The Supreme Court decided Citizens United two years ago this week. The complaints about the ruling that have emerged since are often bizarre and misrepresent much of the landmark ruling’s import. Here’s what the case was about.

Almost nowhere in the complaints about the Citizens United ruling will you hear that the case decided that certain books or Pay-per-View broadcasts could no longer be banned by the Federal Election Commission.

Former FEC commissioner Bradley A. Smith further detailed the breathtaking arguments made by the government during the initial oral argument.

(And here’s more from attorney James Bopp, Jr. on the ultimate ruling.)

Since Citizens United, complaints from Common Cause and occupiers of various parks across the United States tend to focus on corporate personhood, the scourge of SuperPACs and at least one group’s troubling idea to amend the Constitution so that—once and for all—”campaign spending is not a form of speech protected under the First Amendment.”

Citizens United at Two is a post from Cato @ Liberty - Cato Institute Blog

This blogpost was coauthored by Cato legal associate Chaim Gordon.

Thanks to the Institute for Justice, those suffering from leukemia and various other ailments that require them to wait for a bone marrow match to miraculously appear have new hope. Yesterday’s unanimous opinion by the Ninth Circuit in Flynn v. Holder effectively deregulates the bone-marrow market—and may even encourage lawmakers to rethink the disastrous federal prohibition on compensating organ donors.  (I previously wrote about the case here and here, and you can watch Cato’s forum on it here.)

At issue here is the National Organ Transplant Act, which prohibits patients from compensating would-be donors of life sustaining organs. The Ninth Circuit ruled that NOTA does not apply to blood (or blood subparts), and so it is entirely legal to sell bone marrow stem cells if those cells are extracted from the blood—as they are in 70% of donations—instead of from the bone marrow itself.

Unfortunately, the Ninth Circuit rejected IJ’s argument that Congress has no legitimate authority to interfere with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment. In rejecting this argument, the court effectively held that NOTA’s ban on the sale of actual bone marrow was constitutional because an unregulated market posed certain dangers (especially of the exploitation of desperate patients).

It is highly unlikely that such exploitation could occur under current market conditions, however, because donors and patients have no way of contacting each other without the National Registry system that matches them. And, of course, the choice is not between a prohibition on compensation and complete non-regulation; some regulation may be appropriate, whether by legislation or simple action of the common law akin to how it operates to prevent extortion in other contexts.

The good news is that, with the bone marrow market effectively deregulated, Congress may now be motivated to reexamine its misguided ban on compensating organ donors. One of the greatest obstacles to reforming the prohibition on organ sales is the fortunate fact that relatively few Americans require organ transplants in any given election cycle. According to government statistics, 112,546 Americans are currently on some kind of organ transplant waiting list. That means only around 1 in 3,000 Americans (and their families and friends) would be seriously motivated to demand organ transplant reform from Congress. Congress will now be forced to grapple with its policies regarding bone marrow transplants, which may be an opportune time for advocates to push for wider organ transplant reform.

The Ninth Circuit’s opinion also clears the way for Supreme Court review of NOTA. If this case reaches the high court, IJ can press its constitutional arguments more forcefully. And even if the Supreme Court merely affirms the Ninth Circuit’s opinion on statutory grounds, we will inevitably learn much about the justices’ views on the constitutionality of NOTA more broadly.

For the moment, Flynn v. Holder means that, for the first time in over 25 years, a spotlight has been shined on NOTA and its disastrous effects on Americans’ medical liberty. And that is why the Ninth Circuit’s narrow bone marrow opinion may actually be a significant step toward the rational regulation of organ markets.

For more of Cato’s work in this area, see, for example, this paper and this op-ed.

Ninth Circuit Gets It Right, Deregulates the Bone Marrow Market is a post from Cato @ Liberty - Cato Institute Blog

Last week, a federal court in Louisiana ruled that a state law prohibiting sales of caskets by non-licensed merchants was unconstitutional.  A monastery that has made caskets for over a century sued the state to protect their modest casket business. It should come as no surprise that our friends at the Institute for Justice were leading the charge against the law:

Under Louisiana law, it was a crime for anyone but a government-licensed funeral director to sell “funeral merchandise,” which includes caskets.  To sell caskets legally, the monks would have had to abandon their calling for one full year to apprentice at a licensed funeral home and convert their monastery into a “funeral establishment” by, among other things, installing equipment for embalming.

The Honorable Stanwood Duval of U.S. District Court for the Eastern District of Louisiana ruled, “Simply put, there is nothing in the licensing procedures that bestows any benefit to the public in the context of the retail sale of caskets.  The license has no bearing on the manufacturing and sale of coffins.  It appears that the sole reason for these laws is the economic protection of the funeral industry which reason the Court has previously found not to be a valid government interest standing alone to provide a constitutionally valid reason for these provisions.”

Thus, even though merely economic liberty was at issue and therefore courts need apply only “rational basis” scrutiny to the regulation at issue, this regulation fails for being completely beyond any conceivable rational basis. And indeed, like so many regulations, this one was nothing more nor less than a barrier to entry for small businesses. Established funeral directors had used the power of the government to illegally control the market, eliminating competition and artificially driving up the prices of caskets. Not only was the funeral-director cartel denying the monks their right t earn an honest living, but they were taking advantage of the people they serve (ultimately, everyone in Louisiana) by extracting ill-gotten profit — often at the time of their customers’ greatest sorrow.

You can read the full opinion here and watch a video that tells the monastery’s story below. Congratulations to the monks of St. Joseph Abbey and the great attorneys at IJ!

Monks Successfully Defend Their Right to Earn an Honest Living is a post from Cato @ Liberty - Cato Institute Blog

Good news from Texas, where a state appeals court has handed a major win to investigative journalist Carla Main, whose book Bulldozed: ‘Kelo,’ Eminent Domain, and the American Lust for Land took a critical look at the seizure of private land under eminent domain laws for purposes of urban redevelopment. Dallas developer H. Walker Royall didn’t like what Main wrote about his involvement in a Freeport, Texas marina project and proceeded to sue her, publisher Encounter Books (which I should note is also my own publisher on Schools for Misrule), and even liberty-minded law professor Richard Epstein over a dust jacket blurb Epstein had given for the book. (Earlier coverage of the suit here and here.)

A trial court had declined to dismiss Royall’s claims on summary judgment, but yesterday Judge Elizabeth Lang-Miers reversed in substantial part, ruling that Royall had failed to make the requisite showing that key passages in Bulldozed had in fact defamed him. The case is not yet over, but Institute for Justice senior attorney Dana Berliner, who argued for the defense, is understandably jubilant: “Walker Royall has failed in his attempt to use this frivolous defamation lawsuit as a weapon to silence his critics,” she said. Moreover, outrage at Royall’s suit contributed to Texas’s enactment this summer (joining 26 other states) of strong “anti-SLAPP” legislation aimed at curbing lawsuits intimidating speech. You can read the opinion here, and early coverage at Gideon Kanner’s blog, the Dallas Observer and D Magazine.

Texas Court Rules For Eminent-Domain Critic is a post from Cato @ Liberty - Cato Institute Blog

Steve Simpson and Paul Sherman of the Institute for Justice have written an excellent short essay about Stephen Colbert’s effort to undermine the Citizens United decision. But the joke is on Colbert:

Campaign-finance laws are so complicated that few can navigate them successfully and speak during elections—which is what the First Amendment is supposed to protect. As the Supreme Court noted in Citizens United, federal laws have created “71 distinct entities” that “are subject to different rules for 33 different types of political speech.” The FEC has adopted 568 pages of regulations and thousands of pages of explanations and opinions on what the laws mean. “Legalese” doesn’t begin to describe this mess.

So what is someone who wants to speak during elections to do? If you’re Stephen Colbert, the answer is to instruct high-priced attorneys to plead your case with the FEC: Last Friday, he filed a formal request with the FEC for a “media exemption” that would allow him to publicize his Super PAC on air without creating legal headaches for Viacom.

How’s that for a punch line? Rich and successful television personality needs powerful corporate lawyers to convince the FEC to allow him to continue making fun of the Supreme Court. Hilarious.

Of course, there’s nothing new about the argument Mr. Colbert’s lawyers are making to the FEC. Media companies’ exemption from campaign-finance laws has existed for decades. That was part of the Supreme Court’s point in Citizens United: Media corporations are allowed to spend lots of money on campaign speech, so why not other corporations?

Because some animals are more equal than other animals, I suppose.

What Did Orwell Say? is a post from Cato @ Liberty - Cato Institute Blog

Civil asset forfeiture strikes at the heart of property rights. Authorities simply seize private property without all the messiness of convicting someone of a crime. It’s blatantly unconstitutional and it shouldn’t happen, but it does. What’s worse, many state governments offer little to no information to the public about what they’re doing with those ill-gotten gains.

A new report and video from the Institute for Justice illustrates the case of Georgia quite well. The video was produced by IJ’s multitalented Isaac Reese.

IJ’s Scott Bullock participated in a lively discussion of their “Policing for Profit” (PDF) report last April here at Cato.

Civil Forfeiture vs. Truth and Justice is a post from Cato @ Liberty - Cato Institute Blog

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background:  In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.  Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional.  For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito:  Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US:  Sort of.

Alito:  Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech.  Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however — ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment.  (That said, you should still follow me on Twitter — and also be sure to follow our friends @IJ and @GoldwaterInst!)

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech is a post from Cato @ Liberty - Cato Institute Blog

This is a big week for private property rights.  Two epic eminent domain struggles are playing out on opposite sides of the country. 

First, National City, California, is ground zero for eminent domain abuse.  City officials declared several hundred properties blighted even before conducting a blight study that was riddled with problems. The city wants to seize and bulldoze a youth community center (CYAC) that has transformed the lives of hundreds of low-income kids, so a wealthy developer can build high-rise luxury condos:

CYAC has numerous volunteers, including local law enforcement officers, providing free mentoring in boxing as well as academics.  The gym is famous for getting kids off the street and back into school.  As Rick Reilly explained in a feature in Sports Illustrated (boy, how I miss his inside-back-page column):

You know what, Mayor? National City doesn’t need more luxury condos. It needs good men like the Barragans teaching kids respect for neighbors and property, manners you could use a little of yourself.

And if you kick the Barragans out so some slick in Armani can buy a bigger yacht, I hope your car stereo gets jacked—weekly—by a kid who would’ve otherwise been lovingly coached on their jabs and their math and their lives.

Question: Can you declare politicians blighted?

This week, the gym’s battle is in trial before the Superior Court of California.  Represented by the Institute for Justice (who else?), a victory will help protect private property far beyond National City and clarify the use and misuse of blight designations.

Second, moving to the other side of the country, we go to Mount Holly, New Jersey:

Mount Holly is another classic case of “Robin Hood-in-Reverse.”  Officials have been dismantling a close-knit community known as the Gardens for the last decade so a Philadelphia developer can bulldoze the area and build more expensive residential properties.

Homeowners in the Gardens are primarily minorities and the elderly.  The row-style houses are being torn down while still attached to occupied homes, and officials refuse to offer the remaining homeowners replacement housing in the new redevelopment.  Further, owners are being offered less than half the amount it would cost to buy a similar home blocks away.

Here, IJ just launched a billboard campaign and did a study that concludes the eminent domain abuse project may result in a loss of a million taxpayer dollars a year, or one-tenth of the Township’s budget.

I previously wrote about eminent domain shenanigans here and you can read more from Cato on property rights here.

March Madness: Eminent Domain Abuse Goes Coast-to-Coast is a post from Cato @ Liberty - Cato Institute Blog

The American criminal justice system has long been flawed. This probably isn’t news to you. What is news is the emergence of a broad chorus of organizations and leaders from across the political spectrum speaking out in support of serious reform. A few examples:

The Smart on Crime Coalition released its recommendations (and in pdf) for the 112th Congress, providing ways that the federal government can help fix the criminal justice system. Congress creates, on average, a new criminal offense every week. The urge to overcriminalize just about everything needs to be replaced with serious thought about how broadly Congress writes laws so that the drive to lock up a few bad actors does not make felons of a large portion of the citizenry.

The Smart on Crime report also points out the need for reform of asset forfeiture laws, building on the excellent Policing for Profit report produced by the Institute for Justice last year.

Conservatives see the need for reform as well. Right on Crime makes the case for a number of policy changes that not only focus law enforcement resources but aim to save taxpayer dollars.

Grover Norquist of Americans for Tax Reform, a signatory to Right on Crime’s Statement of Principles, points to recent reforms in Texas at National Review:

When the Lone Star State’s incarceration rates were cut by 8 percent, the crime rate actually dropped by 6 percent. Texas did not simply release the prisoners, however. Instead, it placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities. Moreover, it linked the funding of the supervision programs to their ability to reduce the number of probationers who returned to prison. These strategies saved Texas $2 billion on prison construction. Does this mean Texas has gotten “soft on crime”? Certainly not. The Texas crime rate has actually dropped to its lowest level since 1973.

The lesson from Texas is that conservatives can push reforms that both keep Americans safe and save money, but only if we return to conservative principles of local control, performance-based funding, and free-market innovation.

As Radley Balko recently wrote at Reason, there are points where libertarians and conservatives will differ, but there is cause for optimism in the recognition that we can’t continue to lock up so many of our citizens. The United States accounts for 5% of the world’s population, yet 23% of the world’s reported prisoners. Hopefully Jim Webb’s National Criminal Justice Commission Act will end his Senate career on a positive note, and prompt serious changes to the way that the states and federal government deal with crime.

To gain an appreciation of the scope of the problem, check out Tim Lynch’s In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” and Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent.

The Growing Chorus for Criminal Justice Reform is a post from Cato @ Liberty - Cato Institute Blog

I am pleased to pass on word from our friends at the Institute for Justice that they have established a new Center for Judicial Engagement.  The center is dedicated to reinvigorating the judicial branch to stand up and perform its constitutional role instead of showing the deference so many courts now give to the political branches of state and federal government.

As much lip service that has been paid to the bogeyman of “judicial activism,” the reality is that the courts have been all-too-reluctant to sacrifice constitutional questions to acquiesce to the supposed wisdom of political actors.  Veteran IJ lawyer and friend of Cato Clark Neily will be heading the center, and had this to say about its mission:

We need judges to judge.  What we see too often now is judges who ignore evidence, invent facts, and accept implausible explanations for government regulations.  That amounts to judicial abdication.  Judges should engage the facts of every case, including constitutional cases, and require the government to justify its actions with real reasons backed by real evidence.

As outlined by IJ in a press release, the basic principles of judicial engagement include:

1.  The Constitution limits both the means and ends of government action.

The Framers wrote the Constitution to constrain government power.  The Constitution explicitly defines a limited set of powers belonging to the federal government; government actions outside the scope of those powers are illegitimate and unconstitutional.  The Constitution also demands that even legitimate powers of government be exercised fairly and without discrimination.

2.  The Constitution guarantees a broad array of individual rights.

While the powers granted to government by the Constitution are few and limited, the rights guaranteed to individuals are many and broad.  Some of those rights are specifically listed in the Constitution, and some are not.  But all rights are entitled to meaningful judicial protection, regardless of their source.  There are no “second-class” constitutional rights.

3.  The job of judges is to enforce the Constitution.

Judicial review has been a vital part of our system of government for more than 200 years, and it remains a key bulwark against government tyranny and abuse of power.  It is the duty of judges to strike down government actions that assume powers not granted by the Constitution or that violate individual rights.  It is not “judicial activism” to strike down unconstitutional laws or government actions; it is judicial engagement—taking the Constitution seriously and applying it consistently in all cases.  Refusing to strike down unconstitutional acts is not admirable “judicial restraint,” it is judicial abdication—judges literally failing to do their jobs.

4.  The government should not have a leg up on citizens challenging government actions.

Laws are not entitled to judicial “deference” simply because they result from a democratic political process.  To the contrary, the Framers were deeply concerned about interest-group politics and majority tyranny, and they designed the Constitution to protect individual rights from those dangers.  Enforcing a presumption of government power over individual liberty, as courts typically do today, gets this design exactly backwards.

5.  Facts matter.

It is impossible to determine the constitutionality of any regulation without determining the government’s actual objectives in enforcing it.  But courts often ignore that question altogether, and will accept even the most ridiculous explanations at face value or, when necessary, simply invent justifications of their own in order to uphold government action against constitutional challenge.  This is profoundly mistaken.  Judges must carefully weigh the facts of each constitutional case, just as they would in any other case, and meaningfully evaluate the government’s action.  Ignoring evidence, inventing justifications and rubber-stamping the exercise of government power—which have come to be the norm in the vast majority of constitutional cases—represents abdication, not judgment.

We fully agree — and applaud IJ for adding innovative programming such as this new center to its continuing litigation against the government Leviathan.  Please check out the new center’s homepage here and its inaugural declaration here.

Judges Should Judge is a post from Cato @ Liberty - Cato Institute Blog

The Supreme Court majority in Citizens United asserted plainly that the federal government’s powers are few and defined in the realm of political speech. The decision has since been cast as one that does little more than give “corporations and unions the freedom to spend as much as they like to support or attack candidates.” Of course, the stakes were far higher. As the government’s attorney asserted during the initial oral argument, the Federal Election Commission retained the authority to ban the sale of certain books (e-books included) in the weeks leading up to an election, a fact opponents of Citizens United rarely mention.

Shortly after that oral argument, Austin Bragg and I made a short video with Steve Simpson of the Institute for Justice, Allison Hayward of George Mason University School of Law (and now of the Center for Competitive Politics) and John Samples, director of the Center for Representative Government at the Cato Institute.

Citizens United Turns One is a post from Cato @ Liberty - Cato Institute Blog

Today, the Supreme Court agreed to review McComish v. Bennett (consolidated with Arizona Free Enterprise v. Bennett), which challenges Arizona’s public financing of elections as an unconstitutional abridgment of speech. Because the case concerns a crucial new battleground in the fight between free speech and “fair” (read: government-controlled) elections, Cato filed an amicus brief supporting the cert petitions filed by our friends at Goldwater Institute and the Institute for Justice.

McComish centers on Arizona’s “Clean Elections” Act, which provides matching funds to publicly funded candidates if their privately funded opponent spends above certain limits. In other words, by ensuring that his speech will not go “unmatched” by his opponent, the privately funded candidate is penalized for working too hard and speaking too much. The law violates established Supreme Court precedents that have consistently held that forcing a speaker to “disseminate hostile views” as a consequence of speaking abridges the freedom of speech. Although the Ninth Circuit upheld the Arizona law, the Second Circuit recently struck down a similar Connecticut law, thus creating a circuit split that undoubtedly encouraged the Court to take the case.

In 2008 the Court decided Davis v. FEC (in which Cato also filed a brief), which overturned the “millionaires amendment” to the McCain-Feingold campaign finance “reform.” That provision gave similar assurances to candidates faced with the possibility of being outspent by their opponent. There, however, the concern was with rich, self-funded candidates: The act provided increased fundraising limits — triple the amount normally allowed — for candidates whose opponents spent too much (by the government’s judgment) of their own money on their campaign. The Davis Court held that this provision “impose[d] an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right.”

The Arizona law is even worse. It doesn’t even delve into the messiness of fundraising — tripling the contribution limit does not, after all, mean that those funds will be raised — but rather guarantees that a candidate’s “robus[t] exercise[] of [his] First Amendment right” will be met with contrary speech from his opponent. And the law sweeps still broader: it applies the same matching funds provision to groups that spend independently from any campaign but are nevertheless deemed to be supporting a given candidate. Such “uncoordinated speech” by third parties — speech that, many times, the candidate does not want even if it is thought to be on his behalf — also triggers matching funds for the candidate’s opponent.

The end result, as extensive evidence shows, is that numerous speakers — from the candidate to the independent groups — will be reluctant to spend money to speak (which is, of course, required for nearly all effective campaign speech) because their opponents are guaranteed the funds needed to reply. In elections, where the freedom of speech “has its fullest and most urgent application,” such laws simply cannot fly.

Finally, it is also worth remembering what is at stake when we allow politicians to pass laws that determine the very rules by which they hold their jobs. Justice Scalia put this most poignantly in Austin v. Michigan Chamber of Commerce: “the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.” As we now well know, the Court overruled Austin this past January in Citizens United, vindicating Scalia’s pro-free speech position.

It will be exciting to see how McComish unfolds. Expect another Cato amicus brief early in the new year, oral arguments in the spring, and a decision by the end of June.

Supreme Court Accepts Another Chance to Reverse Ninth Circuit, Uphold First Amendment is a post from Cato @ Liberty - Cato Institute Blog

The purpose of filing amicus briefs is to bring to courts’ attention certain supplemental arguments or relevant facts that go beyond those which the parties present.  It is also to show that a particular group — ranging from policy activists and think tanks to industry groups to ad hoc collections of academics to companies and organizations  that would be directly affected by the case — has a particular interest in a case, as well as educating the public about important issues.  Cato files its briefs for all these reasons, and we’ve found them to be an effective method of spreading our message, both in court and in the “court of public opinion.”

Now, imagine if, after filing a brief, you discover that the court has “sealed” it — meaning removed it from public view or access — precisely because your goal “is clearly to discuss in public [your] agenda.”  As Adam Liptak describes in a troubling New York Times column today, that’s the situation facing our friends at the Institute for Justice and Reason Foundation in a case before the Tenth Circuit (the federal appellate court based in Denver).

I won’t regurgitate the column here, but suffice it to say that the IJ/Reason brief shines a spotlight on various abuses by the Kansas U.S. attorney office, and supports a case in which the federal district court in Topeka has come down hard on an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.  As my friend and IJ lawyer Paul Sherman is quoted as saying, “It’s a profound problem.  We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments.”

Read the whole thing.

Court Enforces Secrecy about Constitutional Abuses is a post from Cato @ Liberty - Cato Institute Blog

Five years ago, in the landmark property rights case of Kelo v. New London, the Supreme Court upheld the forced transfer of land from various homeowners by finding that “economic development” qualifies as a public purpose for purposes of satisfying the Fifth Amendment’s Takings Clause.  In doing so, however, the Court reaffirmed that the government may not “take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”

State and federal courts have since applied that pretext standard in widely differing ways while identifying four factors as indicators of pretext: evidence of pretextual intent, benefits that flow predominantly to a private party, haphazard planning, and a readily identifiable beneficiary.  Moreover, since Kelo, 43 states have passed eminent domain reform laws that constrain or forbid “economic development” condemnations.

While many of these laws are strong enough to curtail abuse, in at least 19 states the restrictions are undercut by nearly unlimited definitions of “blight.”  The state of New York has seen perhaps the most egregious examples of eminent-domain abuse in the post-Kelo era, and now provides the example of Columbia University’s collusion with several government agencies to have large swaths of Manhattan declared blighted and literally pave the way for the university’s expansion project.  In this brazen example of eminent-domain abuse, the New York Court of Appeals (the highest state court) reversed a decision of the New York Appellate Division that relied extensively on Kelo’s pretext analysis and thus favored the small business owners challenging the Columbia-driven condemnations.  The Court of Appeals failed even to cite Kelo and ignored all four pretext considerations, instead defining pretext so narrowly that even the most abusive forms of favoritism will escape judicial scrutiny.

Cato joined the Institute for Justice and the Becket Fund for Religious Liberty in a brief supporting the condemnees’ request that the Supreme Court review the case and address the widespread confusion about Kelo’s meaning in the context of pretextual takings.  Our brief highlights the need for the Court to establish and enforce safeguards to protect citizens from takings effected for private purposes.  We argue that this case is an excellent vehicle for the Court to define what qualifies a taking as “pretextual” and consider the weight to be accorded to each of the four criteria developed by the lower and state courts.

The Supreme Court will decide whether to hear the case later this fall. The name of the case is Tuck-It-Away, Inc. v. New York State Urban Development Corp and you can read the full brief here (pdf).  You can read more from Cato on property rights here.

Eminent Domain Shenanigans is a post from Cato @ Liberty - Cato Institute Blog

In July, I blogged about the case of Minnesota farmers who were facing criminal sanctions for engaging in interstate trade.  Now I am happy to report that the city of Lake Elmo has torn down its onerous and unconstitutional trade barriers:

The change was made in response to a federal judge’s opinion in August that Lake Elmo’s protectionist law likely violated the U.S. Constitution because it discriminated against interstate commerce.  Magistrate Judge Franklin L. Noel stated that the law “squelche[d] competition . . . altogether, leaving no room for investment from outside,” and would likely have “obliterate[ed] . . . the Lake Elmo markets in pumpkins and Christmas trees. . . . In fact, Plaintiffs have shown that the markets will be wiped out.”

Congrats to our friends at the Institute for Justice who spearheaded this case!  You can read more here.  And you can find Judge Noel’s opinion here.

Hat tip to Baylen Linnekin at Crispy on the Outside.

Victory for Free Trade – At Least Within the Country is a post from Cato @ Liberty - Cato Institute Blog

If the government can force us to disclose the source of our funds when we speak publicly, what can’t they require of us? Steve Simpson from the Institute for Justice discussed disclosure laws in light of the Doe v. Reed Supreme Court decision at Cato’s Constitution Day. You can get a copy of the latest Cato Supreme Court Review at our bookstore.

IJ’s Steve Simpson on Doe v. Reed is a post from Cato @ Liberty - Cato Institute Blog

In Kelo v. City of New London, the Supreme Court ruled that a locality could use its eminent domain authority to seize private property to sell to private developers. Cato’s amicus brief opposing this abuse of the Takings Clause is available here, and an article on Kelo and other property law rulings of the 2004-2005 term by law professor James W. Ely, Jr. is available here.

One positive outcome of Kelo was the legislative restriction of eminent domain usage in state houses across the country. On the other hand, developers and localities have attempted to muzzle their critics with frivolous lawsuits. The Institute for Justice is currently litigating one of these actions in Texas:

Investigative journalist Carla Main wrote a book about eminent domain abuse in Freeport, Texas.  The city is attempting to force out a generations-old family shrimp and marine supply business to make way for a luxury marina development that was to be owned and operated by Royall’s private company.  When the victims of this eminent domain abuse complained, Royall sued them for defamation.  Main’s book, Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land, tells the story of the Gore family’s generations-old shrimp business and how Royall and the city tried to take their land.  Prominent law professor Richard Epstein (University of Chicago and New York University) contributed a blurb to the back cover of Bulldozed.

Royall sued Main, Epstein and Encounter Books (the publisher) for defamation over the contents of Bulldozed.  He also sued two newspapers and a journalist who published reviews of Bulldozed.  Royall is attempting to use the power of the courts to silence his critics.

A Dallas trial court ruled last year that the lawsuit was not barred by the First Amendment, even though Royall could not point to any statement in Main’s book that came close to the legal standard for defamation. The Institute for Justice is appealing the trial court’s decision. As Bill McGurn writes in today’s Wall Street Journal, this suit is one of the “high costs of Mr. Kennedy’s concurrence” in Kelo. Here’s hoping that rights protected by both the First and Fifth Amendments can prevail.

Susette Kelo, the owner of the Little Pink House at the center of the Kelo case, spoke at the Cato Institute about her ordeal, and her story is the subject of this Cato Institute video.

Frivolous Lawsuit Aimed at Silencing Critics of Eminent Domain Abuse is a post from Cato @ Liberty - Cato Institute Blog

Officials in Montgomery, Alabama, are bulldozing homes in their historic civil rights district — and billing the homeowners for the cost of demolition:

Christina Walsh of the Institute for Justice writes about this injustice at the Daily Caller:

Imagine you come home from work one day to a notice on your front door that you have 45 days to demolish your house, or the city will do it for you.  Oh, and you’re paying for it.

This is happening right now in Montgomery, Ala., and here is how it works: The city decides it doesn’t like your property for one reason or another, so it declares it a “public nuisance.”  It mails you a notice that you have 45 days to demolish your property, at your expense, or the city will do it for you (and, of course, bill you).

Your tab with the city will constitute a lien on your property, and if you don’t pay it within 30 days . . . the city can sell your now-vacant land to the highest bidder.

The rest of her article is here.  Also, see ABC News, Big Government and Reason magazine.  And you can find Cato’s work on property rights here.

Bulldozing Homes, Billing Homeowners is a post from Cato @ Liberty - Cato Institute Blog

…since 1970, after adjusting for inflation. What have we got to show for it? Bob Ewing of the Institute for Justice tackles that question with a little help from a gory chart I put together a couple of months back, but he’s got another nugget of information that a lot of folks may find more compelling.

Cost of a K-12 Edjercation Has Quadrupled… is a post from Cato @ Liberty - Cato Institute Blog

The Institute for Justice has launched a new economic liberties program called “The Power of One Entrepreneur.”  They have five detailed reports produced by successful local writers, highlighting five individual entrepreneurs. 

The power of one entrepreneur, the reports explain, is the key to helping our nation recover from this economic slump and to restoring our inner cities and countless lives through honest enterprise.  Together, they showcase the importance of economic liberty and the fact that countless people are fighting Big Government to secure their American Dream. 

These reports do two important things:

First, they document the positive impact one single entrepreneur can have on those around him or her, not only by offering employment, but through charitable work and mentoring to grow other entrepreneurs in the community, thereby growing the economic pie.

Second, through tangible examples, they make the point that if the government wants to do something to help Americans in this “jobless recovery,” it can do one simple thing:  Get out of the way so entrepreneurs like these can be free to create jobs for themselves and for others.

This is part of IJ’s laudable long-time effort to put a human face on the issue of economic liberty — the right to earn a living free from arbitrary and unnecessary government regulation.

The Power of One Entrepreneur is a post from Cato @ Liberty - Cato Institute Blog