Amendment Cases Research Articles

Book Review: Freeing Speech: The Constitutional War over National Security by John Denvir

Freeing Speech: The Constitutional War over National Security. John Denvir. New York: New York University Press, 2010. 256 pp. $45 hbk. $20 pbk.I often read review copies of books when I'm traveling. I had planned to take my copy of Freeing Speech: The Constitutional War over National Security with me on some lengthy trips abroad in 2011.Then I hesitated. Would customs officials in countries like Azerbaijan look askance at a book with a title like that? What about reports that Immigration and Customs Enforcement (ICE) agents have searched and seized, without a warrant, electronic devices like laptop computers belonging to U.S. citizens at border crossings- sometimes, at least according to lawsuits filed by the ACLU, with no apparent suspicion of wrongdoing other than supporting accused leaker Bradley Manning's legal defense fund?Not wishing to succumb to what the book's author, John Denvir, a constitutional policy professor at University of San Francisco School of Law, calls governmentinduced political passivity engendered by fear of attracting the unwanted attention of government investigators, I decided to take my chances and take the book along with me. I did, however, first remove the jacket, which includes a photograph of antiwar protestors on the cover. No point in being needlessly provocative, I figured.Denvir himself wouldn't hesitate to be provocative. His book certainly is. Right offthe bat, he claims that the same First Amendment that grants the press independence from government control has allowed presidents, who enjoy virtually unfettered access to the media, to utilize official secrecy coupled with propaganda techniques to mislead the public and mobilize support for their national security policies. This has led to what he calls the National Security Presidency, unchecked by Congress and the courts. The remedy he proposes would be for Congress to enact a law making it a felony for the president, vice president, or cabinet-level officials to utter false statements recklessly, or with knowledge that they are false-echoing the actual malice standard from the landmark First Amendment case, New York Times v. Sullivan.And that's just the beginning. Denvir manages to pack quite a few controversial concepts into his six short chapters, all predicated on the idea that the First Amendment's protections for freedom of speech, press, and assembly have been severely eroded by the so-called War on Terror. He provides brief histories of the First Amendment as well as the laws of access and provides chilling examples of increased surveillance of individuals and groups engaging in constitutionally protected activities, growing restrictions on access to government-held information, and missed opportunities by the federal courts to rein in zealous law enforcement officials because of excessive deference to their supposedly greater expertise.At the root of all this, he suggests, is the failure of the Supreme Court to interpret the First Amendment in a sufficiently robust way that not only encourages debate and dissent but curtails the expansion of executive power. …

Gauging Ethical Deficits in Leadership and Student Discipline: An Analysis of Fourth Amendment Case Law

Recent studies of school discipline (Skiba, Michael, Nardo, & Peterson, 2002; see also, NAACP Legal Defense and Education Fund, n.d.) have called for greater scrutiny over treatment of students in varying demographic contexts. Minimal research, however, has grappled with the ethics of disciplinary practices using legal data. Utilizing information collected from Fourth Amendment case law since the landmark New Jersey v. T.L.O. decision (1985), this study examined the ethical dimensions of student searches through the ethical lenses of justice, caring, critique, and the profession. A multiple logistic regression was employed to gauge the impact of demographic factors on aspects relative to the search including the type of search (e.g., locker), number of search actions (e.g., the extensiveness of the search), and whether the evidence recovered in the search was reported to the police. Findings suggest the application of searches is strongly influenced by school size, school minority population, and poverty level, whereas the likelihood evidence recovered during a search is handed to police for criminal prosecution is greater in larger schools and schools situated in high minority communities. The findings together allude to ethical lapses among school personnel in the realms of caring, critique, and the profession. Implications for ethical leadership are addressed.

U.S. Supreme Court Decisions in Fourth Amendment Cases (1961–2009)

This study explores the capacity of several different theoretical perspectives to account for variation in U.S. Supreme Court Fourth Amendment decisions (whether the case outcome favored the government or the individual). The study developed measures of Richardson and Vines and Crow and Gertz commentary on legal subculture and democratic subculture concerns of the judiciary as well as negotiation/synthesis of these concerns. The study also developed and tested measures of the resource capability thesis of Galanter and the recent work of George applying social background theory to the behavior of U.S. Supreme Court justices. The findings reveal support for each of these theoretical perspectives. Implications are discussed.

Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the First Amendment

Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise to categories of expression that the government may punish, but only to a limited extent. This Article defends penalty-sensitive free- speech adjudication and calls for its expanded use within First Amendment law. Pulling together existing strands of penalty-sensitive doctrine, the Article identifies five ways in which penalty-sensitive analysis can further important constitutional objectives: (1) by increasing fairness for similarly-situated speakers; (2) by mitigating chilling effects on protected speech; (3) by facilitating the “efficient breach” of constitutionally borderline speech restrictions; (4) by rooting out improper government motives; and (5) by promoting transparency in judicial decision-making. The Article also considers and rejects potential objections to the penalty-sensitive approach, concluding that it will often generate proper results in difficult First Amendment cases.

Managing academic freedom: recent cross-Atlantic developments

This paper charts the legal and institutional status of academic freedom in America after Garcetti v. Ceballos, a key First Amendment case decided by the US Supreme Court in 2006. It also addresses, in comparative compass, academic speech protection in the UK and the EU more broadly. Although a managerial ethos of university governance has reshaped academic freedom on both sides of the Atlantic, the shaping process has not been uniform. Differences in policy formation and institutional structure have produced significant variations in the safeguarding of faculty speech. Policy groups on the Continent have been particularly active in drafting aspirational statements on academic freedom. Both the UK and the EU also have legislation outlining the rights and responsibilities of university teaching and research. No such legislation exists in the US, where the courts have played a central role in determining the legal status of academic speech. Statutory provisions in Europe, by contrast, remain judicially untested. It is anticipated that academic freedom on both sides of the Atlantic will increasingly be defined in contract, with varying degrees of third-party appeal.

Three Giant Steps Backward for the First Amendment

Three of the First Amendment cases that the Supreme Court decided during its 2009 term – Holder v. Humanitarian Law Project, United States v. Stevens, and Citizens United v. F.E.C. – constitute setbacks for the principle of freedom of speech. In the latter two cases the Supreme Court ruled that the laws in question violate the First Amendment, creating the impression that Freedom of Speech is on the move. However, careful examination of the Court’s opinions reveals that the movement is retrograde. The decisions of the Supreme Court in these cases all take us back – back to before 1937 when the Supreme Court recognized the right of the individual to act nonviolently in concert with disfavored organizations, before 1925 when Holmes and Brandeis introduced realist analysis into First Amendment law, and before 1907 when this country agreed to prohibit corporations from contributing money to political candidates. The Supreme Court seeks to return to the “good old days” when political activism (no matter how peaceful) could be prosecuted, longstanding traditions (no matter how unjust) were honored, and large corporations (no matter how much they may drown out the voices of ordinary citizens) were permitted to dominate the political process and purchase influence with public officials.

The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers. Dir. and prod. by Judith Ehrlich and Rick Goldsmith. Kovno Communications, 2009. 94 mins. (http://www.mostdangerousman.org)

The period between mid-June and mid-July 1971 constituted a perfect storm of consequential events. On June 13, the New York Times brought to light a top secret Department of Defense study of the origins of a war that was still raging in Vietnam and that was ripping apart American society. The leak of the Pentagon Papers led to the 1971 case New York Times Co. v. United States, which an American Civil Liberties Union attorney who is interviewed in this documentary calls the most important First Amendment case in the nation's history. That is an exaggeration, but the 6-3 decision to lift injunctions against the New York Times and the Washington Post was surely the most significant Supreme Court opinion ever to define the scope of freedom of the press. Thus stymied by the judicial branch of government, the executive branch quickly proceeded to give dirty politics a bad name,...

Fourth Amendment Past, Present, & Future, & Striking a Balance between the Needs of Society, the Needs of Law Enforcement, & the Rights of Everyday People

This 77-page CLE (continuing legal education) brochure is titled “Fourth Amendment Past, Present, & Future, & Striking a Balance Between the Needs of Society, the Needs of Law Enforcement, & the Rights of Everyday People.” It accompanied two 90-minute lectures (presented in 2009 and again in 2010) to an audience of “top cops” at the historic Center for the Constitution at James Madison’s Montpelier. Topics include (1) search and seizure law prior to the Constitution, (2) the Constitutional Convention of 1787, (3) the Bill of Rights of 1791 and the Fourth Amendment, (4) Supreme Court Fourth Amendment jurisprudence prior to the Warren Court, (5) Supreme Court Fourth Amendment jurisprudence under the Warren Court, (6) Supreme Court Fourth Amendment jurisprudence under the Burger-Rehnquist-Roberts Courts, (7) significant limitation on the exclusionary rule under the Burger-Rehnquist-Roberts Courts, (8) civil litigation against police, (9) police departmental management of police personnel, and (10) recent Supreme Court Fourth Amendment cases.

Kate Chase, the "Sphere of Women's Work," and Her Influence upon Her Father's Dissent in Bradwell v. Illinois

Kate Chase, the "Sphere of Women's Work," and Her Influence upon Her Father's Dissent in Bradwell v. Illinois Richard L. Aynes (bio) I have always favored the enlargement of the sphere of women's work and the payment of just compensation for it. Salmon P. Chase, 1872 Kate Chase was said to be the most beautiful and the most intelligent woman of her age. Her father, Salmon P. Chase, is remembered today as Lincoln's secretary of the treasury and as a chief judge of the U. S. Supreme Court. In his own time, Chase was considered one of the nation's political giants; Abraham Lincoln described him as "one and a half times bigger than any other man" he had ever known.1 Carl Schurz's summary still echoes today: "More than anyone else he looked the great man. Tall, broad-shouldered, and proudly erect, … he was a picture of intelligence, strength, courage and dignity. He looked as you would wish a statesman to look."2 Throughout his political career, Chase sought ways to better the position of African Americans. A man of deep convictions, he publicly and consistently advocated voting rights for African Americans as early as 1845. While his political affiliations often shifted, to the end of his life he was consistent in his advocacy of universal male suffrage for African Americans. While his [End Page 31] lieutenants were negotiating for his election by the legislature to the U.S. Senate, Chase insisted that part of the "deal" would be the repeal of Ohio's Black Laws, which discriminated against African Americans.3 Chase devoted much of his legal talent to creating a nationwide legal strategy by which slavery would be divorced from the national government and be solely dependent upon local government. His policy was summed up in his antislavery slogan: "Freedom National, Slavery Local." As Harold Hyman noted, "for a tumultuous one-third of a century [Chase] was the antislavery crusaders' premier legal strategist."4 In spite of Chase's egalitarian sentiments on race that our stereotypes suggest would be a hindrance to his political career, he was twice elected governor of the State of Ohio, twice elected to the U.S. Senate, and served as secretary of the treasury under President Lincoln. As Les Benedict has observed, Chase was a serious and important contender for the nomination of president of the United States in every election from 1856 through 1872.5 As chief justice of the United States, Chase is chiefly remembered for his nationalistic opinion in Texas v. White and his dissent in the Legal Tender Cases.6 His judicial reputation no doubt suffered from Felix Frankfurter's conclusion that his commerce clause opinions were of no value to the modern era and the negative assessment of Chase's chief justiceship by Frankfurter student and protégé Charles Fairman.7 Modern biographers have offered a significantly more balanced assessment of Chase. [End Page 32] Chase participated in some of the most important constitutional cases of his times, including authoring majority opinions in seven of the court's major Reconstruction cases. This article explores the influence that Kate Chase may have had on her father's dissent without opinion in the Fourteenth Amendment case of Bradwell v. Illinois. Context: The Slaughter-House Cases Chief Justice Chase came to the Supreme Court in 1864 without any judicial experience. Lincoln's selection of him for chief justice has puzzled many. After all, Chase had been Lincoln's political rival in 1860 and in 1864. Because of his political ambition, Chase had been a politically faithless member of the cabinet as secretary of the treasury. Further, Lincoln was not without choices. Two of his own appointees, Justice Samuel Miller and Justice Noah Swayne, were aspirants for the chief justiceship. But Lincoln was concerned with results, not politics. In spite of Chase's lack of judicial experience, his view on a variety of issues concerning slavery, nationalism, states' rights, and use of the president's war powers were already a matter of public record. Lincoln's reflection on how to pick a chief justice led to his well-known conclusion: "We cannot ask a man what...

<I>Heller</I>, High Water(mark)? Lower Courts and the New Right to Keep and Bear Arms

This paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms ownership, a change in legal philosophy that may be as significant as any doctrinal shifts.

DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing

The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing. Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors. Part I belongs to Main Justice. (see Note below) It was during the early days of George W. Bush's administration that the Department of Justice began its all-out assault on the federal judiciary's sentencing powers as part of a campaign to consolidate central authority and to require the harshest possible sentences for all federal convictions. DOJ's campaign was played out in numerous arenas at the same time: (1) in Congress, where DOJ urged the adoption of laws addressing the problem of leniency of district court judges; (2) before the U.S. Sentencing Commission (Commission), which DOJ chided for not doing enough about the leniency problem; and (3) even among its own field offices by attempting to virtually eliminate the traditional charging discretion exercised by prosecutors and instead mandating that all federal prosecutors bring the most serious charges provable. Eventually, as the straw that broke the Court's back, the Department succeeded in prompting Congress to enact the Feeney Amendment, a piece of legislation that was viewed as a frontal assault on the discretion of federal judges in sentencing. Though the show is far from over, the Supreme Court regained the upper hand over both DOJ and Congress, as we explain in Part II, by trumping Congress's legislation (and DOJ's political agenda) on constitutional grounds. In United States v. Booker the Court upheld the overall constitutionality of the federal sentencing system but only on the condition that the Guidelines be applied in a purely advisory manner, subject to extremely weak appellate review for reasonableness. The Supreme Court gave the power over sentencing that Congress had transferred to DOJ back to judges. The Court reaffirmed that position in a series of additional Sixth Amendment cases decided in the October 2007 and 2008 Terms: Gall v. United States, Kimbrough v. United States, (both heard in the October 2007 Term) and Spears v. United States, (heard in the October 2008 Term) firmed federal district judge discretion through rigid limits on appellate reversals. The Court appeared far less concerned with the effects of its opinions on state criminal justice systems. This was sensible, as most states don't have mandatory sentencing guideline systems or presumptive sentencing systems, those states that do build more judicial flexibility in their systems, and state legislators are not at war with their judiciary, the Court's new constitutional rulings in fact had significantly less effect on state than on federal sentencing. This is not to say, as we note in Part III, that the Court entirely ignored the states; two recalcitrant states were pointedly reminded of the Blakely/Booker rule, and the Court in its most recent sentencing decision, Oregon v. Ice, (heard in the October 2008 Term) granted state trial judges even more discretion through the practice of imposing concurrent or consecutive sentences for multiple offenses. As a result of the last few terms, many of the recent victories that the Department enjoyed in the political arena it lost in the courts. Under the administration of Attorney General Alberto R. Gonzales, the Department continued its push for more stringent punishments, but changes in circumstances required a new approach. Congress considered and rejected new legislation that might constitutionally replicate DOJ's earlier coup. When DOJs Republican allies in Congress lost their majority position after the 2006 elections, the push for harsher punishments slowed considerably. We expect Attorney General Eric Holder to back away from harsh sentencing laws and tight control over Assistant United States Attorneys (AUSA) in the field. We now see federal district judges sentence below the range provided in the federal sentencing guidelines with building frequently, yet not ignore the guidelines. Though states judges never suffered in the same manner, we expect state legislators to react to the new constitutional requirement by increasing state judicial discretion in sentencing through advisory rather than mandatory guidelines, and expanding judicial authority to stack sentences. Note: This is the not always respectful designation of the Attorney General, other political appointees, and trial attorneys working on Pennsylvania Ave. and other downtown D.C. locations, as distinguished from the 94 U.S. Attorney's Offices located throughout the United States.

Nobody's Fools: The Rational Audience as First Amendment Ideal

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the marketplace of ideas metaphor, which has long been a target of criticism amongst First Amendment scholars. Now, however, cognitive psychology and behavioral economics provide empirical evidence that the assumptions of the rational audience model are demonstrably false in some commonplace settings. This Article nonetheless contends that behavioral economics has not yet made the case for jettisoning the rational audience model in the realm of core speech. As the Supreme Court has recognized, a legal test that looks at the actual effects of speech would be cumbersome and expensive to apply, and would therefore chill speech. But there are even more compelling reasons to adhere to a test focused on the reasonable interpretation of core speech. Because speech and expression are closely linked to individual autonomy, government constriction of core speech-particularly political speech-undermines the foundation of a self-governing democracy. Moreover, the rational audience model prevents public discourse from being reduced to the level of the least educated or least sophisticated audience member. The model calls on citizens to raise their cognitive capacities to meet the demands of public discourse, and it serves as a check on the government's increasingly powerful ability to drown out other speakers in that discourse. This Article concludes that the rational audience model represents a flawed but worthy ideal.

Just What Are Your First Amendment Rights?

Patricia T. Bergeson, JD Rosalind Franklin University of Medicine and Science Telephone: (847) 578-8494 Email: [email protected]

Originalism for Dummies, Pragmatic Unoriginalism, and Passive Liberty: An Originalist Critique of the Heller Dissents and Judges Posner's and Wilkinson's Unoriginalist Assault on the Liberty to Keep and Bear Arms

In a 5-4 opinion written by Justice Antonin Scalia, District of Columbia v. Heller was a landmark case that recognized the individual right to keep and bear arms under the Second Amendment. This case generated vast waves of controversy. In addition to vigorous dissents from Justices Stevens and Breyer, Judges J. Harvie Wilkinson III and Posner also wrote stinging rebukes of this case. The purpose of this article is not to dissect Heller, or anticipate how future Second Amendment cases will be resolved after Heller. Rather my aim is to explore the jurisprudential archetypes exemplified in the Heller dissents, as well as in the articles from Judges Posner and Wilkinson, and analyze how these philosophies fail to protect our liberty. The article proceeds as follows. In Part I, I provide a brief sketch of the majority and dissenting opinions in District of Columbia v. Heller, as well as the articles from Judges Posner and Wilkinson. Next I explain the relevance of focusing on common history when deciding Constitutional cases, and introduce the jurisprudence of originalism. In Part II, I focus on Justice Stevens's dissent in Heller. Justice Stevens fails to consider the history behind the Second Amendment, including centuries of common history from the Magna Carta, through the English Bill of Rights, until the Revolutionary War. Further, Justice Stevens fails to recognize the recent outpouring in original scholarship on the history of the Second Amendment. Rather than ascertaining the original public meaning, he focuses almost exclusively on the drafting history, and improperly attempts to guess the intentions of our framers. Relying on what I have termed the Seven Dirty Words of Intentionalism leads his analysis astray. His opinion is guilty of what I have dubbed, tongue-in-check, Originalism for Dummies.In Part III, I trace the history of our fundamental liberty to keep and bear arms from the dawn of our Republic, through the Antebellum South. The right to keep and bear arms was a vital protection for freedmen in the face of the Klan and the Jim Crow South, and was an essential element of debates surrounding the ratification of the Fourteenth Amendment. The individual rights interpretation of the Second Amendment persisted until the mid-twentieth century. This break in history created the line of precedents that led up to Heller.In Part IV, I discuss Justice Breyer's dissent. Applying his own active liberty framework, I will show that Justice Breyer should be eager to protect the right to keep and bear arms and the second amendment, much like he does many other ancient liberties. Yet, based on his unbalanced and skewed balancing test, he unsurprisingly does not deem the liberty to keep and bear arms worthwhile for judicial enforcement. I explore this inherent contradiction to reveal that in many cases, active liberty is a codeword for mere opportunism. In Part V, I analyze Judge Posner's pragmatically unoriginalist critique of Heller. Judge Posner fails to properly grasp the original public meaning branch of originalism. Rather, he seeks to redefine originalism based on his own loose construction version of pragmatism. Further, Judge Posner argues that the Second Amendment should mean one thing in an urban area, and a different thing in a rural area. Such an arbitrary definition of liberty does not comport with the nature of our Constitution. Finally, Judge Posner disregards originalism as a jurisprudence because judges are not historians, and can only engage in law office history. However, this discounts the impact that professional historians have on originalist analyses. In addition, in many other contexts judges are forced to reply on experts (intellectual property, securities cases, etc.). Originalism should be no different.In Part VI, I focus on Judge Wilkinson's more nuanced critique of Heller. I take on his argument that the political process should be responsible for protecting the right to keep arms, and show how this view does not comport with modern Constitutional jurisprudence, and Footnote Four of Carolene Products in particular. Further, I disagree with Judge Wilkinson about the Second Amendment being an ambiguous right, and argue that it deserves the same protections as other liberties in the Bill of Rights. I conclude with a brief discussion of liberty and the right to arms.

The Timing of Facial Challenges

There appears to be considerable confusion among the bar and on the bench as to when a plaintiff may or may not file a lawsuit challenging the facial constitutionality of a law. Many practitioners and judges have come to the erroneous conclusion that facial challenges to the validity of laws must be filed within a certain time frame after the challenged law is enacted, or risk being barred by the statute of limitations. This error - which springs largely from a confusion with regulatory takings law - has not only led courts to dismiss valid facial arguments as timely, but has also led them to take the mistaken position that statutes of limitations do not apply at all to First Amendment cases, or to misconstrue past cases in which laws were found facially invalid as being as-applied challenges. Worst of all, many practitioners are under the misimpression that a facial challenge is time barred one or two years after the challenged statute is enacted. This is not correct.This article attempts to separate out the different conceptual categories whose overlap has led to such mistakes. In brief, the facial/as-applied distinction has nothing to do with the accrual or the ripeness of a cause of action. Because the accrual date of facial and as-applied challenges are identical (with some specific exceptions), mere enactment is rarely if ever the moment when a facial challenge accrues. The distinction between facial and as-applied challenges is a way of characterizing the merits of a constitutional challenge, but it has no relation to jurisdictional questions such as accrual, ripeness, or statutes of limitations. A plaintiff may challenge a law's validity at any time with the limitations period after that law has injured her, whether she chooses to argue that the law is facially unconstitutional or only unconstitutional as applied in her case.

Free Speech for All

Aryeh Neier recalls a controversial First Amendment case – still a landmark in the history of free expression after more than 30 years

Much Ado About...Something Else: D.C. v. Heller, the Racialized Mythology of the Second Amendment, and Gun Policy Reform

D.C. v. Heller, currently pending before the Supreme Court, is already being hailed as the most important Second Amendment case in history. It is my contention, however, that Heller's resolution of the existing circuit split will almost certainly have little practical effect nationwide on gun policy. The reason is simple: The persistent and always tense debate over gun rights has thinly veiled underlying racial and socio-political struggles that are as old as the Union itself. In this article, I argue that the greatest legacy of Heller will lie not in its interpretation of the constitutional right to bear arms, but rather its potential to generate a reformed conversation about gun policy and its racial implications. Conflicts over gun policy and over the meaning of the Second Amendment betray a deeper clash over intensely held competing cultural values, in which the cultural mythology of the frontiersman, often white and male, is pitted against the racial and class subaltern, African Americans in particular. While some scholars have identified this submerged battle over cultural values at the heart of Second Amendment interpretation and have suggested that successful reform to gun policy depends on unmasking and addressing the sources of those values, none has adequately considered the key, racialized underpinnings of Second Amendment rhetoric. Resolution of the great American gun debate depends neither on the latest disquisition from the Court on the Amendment's scope nor on facile attempts to assuage competing cultural adherents, as recommended by these scholars. Heller's most critical legacy, particularly in an election year, will lie in its ability to ignite discourse that inspires policy reform to dismantle racially laden cultural assumptions that nurture Second Amendment mythology. In this spirit of inspired discourse, therefore, the article concludes with suggestions for reform.

The US anti-prostitution pledge: First Amendment challenges and public health priorities.

In January 2003, United States President George W. Bush announced the President's Emergency Plan for AIDS Relief (PEPFAR), the appropriation of $15 billion dollars for programs to combat the global HIV/AIDS epidemic, in his State of the Union address. Congress responded with the legislative authorization for the plan, the United States Leadership Against Global HIV/AIDS, Tuberculosis, and Malaria Act of 2003, and assigned seven primary implementing agencies, including the United States Agency for International Development (USAID) and the United States Department of Health and Human Services (HHS) [1]. Although the Act will expire in fiscal year 2008, the President has called on Congress once again to extend the plan for another five years and double the funding to $30 billion [2]. Within the detailed plan, Congress expressed concern about the social, cultural, and behavioral causes of HIV, specifically naming prostitution and sex trafficking as among the behavioral forces behind the spread of the virus. This legislation advanced a new policy goal for the US: the global eradication of prostitution [1]. Requirements for grantees were based on this explicit link between HIV prevention and the eradication of prostitution. In order to receive AIDS funds from the US, all grantees must have (1) a policy explicitly opposing prostitution and sex trafficking and (2) certification of compliance with the “Prohibition on the Promotion and Advocacy of the Legalization or Practice of Prostitution or Sex Trafficking,” which applies to all organization activities, including those with funding from private grants [1,3]. “The Prostitution Pledge,” as this requirement is often called, has evoked strong and mixed reactions. It has led some grantees, most prominently the government of Brazil, to reject US AIDS dollars altogether [4]. But it is the breadth of the requirement and its application to privately funded activities that has led to legal challenge of its constitutionality. One ongoing lawsuit involves the Alliance for Open Society International (AOSI), the Open Society Institute, and Pathfinder International versus USAID, HHS, and the Centers for Disease Control and Prevention's Global AIDS Program. AOSI and the Open Society Institute filed a complaint against the US government on September 23, 2005 and moved for a preliminary injunction arguing that the pledge policy requirement cannot restrict activities supported by private funds [5]. Both cases were preceded by a similar case from DKT International, a nonprofit organization that provides family planning and HIV/AIDS prevention programs internationally [6]. The Brennan Center for Justice at NYU School of Law, the legal counsel representing AOSI, asked our Center for Public Health and Human Rights at Johns Hopkins to review the existing scientific evidence on strategies that effectively reduce rates of HIV among sex workers and to present our findings in a Declaration for the court (the full text of the Declaration is available at [7]). In this article, we present a brief summary of our findings and the main arguments used in AOSI's First Amendment case, followed by a discussion of how these data have created an ethical dilemma in policy decisions. Our methods are shown in Box 1. Box 1. Methods Our methods included a literature search using the electronic database PubMed, and a search for published, freely available reports on Web sites of HIV prevention organizations. All studies found on PubMed and used in the Declaration were published in peerreviewed journals. The following subject heading terms were used: “HIV/AIDS,” “HIV prevention,” “sexually transmitted diseases prevention,” “sex workers (male, female, and not gender speci. c),” “sex work,” “prostitutes,” “prostitution,” and “effective HIV strategies.” Bibliographies of articles were also reviewed, and only one unique report from the Joint United Nations Programme on HIV/AIDS was retrieved by this method. Next, we reviewed published “Best Practices” reports from key global health organizations including the World Health Organization, the Joint United Nations Programme on HIV/AIDS, and the World Bank's HIV programs. In all the reports used, evidence-based studies shaped the guidelines and suggestions for future projects. Lastly, we used a case studies approach to investigate HIV prevention policies and practices in those developing countries where there was evidence of control of HIV spread and relatively low and stable HIV prevalence among sex workers at national levels.

How far does the gender gap extend?: Decision making on state Supreme Courts in Fourth Amendment Cases, 1980–2000

The importance of women on the bench and the influence of gender on judicial decision making has garnered much scholarly attention. We examine the voting behavior of male and female justices in 718 Fourth Amendment search and seizure votes cast on state Supreme Courts between 1980 and 2000. We find that women justices, controlling for institutional, political, and legal constraints, are more likely to rule in favor of the criminal defendant than their male brethren in cases decided after 1991 but not before. We also find women justices serving with female colleagues are more inclined to render liberal votes. We conclude the influence of gender may be evident in a wider variety of cases than those dealing with women's lives but that this influence is dependent upon the existence of a critical mass of women on the state court benches.

Supremacy of EC Law in the New Member States Bringing parliaments into the Equation of ‘Co-operative Constitutionalism’

Minimal constitutional amendment at accession forced constitutional courts in new member states to make great efforts to avoid conflicts with EC and EU law – The importance of expanding the equation of ‘co-operative constitutionalism’ beyond judicial actors, by involving political institutions – The case of constitutional amendment in Estonia and Latvia – The concern over fundamental rights protection versus EC market regulation in Hungary, Estonia and the Czech Republic – Co-operative constitutionalism beyond judicial dialogues.