In Europe, a “Right to Be Forgotten”

       Jeb Magruder died this month at age 79, in relative obscurity four decades after serving time in prison for his role in the Watergate scandals. After he got out, Magruder got religion and went on to serve as a Presbyterian minister for churches in three states.
      Those who lived through Watergate or later became obsessed with it were well familiar with the details of Magruder’s pre-redemption life. Others, however, presumably resorted to a Google search of Magruder’s name — the Internet age technique for biographical research.
       If a European court has its way, however, people like Magruder with unsavory conduct in their pasts may be able to bury such information in an Orwellian memory hole. In a precedent-setting decision for countries in the European Community, the European Court for Human Rights ruled this month [May 13] that, when requested, Google generally must block access to private information about a subject’s distant past unless the public has a “preponderant interest” in the information.
       In effect, the European court ruled that individuals have “a right to be forgotten.” The ruling came in a case brought by a Spanish lawyer, Mario Costeja González, who complained that Google linked his name to news coverage of a 1998 foreclosure proceeding against him. Costeja González contended that Google had to “delink” the news stories because the proceedings “had been fully resolved for a number of years” and any reference to them now was “completely irrelevant.”
       In the United States, the ruling drew mostly critical reaction. “Americans will find their searches bowdlerized by prissy European sensibilities," Stewart Baker, a privacy and computer security expert and former assistant secretary for policy at the U.S. Department of Homeland Security, told The Associated Press.
       "Privacy rights shouldn’t be a tool to rewrite history,” David Vladeck, a Georgetown Law School professor and former consumer protection official with the Federal Trade Commission, told The Washington Post. “Who gets to decide whether all these links get deleted?”
       At first blush, the European ruling seems unlikely to be followed in the United States, where the First Amendment guards against government-enforced restrictions on access to information already in the public domain. In fact, however, the Supreme Court has two precedents — in different contexts and different decades — that look somewhat favorably on a privacy-based right to be forgotten.
       In the earlier of the cases, the Supreme Court ruled in 1979 that a libel plaintiff could be treated as a private instead of a public figure despite a news-covered contempt of court citation two decades earlier. Ilya Wolston sued Reader’s Digest for publishing a book in 1974 that referenced his conviction for refusing to appearing before a grand jury investigating Soviet espionage.
      Unanimously, the court ruled in Wolston v. Reader’s Digest Ass’n that Wolston could take advantage of the lower burden of proof for private figures in his suit. In the main opinion, the court held that Wolston had never voluntarily become a public figure, but two of the justices joined the decision only on the ground that Wolston was entitled to private-figure status because of the passage of time.
       A decade later, the Supreme Court backed the privacy rights of criminal defendants and arrestees in a Freedom of Information Act case involving the FBI’s computerized data base of “rap sheets.” In U.S. Dep’t of Justice v. Reporters’ Committee for Freedom of the Press (1989), the court rejected a news organization’s efforts to check the FBI data base for an individual under investigation for political corruption in Pennsylvania.
      The court acknowledged that the FBI collected the rap sheet information from what are generally public records maintained by state and local law enforcement agencies. But the court ruled that individuals identified in the FBI data base had a privacy interest in “the practical obscurity” of whatever criminal records they might have in any of the thousands of jurisdictions across the country.
      The ruling in the Reporters Committee case is closely analogous to the European decision in the Google case. The European court is not requiring Spanish newspapers to delete the news coverage of the case against Costeja González, but requiring Google not to link to that coverage in effect allows Costeja González to reclaim the “practical obscurity” of his past financial difficulties.
      Privacy law in the United States is not as expansive as in Europe, even though the United States gave birth to the right of privacy in an influential law review article written in 1890 by Samuel Warren and the future Supreme Court justice Louis Brandeis. In the 120 years since, the Supreme Court and lower courts have wavered on how far to go in restricting access to information in the name of a “right to be let alone.”
      In the Internet era, that right is exponentially harder to protect, but the European court is trying with a ruling that individual countries will be tasked with putting into effect. Despite robust First Amendment protections, some U.S. courts might be tempted to try as well. Jonathan Zitrain, a professor of law and computer science at Harvard, suggests that the European court could have required Google not to delink old news but to allow individuals to add linkable replies. Whatever happens in Europe, the hope is that information remains free here in the United States.

Remembering Heroes of Marriage Equality

      Richard Kluger opened his magisterial history of the struggle for racial equality in education, Simple Justice, by telling the story of poor black families in backwater Clarendon County, S.C., protesting for school bus transportation for their children. The NAACP Legal Defense Fund turned the grassroots protest into a court case, Briggs v. Elliott, which predated by a year the case now memorialized in history as Brown v. Board of Education.
      Jo Becker opens her book on “the fight for marriage equality” with the story of Chad Griffin, a well-to-do, well-connected political and public relations consultant in chi-chi West Hollywood, Calif.  Becker, an award-winning journalist, embedded herself in Griffin’s camp for four years to chronicle what she hoped would be a landmark Supreme Court ruling for gay marriage.
       Unfortunately for Becker and her book, Forcing the Spring, the Supreme Court did not use Griffin’s built-from-the-top-down case to outlaw marriage discrimination against gay and lesbian couples in one judicial blow. Undeterred, she opens her book, however, by likening Griffin to civil rights heroine Rosa Parks and depicting Griffin’s decision to challenge California’s 2008 ban on gay marriage, Proposition 8, as the beginning of the marriage equality revolution.
      The movement for marriage equality for same-sex couples actually marked a 10-year anniversary last week. The first legally sanctioned marriages of gay and lesbian couples in the United States were officiated in Massachusetts on May 17, 2004, thanks to a ruling six months earlier by the state’s highest court. In its 4-3 ruling in Goodridge v. Dep’t of Public Health (2003), the Supreme Judicial Court of Massachusetts said same-sex couples had a right under the state’s constitution to the legal benefits of civil marriage and gave the Massachusetts legislature 180 days to pass a law consistent with its ruling. When the state Senate asked whether civil unions for same-sex couples would suffice, the court said no — setting the stage for marriages to begin when the 180-day deadline expired.
      Becker’s book includes no index entry for Goodridge and only slight references to the lead attorney, Mary Bonauto, who had been litigating gay marriage cases in New England states for several years by then. Bonauto and her colleagues at the Boston-based Gay and Lesbian Advocates and Defenders went on to win the first lower court ruling to strike down the federal Defense of Marriage Act (DOMA), which barred federal marriage-based benefits for legally married same-sex couples.
      Bonauto appears for the first time in Becker’s book at page 280. Becker uses her only to commend the federal court trial that Griffin’s dream team of strange bedfellow lawyers — conservative Republican Theodore Olson and liberal Democrat David Boies — put together to challenge Proposition 8. 
      Another of the heroes given short shrift in Becker’s account is Evan Wolfson, who can rightly be called the intellectual father of the marriage equality movement and its most important political tactician. As a student at Harvard Law School, Wolfson wrote a 140-page thesis, “Same-Sex Marriage and Morality: The Human Rights Vision of the Constitution,” one of the earliest arguments for recognizing marriage rights for gay and lesbian couples.
      Wolfson went on to head the national marriage project at Lambda Legal Defense and Education Fund from 1989 to 2001 before founding Freedom to Marry as a stand-alone lobbying and election-oriented organization. Becker notes this history, but calls Freedom to Marry’s strategy “plodding.” Wolfson appears mainly as one of the established gay rights leaders who warned against Griffin’s go-for-broke federal court strategy.
      The more serious slights in Becker’s book, however, are the countless gay men, lesbians, and straight allies who had been working on the marriage issue for years before Griffin came on to the scene. The plaintiffs in the early marriage cases took some risks in agreeing to be identified with a cause that was then politically unpopular and legally uncharted. The recruited plaintiffs in the Prop 8 case — Paul Katami and Jeff Zarrillo and Kris Perry and Sandy Stier — sacrificed some privacy and suffered some harassment, but they had no real fear of backlash in their gay-friendly communities in Los Angeles and the San Francisco Bay area.
      Becker also credits Griffin, and Griffin alone, with marriage equality’s first electoral victories: the pro-gay marriage votes in November 2012 in Maine, Maryland, Minnesota, and Washington. In Becker’s telling, it was Griffin’s decision, as president of the national Human Rights Campaign, to funnel money to those states that turned the tide. Freedom to Marry’s role goes mostly unmentioned — and the same for the in-state organizers and political foot soldiers.
      At the Supreme Court, Becker treats the Prop 8 case as the main attraction and the DOMA case the justices agreed to hear, United States v. Windsor, as sideshow. When the Prop 8 case is dismissed without a ruling, Griffin nevertheless manufactures the iconic photo op of the four California plaintiffs emerging arm in arm, along with Griffin and Boies, at the top of the Supreme Court steps. And Becker gives Olson the credit for the expansive language that Justice Anthony M. Kennedy included in Windsor in striking down DOMA — language cited in the unbroken string of pro-gay marriage rulings since.
      Marriage equality remains a work in progress. Becker has told a good, if partly misleading, story. The history of the fight for marriage equality is yet to be written.

Supreme Court Takes a Pass on Legislative Prayer

      Rajan Zed wore a traditional Indian kurta adorned with a gold scarf as he stood at the front of the U.S. Senate chambers on July 12, 2007, to deliver the opening prayer for the day’s session. Before the Hindu priest could begin, however, Sen. Bob Casey had to gavel three times for order and Capitol police officers had to remove and arrest three Christian activists who were protesting from the galleries.
       The Reno, Nevada, priest had been invited to deliver the invocation by his home state senator, Majority Leader Harry Reid. When news of his selection got out, however, the American Family Association, a fundamentalist Christian organization, sent out “an action alert” to protest.
      “This goes against all history and all tradition of our country,” the group’s president Tim Wildmon said in the message, according to the account in the Capitol Hill newspaper Roll Call. “This fella does not even believe in one god as the Constitution and Declaration of Independence speak of.”
      With order restored, Zed delivered his prayer, the opening seen here. Reid spoke from the floor afterward to thank him. “It speaks well of our country that someone representing the faith of about a billion people comes here and can speak in communication with our heavenly father regarding peace.”
      Later the same year, the small suburban town of Greece, New York, had its own controversy over the issue of legislative prayer. Two of the town’s non-Christian residents objected to the unvarying succession of Christian ministers invited to open the Board of Supervisors’ monthly meetings, many of them with prayers explicitly invoking Christian doctrines.
      After Susan Galloway and Linda Stephens objected, the board allowed a Jewish layman, a Bahai leader, and a Wiccan priestess to open meetings. But a Christian minister opened another of the sessions with a prayer that criticized “the “ignorant minority” who had objected to the sectarian invocations.
      Expect more of these unedifying — and, one might say, unchristian — episodes thanks to the Supreme Court’s decision last week [May 5] allowing sectarian, legislative prayers with only the slightest hint of judicial review to help instill religious tolerance. In a 5-4 decision, Town of Greece v. Galloway, the court found nothing by way of an Establishment Clause violation in Greece’s practice of turning over the official dais to Christian ministers to pray in sectarian terms before citizens gathered for the secular business of municipal government.
       In the main opinion, Justice Anthony M. Kennedy invoked historical tradition dating from the First Congress. The practice of legislative prayer, with what Kennedy called Christian “vocabulary,” was “accepted by the Framers” and “has withstood the critical scrutiny of time and political change.”
      For the dissenters, Justice Elena Kagan invoked a different tradition, a promise in the Constitution to treat believers of every faith alike. As citizens performing duties or seeking benefits of citizenship, Kagan wrote, every American “does so not as an adherent to one or other another religion, but simply as an American.”
      The dissenters — significantly, the three Jewish justices and the liberal Catholic Sonia Sotomayor — conceded the constitutionality of legislative prayer, but wanted only to require “religious neutrality,” in Kagan’s phrasing: accommodation for prayer givers of all faiths and all in nonsectarian terms only.
      In his opinion, Kennedy was more worried about the rights of the government-invited prayer-givers than those of the public audiences. Rules about the content of legislative prayer, he said, would amount to “a form of government entanglement with religion that is far more troublesome than the current approach.”
      Years earlier, Kennedy had had no problem with a different kind of government entanglement in a First Amendment context. He joined the 5-4 majority in Rust v. Sullivan (1991) in upholding a law telling federally funded family planning clinics that they could not counsel clients about whether to seek an abortion.
      In the prayer case, Kennedy cautioned that there might be a constitutional problem with “a pattern” of invocations that either “denigrate” other religions, “threaten damnation,” or “preach conversion.” By finding no such pattern in Greece, however, Kennedy signaled clearly that lower courts should not look hard for any violations.
      Among the other four justices in the majority — significantly, all of them Catholic — Justice Clarence Thomas went along, but only after reiterating his view that the prohibition against government establishment of religion does not apply to state and local governments at all. Thomas was not even sure about its meaning for the federal government. The First Amendment, he said, “probably” prohibits a national establishment of religion.
      Among the many commentators pro and con on the issue, George Will reflected the view of many supporters of government-sponsored prayer by criticizing those who object for having “a thin skin.” On the other side, such columnists as E.J. Dionne Jr. and Ruth Marcus criticized the court’s majority for a lack of “empathy” toward the nation’s non-Christians.
      In her dissent, Kagan dropped a footnote invoking George Washington, Thomas Jefferson, and James Madison in warning that the government’s aligning itself with any particular sect or creed was inevitably divisive. As Kagan noted, the nation was overwhelmingly Christian at the time and far more religiously diverse today. The sight of a Hindu priest delivering a prayer in the Senate chamber produced the kind of acrimony that Washington warned against two centuries earlier. With an Establishment Clause pass from the Supreme Court, one can expect only more such acrimony in the future.

Scalia’s Anti-Government Stress Disorder

       Cliven Bundy and Antonin Scalia have never met, but they have in common a psychiatric condition that belongs in the textbooks if it is not already there: anti-government stress disorder. The disorder stems from an outsized ego and a deep-seated resentment of unwelcome authority and manifests itself at times in confused perceptions of reality held only by those who suffer from the condition.
       Bundy has displayed his condition by squaring off against federal agents the past month over the $1.1 million he owes for grazing his cattle on government-owned land for the past 20 years. In Bundy’s distorted perception of reality, he is a patriot and guardian of constitutional rights instead of a lawbreaking deadbeat.
       Scalia has not taken up arms against the government, though he did tell a law school audience last month [April 20] that if taxes go too high, “perhaps you should revolt.” But like Bundy, Scalia sees himself as a beleaguered patriot and guardian of constitutional rights in dubious battle against overpowering forces, including benighted adversaries in all three branches of the national government who lack his keen vision and wisdom.
       Scalia’s disorder led him astray last week with an embarrassing factual mistake in his dissenting opinion in a case, Environmental Protection Agency v. EME Homer City Generation, [April 29] — a factual mistake so blatant that the court corrected it within less than 24 hours. The mistake was all the worse for Scalia because he mischaracterized a decision in an earlier EPA case that Scalia himself had written.
       The new case was one that Scalia acknowledged was “not of earth-shaking importance,” but he was incensed enough to read much of his dissent from the bench. EPA had erred, in Scalia’s eyes, in adopting what he admitted was likely a “desirable” result on the issue of controlling cross-state air pollution. But the agency, according to Scalia, had disregarded a “clear and unmistakable standard” in the law Congress had passed on the issue.
       To simplify, Congress has included in the Clean Air Act a requirement — the so-called Good Neighbor Provision — aimed at protecting downwind states in the East from air pollution emitted in particular by coal-fired power plants in upwind states in the Midwest and South. The provision requires states to adopt plans that prevent power plants and the like from emitting any air pollutant “in amounts which will … contribute significantly” to pollution in other states.
       To implement that law, EPA developed the so-called Transport Rule, which essentially requires 27 upwind states to reduce emissions of nitrogen oxide and sulfur dioxide according to standards set by EPA. The standards are to be based on air pollution that could be eliminated “cost-effectively.”
       In a 6-2 decision, the Supreme Court upheld the EPA’s approach. Justice Ruth Bader Ginsburg called it “a permissible, workable and equitable interpretation” of the law. Three liberal colleagues joined the opinion, but so did two of the court’s conservatives: Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy.
       In dissent, Scalia saw the EPA as making up the approach on its own in the face of an “unambiguous” statute. Even while calling the law “stupid,” Scalia said the episode was “a textbook example” of why many Americans believe they are governed “not so much by their elected representatives as by an “unelected bureaucracy.”
       EPA’s mistake, Scalia explained in his written opinion, was just like one the agency had made — and the court had corrected — in a decision in 2001. Back then, Scalia recalled, the EPA had wanted to apply a cost-benefit analysis in enforcing another provision of the Clean Air Act, but the law passed by Congress did not allow that approach.
      Unfortunately for Scalia’s critique, he got the facts wrong. In Whitman v. American Trucking Associations (2001), it was industry groups, not EPA, that had asked to adopt a cost-benefit approach. EPA wanted to enforce the law as Congress had written it. And Scalia should have known since he himself had written the decision in the earlier case.
      When a sharp-eyed law professor pointed out the error to the court’s Reporter of Opinions on the same day, the passage was quickly rewritten on line to say that “the parties,” rather than the EPA, had sought a cost-benefit approach. Gone too was a taunting subhead: “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority.” The new subhead: “The Court’s Precedents.”
      Some legal observers dismissed the mistake as a mere typo, but it was more than that. Scalia fixed in his mind an image of the EPA as an out-of-control bureaucracy and misremembered the past to align with his view of the world.
        Scalia takes off against other parts of government in much the same way. When the court considered the Voting Rights Act two years ago, Scalia cited its overwhelming approval by both chambers of Congress as evidence that it was all wrong. When Roberts led the court in a narrow ruling on campaign finance law in 2007, Scalia accused the chief of “faux judicial restraint.” In Scalia’s disordered mind, the rest of government is so often so very wrong — and he alone is not afraid to say so.