More on Baze v Rees
As Bridget said in the comments to yesterday’s post about the US Supreme Court’s decision in the death penalty case, Baze v Rees:
Intellectual commentary might come later.
Here’s my first try. …
Author: Eoin
Dr Eoin O'Dell is a Fellow and Associate Professor of Law at Trinity College Dublin.
US Supreme Court upholds the constitutionality of the lethal injection
On the day when the President of the United States welcomes the Pope to the White House, the long-awaited decision of the US Supreme Court on the compatibility of the lethal injection with the Eighth Amendment to the US Constitution has been handed down. In Baze v Rees, the challenge failed by a vote of 7 to 2 and the decision below (217 S. W. 3d 207 (2007)) was upheld; but the 7 is a fractured majority (I have previewed this case here and here; for full analysis, see the ScotusWiki page on the case; for initial news reaction, see NPR).
Roberts CJ, joined by Kennedy and Alito JJ, concluded that Kentucky’s lethal injection protocol satisfies the Eighth Amendment. In their view, allowing a condemned prisoner to challenge a State’s execution method merely by showing a slightly or marginally safer alternative found no support in the Court’s cases, that it would embroil the courts in ongoing scientific controversies beyond their expertise, and that it would substantially intrude on the role of state legislatures in implementing execution procedures. As a consequence, they held that the petitioners had failed to demonstrate the necessary substantial risk of serious harm, and that Kentucky’s protocol did not constitute an unconstitutional “cruel and unusual” punishment.…
Incitement to Anorexia
L’Assemblée nationale francaise (the lower house of the French parliament) yesterday passed a “Draft law aimed at fighting incitement to seek extreme thinness or anorexia” providing for fines of to €30,000 and terms of imprisonment of up to two years for inciting to “excessive thinness” and more if the incitement results in death (see Associated Press | Daily Telegraph | Guardian | International Herald Tribune here and here | Irish Independent | Irish Times | Media Law Prof Blog here and here | New York Times; update Volokh, including the French text of the Bill). The Bill will go before le Sénat (the upper house) next month. According to the Guardian, the Bill:
…would bar any form of media, including websites, magazines and advertisers, from promoting extreme thinness, encouraging severe weight-loss or methods for self-starvation … [and] is specifically aimed at what French MPs called pro-anorexia “propaganda” websites … [which] support anorexia as a lifestyle choice rather than a medical disorder … The blogs and forums, which have developed in the US since 2000 and grown in France over the past two years, often include talk-boards frequented mainly by teenage girls and young women with advice on how to get through the pain of extreme hunger after eating a yoghurt a day, or how to hide extreme weight-loss from parents or doctors.
The First Amendment is dead; long live the First Amendment
The First Amendment is dead, according to Judge Alex Kozinski (right) (official bio | articles | magazine profile | unofficial site | UTR BSG | wikpedia).
When AK shoots from the lip, life is never boring. One friend likes his fiercely libertarian instincts, another his mercurial contrarian attitudes – I have always been a fan of his provocative First Amendment scholarship and decisions (one of the classic articles on the doctrine of commercial speech is Kozinski and Stuart Banner “Who’s Afraid of Commercial Speech?” 76 Virginia Law Review 627 (1990) (pdf); see also their sequel “The Anti-History and Pre-History of Commercial Speech” 71 Texas Law Review 747 (1993) (pdf); summary here).
Last week, he made speech theory life very interesting indeed. Delivering an address at a Pepperdine University School of Law Sympoisum on Free Speech & Press in the Modern Age – Can 20th Century Theory Bear the Weight of 21st Century Demands?, AK argued that the First Amendment is dead! In a summary provided by Roger Alford on Opinio Juris (also Legal Blog Watch | First Amendment Law Prof Blog), in a speech entitled “The Late, Great First Amendment”, the essence of what AK had to say was that
…in a day when Internet speech is not capable of suppression, the ability of the First Amendment to have a moderating effect is now gone.
Say, what?
From today’s Bits Blog on the New York Times site:
…Newspapers Argue for First Amendment Right to Snoop on Readers
Usually, when people talk about the trade offs between privacy and freedom of the press, the argument is about whether the public has the right to know some fact about an individual’s personal life.
The newspaper industry is now arguing that the First Amendment protects its right to follow users around the Internet so it can charge higher prices on advertising.
This argument was made in a filing by Newspaper Association of America commenting on the Federal Trade Commission’s proposal that the companies involved in advertising that uses what is called behavioral targeting create a self-regulatory code that limits their use of sensitive information.
Something must be done – II
The moral of the story in my previous post about cars being preceded by men carrying red flags is that fear of the new often leads to unnecessary regulation. For this reason, in the context of the internet, we need to be careful about over-reaction and over-regulation. In particular, we now have, in Ireland, a multiplicity of red-flags around the internet, and I wonder whether they are all really necessary.
In November 1999 – arising out of the public debates surrounding the Child Trafficking and Pornography Act, 1998 (also here) and the publication of the Report of the Working Group on the Illegal and Harmful Use of the Internet in July 1998 – the Internet Service Providers Association of Ireland (ISPAI) established the Internet Child Pornography Hotline. It is now part of InHope (the International Association of Internet Hotlines) and of InS@fe, a europe-wide network of internet safety awareness bodies funded by the EU, which organises for example an annual Safer Internet Day (this year, it was 12 February last).
Soon thereafter, the Internet Advisory Board (IAB) was established by the Minister for Justice Equality and Law Reform in February 2000, with a general remit to supervise a system of self regulation by the Irish ISP industry and to pomote awareness of internet safety, particularly with regard to children.…
Something must be done – I
It is human nature to fear the new. And for many of us, the internet is still new. I have pointed out before that Lilian Edwards observes (in “The internet and security: do we need a man with a red flag walking in front of every computer?” (2007) 4 (1) SCRIPT-ed 1 (March 2007)), rather like those who feared cars so much that early models had to be preceded by a man walking ahead with a red flag to warn people of the approach of the new-fangled invention, there are now those who would red-flag everything about the internet. Sometimes, these fears are well-founded; on other occasions, they are exaggerated and misplaced. But the usual response – and in particular, the usual political response – is to do something to soothe those fears, whether or not well-founded. The cry goes up: “Something must be done”; and something is indeed done, whether it is necessary or not. This is particularly so when the cry that goes up is “Won’t someone please think of the children?“; hence, when the something is being done, it is often justified as being done in the best interests of children, again whether it is necessary or not.…
Complaints against lawyers
The Office of the Legal Services Ombudsman for England and Wales and the Office of the Scottish Legal Services Ombudsman were established in 1990. There are plans afoot for their reform (Scotland | England & Wales) but the basic principle of independent oversight of disciplinary matters for the legal professions will not only remain intact but be enhanced. Now, it seems that Irish law is soon to adopt this principle too. Carol Coulter has an interesting article about recent developments in this regrad in today’s Irish Times (sub req’d); some extracts:
…Ombudsman will oversee complaints against lawyers
A Legal Services Ombudsman who will be appointed by the Government for up to six years will have oversight of the disciplining of solicitors and barristers, and of their recruitment and training. The ombudsman will be appointed under the Legal Services Ombudsman Bill, expected to be published next week.
The Bill was originally part of the Civil Law (Miscellaneous Provisions) Bill 2006 [2006 press release], but was taken out of this Bill for further development in the wake of controversy concerning solicitors Michael Lynn and Thomas Byrne. Under it, members of the public will be able to appeal to the ombudsman if they are dissatisfied with the outcome of complaints to the disciplinary bodies of the Law Society or Bar Council.
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