We're still litigating a 1998 porn law?

Looks like the downright silliest waste of Federal resources of the new century -- that is, the government's tireless efforts to defend the never-enforced Child Online Protection Act of 1998 -- is nearly at an end with today's meticulous district court decision permanently enjoining COPA. Tip of the hat to Nerve.com -- one of an all-star cast of sex-positive plaintiffs -- for their fascinating, quirky, in-depth coverage of last year's trial in the case. Up for one more round of appeals, Alberto?

Briggs Initiative goes Polish?

I see an EU smackdown in the works: Poland is thinking about banning queers from teaching. With any luck, though, it'll just galvanize the gay community.

Isn't "Bong Hits 4 Jesus" fun to say?

You've probably heard ten times this week about Morse v. Frederick, just argued before the Supremes. It's perceived by many as being a silly case -- and certainly, a case involving a real message rather than a meaningless stunt might've made a nicer vehicle for the legal issues at stake. But "Bong Hits" is what we've got, and it's important.

What intrigues me, however, is that Morse seems such a perfect companion to Harper v. Poway Unified School District, which the Court will be hearing later this term. Poway, which I've mentioned before, concerns a student disciplined for wearing a vitriolic anti-gay t-shirt. And the two cases provide the opportunity for some much-needed clarity on the twin aspects of the landmark Tinker v. Des Moines decision, which established that First Amendment rights don't stop "at the schoolhouse door." Tinker contemplated two permissible grounds for limiting student speech: disruptions to the school's educational function, and interference with the rights of others. The Ninth Circuit controversially upheld the Poway school's action based on the rights-of-others prong; the same court held for the student in Morse because the school had failed to meet the disruption prong.

The rights-of-others prong has pretty much lain dormant all these years; whether you agree with the Ninth Circuit's holding or not, it's about time to get some guidance on what it means. By contrast, the disruption prong has been very much alive, inasmuch as school administrators are always using it -- and getting sued over it. The general public perception, and that of administrators (of course), has been that the reach of the disruption prong is very broad indeed -- so much so that a lot of folks are surprised to hear that students have First Amendment rights at school at all. Too broad a view of the disruption prong pretty well eviscerates Tinker, but defining the reach of either prong is bound to bedevil the Court.

While many take the same side (student or school) in both cases -- including, interestingly, social conservative groups, to whom student speech is increasingly important in relation to anti-abortion and anti-gay messages -- I think the relevant facts and (in some respects) the relevant principles are quite different, and thus the results should differ. (For one thing, both the room for abuse and the inclination to abuse seem to me much greater with the disruption rationale.) In any event, when these decisions come down one will want to read them in conjunction, I think, to fully assess the legacy of Tinker. Assuming you haven't had too many bong hits with Jesus.

Marriage debate continues in France

Marriage equality continues to be a hot issue (although far from the top issue) in the French presidential elections, following Tuesday's unsurprising ruling by the Court de Cassation, which held the 2004 civil marriage of two men from the city of Belges to be illegal. This follows that court's decision last month that a nonbiological lesbian parent could not adopt her daughter.

Without getting too much into French politics, the Socialist candidate (consistently running a close second in the polls) promises to see a marriage equality bill introduced, while the apparent center-right front runner opposes such a measure.

The couple that just lost in the Court de Cassation have promised to appeal to the European Court of Human Rights. That court has thus far refused to recognize the extension of European Convention Article 12 (right to marry) to same-sex couples, but it is certainly conceivable that in the future it could - as indicated, for example, by that court's gradual evolution of view with regard to transsexualism.

Alleged DC madam denies charges, aims to disclose clients

Via Transcending Gender, I've been reading about the case of Deborah Palfrey, accused Washington, D.C. madam. Palfrey claims she was running a legal "fantasy escort" service that did not provide actual sex for pay. At the same time, she is talking about selling her client list -- and is now the prosecutor is trying to have her gagged to protect those clients, including, allegedly, prominent political types such as Dick Morris (hey, why not? he's admitting buying sex before).

Without having studied the details of this case -- info on the Web is relatively scant at this point -- it's not at all clear whether Palfrey's defense is credible. On the one hand, lots of folks who were running prostitution claim they were only providing legal services. On the other hand, there are plenty of adult businesses out there, from dominatrices to escorts, who do provide personalized erotic services within the confines of the law, and who fall occasionally victim to authorities' attempts to twist the law or entrap them. The devil is often in the details, and sometimes it comes down to he-said, she-said. It'll be interesting to see how this plays out.

A completely separate and also interesting issue is the proposed protective order. Though the motion doesn't say just what type of information they're concerned about, it looks like an effort to protect the reputations of, in some cases, prominent men in Washington (be they consultants, businessmen, or public servants). Whether the court can intervene to protect their privacy, or whether the prominence of certain clients creates matters of public concern covered by the First Amendment, remains to be seen. I personally don't know if there have been cases quite like this before -- I'm betting there have -- or for that matter whether a First Amendment issue will come to the forefront here, but that too will be interesting to see.

DADT bedevils Air Force rape prosecution

It's been clear for some time now that Congress's "Don't Ask, Don't Tell" policy towards queer servicemembers has perverse, and serious consequences. But it never occurred to me, or probably to almost anyone, that on top of everything else is might complicate the investigation and prosecution of crimes within the armed forces. That, apparently, is just what has happened in the case of an Air Force officer accused of raping fellow servicemen. As this news report indicates, where sexual crimes are concerned DADT may give victims and witnesses disincentives to report and cooperate with investigators; lead innocent accused to jeopardize their defense by lying; and give guilty accused convenient explanations for their lies.

FL city fires manager over sex reassignment

In a move that has sparked local controversy and national attention, the Largo, FL City Commission voted last month to dismiss their City Manager of fourteen years because she is undergoing a gender transition. No one contested that Susan Stanton -- formerly Steven Stanton -- had done a great job all along, but five out of seven commissioners decided she'd "lost credibility" because of her transition.

Ms. Stanton is appealing her dismissal through commission procedures for now, but she has retained legal representation through the National Center for Lesbian Rights, which has said it will consider going to court over the matter.

Largo has an internal nondiscrimination policy here that appears to have been violated by this filing, though it's not clear to me what the remedy is for such a violation. Florida and federal law do not clearly prohibit anti-trans discrimination in employment. The Equal Protection Clause probably does so in public employment, see Doe v. United States Postal Service, 1985 WL 9446 (D.D.C. 1985). Though under rational basis review an argument about "credibility" or the like might be made, this looks like animus under another name.

Is the firing, by vote of the city commission, of a city manager a nonjusticiable political question? Nice try, but I think not. I haven't really studied this area, but Powell v. McCormack seems to me to dictate that even dismissal of a top political official is justiciable when constitutional rights are involved.

More interesting to me than the legal questions here is how this plays out in public discourse, particularly within the city and state. Firings of trans teachers and professors in recent years have generated considerable discussion of anti-trans discrimination, but this high-profile case involving a long-serving public official seems an even more poignant vehicle for that discussion.

For more on the relevant law and the media coverage of this case, I refer you to Janet Weiss's Transgender Workplace Diversity blog.

On overruling Roe

Over at Prawfsblawg, Jessie Hill (my favorite CWRU faculty member) recently wrote a trilogy of commentaries on the prospects and implications of overruling Roe v. Wade. She points out what I have often found myself pointing out to nonlawyers interested in the issue: that despite the recent Supreme Court appointments, there are still five clear votes for upholding Roe. And moreover, Justice Roberts's general attitude so far, together with the unanimous Ayotte opinion, suggests that he just might give considerable weight to the stare decisis factor than his conservative colleagues if he were in a position to swing the Court. This is all another way of saying that the state legislators busying themselves with creating "test" laws to challenge Roe are engaging in a huge waste of state resources.

More interesting than all that is Hill's thoughtful speculation about how state legislatures would react to such an overruling; whether pre-Roe bans would "reactivate" automatically; and whether the health exception requirement would remain.

HPV vaccination: the litigation begins

Reportedly thirty-three states have now begun considering bills to promote or require the revolutionary HPV vaccine (here's a summary of six of those). While cultural-conservative response during the FDA approval process was relatively muted (as compared to the long struggle over OTC emergency contraception), there is now a full-blown debate about whether the vaccine should be mandated, largely arising from HPV's status as a sexually transmitted disease.

Inevitably, the litigation has begun, with several Texas parents challenging Texas Gov. Rick Perry's executive order mandating the vaccine for sixth-grade enrollment. While the claim in this case appears to one in state law alleging that the Governor exceeded his authority, this will not be the only such suit, and others will surely raised constitutional objections. These claims, I expect, will be based either on the right to bodily integrity or the right to direct the upbringing of one's children. Free exercise claims are also imaginable, although the mandatory vaccination bills out there seem generally to include religious exemptions.

The natural question becomes the application of Jacobson v. Commonwealth, in which the Supreme Court in 1905 rejected a constitutional challenge to mandatory smallpox vaccination. The Court there held that (1) individual liberty interests could in appropriate circumstances be overridden by public health measures, and (2) the legislature having judged a mandatory scheme proper in accordance with overwhelming medical opinion, it was not for the courts to undertake a fresh examination of claims about the safety or efficacy of the vaccine. That case is still good law, as demonstrated by the Court's need to distinguish it in the Cruzan case, and by a military appeals court's recent reliance on it to uphold a mandatory anthrax vaccination. U.S. v. Schwartz, 61 M.J. 567 (N.M. Ct. Crim. App. 2005).

Of course, one vaccination is not the same as another; the public health implications of cervical cancer and smallpox are also quite different. Nearly 12,000 diagnoses and 4,000 deaths per year is a serious problem, but it is not highly contagious and does not rise to the level of a public emergency.

On the other hand, the potential parental objections seem relatively slight. Rather than asserting that the HPV vaccine is dangerous (as in Jacobson), parents would presumably be asserting simply that its safety and efficacy are uncertain, and/or that it would interfere with their parental prerogative in teaching proper sexual values. As in Jacobson, medical authority overwhelmingly supports the safety and efficacy of the vaccine. The risk of physical harm is merely speculative, as is the "risk" that vaccination would encourage adolescent sex. In any event, vaccination in no way prevents parents from teaching their children - and if they want to teach them to fear sex, there are plenty of other risks to spook them with.

Nevertheless, I would expect to see some ingenious arguments being made against mandatory vaccination, in both the legislatures and the courts, as this issue plays out across the country.

Edit: As the commenter below rightly indicates, the forthcoming legislation will likely have generous opt-out provisions, thus largely vitiating any constitutional objections by parents. In the context of school prayer, the Supreme Court has said that opt-outs are not enough to protect the objector because the opting-out child may be ridiculed by others. No such concerns apply here, and even if they did they only really have force in the Establishment Clause context. I shouldn't be surprised, however, if some creative arguments are put out there to challenge vaccination nonetheless -- so much is suggested by the current political debate, despite the opt-outs.

More on Lawrence v. Texas's sandpapery slope

Howard Bashman's latest On Appeal column neatly summarizes the recent incest and sex toy decisions and their implications.

Bashman is right about the Supreme Court's apparenty disinterest in hearing follow-up cases. As I have mused before, this is a striking contrast to the rapid succession of post-Brown v. Board of Ed. cases, which quickly dispensed with the narrow distinctions drawn in Brown. In fact, if this trend continues, one wonder whether Lawrence will become a little like Bush v. Gore, a case you're not supposed to cite for anything. "Oh, you're not trotting out that old thing, are you?"

Consensual adult incest still a crime in Ohio

Speaking of the need for guidance on Lawrence v. Texas, the Ohio Supreme Court yesterday affirmed a man's incest conviction for having, concededly consensual, sex with his 22 year old stepdaughter. The court first held that the lack of any mention of age or consent in the statute meant that these factors were legally irrelevant; and further held that Lawrence was inapplicable since the State's legitimate interest in protecting the family is involved.

The Ohio court viewed Lawrence as a simple rational-basis decision. This seems to be the view of most post-Lawrence decisions, but it is by no means clear from the Supreme Court's poetic but legally muddled opinion.

If only rational basis review applies, it's pretty clear that Ohio's incest ban survives. It is rational to conclude that incestuous relationships may have destructive tendencies even between consenting adults. To the extent that this danger may sometimes be lessened with stepparent relationships, the stepparent who has not adopted his stepchild may get outside the ban by divorcing.

It is less clear to me that this law would pass muster if a fundamental right were involved, for it is at least arguable that the dangers of incest are less pervasive and less severe when with consenting adult. This would present a complex question, begging some illumination from the social sciences. But since the law was upheld, a narrowing amendment by the legislature is at least worth considering carefully in light of the serious criminal consequences (not that it will happen, of course).

Interestingly, in this case a dissenting justice said nothing of the constitutional issue but took issue with the court's statutory interpretation, based on a different reading of the legislative history. He went on to say:

I suspect that the statute was not employed in this case as a means to preserve Ohio’s fractured extended families. Rather, the state used [the law] as a means to prosecute a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim. [The incest law] provides a shortcut to a conviction. This sort of use of the statute demeans its true purpose.

This is a problem that has often occurred to me, and which I had not yet seen recognized by courts. There is no indication from the opinions whether consent was in any way doubtful in this case. But I suspect that this is a major reason why many laws criminalizing consensual sex are kept on the books. To use laws like this as a "shortcut to a conviction" would seem to erode the basic rights of the criminal defendant and cheapen our system of justice, even if it sometimes helps put bad guys in jail.