Selma – The Screenwriter’s Dilemma

Posted on February 3, 2015 03:30 by Seth F. Kirby

The movie Selma, which chronicles Dr. Martin Luther King Jr.’s 1965 voting rights campaign, has received critical acclaim and an Oscar nomination for best picture.  It has also generated controversy due to the Academy’s failure to nominate its lead actor and director for awards, which in the eyes of some is indicative of racial bias in Hollywood. Interestingly, another potential controversy hidden within the film has apparently been avoided through the careful consideration of the film’s director and screen writer.  Their actions will certainly receive the thanks of the film’s insurers, but historical accuracy has been sacrificed to avoid copyright claims.

Dr. King’s speeches are protected by copyrights held by his estate.  In 2009, the estate licensed the speeches and the rights to his life story to Stephen Spielberg’s DreamWorks production company for use in a picture to be produced by Mr. Spielberg.  Due, in part to this licensing agreement, and in part to a reluctance to seek permission from the King family for right to use the speeches, Selma’s director sought to find a way around the problem.  The solution was simply to rewrite Dr. King’s speeches in an attempt to avoid copyright infringement.  By way of example, in the film Dr. King speaks at a funeral and asks “who murdered Jimmie Lee Jackson?” His actual question was “who killed him?” Separately, Dr. King’s impassioned plea to “give us the ballot” was changed to “give us the vote.”  I am pretty sure that such minor alterations would not have saved me from a charge of plagiarism in my high school English class, but it is presently viewed as a sufficient change to avoid the ire of the King family.

Assuming that the film production maintained some form of liability insurance, which is almost guaranteed, it may afford the film protection from claims of copyright infringement.  While film production liability policies are somewhat unique, standard commercial general liability polices provide coverage for copyright infringement claims under “Coverage Part B,” which provides coverage for certain alleged “Personal and Advertising Injuries.” Under such policies, coverage is provided for negligent infringement of a copyright, but excluded for knowing/intentional violations. The workaround used in Selma presents a coverage dilemma.  The screenwriter was aware of the copyright and the potential that that the film would infringe on the protection yet he attempted to avoid a violation and may have subjectively believed that his alterations were enough to avoid a claim. Is his objective belief enough to avoid the application of the policy exclusion, or would coverage be voided if the words used violate the copyright?

Hopefully, the film will avoid generating any claims associated with Dr. King’s copyrights and no one will be forced to wrestle with this coverage question or related defenses of fair use.  It is a shame that Dr. King’s actual words were not used in the movie.  In an age when our knowledge of history is reduced to what we see on film, Dr. King’s oratory has been purposefully altered, thereby shaping our memory and potentially diminishing the power of his words.  I hope that Mr. Spielberg has better success in historical accuracy in his project. “I possess a desire” just doesn’t have the same impact.

This blog was originally posted on January 30 on Freeman Mathis & Gary, LLP, Law Blogline. Click here to read the original entry. 

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On Thursday, the Seventh Circuit held that 42 U.S.C. 1981 does not protect against religious discrimination. In Lubavitch-Chabad of Ill., Inc. v. Nw. Univ., No. 14-1055, 2014 WL 5762937 (7th Cir. Nov. 6, 2014), Northwestern University conducted an investigation into underage alcohol consumption at a religious house that was presided over by a rabbi and was affiliated with the university. Following this investigation, the university (1) terminated its affiliation with the religious house and (2) ended the rabbi’s role as kosher food consultant to the university’s food service provider. The rabbi and his religious organization sued the university and two of its officials, claiming these acts were motivated by anti-Semitism and violated two federal antidiscrimination statutes, 42 U.S.C. 1981 and 42 U.S.C. 2000d.

The district court granted summary judgment in favor of the defendants. On appeal, the plaintiffs dropped their challenge to the dismissal of the Section 2000d claim. As to the Section 1981 claim, the plaintiffs argued that the disaffiliation was motivated by hostility against the plaintiffs’ Jewish sect, not by hostility to ethnic Jews. The Seventh Circuit affirmed.

The Seventh Circuit found that both the university’s affiliation with the religious house and the rabbi’s food consulting were contractual. But it observed that there is no mention of religious discrimination in Section 1981, which provides that all persons “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The Seventh Circuit wrote that the only difference between 42 U.S.C. 1981 and 1982 is that one deals with contracts and the other with property—neither refers to discrimination on the basis of religious identity, beliefs, or observances. Therefore, it wrote, the Supreme Court’s ruling in Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987), that Section 1982 protects only groups defined by “their ancestry or ethnic characteristics” applies equally to Section 1981. Accordingly, the Seventh Circuit held that Section 1981 does not protect against discrimination based on religion.

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Yesterday, the Seventh Circuit ruled that Indiana’s statute regarding who may solemnize a marriage violates the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment, reversing the lower court’s decision. In Center for Inquiry, Inc. v. Marion Circuit Court Clerk, No. 12-3751, 2014 WL 3397217 (7th Cir. July 14, 2014), the Center for Inquiry filed suit under 42 U.S.C. § 1983 contending that Indiana’s marriage-solemnization statute violates the Constitution’s First Amendment, applied to the states through the Fourteenth Amendment, by giving some religions a privileged role. The statute specifies who may perform the final steps that unite persons who hold marriage licenses. The list includes religious officials designated by religious groups, but it omits equivalent officials of secular groups such as humanist societies. 

The Seventh Circuit wrote that three states (Florida, Maine, and South Carolina) authorize humanists to solemnize marriages by becoming notaries public, but Indiana does not (notaries cannot perform marriages in Indiana)—nor does it provide any other way for private secular groups to exercise this authority. Four states (Alaska, Massachusetts, Vermont, and Virginia) allow anyone to solemnize a marriage, and another six (Colorado, Kansas, Montana, Pennsylvania, New York, and Wisconsin) allow the couple to solemnize their own marriage, but neither option is available in Indiana. For hundreds of years, in the legal tradition that we inherited from England, the persons who could solemnize marriages included clergy, public officials, sea captains, notaries public, and the celebrants themselves. When Indiana codified the list in 1857 it left off captains, notaries, and the marrying couple, though it included some religious groups (and added some other religious groups later). 

The Center for Inquiry is a nonprofit corporation that describes itself as a humanist group that promotes ethical living without belief in a deity. The Center seeks to show, among other things, that it is possible to have strong ethical values based on critical reason and scientific inquiry rather than theism and faith. The Center maintains that its methods and values play the same role in its members’ lives as religious methods and values play in the lives of adherents. The Center would be satisfied if notaries were added to the list; nothing in humanism makes it inappropriate for a leader (or any other member) to be a notary public.

In the lawsuit, Indiana stated that a humanist group could call itself a religion, which would be good enough for the state. It also noted that a humanist celebrant could conduct an extra-legal ceremony, which the not-yet-married couple could follow up with a trip to the local court to have the clerk perform a legally effective solemnization. The Center and its Indiana leader, who is also a plaintiff, find these options unacceptable; they are unwilling to pretend to be something they are not or pretend to believe something they do not; they are shut out as long as they are sincere in following an ethical system that does not worship any god, adopt any theology, or accept a religious label.

The Seventh Circuit observed that the Supreme Court has forbidden distinctions between religious and secular beliefs that hold the same place in adherents’ lives. It also observed its own past holding that when making accommodations in prisons, states must treat atheism as favorably as theistic religion. What is true of atheism is equally true of humanism, it wrote, and as true in daily life as in prison.

The Seventh Circuit noted that the Supreme Court has addressed the long-established practice of opening legislative meetings with prayer, most recently in this year’s Greece v. Galloway, 134 S.Ct. 1811 (2014). But while these cases concern what a chosen agent of the government says as part of the government’s own operation, they do not concern how a state regulates private conduct. The Indiana marriage statute, by contrast, is regulatory. So although a government may, consistent with the First Amendment, open legislative sessions with Christian prayers while not inviting leaders of other religions, a state cannot limit the solemnization of weddings to Christians, while excluding Judaism, Islam, Buddhism, and—humanism.

Reversing the lower court decision, the Seventh Circuit remanded with instructions to issue an injunction allowing certified secular humanist celebrants to solemnize marriages in Indiana—to do this with legal effect, and without risk of criminal penalties. It wrote, however, that if Indiana amends its statute to allow notaries to solemnize marriages, the district court should be receptive to a motion to modify the injunction to minimize the extent to which a federal decree supersedes the state’s own solution to the problems the Seventh Circuit has identified.

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How many of us have admitted that our phone is our life?  Well, on June 25, 2014, the United States Supreme Court agreed, and, relying on that phrase, held that search of a cell phone generally requires a warrant.  See Riley v. California, June 25, 2014, 573 U.S. ____ (June 25, 2014).

The Riley decision involves appeal in two related cases.  First, in Riley v. California, David Riley was stopped for having an expired registration, and in the course of the stop, the officers learned his driver’s license had been suspended.  The officer impounded the vehicle, according to department policy.  In the course of another officer’s inventory search of the car, the officer found two concealed and loaded handguns.  Riley was then arrested for possession of concealed and loaded firearms.  When the officer searched Riley, properly, incident to the arrest, he seized a smart phone from Riley’s pants pocket.  The officer accessed information on the phone, and saw photographs and videos which indicated Riley was a member of the “Bloods” street gang.  Contacts also had initials by them, indicating membership in the gang.  More importantly, officers saw a photograph of Riley standing in front of a vehicle that police believed was connected to a drive-by shooting.  Based on those photographs, at least in part, Riley was arrested for, and convicted of, firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder.  His sentence was enhanced because he was convicted of committing those crimes for the benefit of a criminal street gang.  Riley moved to exclude the cell phone evidence, but the motion was denied, and the California Supreme Court affirmed that denial.

In the second case, United States v. Wurie, Brima Wurie was observed making a suspected drug sale from his vehicle.  When he was taken to the police station after being arrested, officers confiscated two “flip phones”.  Shortly after arriving at the station, one of the phones began repeatedly ringing from a number identified as “my house.”  The officers opened the phone and saw a photograph of a woman and child on the wallpaper.  Officers pressed two buttons only, and were able to obtain the phone number for “my house.”  Using an on-line directory, the officers found the associated physical address and went to the apartment building.  Officers secured the apartment and waited for a warrant to search it.  In searching, they located crack cocaine, firearms, and ammunition.  Wurie moved to exclude the evidence found in the search because it was obtained by a warrantless search of the cell phone.  The district court denied the motion, but the First Circuit Court of Appeals reversed.

The Court analyzed the question of whether a warrant was necessary before a search of cell phone data takes place using much of its previous case law discussing searches incidental to arrest, including Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973); and Arizona v. Gant, 556 U.S. 332 (2009). After a review of those cases, the types of searches involved in them, and the principles regarding warrantless searches, the Court stated, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The Court began its analysis by reviewing that familiar case law to remind everyone of the purposes for the exception to the rule stated in the Fourth Amendment requiring warrants – officer protection and to prevent the destruction of evidence.  Looking at data within the cell phone did not meet either of those purposes.  Data itself does not constitute a weapon.  (However, the Court noted the officer may search the physical aspects of a phone to ensure no hidden razors or weapons are present to ensure the item itself does not constitute a weapon.)

The Court also recognized that destruction of data could, conceivably, be a concern.  Once officers take possession of the cell phone, though, the suspect/arrestee has no more ability to delete incriminating data.  Additionally, if officers have a reasonable and legitimate concern that someone else may remotely wipe date from the phone, once the officer properly takes physical possession of the cell phone (for instance, as property inventoried after an arrest), the officer can remove the battery from the phone or take other steps to prevent a remote wipe of data, including use of a “Farady bag” in which to place the phone.

The Court stated that “exigent circumstances” could still be applied, if such existed, to search data.  “To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.”  Exigent circumstances can include situations in which “police are truly confronted with a ‘now or never’ situation,’ – for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt.’”  Also, if data from a phone is needed to assist persons who are seriously injured or are threatened with imminent injury, the exigent circumstances exception would apply.  One example used was the potential of a remotely accessed bomb.  Officers must ensure, though, that the circumstances are objectively reasonable under the Fourth Amendment.

Additionally, the Court found that cell phones contain an implicit concern of privacy, far beyond a cigarette pack in a pocket (Robinson) or even a car, wallet, or purse, both because of the amount of data that can be contained on them and because of the type of personal data (health information; banking records; telephone records; photographs; location tracking information) that is routinely stored in a cell phone.  The court analogized the search of a cell phone to the search of a house, stating “a cell phone search would typically expose to the government far more than the most exhaustive search of a house[.]”  (emphasis in original).  The Court also noted that it is difficult to tell what information is stored directly on the phone, as opposed to “in the cloud.”  Under no circumstance could a search of data “in the cloud” be done without a warrant.  Therefore, searching data on a cell phone could not be done without the potential violation.

Finally, the Court issued its decision, noting its preference to provide clear guidance to law enforcement.  However, the Court emphasized that this holding was not that data on phones was immune from search.  Instead, a warrant is generally required before the search of a cell phone, even if seized incident to arrest.

As a training tool, this case is helpful.  First, it gives a clear-cut rule officers should find easy to follow.  Additionally, its review of how various cases should be applied provides guidance for training officers on the extent to which searches incident to arrest can be performed.  Finally, rather than a three- or four-part test, we have a simple rule.  While some people may not like it, the rule is clear and easy to follow.  Get the phone.  Hang onto it.  Get a warrant.

Stacy Moon is a shareholder at F&B Law Firm PC in Huntsville, Alabama, where she practices in the areas of municipal liability, employment law, commercial litigation, construction litigation, and personal injury defense. She is a past chair of the DRI Lawyers’ Professionalism and Ethics Committee and also active in the DRI Law Practice Management, Employment Law, Commercial Litigation, Governmental Liability, and Construction Law Committees.

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Categories: Civil Rights

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From time to time I encounter cases where a party is subject to both criminal and civil proceedings arising from the same circumstances.  Examples include drunk drivers involved in car accidents, security guards involved in physical altercations and professionals who mishandle client funds.  This causes concern as to whether the person’s Fifth Amendment rights against self-incrimination will be invoked and what impact that invocation would have on the civil proceeding.  Most often, the criminally charged party wishes to stay the civil matter pending the outcome of the criminal matter.  The other parties to the civil suit typically resist and, until last week, there was little guidance from the Supreme Court of Nevada as to how to balance these interests.

Aspen Fin. Servs. v. Dist. Ct., 128 Nev. Adv. Op. 57 (Dec. 6, 2012) provided this guidance.  The case arose from certain real estate investments which failed.  During the civil lawsuit

[t]he Aspen defendants filed a motion with the district court to stay any depositions and written discovery that would require their employees and officers or Guinn to make testimonial statements. The Aspen defendants asserted that the Federal Bureau of Investigation (F.B.I.) had initiated a criminal investigation into their activities at the behest of the Gragson plaintiffs. They further asserted that they had been served with a federal grand jury subpoena seeking information about various subjects, including the loans for the Milano property. In addition, the Aspen defendants argued that the Gragson plaintiffs had been, and would continue, funneling discovery obtained in the civil proceeding to the F.B.I. After an extensive hearing, the district court issued a written order summarily denying the motion without prejudice.

Id.  The court noted the difficult choice confronting a party to both civil and criminal proceedings.

Here, if discovery is not stayed, Guinn, in particular, will face a difficult choice when the Gragson plaintiffs depose him. He can either waive his Fifth Amendment privilege and risk revealing incriminating information to criminal investigators, or he can assert his privilege and forego the opportunity to deny the allegations against him under oath, thereby effectively forfeiting the civil suit.

Id. (citations and quotations omitted).

After surveying the methodologies used in various jurisdictions to determine how respond to a request for a stay of a civil lawsuit in these circumstances, the Supreme Court adopted a framework used by the Ninth Circuit.

[C]ourts should analyze ‘the extent to which the defendant’s fifth amendment rights are implicated as well as the following nonexhaustive factors:(1) the interest of the plaintiffs in proceeding expeditiously with [the] litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation.

Id. (quoting Keating v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir. 1995)).  Applying these criteria to the operative facts, the court ultimately concluded a stay was not appropriate.

Aspen Fin. Servs. expands upon the Supreme Court of Nevada’s Francis v. Wynn Las Vegas, LLC, 27 Nev. Adv. Op. 60, 262 P.3d 705 (2011) decision considering Girls Gone Wild founder Joe Francis’ invocation of his Fifth Amendment rights during deposition.  Francis recognized that Fifth Amendment rights may be invoked in civil litigation, however “a claim of privilege will not prevent an adverse finding or even summary judgment if the litigant does not present sufficient evidence to satisfy the usual evidentiary burdens in the litigation.”  Id. at 711 (citation and quotation omitted).

Together, Francis and Aspen Fin. Servs. do significantly clarify Nevada’s law concerning the application of Fifth Amendment privilege to civil matters.  These clarifications do, however, raise significant concerns as how discovery will be conducted where parallel civil and criminal proceedings occur and the need for motion practice to invoke a stay.

As originally posted on on 12/12/12

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On Monday, our United States Supreme Court promised plenty of work for our brothers and sisters on the nation’s border states practicing governmental liability law.  In Arizona v. United States, 567 U.S. ___ (2012), among other rulings, the 5-3 (9-0 on Section 2(B)) Court upheld Arizona’s controversial Show Me Your Papers provision, which requires local law enforcement to check the immigration status of people they stop for another reason.

Rejecting the United States’ position that federal law pre-empts the Arizona statute in this effect, the Majority broadly reasoned that this particular law complimented, rather than stood as an encroachment, into the federal immigration power.  The Court also reasoned that as a facial challenge to a pre-effect law, it had before it neither a factual record, nor the “benefit of a definitive interpretation from the state courts” upon which to address any Fourth Amendment or other preemption concerns.

The law requires state officers to make a “reasonable attemptto determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.”  Pretermitting the obvious – that every stop will take longer once reasonable suspicion kicks in, the Court also chose not to deal with 2(B)’s vagueness, nor its obvious invitation to practice racial profiling.  This comes as no surprise, given the Court’s getting the Solicitor General at Oral Argument to concede that, at least at this stage, the case does not involve a racial profiling element.

The Court has turned loose to the lawyers and the courts the responsibility to create this definitive interpretation of how this law impacts the Fourth Amendment and other rights of United States citizens.  Arizona will see plenty of litigation over the certain-to-be future interplay at the in section of 2(B) and the Fourth Amendment.

Somewhat lost in the shuffle, is the Obama Administration’s having cancelled some agreements allowing Arizona Police Departments to enforce federal immigration laws. The Administration has set up a hot-line and email address for the public to report civil rights concerns.  It is unclear what impact this will have on the overall landscape.  It seems unlikely the Feds would pull such agreements nation-wide.


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Is Google Googling You?

Posted on March 9, 2012 01:40 by Chad Godwin

If you use the Google search engine (and I’m guessing that includes pretty much everyone) you may have noticed a text box appearing on the screen during the past couple weeks, imploring you to read Google’s new privacy disclosures, along with the caveat “this stuff matters.” That text box stopped appearing on March 1, when Google introduced its new privacy policy.  According to Reuters, at the beginning of the year, Google began reporting that it was simplifying its privacy policy, consolidating 60 guidelines into a single policy that applies to all its services, including YouTube, Gmail and the social network Google+. 

According to the title of a Washington Post article, the “New privacy policy lets Google watch you – everywhere.”  More specifically, the new policy allows Google to track users’ activities by consolidating information it gathers on them across all of the company’s platforms.  Users cannot opt out of the new policy if they want to continue using Google’s services.  A company representative, Alma Whitten, noted that until now, the company has been restricted in their ability to combine YouTube search histories, for example, with other information on a user’s account (email activity).  Although the company claims that it does not sell or trade personally identifiable user information, it now shares usage habits and historical data across all platforms and uses the information to match ads to your online behavior .  Moreover, the fact that Google is gathering so much user specific information on individuals creates the potential for additional privacy implications in the future.  

The National Association of Attorneys General sent a letter to Google signed by 36 members expressing concern about the new policy.  In part, the letter noted:

Consumers have diverse interests and concerns, and may want the information in their Web history to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy.

EU Justice Commissioner Viviane Reding stated that data protection agencies in European countries have concluded that Google’s new privacy policy is in breach of European law.  Given the amount of attention the new privacy policy has generated, it appears as though it’s only a matter of time before the company faces its first significant legal challenge to the policy.  Until then, the digital footprint of all internet users will undoubtedly continue to grow.

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The U.S. Equal Employment Opportunity Commission ("EEOC") recently announced the adoption of a four-year strategic plan that focuses on, among other things, continued efforts to address "systemic discrimination" in the workplace.  

Not surprisingly, the EEOC's strategic plan sets forth a primary objective (which the EEOC acknowledges will exhaust the majority of its resources) to combat employment discrimination through administrative (e.g., investigation and conciliation) and litigation enforcement mechanisms with regard to private employers, labor organizations, employment agencies, and state and local government employers and through adjudicatory and oversight mechanisms Congress has given the EEOC with regard to federal employers.  

Based upon the EEOC's admittedly limited resources, the strategic plan states a need "to think strategically about how best to target its efforts to ensure the strongest and broadest impact possible in its efforts to stop unlawful employment discrimination."  In this regard, the strategic plan asserts that a top priority will be to continue the EEOC's 2006 "Systemic Initiative" designed to identify, investigate and litigate cases of alleged systemic discrimination (which the EEOC describes as "pattern or practice, policy, and/or class cases where the alleged discrimination [often by a single charging party] has a broad impact on an industry, profession, company, or geographic area").  

We look forward to gaining insight on how the EEOC intends to marshal its resources over the next several years - such as through the use of Commissioner charges, directed investigations, and empirical data - to address allegedly discriminatory policies or other instances of "systemic discrimination" from EEOC Commissioner Victoria A. Lipnic during DRI's 35th annual Employment & Labor Seminar, to be held May 2-4, 2012 in Chicago, IL.  If you have not already registered for this event, please access the registration information here and secure your spot today. 

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The Supreme Court of the United States will reconsider the issue of affirmative action in higher education for the first time since its 2003 decision in Grutter v. Bollinger.  In Grutter the Court held that, “The Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”  Today, the Court agreed to hear the appeal of Abigail Fisher, a white student, who alleges she was denied admission to the University of Texas because of the color of her skin.  At issue in the Fisher case is whether the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

The Texas case will be argued in the fall and the changed makeup of the Supreme Court could foretell a different outcome.  Chiefly, Justice Sandra Day O’Connor, who wrote the majority 5-4 decision, has been replaced by Justice Samuel Alito.  Further, Justice Elena Kagan has been recused from the case. Her recusal is likely a result of the Justice Department’s participation in the case in the lower courts at the time when she served as solicitor general.

What impact, if any, will the changed makeup up of the Supreme Court have on its decision?  Is there a compelling interest in obtaining educational benefits from a diverse student body?  Could a reversal of the Court’s decision in Grutter result in resegregation in public colleges and universities?

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Supreme Court Update

Posted on November 10, 2011 05:50 by David Axelrad

The Supreme Court heard argument on November 7 in Zivotofsky v. Clinton, No. 10-699, a case involving the “political question” doctrine and the scope of the President’s authority over the conduct of foreign relations.

In 2002, as part of the Foreign Relations Authorization Act, Congress enacted Section 214, entitled “United States Policy with Respect to Jerusalem as the Cpaital of Israel.”  Subsection 214(d) provides that, for purposes of issuing a passport to a United States citizen born in Jerusalem, the Secretary of State, upon request, must record the citizen’s place of birth as “Israel.”  In a statement issued at the time he signed the bill, the President took the position that Section 214 is merely advisory because, if it is instead directory, Section 214 would impermissibly infringe upon the President’s constitutional authority to formulate the United States’ position on the recognition to be given to foreign states.

Menachem Zivotofsky, who was born in Jerusalem in 2002 to U. S. citizens, applied through his mother for a passport, requesting that the place of birth be listed as “Jerusalem, Israel.”  The State Department responded that its policy precluded listing “Israel” as Zivotofsky’s birthplace, and issued a passport listing the place of birth as “Jerusalem.”  Menachem, through his parents, then filed an action for declaratory and injunctive relief, seeking an order compelling the State Department to comply with Section 214(d).  Both the district court and the Court of Appeals held that the issues presented by Zivotofsky’s action raised non-justiciable political questions. The Supreme Court granted certiorari to consider both the political question and whether Section 214 is an unconstitutional infringement of the President’s authority.

During oral argument, Zivotofsky’s attempt to defend Section 214 met with skepticism.  Zivotofsky took the position that Congress has authority to legislate in the area of foreign policy, and that Congress acted appropriately in concluding the designation on a passport of “Jerusalem, Israel” as an American citizen’s birthplace would do no harm to U. S. foreign policy.

However, Chief Justice Roberts, and Associate Justices Kennedy, Ginsburg, Scalia, Sotomayor and Kagan, all expressed doubt that Congress could legislate in this area without encroaching upon the President’s authority to conduct the foreign relations of the United States.  As Justice Sotomayor put it:

“[W]hat entitles Congress to trench on a presidential power that has been exercised virtually since the beginning of the country?”

The Court was more receptive to the Solicitor General’s argument that the President’s authority over foreign affairs, including the extent to which foreign governments are recognized, is exclusive, and that Section 214 necessarily infringes upon that authority.  Justice Breyer suggested that the Court might want to abstain from entering this controversy between the legislative and executive branches by upholding the Court of Appeals’ conclusion that this case involves a non-justiciable political question. However, Justices Kennedy and Sotomayor suggested that the Court should reach the merits of the controversy in order th eliminate uncertainty concerning the allocation of responsibility for the conduct of foreign affairs.

A decision in this case is expected by the end of the current Supreme Court term.

David Axelrad is an attorney with Horvitz & Levy in Los Angeles.  Contact David here.

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