The LACBA Student Lounge Blog

Justice Thomas Strikes Up Convo in Coach

Your flying coach, going to a moot court final or going to visit the family. None other than United States Supreme Court Justice Clarence Thomas has a seat next to yours. That's what happened to two high school student football players who were returning from a university recruiting session. As it turns out, Thomas is a big Cornhuskers fan and knew all about the two players. Seeing an opportunity, the persuasive students subsequently convinced Thomas to skip a SCOTUS session and deliver the keynote address at their high school graduation ceremony.

More on this story.

Question of the Week: The Sotomayor Confirmation - Politics or Legitimate Inquiry?

Attempting to make her mark in Constitutional Law casebooks over the next several years, the confirmation of Sonia Sotomayor is big news. But, will the confirmation process be mere politics or will it be based on Sotomayor's judicial philosophy, intellect and credentials?

Use the comments link below.

The First Amendment Applied to MySpace Post

The University of Louisville has expelled a nursing student based on posts that the student made to MySpace. Arguing that the the posts are protected by the First Amendment, the expelled student is fighting policies against publishing information about patient activities, patient identification, racial remarks, gun possession and religious remarks.

Details at Courier-Journal.com.

Obama Admin on Fourth Amendment Search and Seizure: Privacy

Issue: Can the government require federal judges to order mobile phone companies to release historical cell-tower information of a phone number without probable cause (without a warrant).

In a brief for the Unites States, the Obama administration says yes. What happens to be at stake? The way cell-towers collect information is by tracking the location of a mobile phone that is being used when a call is made, so it seems to be a privacy interest in one's general location that is at stake.

Here, the Obama Administration appears to be maintaining a hard-line position on warrantless surveillance. The case that the brief was filed in involves an investigation into narcotics trafficking and other crimes.

More details on this story at Wired.com.

Much Ado About Presidential Oath Slip-up

Article II, Section I of the U.S. Constitution provides that the President Elect take the following oath before execution of office:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."

According to an Associated Press (AP) account, Obama paused as he repeated the oath administered by Chief Justice John G. Roberts Jr. The AP continued that “Roberts helped him over the brief awkward moment, repeating a few words to get Obama back on track.”

However, NBC News and ABC’s Diane Sawyer reported that Chief Justice John Roberts, using no notes, erred in his recitation of the oath.

When the Chief Justice read the second clause of the statement, he omitted the word “faithfully” from its rightful place, and stuck it at the end of the clause. Grammatically, Roberts’s construction made better sense than the Framers’, but this switch seemed to have tripped up Obama.

It was also suggested that Obama may have contributed to the confusion by jumping in too soon, starting to repeat the oath before Roberts completed the first phrase.

Whatever the confusion and its causes, every news carrier and legal blog jumped at the chance to comment on the awkward oath recitation.

See The Oath For Yourself on YouTube.

See Wall Street Journal Legal Blog or ABA Journal News Story.

A $45,000 High from “Bong Hits 4 Jesus”

Even after the U.S. Supreme Court held for the appellant school district, the "Bong Hits 4 Jesus" case was settled for a payment of $45,000 to the respondent, a former student who raised the infamous banner.

In 2002, Joseph Frederick, a senior at Juneau Douglas High School in Alaska, posted his now-infamous “Bong Hits 4 Jesus” banner across the street from the campus during the Olympic torch relay run.  Frederick said the banner was intended to be comical and nonsensical.  High school principal Deborah Morse confiscated the banner and suspended Frederick from school.

Frederick sued Morse and the school board in federal court for violating his right to free speech. Frederick lost in the trial court, but won in the 9th U.S. Circuit Court of Appeals.  The school board then took the case to the U.S. Supreme Court.  In 2007, the Supreme Court ruled that the school could restrict student speech that encourages the use of illegal drugs.

Earlier this year, however, Frederick brought a claim that he was entitled to a ruling on whether the Alaska Constitution provides stronger protections for free speech than does the U.S. Constitution. With a decision pending in the 9th Circuit, the parties settled the case.

Under the settlement agreement, the Juneau School Board will hold a forum on student civil liberties for all students and staff, and Frederick will be paid $45,000.  The school district will also expunge all mention of the punishment from Frederick's official school records.

Harvard Law Prof Claims RIAA Lawsuits Unconstitutional

According to an article in an independent student newspaper at the University of Oregon, Charles Nesson, A Harvard Law professor filed a counterclaim against the RIAA last week on behalf of a Massachusetts man being sued by the association for copyright infringement. Here, the counterclaim argues that these types of lawsuits against possible copyright infringers are unconstitutional.

Nesson, who is representing Tenenbaum pro bono, said charges are brought against possible copyright infringers under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. The law, Nesson said, is essentially a criminal statute, and it is unconstitutional to apply the law in a civil case, which the RIAA is doing.

Nesson, along with the four students that are also working on the case, argue that civil law is about hurting someone, then making them whole again. Here, it is argued that the RIAA is attempting to punish someone, as in a criminal case, as the damages sought are not in proportion with the actual harm that was caused.

Prop 8 Forces the Issue of Same Sex Marriage Back to the California Supreme Court

On Wednesday, legal groups and three city attorneys petitioned the California Supreme Court to invalidate Proposition 8. They argued that the voter-approved ban on gay marriage should be decided by the legislature, not the voters.

The law suit was filed only six months after the Supreme Court's 4-3 decision to extend marriage rights equally to both gay and straight couples. In In re Marriage Cases, the majority declared gays and lesbians a suspect class, subjecting restrictions of their rights to a strict scrutiny review. That's left some legal scholars wondering how the court could leave Prop 8 in place.

"One option for the court would be to say, the way to harmonize Prop 8 and the equal protection clause of California's constitution is, if you're going to take away marriage rights for one group, you've got to take it away from everyone,” suggested William Araiza, a professor at Loyola Law School in Los Angeles. But eliminating state-sanctioned marriage entirely doesn't seem like a politically palatable possibility, the professor said.

More likely, the court might construe Prop 8 as a "narrow exception … an asterisk" to the equal protection clause, Araiza said. "Politically, I think that's where a court would probably go," he said.

The court does not have a deadline to act on the writs but typically moves quickly with extraordinary requests.

CA's Anti Video Game Violence Law On the Block (First Amendment)

On Wednesday, the 9th Circuit US Court of Appeals will have a hearing to review a San Jose federal judge's ruling that a California law that forbids certain types of video game violence violates the First Amendment.

In one corner we have Arnold Schwarzenegger and other State officials who appear to believe that video game violence has an effect on violence among youths. In the other corner, game players and the video game industry, view the law as a replacement for the the role that parents should have in deciding what types of games their children play.

From a Mercuy News article:

The video game industry and video gamer groups insist the state's rationale for regulating certain video games — to combat teen violence — rests on "flimsy generalizations." The movie and music industries also have weighed in, arguing that the law is so broad it could affect the sale of classic movies that depict graphic violence, from "Saving Private Ryan" to Schwarzenegger's own "Terminator" flicks.

Up to this point, courts have typically ruled against these types of laws as too broad and as threatening to the free-speech rights of game developers. In the district court, Judge Ronald Whyte struck down the law holding that there was insufficient evidence of a connection between violence in video games and violence in children.

Image: Ubisoft

The Worst Supreme Court Decisions Ever?

The Los Angeles Times reports that one's political outlook influences his or her determination of whether a particular Supreme Court case was decided correctly or incorrectly. The most obvious example of this ideological-judicial link is found in attitudes towards Roe v. Wade, a decision that has taken on enormous significance in political and public discourse over the past several decades, with many conservative-leaning people decrying it as the worst decision in the court's history. To find out what other relatively recent Supreme Court decisions are regarded as particularly bad, the Times conducted a survey of constitutional law professors with views across the political spectrum. The resulting list suggests that positions towards certain decisions are divided by ideological leanings. For example, among conservatives, Roe v. Wade is, indeed, considered to be the worst decision. For liberals, Bush v. Gore ranks as the worst. However, while conservatives and liberals have divergent opinions of many rulings, both sides included Gonzales v. Raich and Buckley v. Valeo in their list of the worst.

To read the article, click here