Monthly Archives: October 2016

No, Justin Timberlake Did Not Break the Law By Taking a Ballot Selfie

By Daniel Horwitz:

Demonstrating his laudable commitment to participating in the political process and encouraging others to do so as well, international music sensation and Memphis-bred popstar Justin Timberlake recently posted an instragram photo of himself rocking the (early) vote at his polling place in Memphis, Tennessee.  That terrible offense, unfortunately, has earned him a rebuke from the Shelby County District Attorney’s office, which is currently conducting a criminal investigation into his scandalous conduct.  The reason?  Tennessee’s poorly-worded “Use of Mobile Electronic and Communication Devices at Polling Place for Informational Purposes” statute, codified at Tenn. Code Ann. § 2-7-142(b), which provides that:

“Any voter using a mobile electronic or communication device . . . shall be prohibited from using the device for telephone conversations, recording, or taking photographs or videos while inside the polling place.”

Violating this provision is theoretically a Class C misdemeanor punishable by up to 30 days in jail and a $50.00 fine.  The law, however, is unconstitutional.

The practice of taking “ballot selfies” – photographs of one’s ballot that may or may not also include the voter – has become increasingly popular among voters in recent years.  Celebrities from Beyoncé to Sean Hannity to Kim Kardashian have also gotten in on the action.  Unfortunately, however, the celebratory practice of posting ballot selfies – which should be welcomed and perhaps even encouraged in a political climate in which many voters, especially young voters, never vote at all – has also drawn the attention of overzealous state regulators.  During the November 2014 election, for instance, “approximately 35 states prohibited ballot selfies in one form or another,” and several states – Tennessee among them – “have since followed suit.”

At least one prominent election law scholar has supported the bans both as a policy matter and as a constitutional one, characterizing them as “a threat to democracy” because they could ostensibly facilitate vote-buying or coercion schemes.  As this author explained in his 2015 SMU Science and Technology Law Review article A Picture’s Worth a Thousand Words: Why Ballot Selfies Are Protected by the First Amendment, however, that conclusion is woefully misguided, and ballot selfies are safely protected by the First Amendment.  Importantly, every single court that has evaluated the issue to date – which includes the U.S. District Court for the District of New Hampshire, the U.S. Court of Appeals for the First Circuit (upon review of the District Court of New Hampshire), the U.S. District Court for the Southern District of Indiana, and the U.S. District Court for the Southern District of Michigan – has also agreed that states cannot lawfully prohibit ballot selfies without running afoul of the First Amendment, unanimously striking down various states’ ballot selfie prohibitions on free speech grounds.  Thus, as far as the federal judiciary is concerned, Tennessee’s ballot selfie prohibition cannot withstand constitutional scrutiny.

Three main reasons, detailed extensively in this article, support the conclusion that ballot selfies may not lawfully be prohibited without violating the First Amendment.

First, ballot selfie bans unnecessarily restrict a substantial amount of constitutionally protected speech (like Mr. Timberlake’s) that is completely unrelated to vote buying, while simultaneously doing nothing to prevent far simpler forms of vote buying, such as absentee ballot fraud (which can be accomplished outside of the comparatively well-surveilled atmosphere of a polling place).

Second, the “compelling” nature of the Government’s interest in enacting broad-based laws to guard against vote buying is subject to considerable doubt, because vote buying is statistically non-existent even in jurisdictions where it is easy to accomplish.

Third, and most importantly, because voters have the ability to change their vote even after taking a ballot selfie, ballot selfies are a useless tool for promoting vote buying anyway—rendering the entire premise behind such laws baseless.  That reality is exposed, for example, by this set of pictures (click on the photo to enhance it) that the author took during the 2015 Nashville mayoral election, which collectively illustrate just how easy it is to change one’s vote after making an initial selection:

photo

In other words, because ballot selfies do not provide a prospective vote-buyer any level of certainty that a ballot has actually been cast in a particular way (an absolute prerequisite to any effective vote-buying scheme), ballot selfies are a useless tool for committing fraud, and banning them serves to do nothing but interfere with the political speech of innocent voters who want to do nothing more than celebrate the fact that they voted.

In sum: Justin Timberlake should be applauded for his activism and his decision to celebrate the right to vote, which is fully protected by the First Amendment.  As such, today – like most days – JT’s an American hero.

Update, 5:07 PM: To the surprise of nobody, Justin Timberlake’s prosecution for violating Tennessee’s ballot selfie ban won’t go forward.

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Slate: An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”

By Mark Joseph Stern, for Slate:

Nashville attorney Daniel Horwitz was helping a man expunge his criminal record when he discovered something unexpected: a conviction for violating Tennessee’s Homosexual Practices Act—from 1995.

“Subject was engaged in sexual intercourse with another male subject,” the misdemeanor citation reads. The charge could have landed the defendant—whom I’ll call John Doe—in jail. Instead, Doe took a plea deal and avoided jail time by admitting that he had, indeed, had sex with a man, a practice forbidden by the law. Horwitz told me he was “aghast” to see the charge.

Continue reading Slate: An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of “Homosexual Acts”

July 2016 Tennessee Bar Results: 5 out of 6 Tennessee Law Schools Exceed 70%, Nashville School of Law Musters Just 28%

The July 2016 bar exam results are out!  Vanderbilt remains on top with a 92.68% passage rate (100% for those re-taking the exam), but fully five out of six Tennessee law schools boasted an impressive overall passage rate exceeding 70%.  The outlying school, unfortunately, was Nashville School of Law (NSL), which mustered an overall passage rate of just 28.46% (only 21.43% for re-takers).  july-2016-bar-statistics

Regrettably, NSL’s poor performance represents an even further decline from its already troubling performance on the February 2016 bar exam.  This is also the fourth poor result for Nashville School of Law in a row since the school attained new leadership and pledged to boost its passage rate above what was then 65%-70%.

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Tennessee Board of Cosmetology Backs Down, Withdraws Threatened Enforcement Action Against Project Belle

Nashville, Tennessee—The Tennessee Board of Cosmetology and Barber Examiners has officially withdrawn its threatened enforcement action against on-demand beauty services provider Project Belle, greenlighting the company’s business practices and enabling its continued growth throughout the State of Tennessee. The Board’s decision to back down comes after intense media coverage from local, state and national media outlets including Forbes, Yahoo, Reason, the Nashville Business Journal, the Beacon Center of Tennessee, and the Memphis Commercial Appeal.

The Board had claimed that the Tennessee Cosmetology Act of 1986 prohibited Belle from facilitating the purchase of beauty services in the privacy of a customer’s home. Accordingly, the Board demanded that Belle pay a civil fine, waive its right to judicial review, and cease and desist from operating. Instead, Belle lawyered up and formally contested the Board’s allegations, causing it to reconsider its threatened enforcement action. The Board’s decision to permanently withdraw its complaint soon followed.

“We are extremely pleased that the Board of Cosmetology has withdrawn its unlawful and overzealous threats against Project Belle, whose only crime has ever been to provide eager customers with convenient, premium quality beauty services at competitive prices in the privacy of their own homes,” said Daniel Horwitz, Belle’s attorney. “No government agency should be in the business of preventing popular, innovative businesses from serving willing customers just to protect entrenched industry competitors from competition. We look forward to working with the General Assembly in the coming months to make clear that the Board lacks the authority to deprive healthy, able-bodied consumers of their right to purchase their desired beauty services whenever and wherever they please.”

“The Board has decided to dismiss its complaint and Belle will continue its operations and growth efforts in Nashville,” said Armand Lauzon, Belle’s founder and CEO, who recently penned an op ed in The Tennessean calling on legislators to repeal Tennessee’s outdated cosmetology regulations. “We are delighted by the Board’s decision.  It means that beauty professionals who have built businesses with us can continue their success, and our clients can continue enjoying services that many of them desperately need. It also means that economic growth and innovation can continue expanding in Tennessee. We are proud to have helped pave the way on this important issue.”

“I also want to send a special thanks to the legislators who took time to voice their support on our behalf, including State Representative John Ray Clemmons, State Senator Steven Dickerson, and State Senator Mark Green,” added Lauzon.

For press inquiries, please contact Julia Bonner at julia@pierce-pr.com.  The individuals referenced in this release are available for comment at daniel.a.horwitz@gmail.com and armand@projectbelle.com.

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Case Update: Memphis’s 48-Hour Investigative Hold Policy Heads to the Supreme Court

By Daniel Horwitz:

Case Update:  On August 30, 2016, the U.S. Supreme Court ordered the State of Tennessee to file a response to the petition for writ of certiorari filed in this case by defendant Terry Norris.  The State’s response was filed on September 29th, and it is accessible here.  Mr. Norris’s petition for writ of certiorari was also featured as the “petition of the day” on SCOTUSblog last Friday.

Statistically speaking, the Supreme Court’s request for a response from the Tennessee Attorney General raises the likelihood that the court will accept this case for review from approximately 1% to roughly 10%-20%.  If granted, Norris v. Lester will be one of the most significant cases to reach the U.S. Supreme Court out of Tennessee in recent history.

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Original Post:  Memphis’s 48-Hour Investigative Hold Policy Heads to the Supreme Court

In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy.  The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1]  Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.

Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2]  As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours.  If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it.  If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.

The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures.  In the 1991 case County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional.  Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place.  However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:

First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance.  Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only.  Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed.  Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment.  Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]

This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring.  There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted.  Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).

[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).

[3] The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.

[4] Horwitz, supra, at 522–23 (citations omitted).