Friday, May 02, 2008
(note: only of interest to law geeks)
The virginia rehearing in jaynes asks some tricky first amendment standing issues.
Here's the grant of rehearing, and then my first thoughts on the topic.
Caution long rant follows, I should bury most of this with a later edit.
1Jeremy Jaynes, Appellant,
against Record No. 062388
Court of Appeals No. 1054-05-4
Commonwealth of Virginia, Appellee.
Upon A Petition For Rehearing
The Court grants the Petition for Rehearing filed by the Appellant limited, however, to the following issues:
1. In the context of a claim brought in a state court challenging a state statute under the First Amendment overbreadth doctrine, are state courts required to apply the same standing requirements as to that claimant that the claimant would be accorded in a federal court considering a similar First Amendment overbreadth claim?
2. Assuming, arguendo, that the first question is answered in the affirmative, has the Appellant (a) waived the argument presented in the Petition for Rehearing at pages 1 through 5 as not made in Appellant’s briefs or on oral argument; and (b) is appellate consideration of the issue barred because Appellant approbated and reprobated (e.g., did Appellant agree in prior proceedings in this case that a state court may establish its own standing requirements but in its petition for rehearing contend that a state court must, at a minimum, apply federal standing requirements)?
3. Assuming, arguendo, that the first question is answered in the negative and a state court is not required to accord equivalent standing, as in a federal court, in a First Amendment overbreadth challenge to a Virginia statute involving commercial speech, what is the precedential effect of Wayside Restaurant, Inc. v. City of Virginia Beach, 215 Va. 231, 208 S.E.2d 51 (1974)?
1. Of course, as in Hicks, state first amendment standing rules do not have to be the same as those of federal courts. Federal courts are bound by the case or controversy clause of article III. States are free to have less restrictive rules,and this is probably what Hicks was referring to. It is wrong to read Hicks as saying states can have more restrictive rules, unless case can be found which upholds more restrict state rules. More restrictive rules would impinge on due process and Supremacy clause concerns.
States are free to adopt their own rules of standing and overbreadth when it comes to interpreting their own free speech and free press clauses. For instance, Indiana's article 9 free speech rights have been found to have no overbreadth analysis. Price v State. But when it comes to the First Amendment, states are supposed to adhere to SCOTUS precedent. Under Broadrick v Oklahoma, defendants can raise overbreadth challenges to the constitutionality of a statute even when their own conduct violated the statute. A statute which is unconstitutional because of overbreadth is void and is not law and has no valid application to anyone.
2 Plaintiff has not waived his claim that the statute is overbroad and unconstitutional and that he has standing to raise the issue. Indeed, that was a major focus of his argument and of the court's prior opinion.
3 If, contrary to fact, Virginia were able to set its own First Amendment standing rules below the federal floor, what precedential value should be given to wayside?
Wayside, if still good law, should be overruled on policy grounds, because it is bad policy. Wayside was heavily influenced by (the abortion advertising case) which was subsequently overruled in light of Roe v Wade. Wayside is a case that says business owners of a topless joint lacked standing to raise overbreadth claims as to a statute that unconstitutionally imposed dress codes on citizens, on the grounds that commercial speech is unprotected. That is doubly wrong.
The constitution contains no textual exemption for commercial speech.
Justice Thomas, for one, thinks that commercial speech is as protected as noncommercial speech. Cases such as 44 Liquormart have overruled Wayside's core claim that commerical speech is distinct and unprotected.
Arguably, while literary and political speech are all well and good, it is commercial speech which society has the strongest interest in protecting. Information is the driving force in the American economy, and is essential to the operation of a market economy. Earlier economic models assumed perfect information in both the marketplace and government, but this view is no longer accepted as actually modeling the economy.
The United States has been able to develop the world's strongest economy by allowing markets, and allowing the relatively free flow of information which markets require.
The constitution does not police itself. When a statute or policy violates the First Amendment, it is often a business which can fund a challenge. Private citizens tend to lack the resources to take on the deep pockets of the state. The adversarial system of justice is damaged when one set of players is unduly hobbled.
This is a case in which a man is being sent to prison for a long period of time for writing on the internet. While the court found against defendant on his commerce clause argument, and found that Virginia can assert jurisdiction over the entire internet if an aol account is ever involved, the court should remain mindful of the chilling effect on the entire internet. Reno v ACLU referred to this sort of thing as burning the global village to roast a pig. Because his prosecution harms the speech interests of third parties everywhere, he should not be foreclosed from his due process right to raise claims of unconstitutionality due to overbreadth.
I, for example, am harmed by the statute. But the harm to me does not justify the expense of bringing suit in Virginia, which I lack the resources to do if I wanted to. Jaynes, on the other hand, has the resources and the motivation to make my case. It would be unjust to him and to me to prevent him from doing so.
The right view is to allow him standing to raise the overbreadth issue, whether doing so is required by the federal constitution and supremacy, or whether the court does so on its own authority as the caretaker of Virginia law. /end of rant.
The virginia rehearing in jaynes asks some tricky first amendment standing issues.
Here's the grant of rehearing, and then my first thoughts on the topic.
Caution long rant follows, I should bury most of this with a later edit.
1Jeremy Jaynes, Appellant,
against Record No. 062388
Court of Appeals No. 1054-05-4
Commonwealth of Virginia, Appellee.
Upon A Petition For Rehearing
The Court grants the Petition for Rehearing filed by the Appellant limited, however, to the following issues:
1. In the context of a claim brought in a state court challenging a state statute under the First Amendment overbreadth doctrine, are state courts required to apply the same standing requirements as to that claimant that the claimant would be accorded in a federal court considering a similar First Amendment overbreadth claim?
2. Assuming, arguendo, that the first question is answered in the affirmative, has the Appellant (a) waived the argument presented in the Petition for Rehearing at pages 1 through 5 as not made in Appellant’s briefs or on oral argument; and (b) is appellate consideration of the issue barred because Appellant approbated and reprobated (e.g., did Appellant agree in prior proceedings in this case that a state court may establish its own standing requirements but in its petition for rehearing contend that a state court must, at a minimum, apply federal standing requirements)?
3. Assuming, arguendo, that the first question is answered in the negative and a state court is not required to accord equivalent standing, as in a federal court, in a First Amendment overbreadth challenge to a Virginia statute involving commercial speech, what is the precedential effect of Wayside Restaurant, Inc. v. City of Virginia Beach, 215 Va. 231, 208 S.E.2d 51 (1974)?
1. Of course, as in Hicks, state first amendment standing rules do not have to be the same as those of federal courts. Federal courts are bound by the case or controversy clause of article III. States are free to have less restrictive rules,and this is probably what Hicks was referring to. It is wrong to read Hicks as saying states can have more restrictive rules, unless case can be found which upholds more restrict state rules. More restrictive rules would impinge on due process and Supremacy clause concerns.
States are free to adopt their own rules of standing and overbreadth when it comes to interpreting their own free speech and free press clauses. For instance, Indiana's article 9 free speech rights have been found to have no overbreadth analysis. Price v State. But when it comes to the First Amendment, states are supposed to adhere to SCOTUS precedent. Under Broadrick v Oklahoma, defendants can raise overbreadth challenges to the constitutionality of a statute even when their own conduct violated the statute. A statute which is unconstitutional because of overbreadth is void and is not law and has no valid application to anyone.
2 Plaintiff has not waived his claim that the statute is overbroad and unconstitutional and that he has standing to raise the issue. Indeed, that was a major focus of his argument and of the court's prior opinion.
3 If, contrary to fact, Virginia were able to set its own First Amendment standing rules below the federal floor, what precedential value should be given to wayside?
Wayside, if still good law, should be overruled on policy grounds, because it is bad policy. Wayside was heavily influenced by (the abortion advertising case) which was subsequently overruled in light of Roe v Wade. Wayside is a case that says business owners of a topless joint lacked standing to raise overbreadth claims as to a statute that unconstitutionally imposed dress codes on citizens, on the grounds that commercial speech is unprotected. That is doubly wrong.
The constitution contains no textual exemption for commercial speech.
Justice Thomas, for one, thinks that commercial speech is as protected as noncommercial speech. Cases such as 44 Liquormart have overruled Wayside's core claim that commerical speech is distinct and unprotected.
Arguably, while literary and political speech are all well and good, it is commercial speech which society has the strongest interest in protecting. Information is the driving force in the American economy, and is essential to the operation of a market economy. Earlier economic models assumed perfect information in both the marketplace and government, but this view is no longer accepted as actually modeling the economy.
The United States has been able to develop the world's strongest economy by allowing markets, and allowing the relatively free flow of information which markets require.
The constitution does not police itself. When a statute or policy violates the First Amendment, it is often a business which can fund a challenge. Private citizens tend to lack the resources to take on the deep pockets of the state. The adversarial system of justice is damaged when one set of players is unduly hobbled.
This is a case in which a man is being sent to prison for a long period of time for writing on the internet. While the court found against defendant on his commerce clause argument, and found that Virginia can assert jurisdiction over the entire internet if an aol account is ever involved, the court should remain mindful of the chilling effect on the entire internet. Reno v ACLU referred to this sort of thing as burning the global village to roast a pig. Because his prosecution harms the speech interests of third parties everywhere, he should not be foreclosed from his due process right to raise claims of unconstitutionality due to overbreadth.
I, for example, am harmed by the statute. But the harm to me does not justify the expense of bringing suit in Virginia, which I lack the resources to do if I wanted to. Jaynes, on the other hand, has the resources and the motivation to make my case. It would be unjust to him and to me to prevent him from doing so.
The right view is to allow him standing to raise the overbreadth issue, whether doing so is required by the federal constitution and supremacy, or whether the court does so on its own authority as the caretaker of Virginia law. /end of rant.
Comments:
Post a Comment
