Federal Law & Legal System – Page 122 – Marquette University Law School Faculty Blog

Justice Kennedy Goes to the Movies

Post author:David R. Papke
Post published:January 28, 2010
Post category:Constitutional Interpretation First Amendment Popular Culture & Law U.S. Supreme Court

Those industrious enough to reach the final paragraphs of the recent opinion of the Court in Citizens United v. Federal Election Commission (2010) might have been surprised to find Justice Kennedy discussing Mr. Smith Goes to Washington (1939). A Hollywood classic directed by Frank Capra, the film is the fictional story of a handpicked bumpkin Senator played by Jimmy Stewart, who sees the light, dramatically filibusters, and in the end teaches the Congress how to behave. Justice Kennedy’s argument seems to be that if the campaign-related indictment of Hillary Clinton in the film titled Hillary: The Movie could be suppressed, the same fate could befall a beloved work such as Mr. Smith Goes to Washington.

The two films’ only similarity seems to be that they are indeed films. One film is fictional, but the other attacks an actual Senator and Presidential candidate. One is designed to entertain, but the other is designed to influence an election. And most importantly, one is a work produced by the culture industry designed to make a profit, but the other is a work funded from corporate profits designed to change opinions.

Are Justice Kennedy and the other members of the Supreme Court majority incredibly unsophisticated in their understanding of popular culture and politics, or is their analogy disingenuous? Extending the inquiry, might a comparable question be posed regarding the Citizens United opinion as a whole? The Supreme Court’s majority might be so oblivious as to think that corporations have the full panoply of First Amendment rights and that their financially self-serving broadsides are matters of free speech that enrich democracy. Then, again, the majority might simply hope it can trick us into believing that.

Seventh Circuit Decides That Reckless Injury and Statutory Rape Are Not “Crimes of Violence”

Post author:Michael M. O'Hear
Post published:January 27, 2010
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

In a series of posts (e.g., here and here), I have been tracking the fallout in the Seventh Circuit of the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008). Begay adopted a new approach for deciding when former convictions count as “crimes of violence” that trigger the fifteen-year mandatory minimum sentence of the Armed Career Criminal Act.

Earlier this week, the Seventh Circuit had another in its increasingly long line of post-Begay decisions holding that this or that specific offense does not fit the new definition of “crime of violence.” More specifically, in United States v. McDonald (No. 08-2703) (Sykes, J.), the court held that first-degree reckless injury (in violation of Wis. Stat. § 940.23) and second-degree sexual assault of a child (what would be colloquially called “statutory rape,” in violation of Wis. Stat. § 948.02(2)) do not count as crimes of violence.

Seventh Circuit Clarifies Application of Fourth Amendment to Searches of Computer Hard Drives

Post author:Michael M. O'Hear
Post published:January 22, 2010
Post category:Circuit Splits Computer Law Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

While working as a life guard instructor, Matthew Mann covertly installed a video camera in a locker room in order to take footage of women changing their clothes. After the camera was discovered and turned over to the authorities, police executed a search warrant at Mann’s home for “video tapes, CD’s or other digital media, computers, and the contents of said computers, tapes, or other electronic media, to search for images of women in locker rooms or other private areas.” In connection with the search, police seized computers and an external hard drive from Mann. Police later ran forensic software on this equipment that revealed the presence of child pornography, which formed the basis of a federal prosecution.

The district court denied Mann’s motion to suppress the images found on his hard drives. Mann then pled guilty, but preserved the right to litigate his Fourth Amendment claim on appeal. In United States v. Mann (No. 08-3041) (Rovner, J.), the Seventh Circuit affirmed. Although the scope of the warrant was limited by its terms to a search for “images of women in locker rooms or other private areas,” the court held that police did not exceed the scope of the warrant when they collected and viewed Mann’s collection of child pornography.