According to the Associated Press, Ms. Gibbons has been found guilty and sentenced to prison and deportation. No word on whipping.

More to come…

Update: 15 days imprisonment.

Update II: According to The Daily Mail, the prison where Ms. Gibbons is to spend her 15 day sentence was designed to hold 200 women, and currently houses 1,500 women and children. On the other hand, Sudanese officials are rumored to have started processing deportation papers for this weekend, suggesting she may be sent home early.

Update III: According to Rational Jenn, Fox News, &c., protesters are demanding Gibbons’ execution. According to CNN, her time served counts toward the 15 days, so she has 10 days to go. Additional international negotiations to secure early, safe release are ongoing.

I wonder if the Sudan Riot Police will be as protective of her when she is released as they were when she was in court.

Update IV: The mob calling for Ms. Gibbons’ death is now thousands strong, and Ms. Gibbons has been moved to a “secret location” for her protection.

The insane, destructive fervor into which True Believers are able to whip themselves loses no horror by being commonplace. (See, e.g., The Salman Rushdie knighthood, the Danish cartoons, the Miss World protests, etc.)

Posted by Qwertz at 2:32pm on 29 Nov | No Comments

According to this CNN.com article,

Gibbons had been charged under Article 125 of Sudan’s constitution, the law relating to insulting religion and inciting hatred.

According to the Sudanese Embassy in Canada [pdf], Article 125 of the Constitution of the Republic of the Sudan (1998) reads:

Article 125
Popular Defense Force

1. The Republic of Sudan may establish a volunteer Popular Defense Force from among the Sudanese people for national defense, to maintain national security, or to assist any regular forces. The Popular Defense Force shall be under the command of the National Armed Forces or the Police and shall promote defense, security and other general purposes.
2. The law shall determine organization, duties and supervision over the Popular Defense Forces.

This Article 125 gives the government the power to establish, basically, a volunteer National Guard.

There is also an Interim National Constitution of the Republic of the Sudan, (2005). Its Article 125 reads:

1. The National Supreme Court shall:
   1. be a court of cassation and review in respect of any criminal, civil and administrative matters arising out of, or under national laws, or personal matters,
   2. have criminal jurisdiction over the Justices of the Constitutional Court,
   3. review death sentences imposed by any court in respect to matters arising out of, or under national laws,
   4. have such other jurisdiction as determined by this Constitution and the law.
2. The Chief Justice of the Republic of the Sudan may establish panels for the purposes of considering and deciding on matters requiring special expertise, including commercial,
   personal or labour matters.

This Article 125 sets up the jurisdiction of the Sudanese Supreme Court, and enables the Chief Justice to establish panels of Special Masters.

What the hell do either of these have to do with blasphemy, sharia, whipping, or teddy bears? Or the criminal law in general? Ms. Gibbons cannot have been “charged under Article 125 of Sudan’s constitution,” as the CNN.com article says. Neither provision (and I cannot tell for sure which one is currently in effect in Sudan; I have conflicting sources) has anything whatsoever to do with the issue, unless Ms. Gibbons’ prosecution is being heard by the Supreme Court of Sudan, which isn’t mentioned. Even if that were the case, Ms. Gibbons cannot have been charged under Article 125, because Article 125 does not provide for the charging of criminals.

I do so wish CNN.com would do just a teensy bit of fact-checking.

Posted by Qwertz at 10:35am on 29 Nov | 2 Comments

British National Gillian Gibbons, who teaches children in Sudan, has been arrested and charged with offending religion.

She had been held without charges for several days. Today, Sudanese officials filed formal charges. She faces a potential sentence, if convicted, of 40 lashes, a year in prison, or a hefty fine.

She came under suspicion after the children in her class voted to name the classroom’s new stuffed bear mascot “Mohammed.” Naming a stuffed bear “Mohammed” is apparently offensive to Islam, and Sudan has laws against offending a religion.

Allegedly, Sudan’s anti-blasphemy law is religion-neutral. The classroom contained both Muslim and non-Muslim students. Sudan is 70% Muslim (Sunni).

The relevant statute is Chapter 21, Section 242:

Insulting or Exciting Contempt of Religious Creed: Whoever by any means publicly insults or seeks to excite contempt of any religion in such a manner as to be likely to lead to a breach of the peace, commits an offence and shall on conviction, be punished with imprisonment for a term not exceeding three years or with fine or with both.

[Aside: I looked through the whole penal code, and I couldn’t figure out how Ms. Gibbons could potentially be subject to whipping as a sentence. The statute above does not provide for whipping as a punishment, and the statutes only allow the imposition of whipping in lieu of imprisonment by certain judges trying cases summarily against male defendants. And in such a situation, such lashings are limited to 10 strokes. I cannot find any provision in the materials available to me (there may be others outside my purview that allow it) that would allow the imposition of a sentence of 40 lashes on Ms. Gibbons. I assume it’s a discretionary substitute, but for the life of me I cannot turn up any statutory text. That might be by design, of course.]

There is no question whether any government has the moral authority to enact or enforce anti-blasphemy laws. No government legitimately holds that authority. The freedom to criticize an idea is an essential component of the liberty required for a rational mind to function. Any government that outlaws blasphemy cripples the minds of those subject to its jurisdiction and is therefore morally repugnant. So I’m really not interested in whether what she did (naming the bear after one of her students, pursuant to a classroom vote) counts as blasphemy or offense to Islam, or whether she is guilty of the unjust statute.

What interests me is the authority of the British government to intercede. They have no legal authority under Sudanese law, of course. Such a thing would be contrary to Sudan’s notion of its own sovereignty. Instead, I think the British government has an obligation to step in and prevent Ms. Gibbons’ prosecution, in exactly the same way and for exactly the same reasons that Sudan has an obligation not to pass repugnant laws: Because the purpose of government - any government - is to preserve and defend individual rights. The alleged sovereignty of an oppressive government to enact laws obnoxious to individual rights notwithstanding.

Of course, Britain will likely not be willing to use whatever force is necessary to protect Ms. Gibbons. The US was not willing to do so back in 1994 in the case of Michael Fay. (Granted, that was on a charge of vandalism, not blasphemy, but the principle can be applied in the context of excessive or extreme punishment, not just the context of an improper law.) In Ms. Gibbons’ case, the British government is morally obligated to protect her from any prosecution, regardless of the particular sentence imposed.

To those who would say that Ms. Gibbons assumed the risk of prosecution under an unjust law by traveling to and living in a country that does not respect individual rights, I say nonsense. Rights exist. It is government’s job to preserve and defend them.

I see a parallel to the 1951 nationalization by Iran of British oil interests in that country. In that case, the property rights of British nationals were violated by the capricious and unjust action of the Iranian government. Not only would Britain have been justified in using force to defend those property interests, they were morally obligated to do so, and failed. In that case, the persons whose rights were violated were British nationals presently in Britain, whereas Ms. Gibbons is a British national presently abroad. If there is any difference between the two situations, this is it.

Nationality, by which I mean citizenship, appears to become relevant in the analysis of government power, but in fact it does not. Any just government, dedicated to preserving and defending individual rights, has the moral authority to protect those rights of any person anywhere in the world, citizen or not. It is only the duty to do so that arises by virtue of citizenship.

Or do I have it wrong? Does a just government owe a duty to every person in the world? If I have it right, what is citizenship? Does it grant additional rights beyond those enjoyed by every individual? Is that a good idea?

Posted by Qwertz at 4:55pm on 28 Nov | No Comments

According to this Washington Post Article, the Flying Imams’ lawsuit survived a motion to dismiss yesterday. But the article does not tell the whole story. In fact, the article misrepresents Judge Montgomery’s decision as an unqualified victory for CAIR and the Flying Imams. I have read the ruling, and offer a brief summary of its effect on the suit.

The decision rules on several motions:

1. U.S. Airways’ Motion to Dismiss
2. U.S. Airways’ Motion for Summary Judgment
3. MAC’s Motion to Dismiss
4. Plaintiffs’ Rule 56(f) Motion
5. Plaintiffs’ Motion to Strike

I. MAC’s Motion to Dismiss

MAC is the Metropolitan Airport Commission, a state actor. This is a FRCP 12(b)(6) motion to dismiss.

The court denied MAC’s motion to dismiss Count 3 (§1983 claim for 4th Amendment violations: unreasonable search and seizure), ruling that Plaintiffs had adequately plead a charge that they had been arrested without probable cause.

Similarly, the court denied MAC’s motion to dismiss Count 3 (§1983 claim for 4th Amendment violations: equal protection), ruling that Plaintiffs had adequately plead a charge that they had been discriminated against on the basis of their race or religion. The court found the complaint sufficiently clear to put MAC on adequate notice of Plaintiffs’ claims and the grounds on which they were based.

The court granted MAC’s motion to dismiss Count 3 (§1983 claim for 6th Amendment violations: right to counsel) because Plaintiffs did not respond to the motion.

The court denied MAC’s motion to dismiss Count 4 (tortious failure to adequately train) because the motion depended on complete dismissal of Count 3, which was not granted.

The court granted MAC’s motion to dismiss Count 5 (tortious false arrest) because it appeared to assert that claim against U.S. Airways, but not against MAC. Because the complaint did not clearly state a false arrest claim against MAC, the court dismissed that claim as against MAC.

The court denied MAC’s motion to dismiss Count 10 (violation of Minnesota Government Data Practices Act) because Plaintiff Shahin’s allegation that she was “afraid to go out in public” after MAC failed to remove her Social Security Number from a police report before publishing it on the Internet was sufficient to state a claim for emotional damages.

The court denied MAC’s motion to dismiss Count 17 (invasion of privacy) for the same reason. MAC had asserted that emotional damages were insufficient to support a claim for invasion of privacy, but the court found otherwise.

II. U.S. Airways’ Motion to Dismiss

U.S. Airways is the airline. It is not a state actor. This is a FRCP 12(b)(6) motion to dismiss.

The court denied U.S. Airways’ motion to dismiss Count 3 (§1983 claim for 4th Amendment violations: various) because, although U.S. Airways is not a state actor, it can still be held liable under §1983 if it “jointly engaged with public officers in the denial of civil rights.” The complaint alleged that U.S. Airways had jointly engaged in search, seizure, and arrest with the public officers of MAC. Therefore, the complaint sufficiently stated the claim.

The court denied U.S. Airways’ motion to dismiss Count 5 (tortious false arrest). U.S. Airways argued that it had not performed the arrest (MAC had), and so it could not be liable for false arrest. But the Minnesota Supreme Court (Minnesota law controls this claim) had ruled that private actors could be held liable for false arrest if they provide information to law enforcement. Therefore, U.S. Airways may be subject to a false arrest claim. U.S. Airways also asserted a federal defense under 49 U.S.C. §44941, which gives air carriers immunity from suit for terrorism-related voluntary information disclosures to law enforcement. However, the court found that Plaintiffs had alleged activity (acting in concert with MAC, not just providing information) that was not covered by the statute, and denied the motion to dismiss.

The court granted U.S. Airways’ motion to dismiss Count 6 (violation of Air Carrier Accest Act) because it found that the ACAA did not create a private right of action. ACAA requires air carriers to provide access to disabled persons; Plaintiff Sadeddin alleged that he had been effectively denied access because the airline ignored his blindness on the presumption that he was faking it. The Act does not explicitly create a private right of action, and the court looked to precedent from other circuits to determine that a private right of action could not be implied.

The court denied U.S. Airways’ motion to dismiss Count 12 (intentional infliction of emotional distress) because it found that the facts alleged by Plaintiffs might, if proven true, amount to extreme and outrageous conduct.

III. U.S. Airways’ Motion for Summary Judgment & Plaintiffs’ Rule 56(f) Motion

This is a motion for summary judgment in favor of U.S. Airways on all counts.

The court denied the motion. U.S. Airways asserted immunity under the Federal Aviation Act, 49 U.S.C. §44902, which allows airlines to refuse to board a passenger so long as its refusal is not arbitrary or capricious. U.S. Airways believed it had presented enough evidence by affidavit to establish that its refusal to board Plaintiffs was not arbitrary or capricious within the meaning of the statute. The court did not answer this question, because Plaintiffs had filed a competing Rule 56(f) motion. Rule 56(f) allows a party opposing a motion for summary judgment to assert by affidavit that it is unable to properly oppose the motion merely by affidavits. In other words, Plaintiff asserted that discovery was necessary before it could adequately respond to U.S. Airways’ motion for summary judgment. The court agreed, so it granted Plaintiffs’ 56(f) motion and denied U.S. Airways’ motion without prejudice, which means U.S. Airways is free to file for summary judgment on the same grounds in the future, presumably after some discovery has taken place.

U.S. Airways also moved for summary judgment on the grounds that Plaintiffs’ state-law claims were preempted by the Airline Deregulation Act, 49 U.S.C. §41713(b)(1), which provides that the states may not make legislation or rules “relating to” airline services or fares. The court found different interpretations of the preemptive effect of the ADA on boarding practice claims and the meaning of the word “services” under the statute, but did not decide one way or the other on preemption. Instead, the court found precedent indicating that determining the scope of “services” in the context of allegations of racial or religious bias in boarding practices required some discovery. Therefore, the court denied the motion without prejudice.

IV. Plaintiff’s Motion to Strike

U.S. Airways, after filing its motion for summary judgment, learned of a case from the 9th Circuit that supported its position with an additional, implied preemption argument, and informed the court of the case. Plaintiffs responded with their own letter suggesting that the case was distinguishable. U.S. Airways responded to Plaintiffs’ response, asserting that the case tended to support their interpretation of the law. Plaintiffs moved to strike this last letter as an unsolicited supplemental memorandum of law, barred by a local court rule. The court granted the motion to strike the letter, asserting that U.S. Airways could not correct its failure to brief the implied preemption issue in an unsolicited memorandum of law.

In sum, the rulings are generally pro-Plaintiffs, but that is to be expected at this stage of the game. Notably, the court left the door open for U.S. Airways to move for summary judgment on the same grounds after a bit of discovery. The ruling is by no means a conclusive victory for anyone.

Tiny Update: It is important to note that the most interesting aspect of this case, the claim against various John Doe defendants, is no longer an issue: Plaintiffs voluntarily withdrew those charges early in the case when they filed an amended complaint.

Posted by Qwertz at 11:11pm on 21 Nov | No Comments

Ari Armstrong, the Software Nerd, and Gus Van Horn have recently discussed so-called “Blue Laws.”

Ari discusses the Denver Post’s editorial support for a Colorado legislative push to overturn that state’s Sunday alcohol sales prohibitions.

Software Nerd mentions the Supreme Court’s decision in Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617 (1961). Gallagher is one of three cases on Blue Laws (specifically Sunday Closing laws, requiring certain businesses to close on Sundays, often including alcohol and liquor retailers), decided on the same day in 1961. Gallagher and Braunfeld v. Brown, 366 U.S. 599 (1961) both concern Blue Laws as applied to Orthodox Jews, whose claims are based on the Equal Protection, Establishment, and Free Exercise Clauses. McGowan v. Maryland, 366 U.S. 420 (1961), however, is slightly different, also making an argument that Blue Laws are void for vagueness, and thus violative of Due Process. McGowan is the most cited case, because the religious beliefs of the challengers were not the basis of their claims. McGowan is the controlling law, at least from a Due Process standpoint.

The main problem here is the Court’s view of what constitutes a “legitimate” state interest. Under due process analysis, whether we apply “strict scrutiny” or “rational basis,” the state law has to advance a “legitimate” state interest. Unfortunately, “legitimate” is not referenced to reality. It means “legitimate” within the system, not objectively legitimate. In short, this means that a state law serves a legitimate state interest if it is not explicitly denied to the states by the constitution. Health, safety, welfare, and morals (sometimes called the “police power”) are “legitimate” state interests. (Morals are no longer alone sufficient to establish legitimacy of an interest. See Lawrence v. Texas, 539 U.S. 558 (2003).)

Even though a statute advances a legitimate state interest, it can still be unconstitutional. The best cases (from a current constitutional jurisprudence standpoint, that is) for unconstitutionality of the Blue Laws are Due Process (strict scrutiny) and Establishment (the Lemon test). Unfortunately, neither of these concepts were available at the time. Strict scrutiny was new and disfavored in 1961, and the Lemon test turned up a decade too late. The Court’s decisions in Gallagher, Braunfeld, and McGowan were entirely consistent with constitutional jurisprudence up to that time. Establishment Clause analysis was limited to the question of whether the statutes could be “rationally” characterized as having a secular purpose. Due Process analysis was limited to the “rational basis” test. And the essential element of legitimacy of the asserted state interest (in these cases, establishing a uniform day of rest and relaxation, promoting the tranquility of that day, and encouraging recreational activities on that day to the exclusion of commercial or business activities) relied on a very broad and well settled “police power” of the states.

If Blue Laws (by which I mean Sunday Closing Laws in general, not just as they are applied to alcohol sales) were to be challenged today, I think they would still be upheld. First, the asserted state interest would still be viewed as legitimate, because it can be asserted as a health, safety, and welfare interest, not exclusively a morals interest (which would make it fail under Lawrence).

Using the (relatively new) Lemon test, the laws do not violate the Establishment Clause. The Lemon test requires

1. a legitimate state interest with an arguably secular purpose,
2. that the statute not primarily advance or hinder religion, and
3. that the statute not excessively entangle government with religion.

Under current Lemon test jurisprudence, including cases like McCreary County v. ACLU and Van Orden v. Perry (The Ten Commandments Cases), the Sunday Closing laws meet all three requirements. The effect of making Christianity easier (and Judaism and Islam harder) is incidental to the statute’s secular purposes. Besides, Establishment isn’t really the major problem here. Imagine if the states moved the Sunday Closing laws to Tuesday. They’d be no more or less offensive. The choice of Sunday is, in fact, quite sensible if we pretend the goal is legitimate.

Even if we were to do a Substantive Due Process analysis, assert an implicated liberty interest, and apply strict scrutiny, I still don’t think they would be found unconstitutional. With strict scrutiny, the state interest has to be legitimate and compelling, and the statute has to be likely to advance that interest and must be the least restrictive means for doing so. If the goal is to establish a uniform day of rest (for economic, health, safety, welfare reasons, etc.), then the statute is likely to accomplish that (because it does establish a uniform day of rest), and there is no less restrictive means of accomplishing it. There might be a question of whether the interest is compelling, but the Court has never established firm guidelines for deciding what is compelling.

Even so, I doubt strict scrutiny would even apply, because the courts would likely draw the implicated right narrowly, as is their practice. Instead of saying that the statute affects the right to liberty, the Court would say it affects the “right to engage in commercial activity at the time and place of one’s choosing,” or something like that. That’s not a right in the Constitution, and is probably not “deeply ingrained in our nation’s history and tradition,” since there have always been limits on when and where commercial activity can take place. So the Court would probably still apply the rational basis test, which would uphold the statute just as it did in the past.

So I don’t think Blue Laws, as they exist today, are really an Establishment Clause issue. I think they are a legitimacy issue. The asserted secular interest is not objectively legitimate - the state should have no interest in promoting a uniform day of rest on any day of the week. The state has no legitimate interests that require violating the liberty of its citizens by telling them when and where they may engage in non-coercive or excessively dangerous commercial activity. But this interpretation demands a major shift in judicial philosophy (from positivism back to “natural law”), or a major rewrite of the Constitution (e.g. inserting an interpretive clause insisting on a “natural law” type interpretation). [NB: Among judicial philosophies, the term “natural law” refers to the proposition that there is a “right law” out there for the courts to discover. Unfortunately, “natural law” makes no distinction as to the source of that law. That would also need to be corrected.]

The Supreme Court has not addressed the issue of Sunday Closing laws since 1961, and a search on Westlaw turned up no opinions authored by Antonin Scalia on the issue. If I had to guess as to how Scalia would decide this kind of issue, I would say he would uphold Blue Laws because of his (rightful) disdain for “standards” as opposed to “rules,” and his (wrongful) view of the power of the states under the Constitution. Scalia hates “standards” and “balancing tests” and prefers bright-line rules. On this point, he and I are in agreement. Law cannot be objective if it includes balancing tests, because a potential actor will not be able to anticipate how a judge might later weigh the facts. The actor will therefore not be able to determine the legality of his actions before he takes them, no matter how many facts he has at his disposal before acting. The legality of the action will depend on the highly subjective balancing performed by the judge after the fact. Balancing tests are inimical to objective law, so on that count Scalia would get it right. But Scalia views the power structure of the Constitution all backwards, as do the vast majority of modern jurists. He thinks of the Constitution as a limiting document instead of an empowering document, especially when it comes to the states. In Scalia’s view, the states have absolute and plenary power, except when some part of that power is expressly delegated to the Federal government. In one sense, Scalia is an authoritarian, because he believes governments in general can exercise huge authority over their citizens. So Scalia would certainly view the purpose of Blue Laws as legitimate to governments in general, and would read the Constitution literally for any prohibition of that power to the states. Finding none, he would engage in no balancing tests of the state versus the private interest and would side with the state as a matter of course.

Another fun aspect of the Blue Laws as they exist today is the fact that, in many states, the state government is the exclusive retailer of certain alcoholic beverages. In some states (e.g. Ohio), the state sells liquor through private, licensed retailers, who earn a commission. In others (e.g. New Hampshire), the state runs the retail stores itself. (Most states today have licensing requirements, but are not themselves the exclusive distributor of any type of alcoholic beverages. Colorado is among these.) Where the state runs the business, you have a contradiction. On one hand, the retailer should be allowed to set whatever hours it likes. On the other hand, the state should not determine commercial business hours. Where the state is the retailer, there are no right answers, only wrong ones.

Posted by Qwertz at 9:11pm on 21 Nov | No Comments