Confidence Game

 

Danny DeVito’s slimy Sid Hudgens in L.A. Confidential worked for a tabloid and gleefully reminded people that gossip from his paper was always, “Off the record, on the QT, and very hush-hush.” Of course, this was nonsense. He worked for a newspaper. But revealing information a reader perceives as secretive or confidential can inject it with a sense of authenticity, and of course, sensationalism. Legions of click-bait internet ads contain phrases like “secrets to . . .” and “what so-and-so doesn’t want you to know” because it appeals to our desire to have inside information.

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From Indiana’s DCS website.

Still, some confidences are designed to stay confidential, and when they don’t, the consequences can be disastrous. Consider Indiana’s toll-free hotline to report suspected abuse or neglect of children, which received 202,493 calls in 2015. The identity of someone who reports abuse or neglect using this system is supposed to remain confidential. But what if that information is not held in confidence? What happens when the identity of a CPS caller is discovered, in spite of state law and DCS regulations?

First, remember that confidential does not mean anonymous. Although a report can be made anonymously, DCS Investigators must speak with the caller in detail to advance an investigation and the identity can be useful. The law requires that the name of the person who alerts CPS, (the “reporter”), if known, be redacted from documents shared with others, like the parents that are the subject of the investigation. The DCS website contains the following information:

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From Indiana’s DCS website

As you might imagine, if DCS is processing a few hundred thousand reports annually, it’s not unthinkable that one might slip through the cracks, resulting in the name of a reporter being unintentionally disclosed.

In John Doe v. Indiana Department of Child Services, Doe (whose real name was withheld in the lawsuit for obvious reasons) reported suspected abuse or neglect to the DCS. During his phone call, he expressed reluctance at sharing his identity, but was assured by a DCS representative that it would be kept confidential and that no one would know that he had made the report. Sadly, it didn’t stay confidential. The Court of Appeals described the consequences:

About a week [after Doe’s report], on July 3, 2013, Doe was confronted in his front yard by Heather Ditton, who lived across the street and was one of the neighbors Doe reported. While screaming and yelling obscenities, Ditton angrily accused Doe of calling DCS. Ditton had in her possession an unredacted copy of the DCS report, which identified Doe as the reporting source. Other neighbors quickly became aware of the report Doe made. Upon realizing the report was not kept confidential, Doe felt like “somebody ripped [his] heart out.” * * * From that point on, the Doe family no longer felt comfortable outside their house. They wanted to relocate but could not afford to move. Doe indicated that he was “stared at, glared at, mooned, flipped off, yelled at, you know, every day, forever.” His daughter, Jane Doe #2, was bullied by other children. Both Doe and his wife missed work due to stress and lack of sleep.

Doe v. Indiana Dep’t of Child Servs., No. 49A02-1506-CT-682, 2016 WL 3013989 (Ind. Ct. App. May 26, 2016), p. 3 (Internal citations omitted).  In what the Court called an “issue of first impression,” meaning it had not yet been addressed before an Indiana appellate court, the Court examined whether a person who calls to report abuse or neglect has a right to sue DCS for revealing of his/her identity. DCS did not dispute that it violated the statute by disclosing Doe’s identity. However, in examining Indiana Code § 31-33-18-2, the Court stated that “[n]ot every breach of a statutory duty provides plaintiffs with a right of action.” Since the law here does not make a private right of action explicit, the Court examined whether the legislature intended to make it implicit.

Naturally Doe and DCS did not agree on what the legislature really intended. But rather than answer this question directly, the Court decided to “leave that issue for another day” relying instead on the special duty that occurred when Doe spoke with the DCS representative and specifically voiced concern over confidentiality, and was assured that DCS would protect his identity. The Court of Appeals concluded:

Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, Doe then provided the information. The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and I.C. § 31-33-18-2. Ultimately, the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise.

(p. 10). Although the litigation has yet to end, the Court allowed the lawsuit to continue. However, the decision of the 3-judge panel was not unanimous. Chief Judge Vaidik disagreed with the majority’s decision to side-step the issue of legislative intent, preferring instead that the Court address it, and arguing that the legislature did not intend to allow for a private right to sue DCS for disclosure. The dissent reasoned that: (1) the purpose of the statute is to encourage reporting of suspected abuse or neglect of children, not to protect reporters; (2) there is already a statutory consequence to wrongfully revealing a reporter’s identity (the public employee can be charged with a Class A infraction); and (3) courts have already held that victims of abuse or neglect cannot sue those who failed to report the abuse, and it’s logical to conclude that if abuse victims don’t have a private right to sue, then reporters don’t either.

Given the division of the Court and the importance of the issue, I think it’s very likely the Indiana Supreme Court will grant a request from the DCS to take up the issue later this year.

 

The Hidden Pitfalls of Police Video

[W]itnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Indiana makes most government records available to the public for the asking. The law is formally known as the Access to Public Records Act (APRA). Its more famous federal cousin is the Freedom of Information Act (FOIA).  Most public records are, of course, mind-numbingly dull. Using public access laws can lead to strange results. For example, consider Mental Floss’s collection of ridiculous documents obtained through public records requests, which includes an FBI Twitter slang dictionary. I can only imagine how that impacted tweets in the bureau.

@SpecialAgentJones OMG your proposal for this task force had me totes ROTFLOL. #GManProblems.

I’m kidding. This can’t be an actual tweet. It uses the word “your” correctly.

Still, we’ve come to accept that the costs of APRA and FOIA are outweighed by the benefits of public accountability. So whenever someone wants to tinker with public access laws, it’s in our nature to fear that government accountability may suffer.  In that context, some proposed changes to APRA this session in the General Assembly have caused a stir.

Here are the basics of the law as it stands today:

General Rule: Government records are public.

Exception: Agencies have some discretion to decide whether to release certain kinds of records. For example, I.C. 5-14-3-4(b) says that public agencies have the discretion to withhold “investigatory records of law enforcement.”

The law being the law, there are many other exceptions, of course. And even a couple exceptions to this exception–but you get the idea. An agency does not have to disclose an otherwise-public record if it is an “investigatory record.” Although policies can vary, this discretion typically means that videos that are part of an investigation might not be released to the public, or the press, while the investigation is ongoing.

There are good reasons for this. Many videos may show crime victims, who may not want the public attention that comes with a video. Also, witnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Enter House Bill 1019, which would change the law in a few important ways.  First, it creates a new category of document called a “law enforcement recording,” which includes audio and video from body cameras and dashboard cameras.  Next, it creates a special standard for obtaining this video. This is where it gets a little more complicated. The person in the video can make a request and is entitled to see the video, with his attorney, at least twice, but is not allowed to copy it.  Anyone else who wants to see it must file a petition with the court and prove that (1) releasing the video is in the public interest, (2) no one will be harmed, and (3) there will be no “prejudicial effect” on any existing civil or criminal cases.

House Bill 1019 is now the subject scathing editorials in the Indianapolis Star and other papers, which can be a bit misleading.  With titles like “Police camera footage should remain public,” the editorials might lead the casual reader to presume that such videos are completely available to the public under the current law, which isn’t the case. Yes, HB 1019 would alter the way one requests a law enforcement recording, but even under current law, an agency has the discretion not to make such a record available if it’s an investigatory record.

To be sure, not every law enforcement recording will be an investigative record. If a police cruiser captures several hours of a 4th of July parade where no crimes are alleged to have occurred, that video is likely not an investigatory record and would fall under the general rule allowing public access. But let’s face it, if a video is so uneventful that it’s not part of an investigatory record, no news agency is going to be interested in seeing it.

That’s not to say that HB 1019 doesn’t have some problems:

  1. Identification of requesting party. I’ve seen many police videos. Although the quality has improved greatly in the past decade, it’s not always easy to tell who is in a video. The bill creates a scenario where somebody—probably a Sheriff’s Office or Police Department employee—will have to decide whether the person making the request for a video is the person in the video. In many cases, this will be undisputed, but, as the saying goes, “Hard cases make bad law.”
  1. Cost of compliance. The costs of compliance for both law enforcement and those making requests could be significant. These include the cost of supervising someone who has a right to watch a police video because she is in it, and making sure she doesn’t use her smartphone to make a copy; the cost of redacting material that should not be revealed; the costs of making (or opposing) a written petition to a court and meeting nebulous legal standards like “public benefit.”

In an effort to restore additional accountability, some have suggested expanding the permissible requestors of videos to include journalists. This creates a new problem: putting counties, cities, and towns in the position of determining who is—and who is not—a journalist. Do bloggers count or must a brick-and-mortar television studio or printing press be required? The First Amendment does not elevate the free speech rights of journalists above the rights of citizens, and Indiana’s public access laws should not either.

HB 1019 is currently scheduled to be considered by the Senate Judiciary Committee on February 24, 2016.

***

UPDATE: 2/24/2016 – The Senate Judiciary Committee approved the amendment today which would switch the burden of proof to the public agency to withhold the video in any petition to obtain a Law Enforcement Video.

Should States Stop Playing the Marriage License Game?

An Alabama bill proposes a solution to the debate over the definition of marriage that, while not unique, is at least new to modern audiences: get government out of the way. The bill would end the practice of issuing marriage licenses. Instead of government telling you that you may marry, you would tell the government that you have married.

Some will argue that this bill is simply a response to the Supreme Court’s recent gay marriage ruling in Obergefell v. Hodges. They’re not wrong. It’s hard to think that this bill would even exist without the Obergefell case bringing matters to a head. But so what? Legislatures routinely change laws in response to court decisions. Even if some supporting it are motivated by no more than the bitter taste of sour grapes, that’s hardly an argument that the proposal lacks merit.

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What should–and shouldn’t–the state do for the people? (Asheville, NC)

Stephanie Coontz, a professor of history at Evergreen State College has pointed out that marriage without the blessing/permission of government is not a new idea. Not until the 16th Century in Europe did the state take an active role in permitting marriages. Prior to that time the vow–not the law–created marriage. Even marriages that the church considered illicit (an exchange of vows outside the church) were still deemed marriages.  Coontz also notes that American colonies generally required only that marriages be registered. Until the mid-1800’s American States would still allow mere cohabitation as proof of marriage. Indiana continued to recognize common law marriages well into the 1950s.

People willing to leave public comments on the interwebs tend to say not-so-nice things about others as a rule, and opinion about the Alabama proposal was no different. “Stupid,” “1950s social values” and the inevitable comparison to separate drinking fountains dominated a recent comment section of a local news article. One commenter even said that the bill was an attempt to “dehumanize us.”  I assume this meant dehumanize gays, not dehumanize internet comments, which I don’t believe is even possible.

Is it really so surprising that proposed legislation would follow in the wake of such a landmark SCOTUS decision? Courts are not supposed to be active institutions, but reactive ones. Is judicial activism now so commonplace, and legislative complacency so rampant, that when a legislature—the entity actually elected to make changes to the law—engages in activism of its own the populace must cry foul?

*** On a side note, “Judicial activism” as an insult is quickly approaching Red Scare status. At some point after 1990, calling someone a socialist in polite society meant that reasonable people should question the accuser, not the accused. But at least that name-calling could be criticized as one-sided, since a socialist represented a particular political viewpoint, and so his attackers had an opposing view. “Judicial activism” is politically neutral activity in theory (if not in practice), and can apply equally to the substitution of any judicial view for the will of the legislature. But no matter. Like many perfectly accurate phrases before it, it’s sure to be deemed an antiquated, unfashionable dog whistle signaling some evil and unspoken larger meaning–though deciphering the meaning always seems to need a Rosetta Stone of political correctness. Its detractors will be sure to replace it with a slur far a more gentile, if less lucid. I, for one, will lament its complete unavailability at some point in the near future. So long, “Judicial activism,” we hardly knew ye.***

So who are the winners and losers if States start getting out of the marriage business entirely?

For some conservatives, a more passive role for the state may prevent them from choosing between violating their consciences and keeping government jobs. (Though if former IRS chief Lois Learner’s actions are any indication, righties aren’t much welcome as civil servants anyway).  For some liberals, the proposal would give them the freedom they seek, and then some. Not only would any two people be allowed to marry, it would be nearly impossible for the state to regulate how the marriage contract is entered into or who solemnizes it. And despite what an hour of MSNBC or FOX News would suggest, I suspect most gay couples aren’t really interested in using their wedding ceremony as political theater—knowing in their sunset years they will fondly think back on the day they tied the knot, expressed their commitment, and made that redneck probate clerk the subject of some serious HuffPo clickbait. No, for most people, it doesn’t work like that. Non-deranged folks want to marry surrounded by people happy for them, not someone resentful because the bronze bust representing the enduring legacy of Justice Kennedy needed polishing. (Just kidding! There’s no bust. It’s a life-sized Ronaldo-esque statue and on the first Monday each October, it is appeased with sacrifices of clerks from middling law schools.) It’s not sacrilege or lunacy for honest people on all sides to seriously consider removing the appendix of licensing marriages from the corpus of government. What does anyone have to lose?

The casual observer might assume that the Supreme Court’s decision ended the issue, and any further legislation is unhealthy because it keeps us fighting. The Obergefell decision does seem, on its face, to require states provide marriage licenses. However, the Court did not seem to contemplate a State not giving marriage licenses to anybody, but the Due Process implications of providing licenses to some citizens and not others.

Besides, the issue wasn’t even over when it was over. Despite the canard that plural marriages (polygamy) had no logical correlation to the gay marriage issue, such a debate is coming. Chief Justice Roberts anticipated as much in his dissent:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” . . .  why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

In fact, the other shoe has already dropped. Less than a month after Obergefell, a Montana man, Nathan Collier, already voiced his intent to sue if he is denied a marriage license to marry a second wife, a contest he considers his own fight for “marriage equality.” More plural marriage proponents are sure to follow. USA Today recently cited a 2012 survey of 4,000 polyamorous individuals, and 66% reported being open to plural marriage. In the not-too-distant future, a trial judge with a polygamous marriage license application in one hand and Obergefell in the other may have only two choices: invalidate the state’s unconstitutional exclusion of plural marriage folks from marriage licensing requirements, or become . . . a judicial activist. (McCarthyism!)

But there are factions on both sides of the issue that won’t tolerate States bowing out of the marriage license game. Some gay marriage advocates won’t like this at all because it’s not freedom that they’re after. It’s state-sanctioned acceptance. To them, it’s not enough that their relationships merely be allowed. They must be approved. Like the bratty teenager who refuses to simply raid the liquor cabinet the weekend her parents are away, her self-worth demands she badger them with sophomoric rationalizations about why no sane society would restrict a sixteen year-old from downing Mad Dog 20/20 while Mom enjoys her after-dinner sherry.  Dad eventually gives in, though more from battle fatigue than persuasion. Her victory parade is complete when she boasts to her friends that she convinced her parents to finally see the righteousness of her cause.

Likewise, some gay marriage opponents will also oppose the new proposal. They remain committed to believing that official legal rejection of gay marriage is the only acceptable answer, however diminishing its chances. If the state licensing requirement disappears entirely, the clock will have run out on their cause, and the scoreboard’s tally is not in their favor.

For these loudest voices in the echo chamber, social reformation must trump personal freedom, for social reform cannot be a private affair. For them, the Alabama bill must be opposed. Angered at the prospect of winning without continuing the fight, (or losing without a rematch) their identity depends on dragging their opponent back onto the field for humiliation. No, this proposal just won’t do. The contest for marriage equality cannot be won by forfeit.

Finally, to libertarians, this may be a panacea. Imagine what society could do if government could just get out of the business of moralizing and back to legalizing weed. Wait–on second thought, forget libertarians. Maybe we should let the adults continue the conversation.

The Not-So-Grand Inquisitor: Equal Justice and Police Interrogations in Indiana

Much of what passes for interesting reading for lawyers is just mind-numbingly tedious procedural minutia to everyone else. But the recent Bond v. State decision from the Indiana Supreme Court actually poses some questions that non-lawyers might find interesting, too.  At issue is how far police can go when using deceptive methods to obtain a confession from a suspect. The case has ignited much discussion in legal circles about criminal justice, police investigatory techniques, and race.

Suppose the police suspect Bert and Ernie of robbing a liquor store and shooting a clerk in the process, and the detectives arrest them both and put them in separate holding areas. They question Bert, and then Ernie. Then they return to Bert and tell him that Ernie has already confessed and if Bert would only fess up too, the prosecutor would be more likely to recommend a lenient sentence to the judge.

Of course, anyone who has seen Law & Order (or has an extremely cynical take on Sesame Street) knows that Ernie has not confessed. The police are lying to Bert. And there are endless variations on this lie. The police could claim to have Bert’s fingerprints.  Or that the liquor store clerk identified his photo from his hospital bed. Or that a surveillance video from the pawn shop across the street clearly identifies Bert and Ernie leaving the liquor store’s parking lot. The U.S. Supreme Court held long ago that the police may use deceptive methods when interrogating witnesses. Frazier v. Cupp, 394 U.S. 731 (1969).

ImageBut are there limits on deceptive police techniques? Sure. Imagine that the officer questioning Bert tells him that someone in the next room has Big Bird strapped to a car battery and standing in a bucket of water, and that the only choices that Bert has now are, “original, extra crispy, or confession.” So Bert signs the confession. Isn’t this just another deception used to trick him into confessing? No. In this case, Bert’s confession is coerced. Bert isn’t tricked into confessing, he’s forced into confessing. Big difference.  A permissible deception can’t trick an innocent person into confessing–at least in theory.  If Bert and Ernie are innocent, then the police assertion that Ernie “has already confessed” will only be met with bewilderment by Bert. However, threats to the life of Big Bird would cause even an innocent Bert to confess.

As long as Bert’s confession is not coerced or forced, then Bert’s motivation for making the confession can legally be based on a false premise, even a false premise the police create.

So how was Bond v. State noteworthy? In the Bond case, the detective told Bond that he would not receive a fair trial from people in Schererville and Crown Point because he is black.

While both the trial court and the Court of Appeals found the officer’s behavior deplorable, neither could say that it was illegal.  Since it was not illegal, the confession was admissible as evidence against Bond. However, the Indiana Supreme Court is more suited to make law than lower courts, and to consider the broader policy implications of rules of court procedure. In this case, the Court found that the technique of suggesting that Bond could not receive a fair trail because of his race was fundamentally different than a deception about the evidence against him. “[I]n this case Bond was intentionally deceived as to the fairness of the criminal justice system itself because of the color of his skin,” the Court noted.  It also said:

Regardless of the evidence held against him or the circumstances of the alleged crime, [Bond] was left with the unequivocal impression that because he was African American he would spend the rest of his life in jail. Unless he confessed. And in unfortunate days gone by, this might have been the case. But no one wants to go back to such a time or place in the courtroom, and so we will not allow even the perception of such inequality to enter the interrogation room.

Courts are normally utilitarian in their use of words, which seldom affords them the opportunity to be truly artful within a court opinion, but the Bond case was different than most. It provided an historic platform to look back at the progress of equal access to justice, and speak for–and to–the ages.  The Court continued:

As Dr. King did, we likewise “refuse to accept the view that mankind is so tragically bound to the starless midnight of racism.” Dr. Martin Luther King, Jr., Acceptance Speech at Nobel Peace Prize Ceremony (December 10, 1964). We simply cannot and will not risk this going further, and therefore draw a firm line today.

Thus . . . this deception by the detective tips the scale to involuntariness. We cannot tacitly countenance the erosion of everything so many have worked so hard to achieve in the realm of racial equality in the justice system—and continue to work to achieve—by disapproving of the statement but finding Bond’s confession nevertheless admissible.

As a practical matter, Bond’s confession is now inadmissible.  If Bond did commit a crime, the State will have to find other evidence if it wants to convict him.

A recent entry in the Indiana Law Blog described the feedback from the legal community surrounding this case.  One comment identified what it considered the “elephant in the room” of the Court’s opinion: was the representation the detective made true? What if Bond really can’t get a fair trial from a jury drawn from Schererville and Crown Point? This is not to single out any one community. Indiana’s racial history certainly has its jagged edges, and many of us have anecdotal evidence of racism, often associated–correctly or not–with entire communities. The point to ponder is whether such a technique is really a police deception at all if it’s true.

Another commenting attorney made the point that he has advised African-American clients that certain communities would be more likely to convict based on race, and that those clients have accepted plea agreements more readily as a result. So, the argument goes, how can it be unacceptable for a police detective to advise a criminal defendant of something that his own lawyer might say?  And is the lawyer to be reprimanded for his actions, or commended for frank and wise counsel to his clients?

In some respects, racial equality in the justice system is a victim of its own success. When racism was more widely accepted, objective evidence that a community would spawn racist juries would have been easier to come by. Today, racism is so widely condemned that it’s simply not possible to prove that a given community will always–or event predominantly–produce racially biased juries. So all we will ever have is anecdotal evidence, the “I knew a guy who . . .” stuff that legends are made of.

My support of the Bond decision does not require quantifying racially biased juries. If an African-American would confess, or accept a plea agreement more quickly, for fear that a jury would be racially motivated to convict him, then we need not prove actual racial bias in the justice system because the specter of racial bias has already caused harm.  Like a self-fulfilling prophesy, the fear of biased juries causes certain defendants to exercise less than the full panoply of rights given them by law, which is a harm all its own. The fear of biased results begets biased results. For a police officer–the embodiment of state power–to invoke that fear is inconsistent with the promise of equal justice under law.

If you’d like to sit in on more of this debate, the Supreme Court’s oral arguments are available online.

The Curious Case of Sherlock’s Copyright

It is an axiom of copyright law that no one may copyright an idea.

In a federal court ruling earlier this week, the Northern District of Illinois ruled that the bulk of Sir Arthur Canon Doyle’s Sherlock Holmes stories and character elements are not protected by copyright.

If you’re like me (and that’s often not a wise aspiration), you probably thought that these works became part of the public domain some time ago.  But it’s a bit more complicated than that.

sherlock holmes silhouette computingFirst, some background. Until relatively recently, American copyright works had expired 50 years after the death of their author.  This is one reason why Hollywood in general (and Disney in particular) finds old source material so attractive–no need to give royalties to the estate of Lewis Carroll for another Alice remake.

In 1998 the Copyright Term Extension Act (CTEA) changed, allowing up to 70 years after the death of an individual author.  For corporate authorship, it was extended to 120 years after creation or 95 years after publication, whichever came sooner.

As a recent L.A. Times article points out, these changes have caused many would-be public works to remain private works.  Among those books and songs that would have been public without CTEA: Atlas Shrugged and The Cat in the Hat, and the musical West Side Story.

But the 1998 CTEA law only applies to works created since 1923. Therein lies the rub.  The four novels and 56 short stories that comprise the Sherlock Holmes “canon” span this gap.  The majority of the stories were written prior to January 1, 1923–and are presumptively in the public domain–but the final 10 appeared in America after that year.  The copyright holder, which is a corporation set up by the family of the late Conan Doyle, argued that the development of the characters Holmes and Watson cannot be distinguished between the old and new stories; that if any part of the original character is protected, then the entire character ought to be considered protected.

The judge disagreed. He divided elements of the characters into “pre-1923 story elements” and “post-1923 story elements.”  It then examined whether the elements of the post-1923 stories were eligible for copyright.  It is an axiom of copyright law that no one may copyright an idea.  H.G. Wells’s The Time Machine has sentences, character names, and other unique qualities which may be copyrighted, but the mere idea of time travel cannot be copyrighted.  Ideas are simply too broad.

The court then examined the earlier and later story elements to distinguish them.  For example, if Holmes smoked a pipe and wore a deerstalker cap in the early stories, these traits (“increments of expression” in copyright lingo) are in the public domain and fair game for new works.  However, if Conan Doyle saved other key elements of the characters–such as Sherlock’s love of Angry Birds and stumbling into east London Karaoke bars to belt out the Black-Eyed Peas–for the later adventures, these would be protected.  The court determined that the later elements are not merely story or plot ideas, too broad to be copyrighted, but are valid increments of expression, protected under copyright.  Nevertheless, this decision does not remove the characters themselves from the public domain.

Illinois sits in the 7th Circuit with Indiana.  While not binding on Indiana now, the decision could become precedent if it is upheld by the 7th Circuit Court of Appeals in Chicago.

So Is it Harder or Easier to Buy a Gun Now? Answer: Yes

The New York Times published an interesting article yesterday detailing the results of the approximately 1500 new gun-related bills that have been proposed in states in the past twelve months, or as the Times measures it, “since Newtown.”  Only 109 such bills were signed into law.  While that might not seem like many, it’s slightly higher than the average 5% chance of a bill has of becoming law.

Aside from being a good example of why graphic-friendly, statistical-based news articles just work better online, it’s a pretty even-handed piece for the Times. The article divides the legislation into two camps: laws that “tighten” gun restrictions and those that “loosen” them.  However, like a cartographer flatening a globe into a map, the result of separating legislation into two simple categories can be a bit distorting.

iStock_000016146459SmallThough the only reference the Times makes is Newtown, I think the tapestry of state legislation reveals two motivations, which are not at odds, but are working simultaneously.  First, there is the post-Sandy Hook reaction.  It is revealed in the laws of at least 15 states which made it harder for the mentally ill to obtain handguns, either by increasing some form of reporting requirements from the mental health community, or by releasing mental health records into criminal databases, or both.  Also, the 6 states that passed so-called “assault” weapons laws probably did so largely in response to Sandy Hook.

The second motivation is likely a longer trend of protection of lawful gun ownership. These laws include authorizing more offices to issue permits, making handgun permit records confidential, and allowing concealed firearms in more locations.  Ever since District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Supreme Court definitively held that the second amendment conveyed a personal right to use of a firearm for lawful purposes, and its 2010 sibling, McDonnell v. Chicago, 561 U.S. 3025 (2010), voters have become more aware the breadth of anti-gun legislation.  Add to this the Obama administration’s use of agencies as disparate as the EPA and OSHA to effectively curtail the availability of guns and ammunition, and voters collectively started to take notice.

The Times suggests a certain inconsistency in the data.  But states are the laboratory of ideas, and most labs have many experiments running at the same time.

What You Can’t Say Can Hurt You: How Talking Politics Became the First Amendment’s Red-Headed Stepchild.

A Millennial is someone who reached young adulthood around the year 2000.  Someone who has only a vague notion that Will Smith used to be something before he was an actor, and who types into a phone more than he talks into one.  Youth tends to have myopia when it comes to comparing history and recent history, because the lenses aren’t that far apart yet.

If you ask a Millennial about the history of political speech, he’s liable to have a distorted view. He might believe that before his time, politicians never engaged in personal attacks.  Or that the era of Lincoln-Douglas debates occurred long before “big money” supposedly corrupted the political system. He might even believe that the Founding Fathers viewed political expression as a crass but necessary evil of the First Amendment, valuing instead avant-garde fine arts and personal expression as the end-all-be-all of freedom of speech.

Of course, as evidenced by dub step music and organic foods, the average Millennial probably has Nutella® for brains.

RushmoreThe truth is that old school politicians slung political mud in ways that would make James Carville blush.  For instance, backers of John Quincy Adams’s re-election campaign of 1828, eschewed the gentlemanly image of 19th Century society in favor of the simpler, “His wife’s a bigamist and his mother’s a whore,” approach. Likewise, spending in politics has never been a non-issue.  Although Lincoln nearly bankrupted himself spending on his own campaign, he also pooled his money with that of many wealthy supporters.

But perhaps the most hazardous misconception about politics and free speech is that elections, once driven by ideas, are now easily and pervasively manipulated by money.  The electorate used to be skeptical of the influence the wealthy might have on politicians.  That sort of eyebrow-raising can be healthy, even useful. But aimless skepticism leads to cynicism.  Now The Voter believes The Voter himself is untrustworthy, so gullible as to pull the lever for the candidate with the slickest campaign ad, or the best celebrity endorsement.

In a misguided effort to “level the playing field” between candidates, campaign finance laws sought to root out the perceived evil of one person spending too much on a candidate’s campaign.  Since all campaigns are about ideas–personalities notwithstanding–any restriction on campaign spending is necessarily a restriction on speech.

The Squeeze is On

Restricting an individual’s ability to spend money in support of a political candidate is relatively recent. While early campaign finance reform began with prohibiting corporations (Tillman Act, 1907), and then unions (Taft-Harley Act, 1947) from donating directly to campaigns, and enacted disclosure requirements (Federal Corrupt Practices Act of 1925), these did not cap gifts from individuals. But the reformers simply could not contain themselves.  Primary elections, which by definition are an internal mechanization of a political party, soon fell under the implausibly long arm of Congressional control (Hatch Act, 1939, amended 1940).  Despite all of this litigation, the Federal Election Commission’s “Thirty Year Report,” issued in 2005, summarized these attempts as naive and ineffective for not creating “an institutional framework” that would administer and enforce campaign finance provisions effectively.

Q:    Wait, what?  You mean all the years since 1907 Congress just forgot to pass the part of the law that allowed enforcement?

A:    Um, yes.  That’s right.  Silly early 20th-Century folks. Too concerned with Prohibition, I expect.

Q:    What about the Justice Department, the U.S. Attorneys, federal district courts?  I’m pretty sure they would’ve been able to enforce those laws.

A:    Don’t be obtuse.  Every right-thinking person knows that there’s no point in passing federal legislation without a system of well-educated experts to monitor citizens.

Q:    Sounds more like the FEC trying to justify its budget if you ask me.

A:    Look, a squirrel!

Not until the post-Watergate era did Congress create the Federal Election Commission, originally charged with enforcing the 1971 Federal Election Campaign Act.   The FECA was important because for the first time it limited spending, rather than just requiring reporting of expenditures and limiting donations from certain sources.

PAC-Man Fever

The FECA created Political Action Committees, or PACs.  It allowed corporations and labor unions (but mostly labor unions) to create separate funds consisting of voluntary contributions (and some not-so-voluntary) from individuals, which could then be donated to a campaign.  Some opponents of free-flowing speech in politics criticized the PACs for being puppets of their corporate or big labor masters.  In a sense, this was true.  But it was also inevitable. If voluntary contributors to a PAC, such as shareholders, also ran a corporation, the two entities would have had many shared goals.

During the 80s and 90s, the media portrayed PAC spending as a corrupting evil to grass roots politics.  It seemed that the political voice of an individual was sacred, but when pooled collectively and expressed with the force of thousands or millions, the opinions became tainted and ugly. Whether on a particular issue–abortion, gun control, whether ketchup is a vegetable–or for a particular group–the Moral Majority, retirees, the Friends of William “The Refrigerator” Perry–a hideous monster arose from the operating table of populism.  It was even given a name: special interest. Even today, this label is the near-perfect smear for the other guy’s opinion.  It reeks of Abramoff-style lobbying, inappropriate influence, and the mythical smoke-filled back room where the old boys network still runs the show.  It’s the all-in-one villifying tool that no political hack, press secretary, or talking head can live without.  It’s also a lie.

Be careful…if you accidentally spell “Benghazi” 30 days before the general election, you’re probably going to jail.

Opinions are not invalid because they are expressed collectively–sung from a choir, as it were, instead of by soloists. We should have learned from the PAC experience that trying to categorize political speech by its method of delivery (individual or collective) is foolish.  We should have looked at our hole card, and folded.  We should have finally stepped away from gambling with free speech, chalked the FEC up to one of those (many) post-Watergate overreactions.  We should have walked away.

Unfortunately, we doubled down.  And now Millennials may never think it’s strange that they can spend $12,000 on the World’s Largest Scrabble Board, but if they give more than $2,600 to support a political candidate they are breaking the law.  They may live their entire lives thinking that the Founding Fathers really went to the mat for the First Amendment rights of Robert Mapplethorpe “art” depicting a crucifix dipped in urine, but that television advertisements which actually influence–gasp!–someone’s vote are somehow an unseemly perversion of free speech.

We have a lot of work to do.

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Next time: Why campaign spending matters for Millennials, Citizens United, and a guy named Ed.