AND
MAJOR RULINGS FROM THE U.S.
SUPREME COURT AS IT RAMPS UP
IN
SESSION.
>> PROTESTERS
AT ABORTION
CLINICS CANNOT BE KEPT OFF
PUBLIC PROPERTY
AND PRESIDENT
OBAMA OVERSTEPPED HIS EXECUTIVE
POWERS
AND MAKING SOME RECESS
APPOINTMENTS.
THOSE WERE HEADED DOWN BY THE
U.S.
SUPREME COURT AS THE HIGH
COURT
NEWS THE END OF ITS TERM.
THAT LEAVES TWO
CLOSELY WATCHED
CASE IS YET TO COME
ON MONDAY.
JOINING US TO SHARE THEIR
THOUGHTS
ARE HAROLD KRENT, DEAN
AND PROFESSOR OF LAW
KENT
COLLEGE OF LAW, JOCELYN FLOYD,
SPECIAL COUNSEL AT THE
CHICAGO-BASED NATIONAL PUBLIC
INTEREST LAW FIRM
THE
THOMAS
MORE SOCIETY AND STEVE SCHWINN
,
THE COFOUNDER AND CO-EDITOR OF
THE CONSTITUTIONAL
LAW.
WELCOME TO CHICAGO TONIGHT.
WE HAVE QUITE A CASELOAD IN
FRONT OF US.
AND JOCELYN FLOYD, GOING TO
BEGIN
WITH YOU BECAUSE THE
THOMAS MORE SOCIETY
FILED AN
AMICUS BRIEF THE DECISION
INVOLVING PROTESTERS
AT AN
ABORTION
WITH IT.
GIVE US A BRIEF SUMMARY?
>>
IT INVOLVES A MASSACHUSETTS
LAW THAT PROHIBITED ANYONE FROM
STANDING OR STAYING
IN PUBLIC
PROPERTY
SIDEWALKS, RIGHTS OF
WAY WITHIN 35
FEET OF THE
OCCURRENCE OF ANY ABORTION
CLINIC.
THEY DECIDED THIS WAS OVERBROAD
AND UNNECESSARY TO
REACH THE
AIM THE MASSACHUSETTS WAS
TRYING TO DO
WITH THE LAW IN
THE FIRST PLACE.
>> YOUR BRIEF
REFLECTED WITH
THE COURT DECIDED?
>>
YES.
>> IS THIS A VICTORY
OF FREE
SPEECH FOR ANTIABORTION
PROTESTERS ARE BOTH?
>>
BOTH.
THE CASE STILL STRONGLY
WITH
THE CONCEPT OF TRADITIONAL
PUBLIC FORUM THAT WE HAVE HELD
THAT STREETS AND SIDEWALKS OF
THE PLACE FOR PEOPLE TO SPEAK.
THIS IS THE PUBLIC SQUARE WHERE
PEOPLE CAN EXPRESS
OPINIONS.
WHAT MASSACHUSETTS HAD DONE
IS
CLOSED AN ENTIRE SECTION
OF
THIS TRADITIONAL FORM FOR
SPEECH TO
ESSENTIALLY TO ANY
SPEECH
IT WAS TOO SPECIFIC
SPEECHES
ON SPECIFIC ISSUES.
>> THE SUPREME COURT WANTED TO
GO FURTHER
AND SAY THIS LAW
TARGETED PROTESTERS
VIEWPOINTS.
YOU AGREE?
>> I THINK I AGREE WITH THE
DECISION.
IT'S A MUTUAL LAW
AND IS SPACE.
WHICH IS WHY THE COURT
COMMENDED
AND 901.
IN THE LAST WEEK
OF THE COURTS
TERM THREE IMPORTANT DECISIONS
ALL CAME OUT IN
90 EVEN THOUGH
HE POINTED OUT
THERE WERE
DIFFERENCES IN OPINIONS
RAISED
.
>>
STEVE SCHWINN, GIVE US YOUR
THOUGHTS ON THIS.
SOME SAY THIS WILL HAVE FATHER
RANGING IMPLICATIONS THAN
ABORTION CLINICS
HOWEVER THEY
WANT TO CLASSIFY THEMSELVES
THIS COULD OPEN
THE GATES, IF
YOU WILL, TO PROTESTERS
AS SUCH
THINGS AS THE NATO SUMMIT WE
HAD IN CHICAGO AND AT OTHER
PUBLIC FORUMS.
>> I THINK IT IS A STATEMENT
FOR
FREE SPEECH.
FIRST OFF, THERE IS AN OPINION
OUT OF COLORADO
THAT PRESERVED
THESE BUBBLES
AROUND PEOPLE
TRYING TO COME INTO AND OUT OF
A CLINIC.
THE COURT DID NOT OVERTURN
THAT
DECISION.
THE SECOND THING, THE COURT
THIS IS AN OPINION WRITTEN BY
CHIEF JUSTICE ROBERTS THE
COURT GAVE A ROADMAP FOR STATE
THAT WANT TO PRESERVE THE
RIGHTS OF PEOPLE GOING IN AND
OUT OF THE CLINIC TO GET AN
ABORTION
.
>> GIVE US DETAILS?
>> WHAT SHE'S
JUSTICE ROBERT
SAID
IF THE STATE WANTS TO MAKE
IT
ILLEGAL TO OBSTRUCT SOMEBODY
FROM GOING INTO A CLINIC,
THEY
CAN DO THAT IN CERTAIN WAYS.
THEY CAN STILL
DO THESE BUBBLE
ZONES.
>>
JOCELYN FLOYD, WHAT DO YOU
THINK ABOUT THAT, IS THAT AN
IMPEDIMENT OR A LOOPHOLE
IN
THIS RULING?
>> I THINK THERE IS A
DIFFERENCE BETWEEN OBSTRUCTING
THE ENTRANCE AND NOT BEING
ALLOWED TO APPROACH SOMEONE
THAT IS WHAT THE COURT SAID IN
ITS OPINION
OF THE EFFECT OF A
BUBBLE ZONE.
THE BUBBLE ZONE
YOU CAN'T GET
CLOSER TO 18 FEET,
AS THEY
APPROACHED THE ENTRANCE.
I THINK THE IMPACT OF THE FREE
SPEECH ON FREE SPEECH
THE
SIDEWALK COUNSELORS ARE TRYING
TO HAVE ONE-ON-ONE
ILOG AND
THAT IS SOMETHING MOST
EFFECTIVE
AT A CLOSE RANGE.
ARE TRYING TO DISCUSS THINGS
WITH PEOPLE, NOT STOP THEM OR
BLOCK THEM, BUT PERHAPS OPEN
THEIR EYES
TO ALTERNATIVE
OPTIONS THEY MIGHT NOT BE AWARE
OF.
WHEN THEY'RE FORCED TO DO IT
FROM A DISTANCE
THEY ARE FORCED
TO YELL AND IT BRINGS THE
ELEMENT OF INTIMIDATION AND
HARASSMENT
IF THE STATE WANTS
TO AVOID.
THEY SIMPLY
ELIMINATE
INTIMIDATION AND HARASSMENT
THAT ALLOW FREE SPEECH THAT IS
TOTALLY ACCEPTABLE POLICY
.
>> HOW DOES ONE
GO ABOUT
LEGISLATING THAT?
>> THE BUBBLE ZONE
ID IS FINE
BUT YOU CAN ALSO SAY ANYBODY
WHO HARASSES OR LIMIT
TO
ALLOW
FREE FLOW OF TRAFFIC
INTO
THE CLINIC.
THERE ARE MODELS
WHICH THE
COURT SEEMED TO EMBRACE.
>>
LET'S GET TO THIS DECISION
WHICH WAS UNANIMOUS
INVOLVING
THE OBAMA APPOINTMENTS DURING
RECESSES OF THE SENATE.
AGAIN, THEY SAID HE DID NOT
ALLOW ENOUGH TIME
FOR CONGRESS
TO GO INTO RECESS
HE FOR MAKING
THESE APPOINTMENTS.
>>
WHAT HAPPENS WHEN THE
PRESIDENT WANTS TO APPOINT
SOMEONE TO A VACANCY IN OFFICE
IN THE SENATE IS NOT IN
SESSION?
THE FOUNDERS OF THE
CONSTITUTION SAID THERE IS A
LIMITED POWER
TO MAKE A RECESS
APPOINTMENT.
BUT WHAT DOES RECESS MEAN?
DOES IT MEAN
IN THE MIDDLE OF
THE SESSION?
IN ONE PART OF THE RULING
RECENTLY THE COURT HELD A
RECESS
COULD BE ANYTHING AS
LONG
AS IT IS BETWEEN SESSIONS
ARE IN BETWEEN SESSIONS THE
PRESIDENT HAS THE POWER TO MAKE
AN APPOINTMENT
IN THOSE
RECESSES.
THE SECOND THING THE COURT SAID
THE VACANCY CAN BE BEFORE OR
DURING THE RECESS THE PRESIDENT
HAVE TO HAVE THESE APPOINTMENTS
MADE.
UP TO HERE,
SOUNDS LIKE A BIG
VICTORY FOR THE EXECUTIVE
BRANCH.
BUT
IT IS UP TO THE SENATE A
LARGELY TO DECIDE
WHAT IS A
RECESS.
THERE, THE QUESTION
IF THE
SENATE WANTS TO HAVE
A KIND OF
FAKE,
FALSE PROFORMA
RECESS
OR
SOMEBODY HITS A GAVEL
AND NO
ONE IS THERE, THAT IS OKAY,
BECAUSE
THEY ARE AVAILABLE TO
DO BUSINESS
THEY ARE THEREFORE
INVALIDATED
THE PRESIDENT'S
RECENT
STATE OF RECESS
APPOINTMENTS.
IT'S A SPLIT THE BABY
APPROACH
REFLECTS THE REALITY OF THE
COURT WANTS TO DO IS UNRAVEL
THE ISSUE OF HAVING THE SENATE
AND PRESIDENT WORK TOGETHER
.
>> STEVE SCHWINN IS A MAJOR
CURTAILING OF PRESIDENTIAL
POWER?
>>
I DON'T THINK SO.
THE ONLY THING I WOULD ADD
IS
THE SENATE CHANGE THE
FILIBUSTER FOR THE END OF LAST
YEAR
.
>> THIS WAS DEMOCRATS THAT LED
THE CHANGE?
>> THAT'S EXACTLY RIGHT.
THE CHANGE TODAY WE SEE IS
GOING TO HAVE AN EFFECT IF
REPUBLICANS CONTROL THE SENATE
AND IF THEY DECIDE
TO HAVE PRO
FORMA SESSIONS
IN A WAY THAT
FRUSTRATES PRESIDENT OBAMA IS
ABILITY TO MAKE APPOINTMENTS IN
A RECESS
BUT THE FILIBUSTER IS
A MECHANISM THE MINORITY HAS
BEEN USING TO FRUSTRATE
THE
PRESIDENT'S ABILITY
TO MAKE
APPOINTMENTS
ANYWAY AND THAT
HAS FORCED HIS HAND TO USE
THE
RECESS APPOINTMENT IN THE FIRST
PLACE.
WITH THE CHANGE IN THE
FILIBUSTER RULE IT 10 PERCENT A
LITTLE BIT .
>> HAROLD KRENT,
IS THIS PART
OF THE OBSTRUCTIONISM THAT HAS
BEEN LEVELED AGAINST THE
REPUBLICANS AND IS THE SUPREME
COURT SIDED WITH THEM
EVEN
THOUGH THIS IS UNANIMOUS,
ESPECIALLY THE MORE
CONSERVATIVE
JUDGES, THAT
IMPEDE HIM
GETTING THINGS DONE?
>> I DON'T THINK SO
HE CAN SET
THINK BOTH SIDES
RECESS
APPOINTMENTS.
WHAT IS INTERESTING ,
AND THE
JUSTICE SCALIA DOES CONCUR IS
IN THIS CASE, HE HAS BEEN NO
TO
BE IN THE EXECUTIVE
POWER CAMP
SO THIS IS A DISTANCING AWAY SO
THERE IS A NOTION OF A SHIFT A
LITTLE BIT
IN THE TERMS OF THE
FLOOR CONCURRENCE.
>> I'M GOING ASK YOU TO GIVE
ME
A BRIEF SUMMARY OF RILEY
VERSUS THE STATE OF CALIFORNIA
THAT SAID THE GOVERNMENT IS A
WANT
FOR SEARCHING YOUR CELL
PHONE.
>> POLICE ARREST SOMEBODY
THEY
CAN DO A SEARCH INCIDENT TO
ARREST WITHOUT GETTING
A
WARRANT.
WHAT THE SUPREME COURT WILL
DONE IS CAN THEY
DO SOMETHING
LIKE CELL PHONE, ONE IS A SMART
PHONE CONTAINS
VAST AMOUNTS
OF
INFORMATION
THE OTHER IS AN
OLD-STYLE FLIP PHONE.
WITH THE COURT DIDN'T DO
IS
DISTINGUISH BETWEEN THE TWO.
IT SAYS THESE FONTS CONTAIN
SO
MUCH PRIVATE INFORMATION THAT
FOR THE POLICE TO GO INTO THEM
IN A REGULAR ARREST IS A HUGE
INVASION OF PRIVACY
AND THERE
IS NO GOOD REASON TO DO THAT
BECAUSE THE GOVERNMENT
COULD
GET A WARRANT.
>> THAT IS MY QUESTION, IS IT
THAT BIG OF A DEAL
BECAUSE
GETTING A WARRANT FOR THE PLACE
IS NOT A BIG DEAL?
>> I THINK WHAT POLICE WILL DO
IS DROP IT
IN A FAIR DAY BAG
,
GO GET A WARRANT AND EVERYTHING
WILL BE FINE.
>>
DOES THIS APPLY TO THE NSA?
>>
I THINK IT IS TRUE IT WILL
NOT IMPEDE
POLICE
INVESTIGATION.
IT TAKES DOCTRINE THAT WERE
USED
IN TERMS OF INCIDENT OF
ARREST AND IT SAYS IT DOESN'T
APPLY
INTO THE DIGITAL WORLD.
WE ARE NO LONGER GOING TO APPLY
OUR DOCTRINE EVEN KNOW THE
PERSON IN THE BOOK AND
BRIEFCASE SHOULD BE TREATED
JUST LIKE A SMART PHONE.
WHAT THE COURT IS NOW
RECOGNIZING
THAT MAYBE WE
SHOULD APPROACH DIGITAL DATA
WEATHER FROM AN ESSAY
OR POLICE
OR HELD BY AN SEARCH
PROVIDER
OR IN A CLOUD
A LITTLE
DIFFERENTLY AND PERHAPS GIVE MY
SCRIPT AND HE CHOOSE SEARCHES
.
>> DOES IT APPLY
TO THE NSA?
>>
IT COULD.
THIS WAS ONLY
ABOUT POLICE IN
AREAS WHERE THERE IS NO WARRANT
REQUIRED.
NSA
USUALLY DOESN'T
EVEN WANT
TO GET INFORMATION
ON THIRD
PARTIES.
>>
.
>>
LET'S LOOK AHEAD TO MONDAY
THE LAST DAY OF THE TERM.
WE'RE CERTAIN THAT IS WHEN THEY
ARE GOING
TO GO ON THE HOBBY
LOBBY
CASES.
>> THESE ARE CASES WITH
REFERENCE TO THE HHS MANDATE
REQUIRING EMPLOYERS TO PROVIDE
CERTAIN CONTRACEPTIVE
COVERAGE
IN THEIR INSURANCE PLANS
FOR
THEIR EMPLOYEES.
WITH TWO SPECIFIC COMPANIES
THAT CLOSELY HELD,
FAMILY OWNED
AND THAT HAVE RELIGIOUS
OBJECTIONS TO SOME OF THESE
CONTRACEPTIVES.
>> THE THOMAS MORE SOCIETY
FILED AN AMICUS BRIEF
IN
SUPPORT, CORRECT?
>> YES.
>>
WHAT DO YOU ANTICIPATE
THE
DECISION IS GOING TO BE?
>> I DO NOT LIKE TO PREDICT
FUTURE, BUT WE HOPE THEY WILL
COME OUT
IN FAVOR OF RELIGIOUS
FREEDOM.
THESE ARE CLOSELY HELD
CORPORATIONS, FAMILY OWNED
BUSINESSES,
AND THESE FAMILIES
HAVE
DEEPLY HELD CONVICTIONS
AND WANT TO PROVIDE INSURANCE ,
GENEROUS BENEFITS
BUT THEY ARE
BETWEEN A ROCK AND A HARD
PLACE.
SO THEY HAVE TO DROP ALL
INSURANCE COVERAGE COMPLETELY
PAY A FINE
.
>> STEVE SCHWINN, YOU'RE
SHAKING YOUR HEAD.
>> IT'S NOT AN EMPLOYER
MANDATE IT'S AN EMPLOYEE
ON THE
INSURANCE CARRIER.
FOR AN ORGANIZATION LIKE HOBBY
LOBBY
THE ANSWER IS QUITE
SIMPLE IF THEY DON'T WANT TO
PROVIDE THIS
THEY CAN DROP THE
INSURANCE FROM THEIR EMPLOYEE
PLAN AND SIMPLY RAISE THE
SALARY ,
ALL INDICATIONS ARE
THAT SOLUTION MIGHT BE CHEAPER
THAN PROVIDING
THE INSURANCE.
>> HOW DO YOU THINK THE
JUSTICES
WILL RULE?
>> I THINK
IT WILL BE VERY
CLOSE
.
>> HAROLD KRENT,
DO YOU WANT
TO CHIME IN?
>> I DON'T UNDERSTAND THE
NOTION, THAT HAVE SOULS,
SPIRITS
AND RELIGION.
>> IF THEY
IF A CORPORATION
AND HAVE A MINORITY RACE WHY
CAN'T IT HAVE A RELIGION?
>>
WHO CONSTITUTES THE
COMPANY?
>> WHEN YOU HAVE WE'RE NOT
TALKING ABOUT FACEBOOK CORP.
ON THE STOCK EXCHANGE.
WHEN YOU ENTER THE BUSINESS
PLACE
YOU DO NOT HAVE TO GIVE
UP YOUR IDENTITY
OR RELIGION.
>> THE OWNERS OF THE
CORPORATION ARE ACTING IN A WAY
THAT WORKS
TO THE DETRIMENT OF
THEIR VERY EMPLOYEES SIMPLY
TO
PRESERVE THE RELIGIOUS RIGHT.
>> NO, THEY ARE NOT.
THEY ARE TRYING TO PROVIDE
INSURANCE TO THEIR EMPLOYEES
AND GENEROUS BENEFITS
IF THEY
ARE FORCED TO DROP THE
INSURANCE
AND SIMPLY RAISE THE
SALARIES,
IT HURTS THEM IN
GETTING GOOD EMPLOYEES AND IT
HURTS THEM IN PROTECTING THEM.
>> WE HAVE TO END IT HERE.
WE GOT TO THE LIVELIEST
PART OF
THE DISCUSSION AND MAYBE WHEN A
DECISION COMES DOWN