Think the First Amendment Applies in Philadelphia? Only if You Know the “Magic Words”

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Free Speech – It’s More Than Just Words

The right to speak freely is the right to live freely.  It is a fundamental aspect of liberty.  Of all the rights protected by the Constitution, freedom of speech is generally regarded as the most powerful guard against oppression.  And for good reason. The right to express thoughts, ideas and concepts without fear of repression or reprisal is quintessential to self-determination and a bedrock principle of democracy.  But it is even more than that.  It is part of our national identity as Americans.  We are free people.  That means, above everything, we can speak freely.

You would think then, that freedom of speech and expression is not a contingent right. You would think that there are no prerequisites or hoops to jump through before we can speak our mind.  It’s not like we have to tell the government we are “opting into” the First Amendment to enjoy its privileges, right?  We don’t need to tell the government we intend to exercise our First Amendment right before we express ourselves, right?  The First Amendment applies automatically, right?????  Well, until last week, you would be correct.  But according to one federal district court judge in Philadelphia, we are all sadly mistaken.

Before discussing Judge Mark Kearney’s remarkable decision last week in Fields v. City of Philadelphia, et. al., it would be helpful to put the First Amendment in context.  The actual text of the First Amendment dealing with speech is pretty short, but its interpretation and application is incredibly broad.  The First Amendment itself states:

“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Like I said, the text is pretty short. But over the past 200 plus years, Courts interpreting the First Amendment have applied it very broadly.  Which makes sense, because the First Amendment was not intended to apply only to verbal “speech.”  We don’t just communicate through words after all. For instance, shaking your head side-to-side is just as effective as saying the word “no.”  Likewise, whether words are used or not, artwork and artistic performance are quintessential mediums of expression and enjoy the same First Amendment privilege as actual speech.

The point here is that “freedom of speech” does not just apply to speech, but to actions that can reasonable be considered expressive (e.g., shaking your head, pointing a finger, dancing, even remaining silent).  And there is no itemized list of non-verbal communications that can be considered “speech.”  Judges are often tasked with the job of determining when certain non-verbal conduct constitutes expression for purposes of the First Amendment.

Is Videotaping Police Officers Protected by the First Amendment?

Over the past few years, one novel form of non-verbal conduct that has been considered a protected form of expression is citizens taking photographs or video footage of police officers.  This is considered a “novel” form of speech because it really didn’t become a thing until the recent advent of smart phones with built in cameras.  But today, especially with recent controversies involving allegations of police brutality and misconduct, it has become rather common practice for citizens to video tape and photograph police officers.  This is especially true when citizens, right or wrong, are concerned about the conduct of officers making arrests.

Why is recording police in the field considered protected speech? Because, again, the freedom of speech does not just apply to speech.  In the context of recording police officers, there are two important interests at stake for purposes of the First Amendment.  First, the act of recording police officers in action can be considered “expressive conduct” because it can imply criticism or protest of the police action. Moreover, the art of taking photographs (or shooting film) is inherently artistic and requires artistic judgment (ask any professional photographer).  Even more importantly, recording police officers is considered “news gathering” and historically the right of journalist to record what they believe to be newsworthy footage has been afforded First Amendment protection.  The idea being that photographing and/or recording the actions of government officials promotes discussion of government affairs.

Virtually every court that has considered the issue of recording police officers has concluded that it is protected by the First Amendment.  The list includes federal courts of appeal in the First, Fourth, Ninth and Eleventh Circuits.  The First Circuit addressed this issue way back in 2011 and was pretty firm in deciding that the First Amendment protected citizens filming on-duty police officers. In Glick v. Cunniffe, the First Circuit explained its rational as follows:

It is firmly established that the First Amendment’s [reach] extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to gathering and dissemination of information.  . . . An important corollary to this interest in protecting the stock of public information is that ‘there is an undoubted right to gather news ‘from any source by means within the law. . . . The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities fits comfortably within these principles. Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of government affairs.’

Fields v. City of Philadelphia

Now, with this background in place, let’s discuss Judge Kearney’s recent decision in Fields v. City of Philadelphia.  The Fields case is actually two similar (companion) cases involving the same issue – does the First Amendment protect citizens filming on-duty police officers?  Judge Kearney concluded that, based on the factual circumstances of the cases before him, it did not.  It’s not so much Judge Kearny’s conclusion that the First Amendment did not apply to the plaintiffs in Fields (which is inconsistent with virtually every other federal decision on the issue) that is troubling.  Rather, it is how he rationalized his decision.

In 2013, Richard Fields was a student at Temple University in Philadelphia.  Allegedly, he was walking down the street and saw about 20 officers standing outside of a house party.  Fields thought it was an interesting scene – seeing so many officers outside a house party – and thought it would make a good picture.  So he took one.  At that point, one of the officer on the scene approached Fields and allegedly stated “do you like taking pictures of grown men” and insisted Fields “move along.”  For his part, Fields didn’t particularly enjoy photographing grown men, and, quite appropriately, declined the officer’s invitation to “move along.”  It is a free country after all! At which point he was arrested and cited for “Obstructing Highways and Other Public Passages.”  The officer also took Fields’ phone and began looking through the photos, but did not delete them.

Not to be outdone by Fields, in 2012 Amanda Geraci attended a public protest against hydraulic fracking outside the Pennsylvania Convention Center.  At some point during the protest, one of the protesters was being arrested.  Geraci took out her phone and began recording the arrest.  According to Geraci, she was “attacked” by an officer who restrained her and prevented her from recording the arrest.  She was not arrested or cited.

Both Fields and Geraci sued the City of Philadelphia.  Both alleged that the Philadelphia Police violated their civil rights and, specifically, the First Amendment.  Both suits came before Federal District Court Judge Mark Kearney.

At the close of discovery, the City filed Motions for Summary Judgment against both plaintiffs, contending that there is no general First Amendment protection for citizens recording on-duty police officers.  As Judge Kearney saw it, the square issue for him to decide was “whether photographing or filming police . . . without challenging the police is expressive conduct protected by the First Amendment.”

Now, for legal observers this case seemed like a slam dunk for the plaintiffs.  As noted above, the issue had already been decided by a number of appellate courts and everyone seems to agree the First Amendment applies.  But Judge Kearney saw things a bit differently and rejected the plaintiffs’ First Amendment claims.  The decision itself is almost certainly wrong, but that’s not the real issue.  The real issue is the legal reasoning Judge Kearney used to reach his conclusion.  In Judge Kearney’s opinion, the First Amendment only protects citizens recording on-duty officers if they first explain to the officers why they are recording them.

According to Judge Kearney,if you are going to photograph the police you need to tell them why you are taking the photograph. The act of photographing or recording alone is not “expressive conduct.”  More specifically, before the First Amendment protections apply, Judge Kearney would require citizens to explain that they are recording police (1) out of protest or (2) because they are critical of the police officers conduct. In other words, if you live in Philadelphia and are interested in the fundamental protections guaranteed by the First Amendment, you literally need to say so.

In theory, Judge Kearney’s decision is difficult to reconcile with . . . well…the whole concept that the First Amendment is a fundamental, inalienable right.  But the real, practical problem (and one I don’t think the Judge intended) is that the decision in Fields makes the First Amendment contingent; It only applies if a citizen can explain to a police officer why it applies. That cannot be the law.

Why not?  Well, let’s have some fun with this. With the recent passing of Justice Scalia, the Supreme Court lost its lone strict constructionist.  From a strict constructionist’s perspective, nowhere in the First Amendment does it say that the right to free speech is dependent upon a citizen’s ability to explain why the First Amendment should apply.  The Constitution does not put the burden on citizens to invoke guaranteed rights.  If it did, those rights would not be guaranteed, they would be contingent.

Another practical problem with the Fields approach is that it assumes (and really requires) that (1) all citizens know their Constitutional rights and (2) understand that to invoke those rights when filming police officers, they need to utter magic words protesting or criticizing the police (god help anyone unable to speak or with laryngitis!).  With respect to uttering words of protest or criticism towards police, if anything grafting such an arbitrary prerequisite onto the First Amendment would only serve to inflame or increase tensions between on-duty officers and the citizens recording them.  It really doesn’t make much sense.

To be fair, the line between traditional conduct (not protected by the First Amendment) and expressive conduct (protected by the First Amendment) is not always clear.  And whether conduct can be considered “expressive” is often in the eye of the beholder. To Judge Kearney’s credit, he recognized and acknowledged that his opinion in Fields contradicted similar decisions in other Circuits. Judge Kearney was not bound by any precedent in the 3rd Circuit and had the authority and the responsibility to decide the case on the facts before him.

But at the end of the day the Fields decision was wrongly decided.  Constitutional rights are considered “guaranteed” for a reason.  The Fields decision would fundamentally change the centuries of law by putting a new burden on plaintiffs’ to explain why they are entitled to constitutional rights before those rights can be invoked.  Such a burden is, on its face, inconsistent with concepts of liberty and freedom and frankly, unworkable.

It seems inevitable that the Fields decision will be overturned by the 3rd Circuit.  But until then, if you are in Philadelphia and get the urge to take photographs of police officers, best to play it safe and yell “protest” and “I am critical of police” while taking your pictures.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

ARE YOU FROM PENNSYLVANIA? CONGRATULATIONS, HERE’S A 10 MINUTE PRIMER ON WHY YOUR GOVERNMENT SEEMS TO BE IMPLODING

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It’s tough to be a Pennsylvanian these days.  Especially if you are from Philadelphia.  Our State is on the verge of shutting down because we can’t pass a budget.  Our public school systems are still a problem and habitually underfunded.  And we can’t even take solace in our diversion of choice – sports (at least those of us in Philadelphia). The Flyers are terrible, the Eagles are worse and the Sixers are trying to lose games and have been for 3 years.

But compared to what’s going on in the upper echelon of our government, these seem like minor annoyances.  Because just now, Pennsylvania’s entire democratic government appears to be imploding.

The sheer volume and breadth of potentially career-ending allegations being asserted against the State’s political elite is astonishing and unprecedented.  If you haven’t been able to keep up with daily allegations of widespread political misconduct and corruption (and who could blame you), here is a quick rundown on the current state of your government:

  • Your elected Attorney General’s license to practice law has been revoked by the Pennsylvania Supreme Court and she is facing trial on multiple perjury charges, allegedly for lying about her role in leaking confidential grand jury information;
  • One of your elected Supreme Court Justices (Justice Seamus McCaffery) resigned after allegations that he sent pornographic, misogynistic and racially derogatory emails to other State employees, including prosecutors;
  • Governor Tom Wolf has formally requested that a second Supreme Court Justice (Justice Michael Eakin) resign, also for sending and receiving sexually and racially offensive emails. Justice Eakin has also been accused of exchanging offensive and inappropriate emails concerning female members of his staff;
  • A third Supreme Court Justice (the Court’s Chief Justice) has been accused of implementing a clandestine scheme to save his imperiled colleague’s job by appointing a ringer to the Court of Judicial Discipline – the Court responsible for doling out potential punishment to Justice Eakin; and
  • A number of your State’s top prosecutors have been accused of pursuing a racially tainted corruption sting targeting minorities. There are calls for some of these same prosecutors to resign or be fired for exchanging pornographic and offensive emails with the above referenced Supreme Court Justices.

The bullet points above are only an outline of recent headline grabbing allegations involving the leaders of your State.  The media has been using the term “Porngate” to describe the exponentially growing investigation into hundreds of arguably pornographic emails exchanged by government officials. As far as I know, none of the upper echelon political figures identified in these controversies has been convicted of a crime.  Most have not admitted to any wrongdoing, although Justice Eakin has issued an apology.  I can’t and won’t pass judgment on the guilt or innocence of any of the parties involved.  For the most part, these are all just allegations.  That said, every new, scandalous headline is a black eye for our home State.

At this point, these high-profile scandals have assumed a life of their own.  But what is remarkable, and lost in the avalanche of new allegations, is how this entire mess appears to have started in the first place.  Believe it or not, the ongoing investigations threatening to take down a significant chunk of Pennsylvania’s political elite seems to have grown from a small squabble between prosecutors.  Really!  It is like a Shakespearean tale.  Two prosecutors who didn’t like each other inadvertently set in motion a series of events that could result in the meltdown of Pennsylvania’s government (or at least its Judiciary).

Hard to believe?  Well, let me tell you a story . . . about what “allegedly” happened:

Way back in 2012, Pennsylvania’s Democratic Party backed former prosecutor Kathleen Kane for Attorney General.  It had been an awfully long time since a Democrat had been Attorney General in Pennsylvania. In fact, before Kane, no Democrat had EVER been elected Attorney General in Pennsylvania.   But Kane liked her chances and so did her supporters.

One of Kane’s campaign strategies was to criticize then Governor Tom Corbett’s handling of the Jerry Sandusky case. Governor Corbett had been serving as Pennsylvania’s Attorney General when the Attorney General’s Office began investigating claims that Jerry Sandusky was sexually abusing minors.  The primary attorney investigating Sandusky was Frank Fina, a well-known prosecutor with a long list of high-profile convictions.

During her campaign for office, Kane suggested that Corbett and Fina had delayed prosecuting Sandusky so that it would not impact Corbett’s successful bid to run for Governor in 2010.  On the campaign trail, she promised she would review Fina’s investigation into the Sandusky matter.

Kane was eventually elected as Pennsylvania’s Attorney General.  But, a number of newspapers reported that Fina was angry that Kane wanted to review his work on the Sandusky matter and that she criticized the way the prosecution was handled.

On March 17, 2014, the Philadelphia Inquirer broke a story that Kane, in one of her first significant acts as Attorney General, had quietly shut down an undercover sting operation that had succeeded in capturing various Philadelphia politicians accepting cash payments in return for favors. That sting operation had been run by Frank Fina.

The Inquirer story was critical of Kane shutting down the sting operation.  Particularly in light of the video evidence of politicians taking money as bribes.  Reportedly, Kane believed that Fina had leaked the story to the Inquirer. For her part, Kane told the Inquirer that she had shut the sting down because she believed that the individuals conducting the operation (i.e. Fina) had improperly targeted only black politicians.

Kane, angry about the Inquirer article, allegedly decided what is good for the goose is good for the gander and decided to leak negative information about Fina.  Reportedly, Kane leaked confidential memos from a 2009 Grand Jury investigation run by Fina.  Kane believed that Fina had botched the investigation and the memos proved it.  Fina, in turn, reported the illegal leak of Grand Jury memos to a Montgomery County judge.  That kick started a separate Grand Jury investigation into who exactly leaked the confidential memos.

Kane was then called to testify in front of a Grand Jury about her involvement in leaking the memos. She denied any wrongdoing, but the Grand Jury concluded there was sufficient evidence that she lied.  Boom! Kane is now facing a criminal trial in Montgomery County for multiple counts of perjury.

Still with me?  Good – because now things get a little crazy.

While Kane and Fina were allegedly busy trying to destroy each other, Kane made good on her campaign promise to review the Sandusky investigation.  Fina, who ran that investigation, was cooperating with the probe, but he had left the AG’s office and joined the Philadelphia District Attorney’s Office.  In order to better recollect his actions in the Sandusky probe, Fina reportedly requested his emails from that investigation.  That turned out to be an inadvertent, yet fatal mistake

When Kane started searching through Fina’s old emails from the Sandusky matter, she reportedly found additional emails he had sent or received that contained offensive and/or pornographic emails. Reportedly, this gave Kane leverage she could use to strike back at Fina and potentially destroy his career.

But Kane didn’t just find offensive emails from Fina.  She also found racially insensitive and offensive emails sent to and from Supreme Court Justices Seamus McCaffery and Michael Eakin, amongst others.  A number of people were included on these email chains, including prosecutors, making the emails not only offensive but evidence of troubling conflicts of interests (Supreme Court Justices really shouldn’t be exchanging personal emails with prosecutors when a significant part of a Justices job is to review the conduct of those same prosecutors). And this is the pivotal moment in this story.  Up until this point, the story playing out was simply a scorched earth personal dispute between two prosecutors.  But now, with these offensive emails being sent to and from Supreme Court Justices and high powered prosecutors, the controversy exploded.

Justice McCaffery resigned shortly after the emails uncovered by Kane came to light.  Justice Eakin did not resign. Special Counsel was hired to investigate Justice Eakin’s involvement and determined that the emails he sent weren’t really all that bad.  It was later reported that the Special Counsel had previously assisted with Justice Eakin’s re-election for the Supreme Court in 2011 . . . but that’s a different story.

Anyway, things with Justice Eakin were status quo for a time, but of course, in a story like this, it is inevitable that the next shoe would dropped.  And it did.  In a surprising move, the Supreme Court suspended Kane’s law licenses this past summer, ostensibly because of the criminal charges pending against her for perjury. By suspending Kane’s law license, the Supreme Court left the State’s lawyer-in-chief unable to practice law.

Now, it just so happens that not long after the Supreme Court moved to suspend Kane’s law license, additional emails from Justice Eakin were “discovered.”  These emails, reportedly included email exchanges between Justice Eakin and other men that contain highly suggestive and offensive discussions about female judicial staff members.

After the content of these “new” emails became public, Governor Wolf called for Justice Eakin to resign.  But, as a sitting Supreme Court Justice, it is for the Court of Judicial Discipline to decide whether Justice Eakin is fit to remain on the bench.

Now, you would think that if a Supreme Court Justice was subject to trial before the Court of Judicial Discipline the Court of Judicial Discipline would be independent of the Supreme Court.  But, of course you would be wrong. It turns out that the Supreme Court has the authority to appoint a judge to the Court of Judicial Discipline.  A few days ago the Inquirer broke a story that Justice Eakin and the Supreme Court’s Chief Justice Thomas Saylor were attempting to nominate Karen Snider, former secretary with the Department of Welfare, to the Court of Judicial Discipline because she would be sympathetic to Justice Eakin.  Regardless of the motives for appointing Snider, it appears Eakin was permitted to vote for Snider’s appointment, which seems like a potential conflict of interest.

I could go on for another dozen pages with this stuff, but my 10 minutes are up.  And you are now caught up on the current state of Pennsylvania politics!

PJames Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/hoto Credit: Darastar, Everystockphoto.com

Attorney General Kathleen Kane Punches Back

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Beleaguered Pennsylvania Attorney General Kathleen Kane is facing mounting legal and political pressure to resign from office.  “Pressure to resign” is actually a bit of an understatement.  Kane is facing a criminal trial in Montgomery County for allegedly leaking confidential Grand Jury material to local newspapers in order to attack a political rival.  On top of that, the Pennsylvania Supreme Court has suspended her law license, and a Special Committee appointment by the State Senate has recommended that the legislature initiate potential impeachment proceedings.  But it is becoming increasingly clear that Kane does not intend to go down without a fight. And it could be a very long, very messy and very embarrassing fight for a number of elite government officials.

Only one week ago, a “Special Committee” appointed by the State Senate reported that it did not believe Kane could or should continue in her role as Attorney General.  The report was seen as the first step in initiating impeachment proceedings in the Senate. But today Kane threw a heavy counter-punch, hiring independent counsel to conduct an investigation  of her own into offensive and arguably pornographic emails allegedly exchanged by high-level State officials, including prosecutors and Supreme Court Justices.  Ostensibly, Kane appointed independent counsel to investigate and issue a report on potential crimes committed by individuals sending these offensive emails on government computers.  But the subtext is clear – her political enemies may succeed in forcing her out of office, but she is not going down quietly or alone.  Kane is going on the offensive.

During the press conference today, the Attorney General’s Office announced that it has appointment former Maryland Attorney General Douglas F. Gansler to conduct an independent investigation into the offensive emails. Gansler’s task is to determine if any crimes were committed in connection with these emails and make a recommendation as to whether individuals involved should be prosecuted.

Significantly, Gansler will not just be reviewing emails currently in the possession of the Attorney General.  He has been given authority to seek additional emails and has the ability to subpoena additional records.  The fact that Gansler has been tasked with expanding the scope of the investigation and has authority to issue subpoenas is important. His investigation may expand to implicate even more government employees.  Gansler’s investigation will almost certainly be viewed as a threat to Kane’s political rivals who are maneuvering to kick her out of office.  Kane’s back may be against the wall, but she is pushing back.

At today’s press conference, the Attorney General’s Office displayed a number of allegedly offensive emails.  These included racist and sexist jokes undisputedly offensive to women and minorities. Kane is clearly working to frame the emails as evidence of institutional bigotry within upper echelon of Pennsylvania’s government.  Her position is that she is being attacked by the politically powerful for trying to expose and root out this systemic prejudice.

Interestingly, Gansler went to great lengths at today’s press conference to establish that his investigation would be “independent” and that he would not be biased in anyway in favor of Kane.  It is always fair to question whether an independent investigator hired by an interested party can be truly “independent.” But Gansler didn’t do himself any favors by criticizing the Supreme Court for suspending Kane’s law license.  Gansler said at the press conference that the Supreme Court “waded across lines of separation of powers” in suspending Kane’s license.  If Gansler is truly conducting an “independent investigation” on behalf of Kane, he should probably refrain from offering her public support.

Regardless of the merits of either side’s argument, Kane’s actions today demonstrate that she is not afraid to throw a counter-punch and that her dramatic tenure as Attorney General will not end quietly.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Reality Check – State Governors Have No Authority to Exclude Syrian Refugees

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In the aftermath of the recent terrorist attacks in Paris, there has been widespread debate as to whether the United States should accept Syrian refugees.  Although the investigation into the Paris attacks is ongoing, it appears that some of the terrorist involved in the attack posed as refugees in order to enter the country.  The fear of a similar “Trojan Horse” attack in the United States has clearly struck a nerve and in some respects, divided the Country. Some argue that the United States was founded by immigrants, has a long history of welcoming and protecting refugees and should not let reflexive and irrational fear influence our social philosophy or domestic policy. Citing the Paris attack, others argue that until we have an effective and proven method of vetting Syrian immigrants, we should not accept them within our borders.

A number of state governors have recently joined this increasingly heated debate.  For instance, Texas Governor Greg Abbott and Massachusetts Governor Charlie Baker, have explicitly stated that their respective states will not accept any more Syrian refugees.  Louisiana Governor Bobby Jindal has gone so far as to issue an Executive Order to the State’s executive agencies, requiring the agencies to use all lawful means to prevent the resettlement of Syrian refugees within Louisiana. In contrast, Pennsylvania’s Governor Tom Wolf has welcomed the resettlement of Syrian refugees within the State.

Lost among the rhetoric as to whether the United States should or should not accept Syrian refugees, is the fact that state governors have absolutely no legal authority to prevent Syrian refugees from settling within their respective borders.  Indeed, the law on this point is crystal clear.   The United States Constitution and federal law vests all authority for accepting foreign refugees with the federal government, not the states. Any action taken by states to prevent refugees from settling within their borders, whether by executive order (as in the case of Governor Jindal) or by legislation would violate the United States Constitution and almost certainly would be struck down by a federal judge.

Article I, section 8 of the United States Constitution provides that the federal government (not state governments) shall have sole authority to “establish a[] uniform Rule of Naturalization.”  This provision of the Constitution has been broadly construed by the United States Supreme Court and has been interpreted to preempt the majority of state laws dealing with immigration. In other words, state governors and legislators are not allowed to pass or enforce laws that deal with immigration or naturalization.  This includes laws seeking to keep refugees out.

The United States Supreme Court addressed this issue a few years ago when Arizona attempted pass and enforce laws designed to be tough on illegal immigration.  Justice Kennedy, writing for the majority in Arizona v. United States, cogently explained the Constitutional authority and rational for vesting the federal government (as opposed to the various states) with the sole right to regulate immigration:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.  . . . This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U.S. Const., Art. I, § 8, cl. 4, and inherent power as sovereign to control and conduct relations with foreign nations. . . .

The federal power to determine immigration policy is well settled.  Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. …

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states.

In light of the Constitutional authority granting the federal government sole authority to deal with immigration, any state law or executive order seeking to keep foreign refugees out would be preempted by federal law.  Specifically, any attempt by states to exclude refugees would be preempted by the federal Refugee Act of 1980, which permits the President to admit refugees facing “persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

So what does all of this mean for Syrian refugees?  It means that if state governors actually attempted to follow through with their threats and bar Syrian refugees from entering their states, their actions would be illegal and certainly overturned by the federal courts.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

New York Moves to Shut Down DraftKings and FanDuel as Illegal Gambling Operations

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Since Week One of the 2015 NFL season there has been a lot of discussion about the meteoric rise of daily fantasy sports. Daily fantasy sports, and specifically fantasy football, have quickly transformed from friendly diversions played for “bragging-rights” into a multi billion dollar industry dominated by two entities, DraftKings and FanDuel.  What’s interesting is that before the start of the 2015 NFL season, few were familiar with DraftKings, FanDuel, or their budding economic empire.  But after spending hundreds of millions of dollars flooding every conceivable marketing platform with advertisements promising million dollar payouts, it’s hard to find anyone unfamiliar with these businesses.

The ad blitz by DraftKings and FanDuel succeeded in getting everyone’s attention and bringing in new business. But in retrospect, that may not have been a good idea.  The sheer size of the media campaign had two unintended consequences that are now threatening the continued existence of DraftKings and FanDuel.  First, by saturating the market with incessant advertisements, DraftKings and FanDuel succeeded in growing their customer base and in angering non-fantasy football players tired of watching their commercials and seeing their billboards. Second, and more significantly, DraftKings and FanDuel drew unwanted attention from regulators, lawmakers and the casino industry.

When regulators and lawmakers started looking closely at the business models of DraftKings and FanDuel, they quickly realized that it was very difficult to distinguish daily fantasy sports from gambling. By “very difficult to distinguish,” I mean impossible.  Daily fantasy sports clearly qualifies as “gambling” under most, if not all state laws.  Here’s the thing though – unlike all other forms of gambling, daily fantasy sports are unregulated on the federal level and have been operating freely throughout most of the union. Why, you may ask?  Primarily because when Congress passed the Internet Gambling Enforcement Act of 2006, it declined to classify daily fantasy sports as “gambling,” essentially exempting DraftKings and FanDuel from federal regulation.

The federal loophole for fantasy sports has tied the hands of federal regulators. Unless Congress steps in to eliminate the loophole, the federal government can’t do much to reign in fantasy sports gambling.  But although the feds may be hamstrung, the states are not.  And it is the states that pose an imminent threat to DraftKings and FanDuel.

Last month, Nevada regulators determined that daily fantasy sports qualify as “gambling.”  And, because DraftKings and FanDuel were allowing Nevada residents to play daily fantasy football (i.e. “gamble”) without having the proper licenses, they were engaged in illegal activity.  In short, regulators booted DraftKings and FanDuel out of Nevada.  To be fair, Nevada regulators were likely under pressure from the casino industry, which has long enjoyed a national monopoly on sports betting. The casinos are clearly unhappy with DraftKings and FanDuel taking away potentially lucrative business opportunities and have been lobbying state regulators to shut these businesses down.

Politics aside, Nevada’s move to classify daily fantasy sports as “gambling” was clearly warranted. It was also a serious economic blow to DraftKings and FanDuel.  It now appears to be the start of a trend.  On Tuesday of this week, the New York Attorney General’s Office followed Nevada’s example, sending a sternly worded cease and desist letter to DraftKings. A very similar letter was sent to FanDuel.

The November 10, 2015 letter is from Kathleen McGee, the Chief of the Attorney General’s “Internet Bureau,” and it is addressed to DraftKing’s CEO, Jason Robins.  The letter begins by informing Mr. Robins that the Attorney General’s office completed a review of DraftKing’s business operations and concluded “that DraftKings’ operations constitute illegal gambling under New York law.”  Explicitly rejecting Congress’ ludicrous determination that daily fantasy sports are games of “skill,” Ms. McGee wrote that “DraftKing’s customers are clearly placing bets on events outside of their control or influence, specifically on the real-game performance of professional athletes.

Interestingly, the Attorney General’s letter carefully distinguish the “daily fantasy” business being run by DraftKings and FanDuel from the more “traditional” fantasy games that have been largely unregulated for years.  The point here is to justify why the New York Attorney General is taking action against DraftKings and FanDuel, and not all fantasy sports websites:

We believe there is a critical distinction between DFS and traditional fantasy sports, which, since their rise to popularity in the 1980s, have been enjoyed and legally played by millions of New York residents. Typically, participants in traditional fantasy sports conduct a competitive draft, compete over the course of a long season, and repeatedly adjust their teams. They play for bragging rights or side wagers, and the Internet sites that host traditional fantasy sports receive most of their revenue from administrative fees and advertising, rather than profiting principally from gambling. For those reasons among others, the legality of traditional fantasy sports has never been seriously questioned in New York.

Unlike traditional fantasy sports, the sites hosting DFS are in active and full control of the wagering: DraftKings and similar sites set the prizes, control relevant variables (such as athlete “salaries”), and profit directly from the wagering. DraftKings has clear knowledge and ongoing active supervision of the DFS wagering it offers. Moreover, unlike traditional fantasy sports, DFS is designed for instant gratification, stressing easy game play and no long-term strategy. For these and other reasons, DFS functions in significantly different ways from sites that host traditional fantasy sports.

Having concluded that “daily fantasy sports” is really gambling, McGee’s letter alleges that DraftKings ongoing operation in the State violates New York law and the State Constitution.  Thus, the Attorney General concludes its letter by demanding that DraftKing’s immediately prohibit New York residents from playing online daily fantasy sports, stating:

[W]e demand that DraftKings case and desist from illegally accepting wagers in New York State as part of its [daily fantasy sports] contests. 

McGee certainly recognized that the Attorney General’s distinction between “daily fantasy sports” and “traditional” fantasy sports is on shaky legal ground.  As sort of a “backup” legal argument, she also alleged that DraftKings’ advertisements violate state consumer protection laws because they are misleading.  McGee alleged that DraftKings fantasy competitions are rigged in favor of a select few who reap most of the winnings:

Further, DraftKings has promoted, and continues to promote DFS like a lottery, representing the game to New Yorkers as a path to easy riches that anyone can win. The DraftKings ads promise: “It’s the simplest way of winning life-changing piles of cash”; “The giant check is no myth. . . BECOME A MILLIONAIRE!” and similar enticements. Like most gambling operations, DraftKings’ own numbers reveal a far different reality. In practice, DFS is far closer to poker in this respect: a small number of professional gamblers profit at the expense of casual players. To date, our investigation has shown that the top one percent of DraftKings’ winners receive the vast majority of the winnings.

Finally, McGee’s letter advances a public policy argument for shutting down DraftKings, contending that its gambling operations has a negative impact on public health:

DraftKings DFS contests are neither harmless nor victimless. Daily Fantasy Sports are creating the same public health and economic concerns as other forms of gambling, including addiction.

The decision by the New York Attorney General to threaten DraftKings and FanDuel is monumental and is a clear and present danger to their ongoing existence.  From a legal perspective, McGee’s attempt to distinguish “daily fantasy sports” from “traditional” fantasy games is questionable.  There is no real legal precedent for such a distinction and you can bet that the Attorney General’s interpretation will be the subject of litigation.  DraftKings and FanDuel really have no choice but to fight the Attorney General in court – New York is too big and too lucrative a market to walk away from without a fight.  And if DraftKings and FanDuel don’t make a stand now, you can be sure that more states will follow the lead of Nevada and New York.

Photo credit: FreeImages.com Nikki Johnson

Time to Put an End to Judicial Elections?

Today is election day in Pennsylvania.  A rather historical election day.  Today, Pennsylvanians’ have an opportunity to elect three new Justices to the Pennsylvania Supreme Court.  Putting three new Justices on the highest court in the State will not only fill vacant seats on the bench, but will likely reshape the Supreme Court’s judicial philosophy for years to come.  But should we really be electing judges by popular vote?  I explored this issue in a recent article on Medium.com.  See the link below.

https://medium.com/@LawArc/is-it-finally-time-to-put-an-end-to-judicial-elections-15bfa910719f

Pennsylvania Senate Takes First Step Toward Removing Attorney General Kathleen Kane From Office

City Hall

I had previously written about the Pennsylvania Supreme Court’s suspension of Attorney General Kathleen Kane’s law license.  (see https://atomic-temporary-98114188.wpcomstaging.com/2015/09/21/pennsylvania-supreme-court-suspends-attorney-general-kathleen-kanes-law-license-via-emergency-order/). Kane, of course, is facing multiple criminal charges in Montgomery County arising from allegations that she illegally leaked highly confidential grand jury information to the media in an effort to attack a political rival.  Kane has vigorously denied those allegations, but in September, Pennsylvania’s Supreme Court entered an unprecedented order temporarily suspending Kane’s law license in light of the criminal charges pending against her.  Although the Supreme Court effectively precluded the State’s lawyer-in-chief from practicing law, the Order specifically stated that it should not be interpreted as removing Kane from her public office.  Although the Supreme Court passed on removing Kane from office, it looks like the Pennsylvania Senate is positioning itself to do just that.

The Supreme Court’s September Order suspending Kane’s law license went into effect last week.  At the same time her law licenses was being revoked, Kane’s office released her “plan” explaining how she intended to continue in her position as Attorney General without having the ability to practice law. In short, Kane has taken the position that the vast majority of her job as Attorney General comprises of ministerial functions that she can continue to perform without technically “practicing law.”  A lot has been written about this law-versus-ministerial functions distinction.  Much of it critical and many legal scholars have argued that Kane is ethically barred from continuing as Attorney General without a law license.

But words mean little (sticks and stones and all of that) and the Pennsylvania Supreme Court has clearly signaled that it is not the judiciary’s responsibility to remove an elected official from office.  Enter the Senate.  Late last week state republican Senator Joseph B. Scarnati III, announced that the Senate was forming a bipartisan committee to investigate the “impact” the Supreme Court’s Order will have on Kane’s ability to carry out her duties as Attorney General.  In other words, the State Senate appears skeptical that Kane can actually continue in her role as Attorney General without the ability to practice law.

The Committee will issue a report summarizing its findings within 30 days.  If the Special Committee concludes that it is impractical or impossible for Kane to continue in her position without a law license, many suspect that the next step will be to remove her from office. Under the Pennsylvania Constitution, publically elected officials such as Kane can be removed from office by 2/3 vote of the Senate and confirmation of the Governor.  Governor Wolf has made it clear that he believes Kane should resign from office.

Bipartisan or not, it seems highly unlikely that the results of the Special Committee will be favorable to Kane.  Setting aside the political angle, it is difficult to make a compelling argument that the State’s Attorney General can effectively carry out her office without a law license.  And considering Governor Wolf’s repeated public calls for Kane to resign, it is also a stretch to assume he would veto any 2/3 vote by the Senate to remove Kane.

This is not to say that Kane is in imminent risk of being removed from office. The process of removing Kane will certainly take time.   But make no mistake, the Senate’s appointment of a Special Committee is intended to “get the ball rolling,” and Kathleen Kane’s time as Attorney General appears to running short.

DraftKings and FanDuel Accused of Systemic Fraud and Civil Conspiracy in Class Action Lawsuit

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As I have written on a few occasions, DraftKings and FanDuel, the two heavy hitters in the multi-billion dollar fantasy sports industry, are facing increasing pressure from lawmakers who are finally realizing that these daily fantasy leagues are really unregulated, government sanctioned gambling. But now they also have to worry about the lawyers. And the lawyers are coming in waves.

A number of lawsuits have recently been filed in response to allegations that a DraftKings employee used insider information to win a $350,000 playing fantasy football on the rival FanDuel website.  Each of these lawsuits alleges that executive level employees at DraftKings’ and FanDuel’s exploit their access to confidential customer information to win large sums playing fantasy football for their own account.  Put simply, the lawsuits allege that DraftKings and FanDuel employees are lining their own pockets at the expense of their paying (and quite gullible) customers.

In a recent proposed class action filed in federal court in the Southern District of New York, class representative Adam Johnson made some pretty heavy handed allegations against DraftKings and FanDuel.  The Complaint starts off by alleging that the two daily fantasy giants spent more than $100,000,000 million this year alone to advertise their fantasy platforms.  Although this is not a necessarily a relevant fact (and probably not shocking considering you can’t visit a website or turn on a TV without seeing a fantasy football advertisement), it does highlight just how massive and profitable the fantasy football industry has become.

After briefly describing how DraftKings and FanDuel make money (customers pay a fee to play and the businesses pay out in winnings less than they take in . . . sounds suspiciously like a casino), the Complaint quickly gets down to the brass tacks.   The attorneys for Johnson smartly led off with a strong salvo meant to drive home the theme of the lawsuit – that DraftKings and FanDuel exploit the naiveté of the vast majority of their customers to make money for themselves and few of their best and most favored customers.

The Complaint alleges that DraftKings refers to its new fee paying users as “fish” and “relies on these new users who lack skill to keep its most active users – and therefore profitable” customers happy.  In other words, daily fantasy leagues entice the unsuspecting and unskilled masses to essentially fork over money to play a rigged game they can’t win and that money is split between DraftKings and FanDuels and a few of their top players.  To buttress this claim, the Complaint cites to fantasy baseball statistics and uses these statistics to insinuate that 91% of the profits made playing daily fantasy football are won by just the top 1.3% of players.

Building on its allegations that the vast majority of daily fantasy players are being snookered, the Complaint then turns to the recent scandal involving a DraftKings employee who is alleged to have used inside customer information to win large sums playing fantasy football at rival FanDuel.

The Complaint notes that “Because the goal is to beat other players, a player with statistical data about ownership percentages of competitors would have an edge over players without this data.”  It then points out that in Week 4 of the NFL season, a DraftKings employee “accidentally” released confidential player ownership information and, as it would happen, that very same week another DraftKings employee beat out 229,883 other competitors and won $350,000 playing fantasy football with FanDuel.

Again, the theme being insinuated here is that these daily fantasy leagues are a fraud and employees are given a huge advantage over paying customers by exploiting inside information.  To give some additional meat to this allegation, the Complaint alleges that the daily fantasy performance of the employee who won $350,000 improved dramatically after he took a job at DraftKings, specifically stating: “An analysis of this employee’s previous [daily fantasy] history shows a remarkable increase in winnings since moving from a job with rotogrinders.com . . . to . . . DraftKings.”  In fairness to the employee, the Complaint did not divulge the purported source or methodology underlying the “analysis.”

Ultimately, the Class Action Complaint alleges that the proposed class representative never would have spent money playing fantasy football if he had known he couldn’t win.  If he had known DraftKings and FanDuel operate and exist for the sole purpose of exploiting the gullibility (and pocketbook) of the little guy.  In essence, the Complaint alleges that DraftKings and FanDuel are fraudulent enterprises that use a rigged game to make a few select people a lot of money while taking everyone else for a ride.

It’s not clear if the Johnson Complaint will ever survive a motion to dismiss.  It looks like DraftKings and FanDuel were smart enough to make their users sign mandatory arbitration provision, essentially waiving their right to access the court system.  The Complaint tries to avoid this issue by claiming that it would be unconscionable to allow DraftKings and FanDuel to enforce the arbitration agreement considering the agreement was premised on a fraud.  But, federal courts have been extremely aggressive in enforcing arbitration agreements and it seems like a longshot that District Court judge ruling on the Johnson Complaint would make an exception here.

Even so, DraftKings and FanDuel are now facing mounting pressure on all fronts.  How they navigate these challenges will likely determine if they can continue to operate as independent enterprises, or whether by legislative edict they will be swallowed up by Las Vegas casinos. Either way, change is coming and coming soon.

Photo credit: FreeImages.com Nikki Johnson

The Fix Is In? Draft Kings “Insider Information” Scandal and Impending Regulation

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Last week I wrote an about the inevitability of Congress regulating fantasy football (see link below).  In a nutshell, classifying fantasy football as anything other than gambling is absurd and intellectually dishonest.  Yet, a carve out in federal law has allowed a multibillion dollar fantasy football industry (i.e. gambling industry) to operate free from any government oversight or regulation.

There is no legal or logical principle that would explain why fantasy football should be treated differently than other for-stakes contests, such as poker.   The point of my earlier post was that legal observers (and Congress) are finally taking note of this arbitrary exception, mostly because the larger fantasy football outfits such as DraftKings and FanDuel are aggressively advertising million dollar payouts.  That sort of money will inevitably draw the attention of the government and rightfully so.

But the sure-fire fastest way for a large, big money industry to become regulated is to give the appearance that it is rigged (see Wall Street…it is still rigged, but regulated).   Earlier this week, DraftKings took a big step in that direction.

On Monday, DraftKings released a statement after one of its employee’s won $350,000 playing fantasy football at rival FanDuel.  The controversy arose because the employee won that hefty amount immediately after it was discovered that confidential inside information regarding week three’s most utilized players was accidentally released by DraftKings.  Having inside information about which players are being played the most gives fantasy football participants a huge competitive advantage. And really, its not much different than insider trading which has been illegal and aggressively prosecuted for decades.

DraftKings released a statement Monday claiming it conducted an internal investigation and found no evidence that its employee used insider information to his advantage (“trust us guys”).  Nevertheless, it  has temporarily prohibited its employees from participating in online fantasy football leagues.

Even if the DraftKings employee didn’t use insider information, the optics certainly don’t look good. It gives the appearance that the game is rigged.  The fact that sensitive information capable of exploitation was released in the first place underscores the need for regulation.  And with stakes as high as $1 million, the temptation to access and use this insider information is enormous.  So is the risk of being targeted by computer hackers.

This weeks “insider information” controversy may be a tempest in a teapot, but it really  highlights why the fantasy football industry needs regulation and ultimately will be regulated.

Rather than wait for a big scandal to erupt and have draconian regulations thrust upon it, it may be wise for DraftKings and FanDuel to get a head of the curve and control the process. If the industry voluntarily agrees to regulations and works with lawmakers now, it has a much better shot of securing favorable laws.  Today it still has some leverage, which means it is the ideal time to negotiate.  But once the next scandal hits, that leverage will be gone and Congress may very well regulate the industry into extinction, or perhaps  into the waiting arms of Las Vegas casinos.

https://atomic-temporary-98114188.wpcomstaging.com/2015/09/30/its-just-a-matter-of-time-before-congress-regulates-fantasy-football/

Photo credit: FreeImages.com Nikki Johnson

It’s Just a Matter of Time Before Congress Regulates Fantasy Football

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We are only 3 weeks into the 2015-2016 NFL season, but there are already strong signs that Congress is turning its regulatory eye toward Fantasy Football. New Jersey Congressman Frank Pallone Jr. made headlines recently when he called for a congressional hearing to consider passing laws regulating Fantasy Football. Many dismissed the Representative’s request as misguided, suggesting that Congress should focus on more important things . . . like the economy or ISIS. This isn’t the first time Congress has been criticized for unnecessary meddling in professional sports (think Arlen Specter’s suggestion that Congress investigate the New England Patriots for cheating in the Super Bowl). But whether you agree with Congressman Pallone or not, he has a good point. The Fantasy Football industry has transformed from small groups of friends getting together for some friendly, low-stakes fun (i.e. old school “fantasy football leagues” with low buy-ins), into a multibillion dollar nationwide industry that boasts of million dollar pay-outs. With this sort of money on the table (and potential opportunities for fraud and corruption), it is not a question of if Congress closes the regulatory loop on Fantasy Football, but when and how?

Gambling is a highly regulated industry. This dates back to the early days of commercial gambling, when organized crime groups (i.e. mobsters) were running casinos. Historically, gambling has tended to attract crime and corruption. In fact, for decades in the 1970s and 1980s, federal prosecutors focused their attention on identifying and dismantling organized crime syndicates operating in the casino/gambling industry. Incidentally a lot of great movies were based on these prosecutions. From the government’s perspective though, strict laws regulating gambling are necessary to keep organized crime out.

Nevada is the only state in the United States where betting on sports is legal. But as internet use became more widespread in the 1990s and 2000s, gamblers across the country began placing bets online, effectively sidestepping the law prohibiting it. Partly in response to this problem, Congress passed the Internet Gambling Enforcement Act of 2006. The Internet Gambling Enforcement Act put in place stricter laws regulating online gambling. But it also contained one small, but crucial provision that allowed Fantasy Football to explode into the national, multibillion dollar market it is today.

The Internet Gambling Enforcement Act carved out an important exception for Fantasy Football. Congress decided that Fantasy Football was not gambling and therefore not subject to the law, allegedly because it considered Fantasy Football a game of skill, not of chance. The distinction between skill and chance is a dubious one, as any honest Fantasy Football player who has lost their first round pick to injury (or drafted LaDainian Tomlinson or Shaun Alexander after their respective record breaking seasons) will concede. Seemingly small, the carve out given to Fantasy Football effectively allowed these leagues to operate with impunity, free from the strictures of otherwise applicable gambling laws. It also sowed the seed for the explosive growth of large scale, for-profit, commercial Fantasy Football businesses.

Today, Fantasy Football is a huge industry dominated by a few large players. As Congressman Pallone noticed, larger organizations such as Fan Duel and Draft Kings are advertising their business heavily and promising pay-outs of up to one million dollars. Although Fan Duel and Draft Kings may attract more participants and increase their short-term revenues with such advertisements, they are also drawing unwanted attention and priming the pump for new laws and regulations.

When The Internet Gambling Enforcement Act was passed in 2006, Fantasy Football wasn’t a big industry. It wasn’t really an industry at all. It was a social pass-time that groups of friends engaged in for friendly competition and bragging rights. Sure, there was usually a monetary prize that went to the winner, but it normally wasn’t enough to cover dinner at a fancy restaurant.

Today, participants in for-profit Fantasy Football leagues are receiving pay-outs of up to a million dollars. That’s serious money for both the player and for Uncle Sam. There is no way Congress could have foreseen Fantasy Football becoming such large commercial enterprise when it passed the Internet Gambling Enforcement Act in 2006. But now that it has become such a big business, Fantasy Football is starting to get the government’s attention.

It is probably a fair guess that the large Fantasy Football businesses have lawyers and lobbyist on staff to try to keep Congress at bay. That is their right and a smart business move. And it may work in the short term. But the more these companies advertise their services and the huge payouts to winners, the more tenuous their regulatory loophole will become. And make no mistake, it is tenuous. It will take just one scandal, one headline, one accounting irregularity for the regulatory hammer to come down. One whiff of corruption, one suggestion that organized crime is operating in the industry and Congress will surely act swiftly with heavy handed regulations. This isn’t a criticism of the Fantasy Football industry, it is just a reality.

With an industry this big and growing, it really isn’t “if” but “when” Congress gets involved.