The lawsuit involves House Bill 1224 (a sweeping ban on magazines, including small magazines) and House Bill 1229 (an unworkable system of background checks for temporary transfers of firearms, and for private sales). The Complaint alleges violations of the Second Amendment, Fourteenth Amendment (vagueness), and Title II of the Americans with Disabilities Act.

A 38 minute video of the press conference announcing the suit is available on YouTube. In this case, I am representing the Sheriffs.

Friday afternoon, Grand County Sheriff Rodney Johnson joined the case, bringing the number of plaintiff Sheriffs to 55 out of the 62 elected County Sheriffs in Colorado. (Denver and Broomfield have appointed Sheriffs who run the jail, but do not have the comprehensive responsibilities of the elected Sheriffs.) The Complaint will be amended next week to reflect Sheriff Johnson’s participation.

Nonetheless, the negatives outweigh the positives. Unsurprisingly, Into Darkness has most of the same flaws as the previous Abrams Star Trek movie, which I criticized here. Both films essential turn Star Trek into an action movie that just happens to utilize Trek characters and settings. I am far from an uncritical admirer of Star Trek as envisioned by Gene Roddenberry and his successors. Nor was I ever the kind of fanatical Trekkie who goes to conventions wearing Vulcan ears or signs up for classes at the Klingon Language Institute. But, despite its many flaws, I admired the Star Trek franchise’s willingness to take on big questions about the kind of future we should want for humanity. Abrams’ “reboot” essentially ignores all serious issues, and just ramps up the action. I don’t deny that a “reboot” may have been needed, given the poor quality of the last several old-line Star Trek movies; but not a reboot that jettisons almost everything that made Star Trek interesting and unique.

In addition, Into Darkness has huge plot holes big enough to fly a whole fleet of Romulan warbirds through. In the interest of avoiding spoilers, I won’t go through them in detail. I will only note that, for the Federation to get into the predicament that is the main focus of the plot, Star Fleet’s leadership would have to be ridiculously stupid. To take just one of many examples, it seems that Star Fleet Headquarters and Earth generally have no fixed defenses of any kind against incoming warships and missiles, even though previous history clearly established that such defenses are both feasible given the level of their technology, and clearly necessary, given previous enemy attacks. Yet none of the characters even mention this and other comparably ridiculous mistakes, not even the supposedly hyper-logical Mr. Spock (who makes some whopping errors of his own in the movie, which are also ignored by the other characters).

Perhaps the real implicit message of the reboot movies is to endorse the message of social critics who worry that advancing technology has bred a “generation of nincompoops”. Maybe the producers expect the nincompoopery to get even worse in the future, infecting Vulcans and Klingons as well as humans. Indeed, if the Klingons, Romulans, and other rivals of the Federation were minimally competent, it’s hard to understand how the Star Fleet portrayed in the reboot movies could possibly have become a major power in the galaxy. Maybe the “darkness” into which the Federation has descended is a severe outbreak of extreme stupidity among Star Fleet’s best and brightest. Although I strongly disagree with this kind of technopessimism, a science fiction series that seriously explored the idea that high technology leads to a “dumbed down” society might be interesting. Unfortunately, Abrams’ movies seem to raise the issue only unintentionally.

Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime. The White House responded by promising to seek legislation to overturn the Librarian’s rule. That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views. See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here.

There’s only one problem with all of this: The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts.

According to the Administration’s filings in litigation that has now reached the Supreme Court, the Library of Congress is “an executive Department,” and the Librarian himself is “subject to plenary oversight by the President.” Justice Department lawyers have explained that Congress made a “purposeful decision to place the Library under the President’s direct control and supervision”; that the Librarian of Congress is the “Head” of this “executive Department”; that the President may remove the Librarian “at will” just as he may remove other heads of executive departments; and that this removal power creates the Librarian’s “here-and-now subservience” to the President. See pages 16 & 17 of the Government’s Brief in Opposition filed at the Supreme Court, available here and pages 23, 29 & 37 the Government’s Brief for Appellees filed in the Court of Appeals, available here.

In light of that clear legal position, an obvious question arises: If the Librarian is really a head of an executive Department subject to “plenary oversight by the President,” why hasn’t the President either taken responsibility for criminalizing cell phone unlocking or ordered the Librarian to reverse his decision?

The answer is that no one in the political arena actually believes for one minute that the Librarian is the head of an executive department. The current Librarian has repeatedly testified to Congress that the Library is “arm of the United States Congress,” “a “branch of the Legislative branch,” and “a unique part of the Legislative Branch of the government.” Members of Congress also understand this to be true. To take but one prominent example, Senator Orrin Hatch has noted not only that “the Copyright Office is in the legislative branch of the Government” but also that this arrangement presents difficulty because “whenever the Copyright Office is tasked with an executive-type function, [a] constitutional question arises.”

The President’s supposed powers of “plenary oversight” and at-will removal are utter fiction, as the controversy about cell phone unlocking shows....

Why then are the Administration’s lawyers arguing that the Librarian is a presidential underling? The answer is easy. The Librarian has been vested with the power to appoint all of the officers who execute the copyright laws—including the Registrar of Copyrights and the judges of the Copyright Royalty Board—but the “Appointments Clause” of the Constitution makes clear that such power can be lodged in the Librarian only if he is the head of an Executive Department....

With Wurie today and the Florida Supreme Court’s decision in Smallwood a few weeks ago, I would think that Supreme Court review of this legal question is highly likely sometime soon. (Notably, Deputy SG Michael Dreeben argued Wurie for DOJ.)

For my own views on the question, see my short essay Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013).

Stanford UP has created a website for the book. You can, if you like, preorder the book there. We even have a special coupon code just for Volokh Conspiracy readers that will give you a 20% discount at the Stanford site; the code is S13LAW. OK, actually the code is available to anyone who wants to use it. But at least VC readers will now be the first to find out about it! You can also preorder the book at Amazon, while still being eligible for any price reductions that either Amazon or Stanford UP adopt between now and the publication date.

Much of the discussion focuses on general issues of constitutional theory and the extent to which the Supreme Court is or is not politicized, which I recently wrote about in this article. But towards the end, we also talked about the gay marriage cases currently before the Court, including my view that laws banning same-sex marriage are examples of unconstitutional sex discrimination.

We all get frustrated. After an examiner rejected his client’s application for a telescoping tripod sprinkler, patent attorney Andrew Schroeder could no longer resist and filed the following remarks:

REMARKS: Are you drunk? No, seriously…are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes.) Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or are… (I don’t want to say the “R” word) “Special.”

Numerous examples abound in terms of this particular Examiner not following the law. Clearly, the combination of references would render the final product to be inoperable for its intended use. However, for this Special Needs Examiner, logic just doesn’t cut it. It is manifestly clear that this Examiner has a huge financial incentive to reject patent applications so he gets a nice Christmas bonus at the end of the year. When in doubt, reject right?

Since when did the USPTO become a post World War II jobs program? What’s the point of hiring 2,000 additional examiners when 2,000 rubber stamps would suffice just fine? So, tell me something Corky…what would it take for a patent application to be approved? Do we have to write patent applications in crayon? Does a patent application have to come with some sort of pop-up book? Do you have to be a family member or some big law firm who incentivizes you with some other special deal? What does it take Corky?

Perhaps you might want to take your job seriously and actually give a sh.t! What’s the point in having to deal with you Special Olympics rejects when we should just go straight to Appeals? While you idiots sit around in bathtubs farting and picking your noses, you should know that there are people out here who actually give a sh.t about their careers, their work, and their dreams.

Your job is not a joke, but you are turning it into a regular three ring circus. If you can’t motivate yourself to take your job seriously, then you need to quit and let someone else take over what that actually wants to do the job right.

See U.S. Patent Application No. 13/068530 (PAIR). [Update: It appears that the PTO has now removed the letter from the file history.] ...

An effective way for a patent lawyer to communicate with the patent office? You decide.

But Andrew Schroeder wasn’t done — instead of posting an apology (which I expect Patently-O would have been glad to post), or even just ignoring the publicity, he doubled down on rude, with several posts such as this one, calling Prof. Crouch a “dickhead” and then using various further vulgarities. This unsurprisingly led to more coverage, for instance at Above The Law and TechDirt.

The reputational consequences of these communications to Mr. Schroeder can be seen by Googling Andrew Schroeder patent. There is one bit of good news from this, though: The winners are Mr. Schroeder’s prospective clients, who can now more easily get a sense of the sort of conduct that they can expect from him.

UPDATE: Was the decision to target Tea Party groups an understandable (if unwise) response to a surge in applications for 501(c)(4) status? Not according to this report in The Chronicle of Philanthropy.

Top IRS officials have been saying that a “significant increase” in applications from advocacy groups seeking tax-exempt status spurred its Cincinnati office in 2010 to filter those requests by using such politically loaded phrases as “Tea Party,” “patriots,” and “9/12.” . . .

The scrutiny began, however, in March 2010, before an uptick could have been observed, according to data contained in the audit released Tuesday from the Treasury Department’s inspector general for tax administration. . . .

The audit says the IRS began to use “inappropriate criteria” to single out applications in March 2010. By April 2010, a “sensitive case report” was issued on “Tea Party cases,” indicating that managers in Cincinnati were aware of the sensitive nature of the reviews.

According to the audit, 1,735 groups applied for 501(c)(4) exemption for the federal fiscal year that ended September 30, 2010—six months after the IRS began its scrutiny. That was down slightly from 1,751 the prior year.

The number grew to 2,265 during the fiscal year that ended September 30, 2011, and to 3,357 in 2012. By then the criteria the IRS was using to flag groups had changed three times to include searches for groups with names that contained “Bill of Rights,” “educating on the constitution,” and “limiting/expanding government.”

Meanwhile, at Legal Ethics Forum, John Steele wonders “where were the lawyers?”

FURTHER UPDATE: The NYT reports that high-level administration officials knew about the potential targeting of conservative groups in 2012, months before the election.  See also this report from NBC’s Lisa Myers.

When one tries to determine which of his articles, speeches, testimony, letters, reviews and the like over a 45-year period are worth publishing in book form, the choices are not easy. It’s not that there are so many imperishable morsels; passing the ugly question of whether anything is worth publishing, there remains the far more prosaic issue of which issues remain live ones, and which positions are worth rearguing.

I had, for example, been dubious about whether to include my 2005 testimony before the Senate Committee on the Judiciary in favor of adopting a federal shield law for journalists and more dubious still about including a 1979 speech (the oldest offering in the book) about the same subject. But I thought the issue, rather quiescent in the past few years, could well resurface in the years to come — and then came the Department of Justice with its breathtakingly subpoenas to the telephone companies that serve Associated Press. I cannot offer thanks, but I am appreciative.

So, too, with privacy issues. The conflicting claims of disclosure and privacy have led to far less litigation than I had expected. I decided, nonetheless, to include a speech I gave that is quite critical of the most celebrated and cited law review article ever written, the classic Brandeis-Warren paean to privacy published in the Harvard Law Review in 1890. The renewed discussion, after the terrorist explosions at the Boston Marathon this year, about the amount of cameras that film so many of our activities, has led to renewed discussion of various aspects of privacy and I am pleased that I included at least one article of mine weighing in on the subject.

Probably the most eclectic chapter in Friend of the Court is the first which deals, in a variety of ways, with state censorship. The first entry , one of my favorites, is an introduction I wrote to a book of New York Times articles published throughout the twentieth century about censorship here and abroad.

Starting with the observation that “[t]here is a terrible logic to state censorship,” I seek to summarize highpoints of a book which brims with life as it describes in real time political censorship in Hitler’s Germany and Stalin’s Soviet Union, theatrical censorship in England and France, and what would now be viewed as unthinkable censorship in our own nation.( A laconic description of a hearing in New York in 1921 in which a “story entitled ‘Ulysses’ “ which was “the product of one Joyce” was ordered banned because “parts of the story seemed to be harmful to the morals of the community” is particularly memorable). From there, the book moves to a debate I had with Professor Catherine MacKinnon about censorship, chaired by Anthony Lewis, to congressional testimony about free trade in ideas; a summary of the Brooklyn Museum case; two book reviews; and a letter defending the ACLU against charges that it had wrongfully defended Nazi speech in the Skokie Case. It is a busy chapter.

Other chapters are narrower in scope, dealing with American free speech law vis-à-vis that of other nations (particularly the United Kingdom); the First Amendment and national security; and libel, privacy, copyright and other areas of continuing conflict. Particularly controversial, I suppose, is my defense (sometimes a lonely one) of the Citizens United ruling and my criticism of Julian Assange for what I believe to be his repeated recklessness in determining what documents to release.

A number of the offerings include significant criticism of the press and sometimes its purported defenders. In that respect, a major theme of the book is my concern about what I believe is the far too politicized way First Amendment views are formulated and expressed. Historically, the American Right has been either indifferent to First Amendment claims or resistant to them. In more recent days, however, the Right has supported First Amendment claims that have been consistent with its adherents’ ideological overview. Motivations aside, I think this has served First Amendment interests well. At the same time, the Left has seemed to me far too prepared to subordinate libertarian First Amendment interests to other interests.

I quote twice in the book from a passage of Isaiah Berlin that I find particularly powerful: “Everything is what it is: liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.” I criticized The Nation, for example, for complaining that the “wrong side” keeps “winding up with the First Amendment in its corner” and urged it to rethink its “political positions to avoid being on the wrong side of the First Amendment.”

I conclude Friend of the Court with a plea to all that I believe is consistent with the whole book: “Is it really too much to ask that those who claim that they care about the First Amendment—everybody, that is—stand in favor of free speech even when the speech at issue pains them ideologically?”

Despite this capitulation, I will not be completely assimilated into the Twitterverse. Given my rational ignorance about pop culture other than sports and science fiction, I won’t be tweeting any celebrity-related gossip. Not even if I somehow turn into the Twitter equivalent of Locutus. Instead, I will most likely be using the account to tweet about my activities elsewhere, such as recent or forthcoming books, articles, speaking appearances, and the like.

Judge Merritt’s opinion for the court begins:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.” The Collapse of American Criminal Justice 184 (2011). He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.

Judge Gilman’s dissent begins:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

They further concede that the law establishing the 100-to-1 ratio between powder cocaine and crack cocaine for sentencing purposes was constitutional when enacted . . . So far, so good. But then the majority veers off into the abyss . . .

The majority reaches [its] conclusion without citing a single case in support. This is not due to a lack of diligent research; it is due to the lack of any such cases. The best the majority can do is try to distinguish two Supreme Court decisions (McCleskey v. Kemp, 481 U.S. 279 (1987), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)) that even the majority concedes “on first glance might appear to sanction the discrimination at issue here.” Maj. Op. 9. Those efforts at distinguishing McCleskey and Feeney are in vain, however, because binding Sixth Circuit precedent has already foreclosed the majority’s constitutional argument.

Reducing the sentencing disparity between powder and crack cocaine was certainly good policy, whether or not it was constitutionally required. Whatever one thinks of the merits, and the propriety of the court’s decision to reach out for the constitutional question, the issue is certainly cert worthy. And given the Sixth Circuit’s recent record in the Supreme Court, I would think a grant is reasonably likely — unless this opinion were to be overturned en banc.

It’s one thing to note the lopsided political contributions of IRS employees, including those in the relevant office (as reported by Tim Carney). It is quite another to try and tar some of the officials involved because of alleged political ties of their spouses simply because they work at a major law firm and the firm (or its partners) made political contributions to the President or anyone else. Making such charges, as Olson notes, amounts to “firing blanks.”

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate. Within the Departments are agencies that carry out the various responsibilities of the Department. They, too, are headed by Senate-confirmed Presidential appointees. An “independent agency” is an agency of the federal government that is not part of an Executive Branch department. These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury. As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee. Neither of these is an “independent agency.”

Ammon Simon offers more on this point here.

Not only is the IRS not an “independent” agency, but it appears that the substantial bonuses received by the head of the IRS tax-exempt division when the targeting of conservative groups occurred would have been approved by the White House because they exceeded $25,000. This official is now in charge of the IRS’ Affordable Care Act office.

The majority opinion took a different tack than the D.C. Circuit in Noel Canning v. NLRB.  To begin with, it limited the scope of its decision to concluding that the Recess Appointments Clause applies only to recesses between Senate sessions (“intersession recesses”) and not recesses during those sessions (“intrasession recesses”), and did not take the additional step the D.C. Circuit did of addressing whether the vacancies so filled must arise during the recess of the Senate or whether the recess appointment power extends to vacancies that existed before the recess.

The majority’s reasoning also differed in significant respects.  The majority found Founding era dictionaries inconclusive, saying that “[t]he word ‘recess’ lacks a natural meaning that clearly identifies whether it includes only intersession breaks or also includes intrasession breaks.”  Slip op. 40.  The majority concluded that state constitutions during the Founding era suggested the term “recess” was limited to intersession recesses (I’m not sure I was persuaded, but I can be dim), id. at 46-48, but that executive practice during the same period (which it noted “should be viewed with some skepticism” because of institutional self-interest in applying powers expansively) was consistent with the term also applying to “long intrasession breaks.”  Id. at 50-52.  The majority therefore concluded that “[s]tanding alone, ‘Recess of the Senate’ is thus ambiguous.”  Id. at 54.

Although the D.C. Circuit placed significant emphasis on the fact that the term “recess” is preceded by the definite article, the Third Circuit majority wrote, “we are convinced that use of ‘the’ is uninformative.”  Id. at 57.  The majority concluded, though, that Founding-era use was inconsistent with the government’s proffered meaning, under which, the majority stated, the Senate would be in recess when it was not available for the conduct of business.  Breaks counted as “recesses” historically were of relatively long duration and “the beginning of each was determined solely by when the legislature adjourned—rather than by some functionalist definition of when the body was unavailable for business.”  Id. at 55.

The majority thought context was more helpful, particularly “the Recess Appointment Clause’s specification that recess-appointed officers’ terms ‘shall expire at the End of [the Senate’s] next session.’” It reasoned, “[t]he expiration of these officers’ terms at the end of the next session implies that their appointments were made during a period between sessions,” id. at 75, and “if recess includes intrasession breaks, then we would expect the recess-appointment term to last only until the end of that session.”  The majority then addressed historical practice, Id. at 87-95, reaching essentially the same conclusion as the D.C. Circuit: the absence of Founding-era intrasession recess appointments suggests the power does not extend that far.

(The majority also rejected the argument of amicus Professor Victor Williams that the meaning of “recess” was a nonjusticiable political question and that its meaning was textually committed to the President.  Id. at 23- 31.)

In dissent, Judge Greenaway argued that “[t]he Senate is in ‘the Recess’ when it is not available to provide advice and consent,” and “[s]ince the Senate can be unavailable to provide advice and consent during either an intrasession recess or an intersession recess, ‘the Recess’ naturally encompasses both.”  Slip op. 6 (Greenaway, J., dissenting). He argued that the Clause exists both “to allow the Senate to take breaks” and “to keep offices filled,” and both purposes are served by applying the recess appointment power to intrasession recesses (id. at 36):

An empty office is an empty office.  It makes no sense that the Framers would have differentiated between intrasession and intersession recesses in effectuating the purpose of the Recess Appointments Clause.  The atrophy of agencies . . . caused by the Senate’s absence did not then, and does not now, depend on whether the Senate is unavailable due to an intersession recess or intrasession recess—all that matters is the length of time that the Senate is away from its usual business, unable to provide advice and consent, while vacancies persist.

Both the majority and the dissent substantively discussed the effect of pro forma sessions used (at least in part) to frustrate the President’s recess appointment authority—making them (so far as I am aware) the first judicial opinions to discuss whether such sessions can validly be used for that purpose.  The majority noted that the Senate had passed legislation during pro forma sessions and concluded that “it could have provided advice and consent during these pro forma sessions if it had desired to do so,” and thus such sessions are functionally indistinguishable “from ordinary sessions on the basis of the Senate’s availability.”  Id. at 66-67 & n.23.  Judge Greenaway wrote that such sessions “undeniably frustrate the purposes of the Recess Appointments Clause” and “appear to be the type of legislative overreaching chronicled by the Framers.”  “[U]nder a functional approach, pro forma sessions cannot prevent the Senate from recessing for purposes of the Recess Appointments Clause” because “[w]hen a pro forma session is held for approximately thirty seconds by a single Senator, the Senate is not able to accomplish the function of deliberating about and voting on the President’s nominees.”  Id. at 35.

Whatever the odds were that the Supreme Court would deny cert. in Noel Canning v. NLRB – and I’d say they were small to begin with — they just got smaller today.

[Some death row inmates] accuse the governor of being “mean spirited” because he took away their satellite dish.

Three inmates and four citizens have filed a federal lawsuit against the governor and correction officials, claiming the satellite dish was paid for by donors and that the governor had no right to remove it.

“That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” Sundquist said. “If they think I’m mean-spirited, I would question the origin of the statement. How can someone who’s committed the most grievous crimes imaginable — who is slated to be executed — expect to have television access that most people in Tennessee don’t have.”

“A satellite dish with all the Playboy channels may be dangerous to their health.”

The dish carried HBO and Cinemax to the prisons at Nashville’s Riverbend Maximum Security Institution. The suit was filed by convicted murders Terry King, Rocky Lee Coker and Michael Sample....

Here’s what the Tennessee Commission said in rejecting Coker’s defamation lawsuit, see Coker v. Sundquist (Tenn. Ct. App. 1998) (nonprecedential) (patragraph breaks added):

The main reason why this Commission finds this to be a claim on which relief cannot be granted is that the newspaper article in question is not libelous or injurious at all. Any body who reads that newspaper article gets the message: men who have been sentenced to death in a Tennessee Court deserve to be deprived of entertainment, and when such men use language like “mean spirited” and go to Court to get their entertainment back then they are being ridiculous. Anybody who reads that newspaper article recognizes that the quotation, “That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” was an exaggeration, just a piece of mockery; anybody who reads that newspaper sees that this statement is not statistically precise.

All human-beings — not just holders of high offices and newspaperwomen — use exaggeration sometimes. People may say that men sentenced to death by Tennessee juries have “committed the most grievous crimes imaginable,” while they know that only people like Mao Tse-Tung and Pol Pot really have “committed the most grievous crimes imaginable.” We all talk like that sometimes, and talking like that is not slander or libel. And there is a very good reason why it is not slander or libel: because nobody who hears it takes it with nit-picking precision.

Take the case of the mother who says to her child, “You’re just the worst little boy I’ve ever seen!” Nobody would say to her seriously, “You’re a liar! You’ve seen two little boys this morning who are worse than he is!” This claimant is arguing that mockery is libel, and it is not....

1. In 2011, the IRS quizzed Christian Voices for Life about whether they “[do] education on both sides of the issues” and whether they “attempt to talk to [people] trying to enter a medical clinic, or any other building facility.”

But though groups that engage in advocacy related to political campaigns, or that engage in substantial advocacy related to legislation, can’t have 26 U.S.C. § 501(c)(3) status, there is no such limitation for groups that try to talk to people entering medical clinics. Moreover, Big Mama Rag, Inc. v. United States (D.C. Cir. 1980) pretty strongly suggests that § 501(c)(3) status can’t be limited to groups that are evenhanded in their speech (“[w]e can conceive of no value-free measurement of the extent to which material is doctrinaire”), and indeed many groups that engage in one-sided advocacy (PETA, the ACLU Foundation, and more) have § 501(c)(3) status. After the group got a lawyer to write a letter to the IRS about this, the IRS approved the exemption request.

2. In 2009, the IRS allegedly demanded that the Coalition for Life of Iowa promise, as a condition of getting tax-exempt status, that it wouldn’t “picket” or “protest” outside Planned Parenthood or similar groups, or organize others to do so. It also demanded that the Coalition “explain how all of your activities, including the prayer meetings held outside of Planned Parenthood are considered educational as defined under 501(c)(3),” “explain in detail the activities at these prayer meetings,” and “explain in detail the signs that are being held up outside of Planned Parenthood and explain how they are considered educational.”

If it is indeed standard practice for the IRS to demand that all groups that engage in protesting and demonstrating — liberal, conservative, or otherwise –”explain in detail” all their past speech qualifies as “educational,” I’d like to hear that; § 501(c)(3) does limit the exemption to (among other things) “charitable” and “educational” groups, and if the IRS is defining “educational” narrowly and applying the narrow definition evenhandedly, then that may explain why it was applied to the Coalition for Life of Iowa. But my suspicion is that most groups aren’t required to provide such detail about their speech. Again, after the group got a lawyer to write a letter to the IRS about this, the IRS approved the exemption request.

Thanks to Paul Milligan for the pointer. I should note that the groups I mention were represented by the Thomas More Society, with which I’m working on my pro bono Scott v. Saint John’s Church in the Wilderness petition; but they didn’t approach me about blogging on this subject.

According to a recent clarification by DOJ, however, that reporting was wrong. In a letter signed by Deputy AG James Cole, DOJ pointed out that although the subpoenas covered calls made during two calendar months, April and May 2012, the subpoenas only covered “a portion of that two-month period.” The DOJ letter doesn’t go into more detail than that, citing the need to keep the investigation confidential. But recall that the government asked the AP to delay running the story on May 2, 2012, and that the AP held the story for a few days until publishing it on May 7, 2012. Given that the action here occurred at the beginning of a month, the fact that the records were obtained relating to calls during two calendar months doesn’t indicate that the records were collected over a long period of time. It might have been a week or two, or even less; we just don’t know. We only know that the start date was some time in the month of April and the end date was some time in the month of May.

It will be interesting to see if press coverage will correct that error from the initial coverage of the story, or if media reports will continue to say that two months of records were collected.

“Our approach under the First Amendment has wisely, I think, generally been to risk suffering the harm that speech may do in order to avoid the greater harm that suppression of speech has often caused.” That line is vintage Floyd Abrams. So, too, is the following one: “The oldest reality about the First Amendment is this: Hardly anyone really believes that we should protect the speech of those with whom we differ.” In other words, protecting free speech can be risky and can mean protecting the expression of those who offend us.

As a First Amendment lawyer, Floyd Abrams has time and again urged courts to take risks and tolerate offensive expression. Consider, for example, his views on WikiLeaks and Julian Assange. On the one hand, he has been openly critical of “WikiLeaks’ persistent recklessness” in making public documents that could likely threaten lives or actually impair national security. Hence, he argued, the press should exercise a measure of critical judgment about what to print or not print. That is the judgment call of a responsible press.

Of course, such a press prerogative should not be confused with any carte blanche right of the government to censor speech absent compelling reasons. Or as Abrams put it: “None of this means that if WikiLeaks or Mr. Assange were brought to trial in this country that they would have no basis for claiming First Amendment protection. They would and should.”

If owing to his brand of absolutism Floyd Abrams is seen in some quarters as a First Amendment voluptuary (to invoke one of Professor Bickel’s favorite jabs), then his hardy criticisms of WikiLeaks may be seen in other quarters as signaling a retreat from such absolutism. But when pressed, Abrams denies this is the case, asserting that “if the government makes the ill-considered decision to charge Mr. Assange with a crime as a result of what he released or published, I would maintain that the First Amendment protected him. His acts were, in my view, reckless to the point of being dangerous but not to the point of depriving him of First Amendment protections.” (There is, to be sure, more to this story and more is told in my account in Nuanced Absolutism.)

By way of a somewhat related point: In 1980 Floyd Abrams and Antonin Scalia (then a Stanford law professor and former assistant attorney general in the Department of Justice’s Office of Legal Counsel) found themselves on different sides in the testimony they offered to Congress concerning the Intelligence Identities Protection Act.

And what about offensive speech? Here, too, Floyd Abrams has stepped on many delicate toes. In this regard, consider what Abrams had to say in a 1994 New York Times exchange with the noted feminist and anti-pornography activist Professor Catharine MacKinnon. “We need a First Amendment most of all to protect people who say very unpopular things, unpopular with government, unpopular with the public at large. We do not permit and should not permit the First Amendment to be overcome on the basis of some sort of continuous balancing, where we simply look at the supposed harm caused by speech as against the supposed value of what is said.”

There was a time when liberals proudly defended a bold measure of First Amendment freedom and conservatives firmly contested such efforts. But times have changed. As Abrams sees it: “I think there is a significant effort to restrict First Amendment values, if not legally defined First Amendment rights, which comes from the liberal community or the left-liberal community. Why is that so? It is human nature. People don’t like to permit speech of which they thoroughly disapprove, and liberals are no more able to disassociate themselves from trying to impose into law what they wish people would say than conservatives are.”

Much of today’s push back comes from the likes of liberal law professors who take stern exception to Floyd Abrams’s defense of First Amendment rights such as those vouchsafed in Citizens United v. Federal Election Commission (2010). Similarly, they voice outrage at his First Amendment defense of tobacco companies in cases such as R.J. Reynolds Tobacco Co. v. United States Food & Drug Administration, 696 F.3d 1205 (D.C. Cir. 2012).

Sometimes loved, sometimes reviled, Floyd Abrams has sought to buttress First Amendment freedoms as he understands them. Of course, in these modern times others have different understandings of the First Amendment and different ideas about freedom. But that does not deter him — he goes on to fight another day, to raise his constitutional lance anew. Abrams, ever amiable, relishes the give-and-take of a good argument. And as you will see in the next post about his new book, Friend of the Court: On the Front Lines with the First Amendment, Mr. Abrams is unlikely to change his calling card — “Have arguments, will travel.”