Amici Curiae: The Facebook Fight, Trial Re-enactment, Geneva Test Case Edition

YouTube Lives as California Gay Marriage Trial Re-Enacted

It’s Hollywood to the rescue. The U.S. Supreme Court may have nixed District Court Judge Vaughn Walker’s plans to make video of the trial in Perry v Schwarzenegger, the so-called California gay marriage case, available publicly on YouTube, but an enterprising group of Los Angeles-based filmmakers have decided to provide a dramatic re-enactment in its place, Simon Fodden notes over at Slaw. “For what it’s worth, I think this is a brilliant idea and something of a raspberry directed at SCOTUS,” Fodden says. “The acting is serious, the language authentic, and the setting completely believable.”

There are 12 scheduled “episodes,” one for each day of the trial, are available MarriageTrial.com and are based on actual court transcripts of the proceedings, the WSJ Law Blog reports.  “We want all Americans to have a chance to judge for themselves, based on the evidence that was presented,” filmmaker John Ireland told the San Francisco Chronicle. The series’ cast members include an Academy Award-nominee and a veteran of the hit Fox show 24.

Student President (Temporarily?) Impeached over UN Rights Complaint

Standing up for human rights is never easy. Just ask Blake Frederick, the (former) president of the University of British Columbia’s student council. Frederick was (possibly) impeached last week following a backlash over his decision to launch a human rights complaint with the United Nations over rising tuition fees at the university, the Vancouver Sun reported. Though the Sun’s online edition of the story has not been corrected, the Ubyssey, UBC’s student paper, reported the next day that Frederick had not, in fact, been impeached as an insufficient number of student voters cast ballots in an online referendum held for the purpose.

Elections officials had previously reported that Frederick had been impeached owing to a “miscalculation”; the vote did nevertheless appeared to be 4-1 in favour of impeachment. We haven’t been able to track down a copy of the complaint filed with the UN Human Rights Council and neither of the newspapers indicated what its fate has been. The Sun did report, however, that the student council had not approved the complaint before it was filed and, further, that “[t]hose opposed to the UN complaint claim it was part of Frederick’s personal agenda and trivialized real human rights abuses such as genocide, world hunger and child prostitution.”

Fish on Citizens: Consequentialism vs. Deontology

Stanley Fish writes that, “as a teacher of First Amendment Law, I absolutely love” the U.S. Supreme Court’s decision in Citizens United v Federal Election Commission [Citizens United] (recently discussed here and here). At the New York Times‘ Opinionator Blog, Fish draws what he sees as an irreconcilable philosophical distinction between the reasoning of the court’s majority opinion and Justice Stevens’ muscular dissent, which Fish characterizes as “a 90-page outpouring of passion and anger.” Fish considers the “semantic difference” between the majority and dissenting opinions, which he boils down to a single-word opposition: that is, the majority opinion rests on the word “chill,” that of the dissent on the word “corrupt.”

In figuring the court’s respective stances as “deontological” (majority) and “consequentialist” (dissent), Fish notes the rhetorical and stylistic character of Justice Kennedy’s and Stevens’ judgments. Kennedy, he says, writes generally, saying that voters must be “free to obtain information from diverse sources,” but “the specificity of Stevens’ concerns, rooted in the historical record and in the psychology and sociology of political actors, disappears in the overarching umbrella category of ‘information’.”

Despite stating his preference for the principles espoused in the dissent, Fish, as his wont, seems to come down on the side of the logical/rhetorical angels, saying that “only [Justice] Thomas has the courage of the majority’s declared convictions.” In demurring to the majority’s slight compromise in upholding disclosure requirements (Thomas would allow anonymous corporate expenditure), Thomas, says Fish, is the only judge “willing to follow a principle all the way,” and that he “caught his fellow conservative in a consequentialist moment.”

Noriega: Geneva Test Case

Some prisoners stamp license plates or spear leaves, while others, such as past Hitler-comparator Manuel Noriega, can unwittingly help subvert international conventions. Noriega, imprisoned at the conclusion of Operation Just Cause, has served his prison sentence. Invoking the Third Geneva Convention, Noriega, whose SCOTUS certoriari motion was denied late last week, claims POW status, fighting for Panamian repatriation and against extradition to France on money-laundering charges. Deborah Pearlstein writes that, in Noriega v Pastrana, U.S. Supreme Court Justices Scalia and Thomas have finally found a worthy test case for the application of the Geneva Conventions to military detainees in the face of the Military Commissions Act of 2006 [MCA] and Guantanamo habeas actions such as Boumediene v Bush.

In his dissent, Justice Thomas wrote that a grant of certoriari would have “provide[d] much-needed guidance” as to whether or not “the Geneva Conventions are self-executing and judicially enforceable.” More particularly, wrote Thomas, the court’s hearing of the matter would have provided clarification — “uncomplicated by classified information or issues related to extraterratorial detention” — the legal effect of s. 5 of the MCA, which proscribes the invocation of the Geneva Conventions in relation to any habeas or civil action against the United States.

Pearlstein writes that Thomas’ dissent is “remarkable for reasons well beyond its unsurprising attraction to section 5,” namely the judge’s invocation of the court’s constitutional duty to “say what ‘the law’ is” in light of its conservative reluctance to rule on the extent of the executive’s “war powers.” Says Pearlstein, “I suspect it’s a good thing a majority of the court” concurred with “the Solicitor General’s own … opposition to the Court’s taking the case.”

Two Retirements Coming Up at SCOTUS?

The White House is preparing for one and “maybe” two vacancies this summer at the U.S. Supreme Court, reports ABC News. “Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health,” Ariane de Vogue said on ABC’s website. “That would give the president his second and third chance to shape his legacy on the Supreme Court.” Stevens is the court’s liberal lion and its longest-serving member, having assumed office in 1975 under President Gerald Ford. He will turn 90 in April.

Ginsburg, an appointee of President Bill Clinton, was a law professor, chief litigator of the ACLU’s womens-rights project and appellate court judge prior to joining the high court. She is 77 this year. Though there has been buzz about a Stevens retirement for some time, talk about Ginsburg’s stepping down has been more muted. Both Stevens and Ginsburg have been in the liberal minority on the court in recent years and have penned strong dissents in several major cases: he most recently in Citizens United, which struck down certain campaign finance laws, and she in Ricci v Destefano, which increased limitations on affirmative action programs. (HT: The Volokh Conspiracy.)

Facebook Lawyers ‘Itching’ For a Fight

Mark Howitson, deputy general counsel for Facebook, the ubiquitous social-networking site, says he’s “itching” for a fight over compelled disclosure of the service’s user data, Law.com reports. On an almost daily basis, law enforcement officials and civil litigators request information regarding a user’s Facebook account, Howitson told at LegalTech New York. But the company does not want to provide the data and is waiting for a case on Facebook’s policies to go before a federal judge to define precisely what its obligations are. “We don’t want to have to deal with these requests,” he is quoted as saying. “We’re itching for that fight.”

Howitson cited a recent case involving the Virginia Workers Compensation Commission, who had levied a $200-a-day fine against Facebook after it refused to comply with a subpoena issued in connection with an employment dispute. The company objected on privacy grounds and eventually the Commission backed down. “We provided no data, and I’m happy about that,” Howitson said.

Child Porn, Restitution, and the Unlimited Liability Spectre

What damages do those who possess images of child porn owe its victims? What does this liability entail in light of universal distribution and availability via the Internet? In The New York Times, John Schwartz discusses the case of Amy, the “star” of the “Misty series” of pornographic photos and videos recorded and distributed by her abusive uncle. Under the authority of the U.S. Code’s mandatory restitution statute, and with the help of her lawyer, John Marsh, Amy has brought a claim for $3.4 million against all those who are convicted of possessing her images, a claim that will be exhausted only when her “total claim … has been met.”

Thus far, Marsh has provided U.S. attorneys with filings in 350 child porn possession cases and USD 170,000 in restitution payments has been collected. Amy’s lawyer, says Schwartz, “contends that every defendant should be ordered to pay the full amount [of her claim], under the doctrine of joint and several liability,” after which point defendants could pursue claims against any contributors.

The case(s) raise numerous issues as to the degrees of liability enjoyed by child porn’s producers and consumers — the defendants’ responsibility for requisite “proximate harm” has vexed US courts in at least two instances — but the U.S. Justice Department has endorsed the principle of restitution, downplaying any problems as mere “practical and administrative challenges.” As for Amy’s attorney, Marsh, he characterizes Amy’s retainer as “a lawyer’s dream.”