Blog

A recent amicus brief submitted to the Supreme Court by the National Conference of State Legislatures in Wood v. Moss urged the Justices to Google It–or more precisely, to check the location of a protest using Google Maps.

The Brief directs the Justice to look outside the record!

Rather than limit itself to the two- dimensional map in the record, this Court should use Google Maps Street View to examine the actual geographic and architectural facts on the ground, as encountered by the Secret Service Agents, in evaluating the protesters’ viewpoint discrimination claim.

In a footnote, the brief gives the Court (easy) instructions on how to use Street View:

Google Maps Street View is easy to navigate. Here’s one way to do it: go to www.maps.google.com. In the query box, type “Third and California Streets, Jacksonville OR.” Then click and drag the person icon (the “pegman”) from the lower right hand corner of the screen to the intersection of Third and California. Then view the many street-level photographs taken by Google’s cameras by using the arrow icons on the street, and the rotate view icon at the lower right of the screen.

To justify this action, the brief cites Scott v. Harris (the police-chase video case).

This Court has recognized the value of making reference to available objective facts in qualified immunity cases where the Court must evaluate the conduct of government actors based on claimants’ allegations. …

The Court deemed it appropriate to inform its determination of reasonableness by viewing an indisputably accurate videotape of the car chase.

Scott v. Harris seems inapposite. That was the *actual* video of the case at issue. Google Maps was not a recording of the protest at issue in this case. The brief seems to conflate these two types of evidence.

As a result, Google Maps Street View is not some sort of computer simulation. Rather, it provides a collection of numerous street-level photo- graphs of a location—just as the videotape of the car chase in Scott v. Harris consisted of individual frames that were photographs of the car chase.

The brief argues that the Google Map is “objective”

The effect is like being able to walk around the streets of downtown Jacksonville—a virtual tour that (as discussed above) is sufficiently objective and accurate to be a proper subject of judicial notice.

A Google map is not “objective.” It is not “indisputably accurate.” No findings were made as to the map’s objectivity or accuracy. In fact, the brief concedes that the event in question, which occurred in 2004, PREDATES Google Street View,which began in 2007!

Since Google Maps did not start collecting photo- graphs until 2007, it is certain the photographs of downtown Jacksonville shown through Street View were taken several years after the October 2004 demonstration at issue here. However, the Street View photographs show the exact same buildings, alleyways, parking lots, and fenced-off patio depicted in the record map, App. 59a, and described at length in the Second Amended Complaint and lower court opinions. It is apparent that there has been no con- struction or other alteration of these key architectural features since October 2004. The current Google Map Street View photographs are therefore a proper subject of judicial notice under Rule 201(b), Scott v. Harris, and the more recent internet map cases cited above.

The Court tries to equate looking at Maps to taking judicial notice.

Federal courts have long deemed it appropriate to take judicial notice of geographical facts as observed through resources like Google Maps. See Fed. R. Evid. 201(b); Boyce Motor Lines v. United States, 342 U.S. 337, 344 (1952) (Jackson, J., dissenting) (“We may, of course, take judicial notice of geography.”); United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (taking notice of a Google map and satellite image as a “source whose accuracy cannot reasonably be questioned”); Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1218 n.2 (10th Cir. 2007) (taking judicial notice of online distance calculations); Rindfleisch v. Gentiva Health Sys., Inc., 752 F. Supp. 2d 246, 259 n.13 (E.D.N.Y. 2010) (taking judicial notice of geographic information through Google Maps, and collecting similar cases); United States v. Brown, 636 F. Supp. 2d 1116, 1124 n.1 (D. Nev. 2009) (same); David J. Dansky, The Google Knows Many Things: Judicial Notice in the Internet Era, 39 COLO. LAW. 19, 24 (2010) (“Most courts are willing to take judicial notice of geographical facts and distances from private commercial websites such as MapQuest, Google Maps, and Google Earth.”). And this Court has acknowledged that courts may consider judicially-noticed facts at the pleading stage, in deciding a motion to dismiss. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).2

Maps and photographs are not self-evident. There is a reason why the rules of evidence require laying proper foundations before the introduction of any visual aids into the record. Both parties can challenge or contest the exhibit. But when judges do it themselves, and rely on a Google map that may not have even been in existence at the time of the dispute in question.

Even moreso, the brief argues that the photographs in the record are not accurate, and the Court should replace the supplant record with the Google Map!

This two-dimensional, overhead view is critical to the protesters’ ability to articulate a constitutional claim based on the fact that they were moved about a block further away from the patio where the President was dining. This view, however, glosses over or obscures some important architectural and geographic features that plainly justify the Secret Service’s decision to move the protesting group all the way to Fifth Street.

The protesters allege that police cleared and blocked the two alleys on Third and California Streets leading to the outdoor patio. Id. at ¶ 49. As a result, the protesters claim that they did not have any “access to the President or line of sight to the dining patio.” Id. at ¶ 50. The protesters also allege that they were effectively “blocked” by the buildings along the north side of California Street, id.; and that there was “no significant security difference between the two groups of demonstrators.” Id. at ¶ 54. Like the car chase videotape in Scott v. Harris, Google Maps Street View photographs show that these allegations are profoundly inaccurate.

…

The Court can now use Google Maps Street View as an objective tool to evaluate the lower courts’ analysis, just as it did with the car chase video in Scott v. Harris. As noted, a pro-Bush demonstrator at Third and California looking toward the outdoor patio where the President dined would find himself or herself looking at the two-story brick façade of the United States Hotel—that edifice stood squarely in between the pro-Bush group and the President. Given its large footprint, the hotel is not easy to get around. Any person in the pro-Bush group armed with a handgun or explosive would likely have been unable to use those weapons against the President given the large hotel in between.

…

Google Maps Street View thus confirms that the two groups of demonstrators were not similarly situated from a security perspective, which is what the Petitioner Secret Service Agents were properly concerned about.

Marcia Coyle has background story:

In a case involving Secret Service agents and anti-Bush demonstrators, state and local governments are urging the U.S. Supreme Court to apply a technology-age tool to the age-old problem.

The tool is hardly revolutionary, except perhaps in Supreme Court cases.

The federal government, in its defense of the agents, offers the justices a two-dimensional map of the demonstration site to help their analysis. But there is a better way, organizations representing state and local governments say in weighing in on the agents’ behalf.

The map is “helpful, but you use it to compare distances. It doesn’t give a real sense of what the Secret Service agents encountered on that day—the real geographic and architectural facts on the ground,” said Bennett Cohen of Polsinelli’s Denver office. “You can get that on Google.”

Google Maps street view, to be specific, and in a brief on behalf of the National Conference of State Legislatures, the National League of Cities and other government groups, Cohen urges the justices to take the tour.

…

Polsinelli’s Cohen argues that the Google Maps street view tour confirms an alternative explanation for moving the anti-Bush demonstrators.

“By considering the geographic and architectural features revealed by Google Maps, the Court can readily appreciate that the Secret Service agents had sound security-based reasons for moving the anti-Bush protesters on the corner of Fourth and California Streets further away from the President,” he writes.

This is the wrong path. The judges should avoid Justice Breyer’s urge to cite facts from “the Internet,” and who admitted that because the record wasn’t clear he “googled it.” Stick the record. Just the facts ma’am.

The lecture notes are here, and the live chat is here.

This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:

• He has made her, if married, in the eye of the law, civilly dead.
• He has taken from her all right in property, even to the wages she earns.
• He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.

The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.

The lecture notes are here. The live chat is here.

Affirmative Action

• Discriminatory Intent v. Disparate Impact & Washington v. Davis (1379-1383).
• Affirmative Action (1386-1389).
• Grutter v. Bollinger (1389-1401).
• Notes (1401-1405).
• Fisher v. University of Texas, Austin (Readings to be posted).
• Affirmative Action Outside Education (1405-1407).

Palmer v. Thompson

Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.

Michigan Affirmative Action Cases

This is Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger:

This is the University of Michigan Office of Undergraduate Admission.

This is the University of Michigan Law School Admission Office.

Abigail Fisher v. University of Texas, Austin

This is Abigail Fisher of Sugarland, Texas

This is the University of Texas, Austin.

Update 3/23/14: I mistakenly assumed that petitioners appealed the Free Speech and Free Exercise clause. I now see that they only appealed the compelled speech issue. Here is the only question presented:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

Currently pending before the Supreme Court is the certiorari petition in Elane Photography v. Willock, which involves a case where a photographer refused to photograph a same-sex civil commitment ceremony.  While much of the attention to this case focuses on religious liberty, Eugene Volokh and Ilya Shapiro have a great Op-Ed arguing that forcing Elane to photograph a same-sex wedding, against her wishes, would not only implicate religious liberty, but free expression. They would be forcing her to speak–or more precisely create art in the form of photographs:

Our brief explained that photography is protected by the First Amendment—even if it’s not political and even if the photos are taken for money, just as a lot of writing and art is done for money. Creators of expression have a First Amendment right to choose which expression they want to create.

…

Take, for instance, a freelance writer who declines to write a press release for a religious organization with which he disagrees. By the reasoning of the New Mexico Supreme Court, the writer has violated the law because his refusal to write the press release is discrimination based on religion—much as Elaine Huguenin’s refusal to photograph an event with which she disagreed was treated as violating the law. Yet a writer must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.

This is a perfectly sensible argument, and provides a libertarian reason as to why Elane should win. But it also reveals why this case is a particularly bad vehicle for a religious liberty case. The Court can rule in favor of Elane with a strong First-Amendment free speech ruling, while avoiding the more thorny religion-clause issue. In fact, if the Court grants cert, they should almost certainly request briefing on the free speech issue (and maybe appoint Eugene as amicus).

But I can see a law clerk reading Eugene and Ilya’s brief, and writing “vehicle problem” on a cert memo.

Let’s think of another case. For example, a homeowner refuses to rent a spare bedroom to a same-sex couple. (This is an actual case trickling through the courts in England now). The state human rights commission finds that the homeowner must offer accommodations to the couple, even if their union and relations goes against religious beliefs. This issue would not present any free speech issue. It does present a private property issue more broadly, but it does not implicate the First Amendment. This would be a much better vehicle to resolve the core issue of Elane Photography.

Cross-Posted at Law & Liberty

I joined an Amicus Brief filed today in Courtney v. Danner, a case that asks the Supreme Court to reverse a ruling of the 9th Circuit that misinterpreted the Privileges or Immunities Clause of the 14th Amendment. The brief was signed by Randy E. Barnett, myself, James W. Ely, Jr., Richard A. Epstein, Christopher R. Green, and Ilya Somin.

Here is the summary of the argument.

Update: More from Randy Barnett.

Courtney v. Danner is a case brought by the Institute for Justice challenging a government-imposed ferry monopoly as irrational and arbitrary, and therefore violative of the Fourteenth Amendment. Anyone who knows me knows that I believe the Supreme Court’s 1873 decision in The Slaughter-House Cases was an egregious mistake that has distorted the meaning of the Fourteenth Amendment ever since. Yet today, Richard Epstein, Ilya Somin, James Ely, Josh Blackman, Chistopher Green and I submitted an amicus brief in this case urging the Supreme Court to grant cert and uphold Slaughter-House!  We make this claim because, in denying this challenge, the U.S. Court of Appeals for the Ninth Circuit eviscerated one of the few rights of thatSlaughter-House affirmed as among the “privileges or immunities of citizens of the United States”: the right “to use the navigable waters of the United States.” The Ninth Circuit ruled that this right did not include the use of navigable waters for economic purposes.

Amicus Brief in Courtney v. Danner by Josh Blackman