Category Archives: Constitutional Law
Twitter may face legal problems in France… Why it wouldn’t happen here (for now)
Anti-Semitism is on the rise in Europe, especially in France and Germany. One outlet for anti-Semetic commentary has been twitter. In France, the hashtag #unbonjuif (literally “a good Jew” has been used to spread anti-Semetic jokes. It is now the 3rd most popular hashtag in France.
In France, as well as Germany, the notion of “Free Speech” is not protected as it is in the United States. Germany for example, has outlawed anti-Semetic speech as a whole, something unthinkable in the U.S. The French government is seeking to crack down on the use of twitter to spreed anti-Semitism. The problem is individuals can use twitter anonymously, and twitter servers are offshore and are generally cannot be subpoenaed in French Courts. The solution is this, sue twitter. From France24.com.
According to French lawyer and online media specialist Gérard Haas, Twitter, as a publisher, is legally responsible for the content of its website, just as much as its individual contributors.
He told FRANCE 24 that the only solution for anti-racism organisations was to target individual tweeters and “sue, sue, sue” in response to last week’s anti-Semitic Twitter binge.
“Twitter has to improve its reaction to events like these so that the justice system can quickly identify who has made posts that are illegal under French anti-racism laws,” he said.
While this is happening in France, if a similar situation were to happen in the United States, this course of action could not happen. First, as tasteless and repugnant as anti-Semetic speech is, it is still covered by the first Amendment to the Constitution as free speech, with very little exception.
Even if that were not the case, twitter is protected by the Section 230 of the Communications Decency Act. Most people know the Communications Decency Act as the anti-internet-porn act of 1996. Well, less than a year later, the anti-pornography provisions were largely struck down by the United States Supreme Court in Reno v. ACLU. However, the safe harbor provisions and section 230 still remain.
Section 230 basically gives websites and servers immunity from any slanderous or defamatory communication posted by a third party, stating in part “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. The key part being “publisher or speaker”. In tort law, a publisher (anyone who prints or repeats the defamatory communication) of information has the same liability as the original speaker. Without that provision, then twitter would be liable for everything everyone posts on its webpage, as would facebook, or any blog or news source with a comments section. So hooray for forward thinking which allows us to have forums to express our thoughts freely, without them having to bear the costs of our own stupidity… for now…
My Analysis of Today’s Supreme Court Ruling on the Affordable Health Care for America Act
The current Justices of the Supreme Court of the United States
I usually do not blog on political issues, or issues as related to law outside the realm of digital media law or cyber law. I had actually planned to write an interesting article about e-discovery today, but I have been requested by friends to address today’s ruling on the Affordable Health Care for America Act, as decided in today’s decision of National Federation of Independent Businesses v. Sebelius, No. 11-292 (S.C.O.T.U.S., June 28, 2012).
All politics aside, my first feelings foremost are that courts should rule on issues as a matter of law, not politics. As Robert Bolt, under the character of Thomas More, wrote in the play A Man for All Seasons, “Men must rule themselves by their wits, this court must rule according to the law” (Act 2, Scene 9). The most important part in my opinion is not that the law was upheld under the tax and spending provisions under the constitutions, it is that the Court has limited the use of the Commerce Clause, stating specifically that it cannot be used to force individuals to make purchases in the stream of commerce. More importantly, the Supreme Court has limited the power of the federal government to bully the states into enacting state laws that bend to their desires.
From a Constitutional Law perspective, the Commerce Clause is the bane of every law student’s existence. It has been used to expand the powers of government, for good and for evil. In Civil Rights law it was used to end laws discriminating against African Americans, who wanted to eat at lunch counters. During the Great Depression, it was (and is still being) used to regulate crop production, even when the crops are for personal use. It is currently the reason why Amazon Taxes are probably unconstitutional. In general the Commerce Clause has been used to increase federal government power, and decrease the ability of the states to exercise powers left to them in the Constitution. By stating that the Commerce Clause cannot be used to force individuals to purchase health insurance, this is the first time, at least that I have seen, that the Supreme Court has limited the power of the federal government under the Commerce Clause.
Likewise with the Necessary and Proper clause, likewise, has been a source of almost limitless power of the Federal Government. This too has been limited in stating that the Federal Government cannot use this power as a means to force individuals to purchase health insurance.
The only measure that survives is the Tax and Spending clause, which the Constitution states explicitly, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (U.S. Const. art. 1, § 8, cl. 1.). By doing so, the provision which forces the individual to pay a fine if they do not purchase health insurance is now qualified as a tax. As a matter of practicality, when an individual refuses to purchase insurance, that act triggers an extra payment to the IRS on their tax return. So the court concluded under the tax and spending clause, such a payment would qualify as a tax.
The other significant portion of the Act, dealt with state mandated medicare payments. This, in my opinion, is a really big one. As we know from history, the federal government from time to time will threaten to withhold funding to the states to finance federally mandated programs if they do not comply with some aspect of federal law. The most common example was when the federal government threatened to withhold federal highway funds to the states, if the states did not raise their drinking age to 21. In this case, the Federal government threatened to withhold all medicaid funding if they did not raise their eligibility to everyone whose income was within 133% of the federal poverty guidelines. The court said emphatically, that the federal government could not do that, describing the matter not as encouragement but as a “gun to the head” of the states. This again, limits the ability of the federal government to coerce the states into acting at their behest.
Lets look at the tally.
Commerce clause can enforce individual mandate No: Roberts, Scalia, Alito, Thomas, Kennedy
Yes: Ginsburg, Kagan, Sotomayor, Breyer
Necessary and Proper clause can enforce individual mandate: No: Roberts, Scalia, Alito, Thomas, Kennedy
Yes: Ginsburg, Kagan, Sotomayor, Breyer
Tax and Spending clause can enforce individual mandate: No: Scalia, Alito, Thomas, Kennedy
Yes: Roberts Ginsburg, Kagan, Sotomayor, Breyer
Federal Government can coerce states to change Medicaid laws: No: Roberts, Scalia, Alito, Thomas, Kennedy, Kagan, Breyer
Yes: Ginsburg, Sotomayor
So, in other words, this court limited the power of the federal government in three key ways, while still receiving the adulation of the President who’s mission it has been to increase the power of the federal government. It may seem genius, but I don’t think that is how the Chief Justice intended for this to happen. I think he was aiming for a 6-3 vote to avoid a split 5-4 opinion, and it backfired. When the Supreme Court goes into conference after oral arguments, the Chief Justice is always the first to speak and the first to vote. I think he was trying to do so in a way to entice Justice Kennedy to side with him and make it an all around 6-3 decision at least on the tax and spend clause, to make the court appear less partisan. It didn’t work because Justice Kennedy decided to support the more conservative block.
The Chief Justice is an intelligent man, who I agree with philosophically on the nature of the law. It is not up to the Courts to determine whether or not a law is wise, that is the purview of the congress and the people. It is merely the court’s responsibility to determine whether the laws are constitutional. In this, I think he is the least activist, and least partisan member of the court. He approaches the law, not with a result in mind, but with a strong mind and strong legal reasoning. He has here, as he has in the past, left it to congress to determine the laws by which we the people will be governed. I think we have a better means to predict how the court will rule in future occasions.
James Skyles
