.

 On Friday, just before the Memorial Day weekend began, the court issued its order, dismissing the appeal and refusing to hear oral arguments or decide the case on its merits because of the lack of a quorum.  This leaves the case in a sort of limbo.  The original district court decision stands, meaning that the plaintiffs are not entitled to have their case heard on the merits unless an appeal to the Supreme Court of the U.S. is heard. 

In a strongly worded dissent, one of the judges of the Fifth Circuit described the action of the court as “shockingly unwarranted” and “deeply lamentable,” providing a number of reasons why the court should hear the case.  Options such as having the Chief Justice appoint another judge from another circuit to hear the appeal or of applying the so-called Rule of Necessity to allow the judges who recused themselves to set aside their recusals, were options that he felt should have been taken. 

The dissent argued that the court has “an absolute duty to hear and decide the appeal,” a position that is difficult to disagree with.  The issue of climate change and its legal ramifications is a critically important one.  What is at issue at the moment is not so much whether oil companies should be liable for damage caused by our changing climate — although that could potentially be the issue that ultimately arises — but whether the courts should be involved in hearing such cases at all.  Clarity is needed, and a clear decision by the full court would have had impressive weight in moving towards such clarity. 

The idea that the effects of climate change do indeed represent a “political question” is a compelling one.  While the plaintiffs in Comer may have suffered from an especially dramatic storm, all of us feel the effects of global climate change — and all of us contribute to it by using fossil fuels to power our automobiles and trucks or to heat our homes.  Can someone sue his neighbor for hail damage to his roof because the neighbor drives a car?  When severe weather damages a home in Hawaii, can a salmon cannery in Alaska be sued because it emits greenhouse gases?  These questions appear silly at first blush, and the havoc that could result if such suits were entertained is plain.  But they differ from the argument in Comer only by a matter of scale and degree, not in underlying principle.

The time is soon coming when the Supreme Court of the U.S. will need to step in and provide some clarification, particularly if intermediate courts are going to punt.  It feels instinctively right that authoritative clarification is deserved.