Reporters Would Have to Disclose Information in Special Cases

The Senate Judiciary Committee this week will take up a new version of a reporter shield law.

The bipartisan-backed legislation, which establishes a qualified privilege for reporters to withhold the names of confidential sources who provide information under promise of confidentiality, has been the subject of intensive lobbying by media companies for years. The companies were reacting to an increase in the number of subpoenas to reporters during the Bush administration, including the highly publicized case involving disclosure of the identity of Valerie Plame Wilson, a covert CIA officer.

Though a similar bill passed the House on March 31, as it had in 2007, the shield legislation has had trouble gaining traction in the Senate, due mainly to Republican opposition. Former president George W. Bush as well as the Justice Department under his administration also opposed the legislation.

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washingtonpost.com

* Trumka says will start lobby campaign soon

* Says health reform should break insurers' "stranglehold"

* Former coal miner to become head of AFL-CIO Wednesday

As President Barack Obama pushes for a deal on healthcare reform in Congress, the biggest U.S. labor federation is planning an intensive lobbying campaign to preserve the debate's most contentious proposal: a new government-run health insurance program.

The AFL-CIO's prospective new president, former Pennsylvania coal miner Richard Trumka, told Reuters in a weekend interview that he would start mobilizing the federation's 11 million members soon after he takes the AFL-CIO helm later this week.

The campaign will also lobby Congress to enact top-priority labor law reforms and seek to generate momentum for an aggressive effort to turn out the union vote in the 2010 congressional elections.

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INTERVIEW-US labor head to push healthcare, labor law reform | Reuters

Anyone who made it through a week of law school knows it to be an undeniable fact that not all judicial opinions are made equal. Some are tedious models of opacity. Others, through their authors’ writerly skill, soar off the page.

But perhaps there’s a third category: those that are short, direct, and written without a surfeit of footnotes or words that sound ripped from the headlines — in the age of Nero. Those, frankly, might be our favorites — the ones that get in there and go, without citing dozens of cases, without block-quoting passages of law-review articles from days of yore.

Boy do we have a good one for you today, which comes courtesy a federal magistrate judge in Massachusetts, James Collings. Let us set the scene.

According to the opinion, author and well-known political pundit Andrew Sullivan was busted for marijuana possession on the Cape Cod National Seashore on July 13. Marijuana has been decriminalized in Massachusetts, yes, but because Sullivan, who reportedly owns a house in Provincetown, Mass., was on federal property, he was cited.

The citation required Sullivan either to show up in court later at a later date or to pay collateral of $125. Sullivan didn’t forfeit the collateral, and a court date was set for Sept. 2.

However, according to the opinion, on Aug. 26, the U.S. attorney filed a “Dismissal of Complaint” [sic] seeking leave to file a dismissal of the Violation Notice issued to Sullivan because “further prosecution of the violation would not be in the interest of justice.”

Judge Collings, confused by the dismissal motion, held a hearing anyway, at which Sullivan and an assistant U.S. attorney appeared. According to the opinion, Judge Collings asked about the rationale behind the decision not to prosecute Sullivan given that “persons charged with the same offense on the Cape Cod National Seashore were routinely given violation notices, and if they did not agree to forfeit collateral, were prosecuted by the United States Attorney.”

In reponse, both Sullivan’s lawyer, Mintz Levin’s Robert Delahunt, and the AUSA said that Sullivan, a British citizen, is applying for immigration status in the U.S., and that had Sullivan paid the $125, it could have had an adverse effect on his immigration case. Explained Collings:

The Court noted that Mr. Sullivan had been charged with the crime at the time the Violation Notice issued and that even if the Court did grant leave to dismiss the Violation Notice, Mr. Sullivan, if asked by immigration authorities, would have to answer truthfully that he had been charged with a crime involving controlled substances. In these circumstances, the Court asked the attorneys to explain why forfeiting collateral would have any additional adverse effect on his application. Neither attorney could answer the Court’s query except to say that the lawyers they had consulted who practice immigration law said it would.

It’s pretty good already, but here, it really gets good. Collings asked Delahunt to submit briefings on the question. At that point, the AUSA “asserted, quite correctly, that the United States Attorney has broad discretion as to when to dismiss a criminal charge and that the power of the Court in these circumstances is limited and able to be exercised only in special circumstances.”

So Collings was stymied. There was nothing he could do to follow up on what was really going on here, if, as he suspected, Sullivan were being given preferential treatment. Still, Collings’s inability to order further action didn’t stop him from writing more:

In the Court’s view, in seeking leave to dismiss the charge against Mr. Sullivan, the United States Attorney is not being faithful to a cardinal principle of our legal system, i.e., that all persons stand equal before the law and are to be treated equally in a court of justice once judicial processes are invoked. It is quite apparent that Mr. Sullivan is being treated differently from others who have been charged with the same crime in similar circumstances.

If there were a legitimate reason for the disparate treatment, the Court would view the matter differently. But the United States Attorney refused to allow the Court to inquire into why, in the circumstances of this case where Mr. Sullivan had already been charged with the crime, either a forfeiture of collateral or an adjudication would make a difference in the immigration application.

But there is more. If, in fact, a determination that Mr. Sullivan had possessed marijuana is a factor which, under immigration law, the immigration authorities are legally charged with taking into account when deciding Mr. Sullivan’s application, why should the United States Attorney make a judgment that, despite the immigration law, the charge should be dismissed because it
would “adversely affect” his application? If other applicants for a certain immigration status have had their applications “adversely affected” by a conviction or a forfeiture of collateral for possession of marijuana, then why should Mr. Sullivan, who is in the same position, not have to deal with the same consequences?

In short, the Court sees no legitimate reason why Mr. Sullivan should be treated differently, or why the Violation Notice issued to him should be dismissed. The only reasons given for the dismissal flout the bedrock principle of our legal system that all persons stand equal before the law.

Interesting, eh? Click here for coverage from the Massachusetts Lawyer Weekly, here for a piece from Gawker.

We placed calls both to Delahay, Sullivan’s lawyer, and to the U.S. attorney’s office in Boston, but have not heard back. We’ll of course let you know if we do.

New York's Legislature is sending a child-protection measure to Gov. David Paterson named for Nixzmary Brown, the 7-year-old New York City girl who died of abuse and malnourishment.

The bill given final legislative approval Thursday night by the Senate increases the sentence for an adult who inflicts torture on a child and intentionally causes the child's death. The bill would change the maximum sentence to life in prison, eliminating any chance for parole.

Nixzmary Brown died in 2006. Her mother is serving a sentence of up to 43 years in prison for doing nothing as the battered and malnourished child lay dying in their home. The shocking case prompted child welfare reforms.

Paterson hasn't yet said if he'll sign the bill into law.

A man was cited for cursing in public under a local law created back in 1887. Police said a 19-year-old man was cited Wednesday after he yelled obscenities at officers who had earlier given him a ticket for underage drinking. Officers said they could hear the man cursing at them from a block away. Several neighbors said they also heard the shouting.

Police normally issue disorderly conduct tickets in similar situations, but Deputy Police Chief Tom Williams said officers use discretion to choose the most appropriate charge.

Violating Winona's obscenity law is a misdemeanor, with a maximum penalty of 90 days in jail and a $1,000 fine.

Nothing we come across on a daily basis — the crimes, the lawyer mischief, the zany lawsuits — make us as frustrated, on almost a visceral level, as do trials that end in hung juries. All those billable hours, the wasted witness preparation, the spent judicial resources. We can only imagine how the participants in such mistrials feel, dealing not only with the instant disappointment, but that your-hard-drive-crashed-and-ate-your-term-paper realization that they’ve got to do the whole thing all over again.

For that reason, our sympathies go out to everyone in the first Merck Fosamax trial which, yes, ended in a hung jury earlier Friday. Click here for the story, from Dow Jones Newswires.

The blow probably wasn’t made any easier, we’d imagine, by the fact that the judge presiding over the case, Manhattan federal judge John Keenan, and the lawyers themselves had to have been expecting this.

After all, as we blogged Thursday, Keenan on Wednesday called for a daylong “cooling off period” after the deliberations reached a boiling point. Keenan suspended deliberations until Friday morning and offered to have court security officers escort individual jurors to the subway after two separate notes were sent out of the jury room Wednesday afternoon about the tenor of the deliberations. One juror claimed in a note to have been the subject of physical threats and that a fellow juror made like Bobby Knight and hurled a chair in the room.

The judge declared a mistrial Friday after the jury’s forewoman indicated the jury remained deadlocked and a lawyer for Shirley Boles, a 71-year-old Florida woman who sued Merck, alleging Fosamax caused a rare jaw condition called osteonecrosis, again asked for a mistrial. Merck opposed the mistrial motion.

Paul F. Strain, a lawyer for Merck, said the drug maker intends to file a motion in the next few weeks asking the judge to rule in favor of Merck and dismiss the Boles case.

“We regret very much the jury did not continue their deliberations,” Strain said. The jury appeared to be “seven-to-one in Merck’s favor,” he said.

Timothy O’Brien, a lawyer for Boles, said he expects the Boles case would likely be retried in the spring. A conference has been scheduled for October.

“For Mrs. Boles, we’re going to refine her message, focus a little more on the evidence we have, so we don’t have a three- or four-week trial,” O’Brien said.

Merck is facing about 900 cases in state and federal courts generally alleging that use of Fosamax can cause the jaw-destroying condition osteonecrosis, and that Merck failed to properly warn of this risk. The Boles case was the one of the first product-liability cases to go trial.

On September 9, 2009, the law firm of Kelley & Murphy of Philadelphia, Blue Bell and Harrisburg has filed a law suit in the United States District Court for the Eastern District of Pennsylvania, in Philadelphia on behalf of NHS Philadelphia, NHS Pennsylvania, NHS Youth Services, Inc., Wordsworth Academy t/a Wordsworth, Tabor Children's Services, Inc. and the Philadelphia Alliance, a professional organization representing more than forty (40) specialized behavioral health, human service and child welfare agencies against Governor Rendell in his official capacity to end the unlawful withholding of available state and federal funds which are essential to support behavioral health, human services and child and adult welfare services for the adults and children so desperately in need of them.

NHS Human Services, Inc., through its affiliated companies, is the largest provider of behavioral health and intellectual and developmental disability services in the Commonwealth of Pennsylvania.

The law suit claims that by the Governor vetoing essentially all non-medicaid social service and child welfare funding while at the same time fully funding all services performed by employees of the Commonwealth, including all non-essential, non-emergent and services not mandated by law, the Governor acted arbitrarily and capriciously, without rational basis in violation of the equal protection clause, the due process clause, the takings clause and the supremacy clause of the Constitution.

To those who have complained about the lack of honest, open government in New York, the state’s ethics laws have long been Exhibit A in making a case for reform.

When the State Senate convenes on Thursday, it is expected to vote on significant revisions to those laws. But how far the changes will go — and whether they will strengthen oversight and regulation of campaign spending — was still being debated on Wednesday.

Two proposals are expected to come to a vote on Thursday. One is a bill identical to one the State Assembly passed this year that would, among other things, create a series of commissions responsible for overseeing and investigating state government and the lobbyists who seek to influence it. That measure, which has bipartisan support, is expected to pass.

The other proposal, an amendment that government watchdog groups have energetically endorsed but is lacking public backing from Republicans, would create a variety of new rules to monitor the money that flows in and out of campaigns. Under one section of the amendment, campaign finance reports would be randomly audited.

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http://www.nytimes.com/2009/09/10/ny.../10ethics.html

Early last year, we blogged about a budding copyright lawsuit between two authors — one with a famous last name (Seinfeld) and one with a less famous last name (Lapine).

We wrote:

Missy Chase Lapine sued Jerry and his wife Jessica yesterday, accusing them of ripping off her cookbook. Lapine complained about the alleged similarities a few months back — here are past stories from the WSJ and NYT. Lapine, the author of “The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals,” claims that Jessica Seinfeld plagiarized her cookbook with Harper Collins’s publication of “Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food.” Click here for a copy of the lawsuit, which seeks unspecified damages for copyright and trademark infringement.

Fast forward 20 months or so. On Thursday, after all the motions (of which there were many) and heavy-hitting lawyering (of which there was much), Manhattan federal judge Laura Taylor Swain rendered a fairly resounding verdict to Seinfeld, ruling that while there was some overlap in the ideas behind the two cookbooks, there wasn’t enough overlap in the expression of the idea to constitute copyright infringement. Lapine also wound up suing Jerry Seinfeld, alleging he had defamed her publicly. That claim was dismissed Thursday as well. Click here for the opinion. Writes Swain, on the copyright issue:

Plaintiffs’ description of the allegedly protected expression –“giving instructions for making vegetable purees in advance, storing them for future use, and then using them in specially created recipes which include the pre-made purees as ingredients,” – is so abstract as clearly to fall into the category of unprotectible process or idea. It remains nothing more than the very idea that Plaintiffs recognized as unprotectible: hiding vegetables in foods children enjoy. Plaintiffs’ inclusion of process details, primarily focused on time-saving techniques, is insufficient to transform an unprotectible idea into a copyrightable expression of that idea.

Said Gibson Dunn’s Orin Snyder, the lawyer for Seinfeld: “It’s an enormous victory. It confirms what we’ve been saying since Day One, that this was an inappropriate lawsuit to begin with.”

A call to Howard Miller of Girardi & Keese, counsel to Lapine, was not immediately returned.

Secretary of State Sam Reed may have accepted tens of thousands of invalid signatures before he certified a November referendum on expanding domestic partnership benefits, a King County judge said Sept 2.

But state law requires that any challenge to Reed’s decision be brought in Thurston County Superior Court, King County Superior Court Judge Julie Spector said in rejecting a lawsuit that sought to block Referendum 71 from the ballot.

Supporters of expanded legal benefits for gay couples immediately said they’d pursue their efforts in Thurston County.

“Judge Spector issued a very strong affirmation of the deficiencies in the signatures and petitions accepted by the secretary of state,” said Anne Levinson, a lawyer who has led the effort to keep R-71 off the ballot. “If those petitions had been correctly disqualified, the measure would not have had enough signatures to be certified.”

Reed announced Wednesday morning that of nearly 138,000 signatures turned in by the conservative Christian group Protect Marriage Washington, 122,007 were valid – 1,430 more than necessary.

The group opposes to the so-called “everything but marriage” law, which would grant registered domestic partners all legal benefits enjoyed by married heterosexuals.

Supporters of a gay-inclusive domestic partnership law in Washington State say they will now focus on campaigning for the law instead of appealing a failed effort to block a vote on the law.

On Tuesday, the gay rights group Washington Families Standing Together lost its legal challenge against placing Referendum 71 – the “everything but marriage law” – on the November ballot. The group had argued that Secretary of State Sam Reed had accepted thousands of invalid signatures.

It was the second defeat for the group, which was also denied a motion last week in King County Superior Count on a technicality.

Loyal LBers will know that in recent weeks, we’ve started beating the drum ever more strongly for the WSJ’s weekly Law Journal column. It’s a bit shameless, we know, but the column really is quite strong (we know, we know: here we go again).

So imagine our glee earlier today upon discovering a reason to reflect back upon a particularly strong Law Journal article from last fall. The article, by Amir Efrati, examined the criminal penalties for possession of child pornography. Efrati quoted several federal judges who had expressed alarm over what they viewed as excessive prison sentences for mere possession of child pornography: 20 years for downloading several pictures, that kind of thing. (Sixth Circuit judge Gilbert Merritt made approving reference to Efrati’s article in a dissent back in January of this year.)

The issue took center stage on Wednesday, when several federal judges testified before the U.S. Sentencing Commission in Chicago. The judges, echoing what others had said in Efrati’s article, told the panel that sentences for people convicted of possessing child pornography have become too severe. The commission suggested it will review the relevant guidelines. Click here for the story, from the National Law Journal.

“This is an area that requires the commission’s close consideration and possible corrective action,” Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel, adding, “I know it’s an awkward area for all of us.”

The commission is holding a series of regional hearings in conjunction with the 25th anniversary of the Sentencing Reform Act, which established the commission, to get feedback from judges, prosecutors, probation officers, public-interest lawyers, public defenders and others on federal sentencing practices.

“I’m of the view that in many instances the sentences are simply too long,” said James Carr, the chief judge of the Northern District of Ohio, referring specifically to the guidelines for child pornography possession, gun possession and drug possession.

Rosen emphasized that he doesn’t condone possession of child pornography, but inveighed against a system that in some cases gives a person who has watched one video a maximum sentence that may be higher than someone sentenced for raping a child repeatedly over many years, he said.

It hasn’t been the best of times for UBS AG. In February, the bank agreed to pay $780 million to settle claims that it had defrauded the IRS. And last month, after a lengthy battle with the Department of Justice, the bank agreed to turn over the names of several thousand account-holders, many of whom are suspected of evading paying U.S. taxes.

Another possible black-eye for the bank takes us to the Nutmeg State, where trial is going on involving a Stamford-based hedge fund called Pursuit Partners LLC. On Tuesday, the judge presiding over the case, Connecticut state judge John F. Blawie, ordered UBS to set aside $35.5 million to cover a potential judgment against it in a case involving debt securities that the bank’s employees called “crap” and “vomit,” according to the judge’s decision. Click here for the WSJ story; here for the opinion.

Pursuit Partners claims that UBS, knowing that investment-grade debt securities were about to be downgraded, sold the securities to Pursuit in 2007 as the mortgage market was deteriorating.

To date, relatively few cases involving these debt securities, known as collateralized debt obligations, have been brought. But for much of the past two years, regulators as well as private lawyers have looked for evidence that Wall Street banks and money managers knew the subprime market was in trouble yet masked the problem in their disclosures to investors.

Until now, the litigation has revealed little about what the banks allegedly knew about the securities’ risks. Judge Blawie’s ruling cited an email from a UBS banker saying he had “sold more crap to Pursuit.”

In its complaint against UBS, Pursuit alleged that UBS sold debt securities to Pursuit in 2007 without disclosing that the bank believed that ratings agencies were poised to downgrade the debt securities. Pursuit agreed to invest in the debt securities between July and October 2007. In October, Moody’s downgraded billions of dollars of CDOs, including those Pursuit bought. A few months later, Pursuit’s securities defaulted and it lost its entire investment.

In his decision, Judge Blawie wrote that Pursuit had “presented sufficient evidence to satisfy the probable cause standard with respect to their claim that UBS was in possession of superior knowledge that was not readily available” to Pursuit.

In its statement, UBS said Judge Blawie’s decision was a “preliminary procedure to require defendants to post security while a case is pending, nothing more. The decision is not a decision on the merits or a prediction of the outcome of the case. UBS is confident that it will prevail on the merits of the case.”

David Bowie may value changes, but it seems a lot of judges don’t.

Otherwise, changes of venue might not be so granted so rarely, a topic explored in the WSJ’s Law Journal today. (Click here for the story.)

While the piece looks at a variety of cases, for now, we’re going to focus on one, originally slated to go to trial in the Northern District of Iowa. The case gives a good example of how a judge can be persuaded to change the venue — if the defense attorneys can build strong evidence of pervasive community bias due to media attention.

The case involves the trial of Agriprocessors, owner of one of the largest kosher slaughterhouses in the country, which was the subject of a large immigration raid in 2008 in Postville, Iowa. The company and four of its managers are facing criminal charges related to allegedly conspiring to hire undocumented workers.

The defendants first requested a change of venue in January, arguing that the case was thrust into “the center of a publicity firestorm” as thousands of newspaper stories reported the facts of the case.

But in March, federal judge Linda Reade denied the defense team’s request, noting that the defendants “appear to place too much emphasis on the role of the print media in contemporary society.”

The judge, however, left open the possibility for the parties to re-file their motion. She also directed the defense team and the state to cooperate on a questionnaire of to gauge the extent of adverse pretrial publicity among potential jurors.

Meanwhile, on June 1 the defense filed a second motion to change the venue, submitting a report called “News Coverage and the Instant Electronic Recall of Today’s Media.” With the report, the defense team argued that the confines of traditional news media have expanded so far that now there are blogs — blogs! — which are “indefinitely accessible.” The report emphasized that the reader comments that often are now allowed at the bottom of online news — sound familiar? — can be the most vicious and damaging. On June 18, Judge Reade again declined to move the trial.

But on June 10, a week before the court denied the second motion, the court adopted a lengthy questionnaire that was eventually sent to about 500 potential jurors. The questionnaire results revealed that more than 40% of potential jurors had already concluded the defendant guilty; 95% had heard of the case; and 75% said the opinions of the case had been influenced by news reports.

After reviewing the results, the defense team decided to file a third motion to the court asking for a change of venue. This time, Judge Reade agreed with the defense. On Sept. 1 the court found “that prejudice from pretrial publicity in this action is so extensive and corrupting that it may presume unfairness of a constitutional magnitude against Defendants Rubashkin and Agriprocessors.” The trial is headed for Sioux Falls, S.D.

Two days before the 9/11 anniversary, Amtrak is initiating a one-day "multi-force security surge" along the Northeast Corridor that includes "random passenger bag inspections at unannounced locations," according to the Transportation Security Administration.

More federal, state, regional and local officers will patrol stations and ride trains, and more dogs will be sniffing for explosives, said a news release.

No threat or incident is behind this "exercise of expanded counterterrorism and incident response capabilities," part of an operation called ALERTS, which stands for Allied Law Enforcement for Rail and Transit Security, the agency said.

Supporters of the state's most recent expansion of domestic partnership rights announced Wednesday they won't appeal to the Washington Supreme Court to try and block a public vote on the new law.

Washington Families Standing Together chairwoman Anne Levinson said the group will now focus on a campaign to ensure the law is retained.

Referendum 71, sponsored by a conservative political group called Protect Marriage Washington, asks voters to approve or reject the "everything but marriage" domestic partnership law that state lawmakers passed earlier this year.

The new law would add more legal rights to the state's established domestic partnerships for gay couples, putting registered partners on par with married couples under state law. Under current Washington law, if one partner is at least 62, unmarried heterosexual couples are also allowed to register as domestic partners.

An "accept" vote on R-71 would put the newest law into place, and a "reject" vote would block it. The underlying laws laying out domestic partnerships — enacted in 2007 and broadened once already in 2008 — would not be affected.

Denny Chin, the Manhattan federal judge perhaps best known for sentencing convicted Ponzi-scheme operator Bernard Madoff to 150 years in prison earlier this year, will be nominated to fill a vacancy on the Second Circuit.

The White House intends to nominate U.S. District Judge Denny Chin to the appeals court, the office of U.S. Senator Charles E. Schumer (D-NY) confirmed Wednesday.

“We told the White House that Judge Chin would be an outstanding choice,” Sen. Schumer said in a statement. “Even in the most high-profile of cases he has been unflappable, erudite and steadily applied the law.”

The impending nomination was reported on the New York Times Web site on Wednesday afternoon.

A clerk for Judge Chin said the judge had no comment on Wednesday.

Judge Chin, 55 years old, was born in Hong Kong and graduated from Princeton University and Fordham University School of Law. A former federal prosecutor, he was nominated to the federal court by President Clinton in 1994.

In this fifteen-year tenure, the judge has presided over many high-profile trials. In 2007, he sentenced Texas oil trader Oscar Wyatt Jr., then 83 years old, to more than a year in prison for his role in payments to Iraq that violated the United Nations’ oil-for-food program.

The judge has also shown leniency at times, including his 2007 reversal of a jury verdict of fraud against former New York Stock Exchange supervisor David Finnerty. It is unusual for judges to reverse jury verdicts. Judge Chin currently is presiding over a copyright lawsuit against Google Inc. in connection with its efforts to gain copyright licenses over millions of digital books.

There are currently four open judgeships on the Second Circuit, including the one formerly held by new U.S. Supreme Court Justice Sonia Sotomayor. A fifth appellate judgeship is expected to open on the circuit this autumn.

To paraphrase the Haggadah of Pesach: How is today unlike all other days down at the Supreme Court? Let us turn the question around and fire it back, LBers. How is today like all other days. From where we sit, the differences just might outnumber the similarities.

For starters, we had an argument in early September — a highly unusual occurrence given the typical early October start date for the Supreme Court term. We have a new justice on the bench — Sonia Sotomayor — and we have the first argument by Elena Kagan as Solicitor General.

The case, which we’ve written about before (click here, here and here), involves whether and to what degree the government should limit corporate and union political spending.

The quick background on the facts of the case, with help from Jess Bravin and T.W. Farnum’s story out today: Citizens United, a conservative advocacy group chartered as a nonprofit corporation but accepts donations from corporations, produced a feature-length movie that portrayed Hillary Clinton very negatively. The Federal Election Commission classified “Hillary: The Movie” as an “electioneering communication,” which the McCain-Feingold law tightened restrictions on in regard to corporations. Because Citizens United, itself a nonprofit corporation, accepts funds from other corporations, the commission concluded that the picture fell under the regulation, which aims to tamp down independent spending by corporations and unions on ads promoting or denigrating a candidate in the weeks ahead of an election.

The Supreme Court, prior to arguments, made clear they were considering two other precedent opinions in which it upheld restrictions on campaign spending.

We checked in with Jess Bravin, who saw the arguments live Wednesday morning.

Hi Jess. Thanks for taking the time. It was a star-studded courtroom today, eh?

It sure was. [Gibson Dunn & Crutcher's] Ted Olson argued first, representing Citizens United. He started with a broad appeal to constitutional principles. He mentioned the value of robust debate on political issues, and talked about how that lies at the core of First Amendment free-speech rights.

Justice Ginsburg cut right in with what many on the liberal side of the debate find to be the central issue — the fact that we’re talking about limits to corporate speech. Justice Ginsburg challenged Olson on whether the government must treat corporations exactly like individuals, or whether they are something different. “A corporation, after all, is not endowed by its Creator with inalienable rights,” she said, riffing off the Declaration of Independence.

How’d Olson respond?

He mostly wouldn’t take Justice Ginsburg’s bait, saying only that as far as this regulation is concerned, you can’t make a hard distinction between corporations and individuals. His main point is that the burden is on Congress to justify curtailing speech, something he said it had not met for this regulation.

Okay. What else happened during Olson’s argument?

The eight veteran justices all have fairly predictable positions on campaign finance law. So there was particular attention on what Justice Sotomayor had to say. She didn’t ask many questions at her debut, but she did pose one of the more provocative ones. She suggested that maybe the decisions that should be revisited were the very old cases that gave corporations the legal status of persons. To quote the 111th justice: “There could be an argument made that that was the Court’s error to start with, not Austin or McConnell [the two cases the court is overruling], but the fact that the Court imbued a creature of State law with human characteristics.”

Justice Sotomayor also suggested that there were ways to address Citizen United’s concerns without reaching the constitutional question — and that the court didn’t have the evidentiary record needed to decide whether in fact the McCain-Feingold restrictions were so onerous a burden on the group. That suggests that she would sign on to a remand to the district court.

And did the other justices from the more liberal wing ask Olson other questions?

Justice Stevens cited an amicus brief submitted by the National Rifle Association, suggesting another alternative: allowing nonprofit corporations to create accounts that would be comprised solely of contributions made by individuals. Congress itself provided for such a fallback system if the current provision is struck down. That way you’d better be able to distinguish when individuals are funding political speech and when it’s this more amorphous entity, called a corporation.

Olson responded by saying that such a system would be an accounting nightmare. Perhaps, countered Stevens, but it’d be an accounting nightmare allowed by Congress.

Okay. Now, [WilmerHale's] Seth Waxman argued for several members of Congress that the restriction did not run afoul of the constitution. How’d that argument go?

Well, it seems the conservatives have gotten over this problem they’ve had since 2005 when chief justice joined the court, this tension between their desire to rule on cases consistent with their view of the Constitution and the court’s institutional respect for precedent. On the one hand, they just don’t buy this idea that government should be regulating how politics are conducted. They view money as the equivalent of speech. Without money, you can’t get your message out, and when you start restricting money, you’re shutting up voices. As Justice Kennedy said, corporations know a lot, they have a lot to contribute to the political debate, and shutting them down is not a desirable thing.

Chief Justice Roberts made it very clear where he stands. Sometimes you can get a sense from people’s voices how personally vested they might feel about an issue or argument. Roberts seemed a little riled up. He made it clear that this is something he felt strongly about, that this was not some some abstract exercise.

It sounds like, from what you’ve just said, that we can already make a safe bet on how the justices will vote. We’ll have the conservative bloc on one side, and the liberals on the other, with Justice Kennedy siding with the conservatives. Is that your read?

It is. Justice Kennedy dissented in both the cases the court is considering overruling, and there’s really no reason to think he’d vote the other way, given that he had such strong views on the matter earlier.

My gut sense is that the chief justice and Justice Alito aren’t going to let the stare decisis get in their way, especially if the votes are trending in their direction.

A caveat: earlier this year, a similar atmosphere prevailed after arguments challenging Section 5 of the Voting Rights Act of 1965, which requires certain areas of the country to “preclear” changes in election procedures with the Justice Department. But in the end, the court voted 8-1 to find a narrow way out of the case — while signaling very strongly that unless Congress overhauls the statute, it could be overruled in the future.

So one can never be certain. But to caveat the caveat, the Voting Rights Act holds a symbolic place in the history of the civil rights movement and indisputably helped transform the nation’s race relations and political culture. The laws in question here don’t have that kind of resonance.

And you think Roberts and Alito feel the stare decisis pressure a bit more acutely than do the others?

Well, the issue for Roberts and Alito is that they were confirmed relatively recently. During their confirmation hearings they were asked by senators — mostly Democrats, but some Republicans too — about their respect for precedent. In fact, both Sens. McCain and Feingold issued a joint statement after the argument in which they said to Roberts that, look, we voted to confirm you and we come from different places, but we agreed that your decision to respect to stare decisis is really important. Essentially, they were saying that if you rule against us, you’re buying yourselves a guilt trip for a very very long time.

And this was Justice Sotomayor’s first argument. How’d she do?

Her first question came 25 minutes into the argument. Look, she’s the new kid in class. So on the one hand, she probably doesn’t want to come across as a wallflower, but didn’t want to act like she thinks she owns the place, either. But the sense in the audience was that she did well for a debut. Some justices hit the ground running — Chief Justice Roberts, for one — and others take a bit longer to find their stride in this part of the job, the only one that we can actually watch. Through her questions, Justice Sotomayor made it clear that on this case, she’s lining up with the other liberals. Which surprised no one.

Okay. And how about the Solicitor General?

There were two burning questions: How would she handle her first ever Supreme Court argument? And would she wear the morning coat, the antique dress traditionally worn by the solicitor general and court officers? Men always wear the morning coat, but it’s an open question for women. The court marshal, Pamela Talkin, prefers the morning coat. General Kagan — that’s the honorific used for the attorney general, the solicitor general and, as far as I know, the postmaster general — wore a blue pants suit.

Now, for the serious question: But she was very much up to the task. She was conversational, clearly prepared, and not nervous. I would say that what struck me about her argument was its relative realism. She didn’t really stick to tough theoretical positions when she saw they weren’t going anywhere; she was willing to bend a little bit.

Kagan was arguing along with three of the country’s most admired lawyers — Ted Olson and Seth Waxman, both solicitors general, and Floyd Abrams, perhaps the best known First Amendment lawyer. Given being surrounded by such co-stars, she did well.

Sounds like a good performance all the way around.

It was. Sometimes people — even a justice on occasion — has been known to doze off during an argument. Not today — and this one went an hour and a half, compared to the hour that most arguments get. It was a great show.


Well, thanks much for sharing your thoughts.

Always glad to.

There are some stories that just have it all, and this one, straight outta Phoenix, fits the bill. Religion, the Constitution, annoyed townspeople, an indignant bishop — all the makings of a great blog post.

Here goes:

It starts with a church in Phoenix called Christ the King Church. Prior to May, the church rang its bells every hour on the hour, from 8 a.m. to 8 p.m. Despite all that is wonderful with hourly dinging-and-donging, some of the neighborhood’s residents got annoyed and asked a judge to shut down the racket.

The judge did just that — and a little more: He convicted the bishop, Rick Painter, on two counts of creating “an unreasonably loud, disturbing and unnecessary noise.” Painter in June was given a suspended sentence of ten days in jail and three years’ probation on June 3.

The judge restricted the chimes at the church to no more than 60 decibels for two minutes on Sundays and specific religious holidays. (The bells’ volume has been registered as emitting 67 decibels at the nearest property line. By comparison, a whisper is 30 decibels and a normal conversation runs from 60 to 70 decibels.) Click here for the story, from abc15.com, on Painter’s conviction.

Perhaps not surprisingly, Painter wasn’t pleased by the conviction. “We’re expressing our religion we glorify God by the bells,” he said.

Now comes word that a collection of churches — Christ the King and two other Phoenix churches — have filed suit in federal court against the city for violating its First Amendment right to practice its religion unfettered. They argue that Phoenix’s noise ordinance has an exception for ice-cream trucks. They’re asking for the same treatment. Click here for the complaint. Click here for the story, from Courthouse News Service.

The lawyer for the churches, Erik Stanley, said churches shouldn’t be published “for exercising their faith publicly.”

“No one should be sentenced to jail and probation for doing what churches have traditionally done throughout history, especially when the sound of the church’s bells does not exceed the noise level that the law allows for ice cream trucks,” Stanley said.

Law Offices of Howard G. Smith Announces Investigation On Behalf of Shareholders of UCBH Holdings, Inc.

Law Offices of Howard G. Smith announces that it is investigating potential claims against UCBH Holdings, Inc. ("UCBH" or the "Company") (NASDAQ:UCBH), concerning possible securities violations in relation to public statements made by the Company between April 24, 2008 and May 12, 2009.

The investigation focuses on allegations that statements made by the Company during that period regarding UCBH`s business, operations and prospects, were false and misleading. Specifically, the investigation concerns the Company`s May 12, 2009, disclosure that UCBH was delaying the filing of its Quarterly Report with the Securities and Exchange Commission for the 2009 fiscal first quarter and, as a result of an ongoing assessment of the adequacy of the Company`s allowance for loan losses, additional general reserve provisions to its allowance for loan losses were possible, and that any additional provisioning would further increase the Company's net loss for the quarter ended March 31, 2009. On this news, shares of UCBH declined more than 20%, to close on May 13, 2009, at $1.66 per share on heavy volume.

If you purchased UCBH common stock between April 24, 2008 and May 12, 2009, or if you have information or would like to learn more about these claims, or if you wish to discuss these matters or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020 by telephone at (215) 638-4847, Toll Free at (888) 638-4847, or by email to:

howardsmith@howardsmithlaw.com.