If Obscenity Were to Discriminate

By Barry P. McDonald[*]

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In her thoughtful essay, When Obscenity Discriminates,[1] Professor Elizabeth Glazer argues that First Amendment obscenity doctrine, as it relates to portrayals of gay and lesbian sex (“gay sex”), violates the Equal Protection Clause of the U.S. Constitution, and, somewhat paradoxically, the First Amendment itself.  More specifically, Professor Glazer appears to make a three-pronged argument. First, current obscenity doctrine leaves open the possibility that, in application, juries or judges might find gay sex portrayals obscene simply because they involve same-sex acts (as opposed to obscene acts).  Second, this possibility in turn encourages censorship of sexual expression involving gay sex by private actors.  Finally, in view of the Court’s decision in Lawrence v. Texas,[2] the obscenity doctrine violates the Equal Protection Clause by causing such private discrimination, and also violates the First Amendment because such discrimination is directed against the viewpoint that gay sex is equally as acceptable as heterosexual sex.

While Glazer’s thesis is creative and provocative, she does not address critical legal and empirical problems with her argument.  The first is the notion that existing constitutional doctrine of the U.S. Supreme Court can itself be unconstitutional because it might be applied in a manner that violates other constitutional doctrines.  While such applications of a doctrine might be unconstitutional if they were to occur, that does not render the doctrine itself unconstitutional.  The next problem is her idea that potential unconstitutional applications of a doctrine that purportedly encourage private actors to discriminate render the doctrine itself unconstitutional.  If solely private actors commit the ultimate discrimination, then there is no state action to support a claim of constitutional violation.

Finally, there are significant empirical deficiencies with Glazer’s argument.  She concedes there is little evidence that juries or judges actually apply the obscenity doctrine against gay sex portrayals in a discriminatory manner.  Thus, she bases her claims of constitutional violation on alleged discrimination by private parties.  But even here, Glazer attempts to make a case of private discrimination by focusing on the actions of just two private entities—the Motion Picture Association of America (MPAA) and Google—where her “proof” of discrimination involves highly anecdotal or limited information, which fails to establish anything definitive.  Moreover, Glazer provides no evidence to tie the allegedly discriminatory behavior of these two entities to the obscenity doctrine, relying instead on bare assertions that the doctrine’s treatment of gay sex portrayals causes such “collateral effects.”[3]

This Essay develops these criticisms of Professor Glazer’s essay.  Part I discusses the lack of a sound legal or empirical basis for arguing that the obscenity doctrine is unconstitutional due to its claimed discriminatory collateral effects.  Part II examines Glazer’s argument as it might properly have been made: that if the discriminatory application of the obscenity doctrine against gay sex portrayals were to become an issue, the demands of a principled and coherent jurisprudence would require the Court to revisit that doctrine in light of Lawrence to clarify that the gay or lesbian nature of such portrayals is not a constitutional basis for deeming expression to be obscene.  I conclude that Glazer would have a strong argument in this regard, but one that relies primarily on basic equal protection and First Amendment principles rather than on any changes wrought by Lawrence.

Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn't Do It and the Boss Who Says That He Did

By Melanie D. Wilson[*]

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The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions.[1]  Extrapolating from such significant errors, we can infer that smaller mistakes also occur.  Because criminal prosecution is not an exact science, like DNA evidence,[2] prosecutors can disagree about aspects of a case—whether to reward a cooperating defendant with a sentence reduction, whether to indict a defendant under a mandatory minimum statute, and even whether a defendant is guilty of a crime.  This Essay examines the tension that arises when the prosecutor handling a case disagrees with her boss[3] about one or more of these significant issues[4] and offers an ethical solution for resolving such disputes that will not undermine a criminal defendant’s chances of justice.

This Essay develops in three parts.  Part I provides a concrete example of the ethical dilemma that can result when a prosecutor and her boss disagree about a defendant’s guilt.  Part II discusses the ethics rules that guide prosecutors and the gap in the rules for prosecutor-boss disputes.  Part III offers a proposal grounded in candor and transparency to resolve these disputes without compromising the defendant’s substantive and procedural rights.

The Case for Field Preemption of State Laws in Drug Cases

By Richard A. Epstein[*]

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Introduction: Preemption in Flux

Catherine Sharkey’s essay, What Riegel Portends for FDA Preemption of State Law Product Liability Claims, represents an ingenious effort to work between the horns of the most pressing dilemma in today’s law of federal preemption with her “agency reference model” of preemption.[1]  This issue is hot today because the Supreme Court recently held in Riegel v. Medtronic, Inc. that the Medical Devices Act preempted a plaintiff’s state product liability claims alleging defective design of a balloon catheter after plaintiff suffered grievous injuries when the device ruptured inside his right coronary artery.[2]  It is worthy of note that here the treating physician made two controversial decisions: (1) he used the catheter on a patient whom FDA warnings classified as unfit for the treatment; and (2) he overinflated the catheter.[3]  The problem of FDA preemption also arises in the context of a drug manufacturer’s duty to warn in a case scheduled to come before the Supreme Court next year, Wyeth v. Levine.[4]  In that case, the Vermont Supreme Court upheld a damage award on the ground that Wyeth should have warned the plaintiff against using its drug, Phenergan, in a risky procedure that the FDA had explicitly authorized.  More specifically, the FDA-approved warning label allowed Phenergan to be injected intravenously by a so-called “IV push,” or rapid injection into a vein by syringe, so long as physicians were alert of the risk of hitting an artery instead of a vein.  The plaintiff suffered gangrene and consequent loss of a limb when the IV needle mistakenly punctured the artery.  Plaintiff argued that Wyeth’s label “should not have allowed IV push”—period.[5]

To understand the legal issues raised by these two cases, it is useful to set the background with a thumbnail sketch of the modern law of preemption.  All parties agree that some principles of interpretation are needed to work out the interrelationships between federal and state action that covers the same sphere of action.  It is understood as well that the law of preemption divides itself into two halves.  The first half deals with express preemption, which holds that if the federal government makes it clear—itself a term that turns out often to be unclear—that its statute preempts the state law, then the issue is over.  Under the Supremacy Clause[6] of the United States Constitution, the lowliest federal action trumps the most grandiose state pronouncement.  Conversely, if the federal statute makes it clear that the state law may peacefully coexist with it, a system of dual enforcement is appropriate.

Beyond Guantánamo, Obstacles and Options (Part II)

By Gregory S. McNeal[*]

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[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006.  Part II appears today.]   

II.  Beyond Military Commissions: Obstacles Facing Transition to a National Security Court

Recently, the academic and policy debate has begun to move towards the establishment of a national security court.  Both Presidential candidates have indicated interest in closing Guantánamo Bay and moving away from military commissions. Senator Barack Obama declared, “I will also reject a legal framework that does not work. . . . I have faith in America’s courts, and I have faith in our JAGs.  As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.”[73] Senator McCain has declared that he would close Guantánamo[74] while still using military commissions for trials.[75]

Given these prominent positions, the academic and policy debate has begun to evolve.[76]  Professors Neal Katyal and Jack Goldsmith proposed a National Security Court,[77] and Professor Amos Guiora did the same.[78]  Andrew McCarthy identified why the current systems are inadequate.[79] Central to his analysis is the need to conduct interrogations and gather intelligence to prevent terrorist attacks, and the concomitant need to protect such information from unnecessary disclosure through the court system.[80]

Ben Wittes of the Brookings Institution set forth a detailed reform proposal.[81]  He cites to multiple examples, ranging from the 1993 World Trade Center Bombing trial to the trial of Jose Padilla, noting that these were perceived successes with serious underlying flaws.  Wittes suggests comprehensive reform centered on increased detention standards and a “trial regime that gives detainees enough process to satisfy the commands of the Constitution and garner international tolerance, if not quite admiration, yet at the same time facilitates the maximum number of criminal trials.”[82]

Importantly, Wittes and other reformers recognize the need for protection of intelligence and generally set forth potential mechanisms for protecting information in a national security court.  Similarly, Professor Guiora proposes a system for terrorism trials which he terms a “domestic terror court” that would protect intelligence.[83]

Despite the robust nature of these proposals, obstacles exist which will prevent a transition to any of these systems.  While these solutions may work for new terrorism suspects, the proposals do not readily resolve the challenge posed by the current detainees, especially the eighty who have been identified as candidates for trial by military commission.[84]  If Congressional reformers decide to establish a new system, be it a national security court or abolishment of the military commissions, they will face significant obstacles during the transition period.

Beyond Guantánamo, Obstacles and Options

By Gregory S. McNeal[*]

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[Editor's Note: This week, we are pleased to present Professor McNeal's Essay on the Military Commissions Act of 2006 .  Part I appears today.  Part II will be posted on Thursday, August 14.]   

Introduction

The Military Commissions Act of 2006 (MCA),[1] passed after the Supreme Court’s Hamdan[2] decision was intended to remedy shortcomings in prior military commissions. Implementing the MCA has proven difficult, as observers have witnessed the high profile resignation of the system’s chief prosecutor, and Congressional hearings questioning the future of terrorism trials. These issues were punctuated by the Supreme Court’s Boumediene[3] decision holding that detainees have a Constitutional right to habeas corpus. Observers unfamiliar with the processes involved with the military commissions may have thought that the Boumediene decision would force the administration to forgo military commissions, perhaps opting instead for trials in Article III courts. However, nothing in the decision required such a result.

In fact, just two months after the Supreme Court’s Boumediene decision, the trial of Osama bin Laden’s alleged bodyguard Salim Hamdan—the first terrorism-related trial by military commission—concluded in a guilty verdict on charges that he provided material support for terrorism.[4] While lower courts begin to work out the details of the Boumediene decision Hamdan will have a simultaneous opportunity to appeal his conviction, and the legitimacy of the tribunal that tried him. In short, when the dust settles, Congress will again be faced with a need to reform military commissions or to prepare the federal judiciary for terrorism trials. This Essay seeks to contribute to that reform discussion.

Child Rape, Moral Outrage, and the Death Penalty

By Susan A. Bandes[*]

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Is raping a child as heinous an act as taking a life?  How should the comparative moral depravity of child rapists and murderers be measured?  By what metric can the irrevocable harm murder inflicts on its victims be weighed against the long-term anguish inflicted on child rape victims?  What is the judicial role in gauging the societal outrage and revulsion elicited by these two crimes, and in determining whether the death penalty is an appropriate response to those emotions?

In Kennedy v. Louisiana[1] the Supreme Court struggled with this daunting set of issues, which called for judgments that are inescapably moral and emotional.  The Court also faced contentious questions about the nature and longevity of the psychological injuries to child rape victims and to their families,[2] about whether a capital prosecution would ameliorate or exacerbate those harms,[3] and about whether the strong emotions jurors feel in child rape cases are likely to overwhelm their capacity to decide fairly.[4]  The Kennedy decision is a vivid illustration of the central point Douglas Berman and Stephanos Bibas make in Engaging Capital Emotions: that it is impossible to evaluate the legal issues raised by capital punishment without addressing the role of emotion.[5]

I’ve argued that once we acknowledge “the emotional wellsprings of the retributive calculus” we can have “a more clear-eyed debate about retribution’s proper role in our capital punishment system.”[6]  Berman and Bibas begin this debate.[7]  They argue that child rape should be a capital crime, drawing support from the widely shared moral outrage the crime evokes, and from the crime’s emotional toll on child rape victims and their families.  Although I reach the opposite conclusion on the merits, their essay models precisely the sort of conversation we ought to be having.

Part I of this Reply considers the role of emotion in capital jurisprudence.  Section A discusses the importance of confronting emotion’s role in capital punishment.  Section B explores the difficulties with using moral outrage as a metric.  Section C argues that the penal system should not merely reflect moral outrage, but channel and educate it.  Part II focuses on the role of emotion in deciding whether child rape should be a capital crime.  Section A considers the relevance of victim harm to the question facing the Kennedy court.  Section B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious impact of anger and empathy, the problem of generic prejudice, and the issue of race.

Rediscovering the Law's Moral Roots

By Morris B. Hoffman[*]

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In their recent essay,[1] Professors Berman and Bibas stake out terribly important ground, recognizing and then wonderfully articulating an essential duality between justice and emotion, and between law and morality, all in the context of the constitutionality of the death penalty for child rape as raised in Kennedy v. Louisiana.[2]

I do not express any opinion on whether their insight should have driven a different result in Kennedy—after all, there was the constitutional question of whether due process, or the Eighth Amendment, means that only death justifies death.  True, labeling that inquiry as constitutional does not rescue us or the members of the Court from the “normative Furies,” to paraphrase Professors Berman and Bibas.  Indeed, they are right to point out that those Furies are precisely what drove some state legislatures to make death the penalty for raping children, that such a journey is deeply personal and one about which reasonable and honorable legislators may disagree, and that this is therefore a fray into which the judicial branch should be especially leery to enter.

Still, the ultimate decision in Kennedy required the Court’s full range of constitutional tools, including, but certainly not limited to, its ability to recognize a state’s legitimate, emotional, and democratic expressions of deeply held stigma.  Those of us who care about constitutional processes—not just outcomes—believe that some other tools, including text, history, and stare decisis should also play into the mix.[3]