The Limit of its Logic: Ninth Circuit Blog

Wednesday, May 28, 2003

Nike v. Kasky: With Friends Like This ...

In the Supreme Court case of Nike v. Kasky, the issue to be resolved appears to test the boundaries of what can properly be considered “commercial” speech and thus susceptible to regulation and what type of speech is political in nature and thus subject to greater First Amendment protection.

Not so, says Ted Olson, Solicitor General-cum-First Amendment champion. In his amicus brief filed with the Supreme Court, he argues that is does not matter whether the statements made by Nike were commercial speech or non-commercial speech. Rather, he argues that the entire “regime” (his word, not mine) set up in California to regulate false advertising is facially violative of the First Amendment.

The California Court of Appeal held that Nike’s statements were not commercial speech and therefore sustained defendant’s demurrer. The California Supreme Court addressed the question of whether Nike’s “false statements are commercial or noncommercial speech for purposes of constitutional free speech analysis under the state and federal Constitutions.” Finding that the Nike statements could be construed as commercial speech, the California Supreme Court reversed.

Justice Janice Rogers Brown dissented from the California Supreme Court decision, however, she was also of the view that the commercial v. non-commercial distinction carried the day: “If Nike’s press releases, letters and other documents are commercial speech, then the application of Business and Professions Code sections 17204 and 17535 – which establish strict liability for false and misleading ads – is constitutional. Otherwise, it is not.”

So everyone is talking about commercial speech in this case except Olson. Here is what he says: a state cannot, consistent with the First Amendment, allow a private individual, who has not suffered harm as a result of a particular false advertisement, to file suit to enjoin the false advertisement. Olson’s syllogism looks something like this: (1) to be consistent with the First Amendment, systems which allow suits that curb speech have must have self-limiting features; (2) the private attorney general aspect of California’s false advertising statute does not have any self-limiting features; and therefore (3) California’s statute is not consistent with the First Amendment.

Although the facial constitutionality of the false advertising statute was not addressed in any of the lower courts’ decisions, I cannot help but to indulge Olson. Even conceding the validity of the argument and the truth of his major premise (which has no precedent in the case law and appears to be invented whole cloth), I must take issue his with the assumption in his minor premise that the California system does not have self-limiting features.

In Olson’s view, since anyone in California can sue to prevent false advertising, regardless of whether the person has been damaged by or relied upon the false statements, the state is crawling with 34 million potential censors. This notion is flawed.

First, anyone in any state can file suit against another person and plead damages or reliance. Ted Olson could sue me in the District of Columbia alleging that false statements in this column tarnished his reputation and that he been damaged as a result. His suit would be frivolous, but I would have to go to the District and defend myself. The very filing of such a suit could chill speech, but it is tolerated because I am given a fair chance to fight the charges. In California, a false advertising defendant may be brought into Court without an allegation of damages or actual reliance, but the plaintiff still must prove that the speech was misleading. In addition, the plaintiff must show that he is acting for the benefit of the general public. The burdens on a false advertising plaintiff create self limiting features in the California scheme. It is not as though all citizens in California have the power to silence a speaker by filing a complaint.

Second, California has a unique statute which discourages a plaintiff from filing suit simply to silence a speaker. The anti-SLAPP statute in California contains a special motion to strike a complaint. The coverage for the statute is broad. It applies to any complaint which arises from an act in furtherance of the defendant’s right to petition or free speech in connection with a public issue. Once the special motion to strike is brought, the plaintiff must demonstrate a probability that he will succeed on the merits. If the special motion to strike is successful, the defendant is entitled to costs and attorney’s fees. In addition, all discovery is stayed upon the filing of the motion.

Olson argues that the First Amendment “does not allow States to create legal regimes in which a private party who has suffered no actual injury may seek redress on behalf of the public for a company’s allegedly false and misleading statements.” The First Amendment contains no such limitation. A state can, consistent with the First Amendment, empower citizens to file suit to prevent false advertising. Judicial oversight ensures that the California “regime” is not broadly speech-restrictive in violation of the First Amendment.

Friday, May 16, 2003

Thanks to Denise at Bag and Baggage and Tom at inter alia for providing links to my fledgling blog. It is appreciated. I am off to New York for a week, saying goodbye to the grind in California.

Wednesday, May 14, 2003

No More Spam

I have been mulling Lawrence Lessig’s proposal to reduce spam. His bounty plan is simple: (1) make spammers label their spam in the subject line of emails; and (2) the first person to track down a spammer violating the labeling requirement is entitled to $10,000 from the spammer upon furnishing proof to the FTC.

I have several questions regarding the second part of this plan. Does the plan amount to a spammer simply paying a $10,000 license to send bulk email? Only the “first” person to notify the FTC of a spam violator is entitled to the bounty. Couldn’t big spam (or "direct marketers" if you like euphemism) simply violate the proposal, fail to label, and pay the piper?

As for small-time players, wouldn’t many of these people be judgment proof? Say a vigilante tracks some 19-year-old kid peddling herbal Viagra and the FTC imposes the $10,000 fine, how is this judgment enforced?

I have no idea how to reduce spam. However, it seems to me that product manufacturers and service providers whose wares are being pushed should be on the hook for big time liability even if they are not directly responsible for their spam arriving in the consumer’s inbox. Such a law would be premised on the theory that the large, solvent companies are inducing or contributing to spam by way of their business models. Such a law could work. However, I am not willing to bet my job on it.

Wednesday, May 07, 2003

De facto Arrest & the Material Witness Statute

In my May 2nd post, I criticized the federal government’s use of the material witness statute in the Hawash case. Brian Lehman writes that using the material witness statute in the grand jury context violates the Fourth Amendment: "[i]mprisoning material witnesses based solely on the stated need to guarantee their testimony for a grand jury is inherently unreasonable."

I do not address Lehman’s conclusion that the use of the material witness statute in the grand jury setting amounts to a per se Fourth Amendment violation. Rather, I argue that the illegitimate co-option of the material witness statute for law enforcement purposes implicates the Sixth Amendment and the Speedy Trial Act.

A material witness warrant should never issue when the government fully intends to file criminal charges against the witness. However, a magistrate cannot look into the heart of an agent submitting a material witness arrest warrant. How does he differentiate between the well-intentioned and the duplicitous? A court should examine whether the stated purpose for detention matches what actually happens in a case. This can only be done after the fact.

Detention is serious business. If the federal government says to a judge: "detain this guy, I want to present him to a grand jury," it had better follow through. In the Hawash case, he was arrested in order to appear before a grand jury. The presiding judge called the government’s hand and told prosecutors to either take his deposition or present him to the grand jury. The government did neither. It filed criminal charges a day before the judge’s ultimatum was to take effect. All of the material facts related to the charges against Hawash were known by investigators prior to his arrest as a material witness over a month previous.

In such a circumstance, a defendant’s initial arrest as a material witness should be treated as a de facto arrest for the underlying criminal charge. Law enforcement action has the "identifying indicia" of a de facto arrest when it serves to "disrupt [the defendant’s] employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." See United States v. Clardy, 540 F.2d 439, 441 (9th Cir. 1976). Clearly these factors apply in the Hawash case.

The Supreme Court has recognized that at some point an investigative Terry stop can transform into a de facto arrest. United States v. Sharpe, 470 U.S. 675, 685 (1985). Similarly, the nature of a material witness arrest can also transform when it becomes clear that the witness was not arrested to give testimony, but to face charges. A finding of a de facto arrest triggers the Sixth Amendment guarantee of a Speedy Trial, opens the door for a motion to dismiss a criminal complaint pursuant to Rule 48(b) of the Federal Rules of Criminal Procedure, and implicates the Speedy Trial Act, 18 U.S.C. § 3161. Under the Act, an indictment or information must issue within 30 days of arrest. Failure to abide by this provision requires that "such charge against that individual contained in such complaint shall be dismissed or otherwise dropped." 18 U.S.C. § 3162(a)(1).

When the government arrests a person as a material witness and then turns around and charges him with the crime to which he was ostensibly a witness, this raises red flags. If no new information is discovered during the material witness’ detention regarding his involvement with the crime, the initial arrest is transparently a ruse and should be treated as such.

Monday, May 05, 2003

Special Circumstances

I came across this article by Jeffrey Toobin regarding the Scott Peterson case. He is undoubtedly a smart guy, but his statement that the California Supreme Court has not visited the issue of whether the murder of a mother and her viable fetus can constitute a special circumstance for the death penalty is inaccurate. See People v. Bunyard, 45 Cal.3d 1189, 1237-38 (1988) (“it is clear that the multiple-murder special circumstance is applicable to the killing -- by a single act -- of a pregnant woman and her viable fetus.”)

The multiple murder special circumstance in the Peterson case is rather straightforward. More tellingly, in the criminal complaint the District Attorney does not allege the special circumstance of intentional murder for financial gain. There has been much speculation that Scott Peterson had taken out a $250,000 life insurance policy on Laci prior to the murders. If Peterson stood to gain a chunk of money as a result of Laci’s death, I imagine the prosecutor would have included the murder for financial gain special circumstance in Cal. Penal Code Section 190.2(a)(1).

Sunday, May 04, 2003

"When you've got to choose, Every way you look at it you lose"

The Democratic presidential debate last night at Drayton Hall brought forth a couple of legal subpoints. First, George Stephanopoulos asked the candidates if they believed that a state has a right to criminalize homosexual sodomy or whether the Constitution protects such activity. All of the candidates appeared to be in agreement that states should not have the power criminalize homosexual sodomy. However, they did not seriously engage the legal issue presented in the pending Supreme Court case of Lawrence v. Texas even though Stephanopoulos' question was clearly aimed at states' rights and the general extension of 14th Amendment rights. Instead, the answers were general affirmations of homosexual rights.

The other legal issue presented was affirmative action. Again, all of the candidates seemed to show their support. The debate itself demonstrated the value of diversity, which the University of Michigan is using to justify its admissions policy in the Grutter and Gratz cases. George Will, in a recent Washington Post article, bemoaned the fact that the stated value of diversity has no connection to past suffering. Fair enough. However, Michigan is simply playing the cards it was dealt by the Supreme Court in Bakke. The value of diversity is real. Although their seats at the table will be short-lived, last night's debate was more compelling because Carol Mosley Braun and Al Sharpton were there.

Friday, May 02, 2003

The Abuse of the Federal Material Witness Statute

I set up The Limit of its Logic a few days ago, but had not found a topic worthy of an inaugural post until I came across the criminal complaint in the case of United States v. Hawash. I originally found out about this case via the website

On March 20, 2003, Hawash was arrested on a material witness warrant. Although many decried this action, at that time I did not have any reason to question the government’s position that Hawash may indeed have material testimony to present to a grand jury and that it could become impractical to secure his presence by subpoena. Under the Material Witness Statute, 18 U.S.C. § 3144, a material witness cannot be detained "if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice." I assumed that Hawash's lawyer would make a motion under Rule 15 of the Federal Rules of Criminal Procedure to have his deposition taken and his detention terminated. Days went by and nothing happened in the case (at least publicly).

On April 7, 2003, Judge Jones issued an order in the Hawash case. It turns out that his detention hearing was held under seal. The judge's findings ordering detention were also under seal. The reasoning provided for the sealing stands on suspect legal ground. The Court reasoned that because grand juries are secret, and Hawash’s proposed testimony pertains to the grand jury, his detention hearing should also be secret. Judge Jones stated that the detention of a material witness requires the judge to examine: (1) that the witness’s testimony is “material in a criminal proceeding” and (2) that it “may be impracticable to secure the presence of the person by subpoena.” 18 U.S.C. § 3144. No such examination takes place at a detention hearing. The standard articulated is applicable when a judge initially issues a material witness warrant. The detention hearing does not require a judge to inquire into the materiality of the witness’s testimony before the grand jury because such a determination has already been made.

Detention issues are governed by 18 U.S.C. § 3142, where the judge makes a determination whether release conditions will “reasonably assure the appearance of the person as required and the safety of any other person and the community . . . .” While it is true that some of the reasons offered by the government why Hawash is a flight risk or a threat to the safety of the community might relate to his testimony before the grand jury, I am not convinced that an open proceeding discussing this issue would compromise the grand jury. If the government takes the position that a person is a material witness to a crime, has not charged that person with any crime, and seeks to detain that person, it should be able to articulate its § 3142 detention justifications in open court. If the government is not prepared to show its cards, purportedly in deference to grand jury secrecy, it should let the witness free or charge him with a crime. “Democracies die behind closed doors.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002).

While the sealing issue is troubling, Judge Jones admirably forced the government to either present Hawash to a grand jury or take his deposition by April 25, 2003. He scheduled a second detention hearing for April 29, 2003. If the government would have presented him to a grand jury or taken his deposition as directed, he would have been freed because the government would have had no basis to hold him. On April 28, 2003, the government filed a criminal complaint against Hawash charging him with conspiring to aid the Taliban and Al-Qaeda. The affidavit filed in support of the complaint did not present any material evidence that was unavailable in the days immediately following Hawash's arrest as a material witness.

Hawash may well be guilty of the crime charged. However, the process used by the government when originally arresting him as a material witness is disturbing. Section 3144 should only be invoked when the government believes in good faith that the person being arrested is a witness to a crime as opposed to a participant in the crime. When a defendant is formally charged, he is vested with certain rights which are not triggered when he is arrested as a material witness. By using the material witness statute for investigatory purposes, the government engages in an end-run around the Constitution and federal law. Courts should not countenance such tactics. In addition, detention hearings for material witnesses in the grand jury setting should not be sealed based solely on a general plea to the sanctity of grand jury secrecy.

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