In the recent contretemps at the Volokh Conspiracy about a footnote mocking “CTIA–The Wireless Agency,” Justice Scalia has my sympathy. That’s partly because I, too, dislike legal documents that are filled with acronyms, especially ones that are likely to be unfamiliar to most readers. My brain does not stutter over FBI or NASA; I can get used to DOJ; but even now I am not positive what CTIA stands for. I think the best evidence from this blog post is that it no longer stands for anything. Maybe that’s what really bugged Justice Scalia, who remembers the days when IBM was still “International Business Machines,” and KFC was still “Kentucky Fried Chicken.”
But the discussion so far seems to have missed half of what makes “CTIA–The Wireless Association” such a weird name– that m-dash and subsequent clause. It’s weird because it is cumbersome, but also because the stuff that comes after the dash might reasonably be expected to clarify what comes before it. Is CTIA a wireless association? Is that what A stands for? Or is it wrong to use CTIA as a standalone phrase?
And then there’s the dash. As the sentence is written in Justice Scalia’s opinion for the Court (we’re it not for the footnote) one would think the dash opens up a clause–presumably explaining what CTIA is–that the rest of the sentence will close. But it doesn’t, and the resulting mix of dash and comma really does look like a typo:
In July 2008, CTIA—The Wireless Association, which represents wireless service providers, petitioned the FCC to clarify the meaning of§332(c)(7)(B)(ii)’s requirement that zoning authorities act on siting requests “within a reasonable period of time.”
Indeed, I half suspect that the footnote was included because somebody– a clerk, another Justice, or Scalia himself– looked at the sentence without a footnote and really did think it looked like a misprint. Yes, the clarifying footnote could have been subtler or gentler, but if we’re taking a vote, count me as basically a defender of this footnote.
There’s lots of interesting stuff in the hearing list for the April argument session at the Court. In the category of “Will’s new obsession” is Adoptive Couple v. Baby Girl, an Indian law/family law case that may provoke the Justices to talk about colorblindness and Indian law for the first time in a while. I’m embarrassed to say I hadn’t been following the case closely until I noticed that it was being argued by Lisa Blatt, Paul Clement, Charles Rothfeld, and Ed Kneedler, and realized that something big must be afoot!
The session also features a Rothfeld-Blatt rematch in Tarrant Regional Water District v. Herrman, and some biggish criminal cases like Kebodeaux and Salinas. Then there’s the category of “first time arguments by great young lawyers,” like my former Robbins Russell colleague Dan Lerman, my former SCOTUS colleague Rob Yablon, and the famous John Bash. The audio releases for the next two weeks are going to be quite a treat!
My first reaction upon reading this was, well, that seems obviously right. A trial judge in the Virgin Islands found prosecutors guilty of misconduct. When the Virgin Islands Supreme Court reversed him, he recused himself, because he recognized that he was bound by higher authority but also felt that his conscience wouldn’t allow him to participate in what he saw as a grave injustice. Affronted, the Virgin Islands Supreme Court held him in criminal contempt. Now the Third Circuit has reversed, ruling that the trial judge’s First Amendment rights had been violated.
But the more I think about it, the less I am convinced that this is right. Leave aside the oddity of having the Third Circuit review the decisions of the Virgin Islands Supreme Court (a result that has since been eliminated by statute). I think it might be a mistake to think of judges as having First Amendment rights in their judicial rulings. They are government agents, not private actors– they speak from the bench with authority because they have the power to rule over others, not because they are thought to be wise or because they have the right to mouth off. I think this is the point Robert Cover was making when he said, “The judges deal pain and death.” (Violence and the Word, 95 Yale L.J. 1601, 1609.)
Between Ysursa v. Pocatello‘s holding that inferior government units don’t have free speech interests against their superiors, and Garcetti v. Ceballos‘s holding that government employees don’t have free speech rights in their on-the-job speech, the First Amendment ruling here seems counterintuitive at best. I can imagine a defense of lower-court defiance derived from the separation of powers or the constitutional oath, but that’s not the path the Third Circuit followed and it’s not clear to me how those principles apply in the Virgin Islands. In any case, the Third Circuit’s opinion is such a mess of confusion and overlong footnotes that it’s conveniently hard to follow.
Constitutional doctrine aside, the Third Circuit’s ruling does not strike me as a blow for justice either. In this particular case the trial judge may be ruling on the side of the powerless, but First Amendment rights are content-neutral, so the same idea would presumably apply to judges who refused to institute clemency orders or desegregation decrees.
But maybe we should at least be impressed by the trial judge’s bravery in standing up against prosecutorial abuse. I hate to spend all of my time on this blog as a contrarian, but I am skeptical of that too. Is this really the only case in which the trial judge has been forced to do something unjust by his superiors? I highly doubt it. By making such a big fuss out of this case, the judge implicitly ratifies the many other cases in which he didn’t. And by engaging in such a self-indulgent display of his own personal purity, he sidesteps the more important questions about how to reconcile one’s obligations to the system one has decided to work for with one’s ethical obligations as a human being. I think Robert Cover would agree with me about that one too.