Law Fish News for 10-08-2018

GOP Fails To Explain Excluding FBI From Brett Kavanaugh Investigation | Rachel Maddow | MSNBC


Seiter,1 the United States Supreme Court held that a prisoner alleging that the prison conditions of his confinement constitute cruel and unusual punishment must show a culpable state of mind on the part of the prison officials. The inmates, in Rhodes, alleged that double-celling was cruel and unusual punishment because the inmates in the prisons had extended sentences, the prison was overcrowded, the inmates were forced to share a cell measuring sixty-three square feet although several studies recommend that each inmate have at least fifty to fifty-five feet of living quarters, that double-ceiling was not a temporary condition and that the inmates spent a majority of their time in the cell. 68 Justice White added that Rhode v. Chapman squarely resolved the dispute as to whether conditions of a prison could constitute cruel and unusual punishment and determined that they could. 990 SUPREME COURT REVIEW CRUEL AND UNUSUAL PUNISHMENT but different views of what constitutes prison conditions would lead to different conclusions. Justice Scalia’s reasoning appears to progress as follows: the Eighth Amendment prohibits only cruel and unusual punishment; punishment, by definition, carries an intent to punish; the per se sentence is punishment because it is intended to punish the criminal after and in response to his wrongdoing; everything beyond the per se sentence is the prison conditions; but not all prison conditions are punishment; therefore, in order to be considered punishment and thus subject to Eighth Amendment scrutiny the activity must carry with it an intent. Common sense directs that anything that happens behind those prison bars that pertains to the existing state of the prison is a condition of the imprisonment. 

Hutto involved allegations that the conditions in a prison constituted cruel and unusual punishment. The Supreme Court held that confinement in a punitive isolation cell for an indeterminate period was not, in and of itself, cruel and unusual but that the length of punitive isolation in conjunction with a filthy overcrowded cell, a diet of gruel and the relatively worse condition of the punitive isolation cell in relation to the prison did constitute cruel and unusual punishment. If an act was habitual, it might rise to the level of a condition of a prison the nature of a specific act is that it occurred once and thus, hardly seems to qualify as a condition of a prison. Although the majority does not so concede,’ 4 1 the Rhodes Court specifically stated that it was addressing for the first time the applicable standard for prison conditions cases. 996 SUPREME COURT REVIEW n determining when prison conditions pass beyond legitimate punishment and become cruel and unusual, the ‘touchstone is the effect upon the imprisoned. If horrendous prison conditions cannot be remedied due to a lack of funds and the Court has implicitly ruled that this is a valid defense, there never will be an improvement in conditions. 

Keywords: [“condition”,”prison”,”PUNISHMENT”]

Ct Rejects 1st Amendment Challenge, Upholds Scrutiny over Lawfullness

With all the buzz generated by the Gallion First Amendment challenge in the Ninth Circuit Court of Appeal, we’ll report on First Amendment TCPA challenges wherever we find them from now on. We have a strange one out of Arkansas from last month that Westlaw just alerted us to today. There the Court held that the TCPA survived a First Amendment challenge tethered to the large amount of statutory damages provided by the statute. The Court applied an intermediate scrutiny analysis rather than strict scrutiny, which was probably appropriate since the Defendant strangely did not pose an equal protection challenge or argue that strict scrutiny ought to be applied. In McCall the Defendant seems to have lobbed numerous constitutional challenges at the court based upon the size of the statutory damages permitted by the TCPA. 

While the Court seemed generally sympathetic to the Defendant’s arguments, the Court repeatedly rejected the application of due process challenges prior to certification of the putative class action. While one can certainly argue that the TCPA’s statutory damages enhance the probability of lawfully protected speech being chilled by the vague enactment, large damages-or other severe penalties- for unlawful speech in a vacuum have never been held to violate the First Amendment to my knowledge. Rather it is the vague nature of the statute that renders the damages so problematic-the focus is on the potential for innocent actors to be caught up in a web designed for others-or else the crushing damages being applied unevenly based upon content- rather than that the remedy to prevent unlawful speech is too effective. Not surprisingly the McCall court struggled to comprehend precisely what the Defendant was arguing, and ultimately cast the challenge as an argument that the TCPA’s damages provision violates the third prong of the Central Hudson-an intermediate scrutiny paradigm that really should no longer have application to the statute following the 2015 content-specific amendments. Since the Eighth Circuit had already rejected an intermediate scrutiny challenge to the TCPA’s fax rules following Central Hudson in Missouri ex rel. 

Nixon v. American Blast Fax, Inc., 323 F.3d 649 this was an open and shut case in favor of upholding the TCPA. See McCall at *7-8. Take heart gentle reader, the Gallion case poses a very different-and dare I say, better supported-First Amendment challenge to the TCPA. So while the McCall ruling is yet another in a long line of cases upholding the TCPA under intermediate scrutiny principles, the battle over whether the TCPA survives strict scrutiny is yet to be decided. 

Keywords: [“TCPA”,”challenge”,”Court”]

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