Scott's Jurisprudence

Thursday, December 19, 2002

CONSTITUTIONAL LAW

ACLU v Ashcroft.

Congress has twice tried to ban pornographic material on the Internet. The first attempt, the Communications Decency Act, was struck down by the Supreme Court. Congress’ second effort, The Child Online Protection Act (COPA) has been the subject of extensive litigation, most recently a decision by the Third Circuit Court of Appeals that is linked below.

The COPA litigation has been complex. A district court issued an injunction prohibiting enforcement of the Act and the Third Circuit affirmed that decision. The Supreme Court reversed and sent the case back to the Third Circuit for reconsideration on several issues. The opinion linked below is the Third Circuit’s opinion on reconsideration, which affirms its original view although on slightly different grounds.

The case is interesting because it deals with Constitutional issues that have not been extensively litigated in recent years, the doctrines of “void for vagueness” and “overbreadth.”


The Last Legal Battle to Save Julius & Ethel Rosenberg.

I had the privilege of studying Constitutional Law with Arthur Kinoy who was William Kuntzler's partner for many years and a leading civil rights lawyer on the Left. Arthur is a great intellect and a great lawyer, whether you agree with him or not. He may or may not be (or have been) a Communist. He certainly was a sympathizer. Nevertheless, he was an important figure in many important civil rights cases that shaped our current society.

But, while he was a great appellate lawyer and constitutional scholar, he was not a trial lawyer. Certainly, he was not up to handling death penalty appeals, particularly when he was only six years out of law school. Attached are two portions of an oral history taken from him in which he relates his last minute efforts on behalf of the Rosenbergs. Even though Julius was certainly guilty and even if you believe in the death penalty, if Arthur was right on the law, he should have gotten the stay of execution he sought from the Second Circuit.

Judge Frank's statements would have been seen by more experienced lawyers as a challenge, "I can't just do this. Show me why I must. Give me some cover." Arthur and his colleagues apparently didn't have the experience to understand that. And, the Rosenbergs paid the price for that inexperience.

Arthur Kinoy Oral History Excerpts.pdf


The Total Information Awareness Program

On December 18, David cole, Professor of Law at Georgetown, legal affairs correspondent for The Nation, author of Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security and an attorney with the Center for Constitutional Rights commented on the Pentagon's proposed Total Information Awareness Program on NPR.

While I tend to agree that we need to think about this issue carefully, I'm not sure that it is as clear as Cole thinks it is, as is reflected in my comments to him linked below. I do agree with him that the way to kill a proposal like this is to call it The Total Information Awareness Program, put it in the Pentagon, and put a controversial figure like John Poindexter in charge.

Cole corr.pdf
112002 Cole.pdf
posted by Michael 7:42 AM

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