Ag Gag Past, Present, and Future

While the animal rights and food justice movements are relatively young, their political unpopularity has generated a steady onslaught of legislation designed to curtail their effectiveness. At each stage of their nascent development, these movements have confronted a new wave of criminal or civil sanctions carefully tailored to combat the previous successes the movements had achieved

High Value Lies, Ugly Truths, and the First Amendment

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the first to argue, contrary to conventional wisdom, that certain types of lies paradoxically advance the values underlying the First Amendment. Our framework is descriptively novel and doctrinally important insofar as we provide the first comprehensive post-Alvarez look at the wide range of lies that may raise First Amendment issues. Because there was no majority opinion in Alvarez, there is uncertainty about which standard of constitutional scrutiny should apply to protected lies, an issue we examine at length. Moreover, our normative claim is straightforward: when a lie has intrinsic or instrumental value it should be treated differently from other types of lies and warrant the greatest constitutional protection. Specifically, we argue that investigative deceptions – lies used to secure truthful factual information about matters of public concern – deserve the utmost constitutional protection because they advance the underling purposes of free speech: they enhance political discourse, help reveal the truth, and promote individual autonomy. A prototypical investigative deception is the sort of misrepresentation required in order for an undercover journalist, investigator, or activist to gain access to information or images of great political significance that would not be available if the investigator disclosed her reporting or political objectives. Tactical use of such lies have a long history in American journalism and activism, from Upton Sinclair to his modern day heirs. Using the proliferation of anti-whistleblower statutes like Ag Gag laws as an illustrative example, we argue that investigative deceptions are a category of high value lies that ought to receive rigorous protection under the First Amendment. At the same time, we recognize that not all lies are alike and that in other areas, the government regulation of lies serves legitimate interests. We therefore conclude the Article by drawing some limiting principles to our theory

Free Speech and Democracy in the Video Age

The pervasiveness of digital video image capture by large segments of the public has produced a wide range of interesting social challenges, but also presents provocative new opportunities for free speech, transparency, and the promotion of democracy. The opportunity to gather and disseminate images, facilitated by the reduced expense and easy access to camera phones and other hand-held recording devices, decentralizes political power in transformative ways. But other uses of this technology represent potentially significant intrusions on property rights and personal privacy. This tension creates a substantial dilemma for policymakers and theorists who care about both free speech and privacy. Because of these putative social interests, laws governing video image capture are becoming more widespread across a number of different regulatory regimes, from Federal Aviation Administration regulations of drone recordings to bans on recordings of police officers performing their duties to so-called Ag-Gag laws, which criminalize the video recording of incidents of animal abuse at commercial agricultural facilities. In this Article, we examine constitutional theory and doctrine as applied to emerging government regulations of video image capture and propose a framework that will promote free speech to the fullest extent possible without presenting unnecessary intrusions into privacy interests. The Article first argues that video recording is a form of expression or, at the very least, is conduct that serves as a necessary precursor of expression such that it counts as speech within the meaning of the First Amendment. We continue with the novel argument that none of the features that make video recording a form of speech apply differently when the recording takes place on private property. Next, we examine under what circumstances video recording is constitutionally protected. We claim that video recording in public places or on private property with the consent of those recorded is presumptively protected speech under the First Amendment. But we also argue that the right to record attaches even when the recording is nonconsensual and occurs on private property, as long as the material recorded is a matter of public concern. While we acknowledge that the First Amendment does not limit the enforceability of generally applicable prohibitions on access to private property, we nonetheless suggest that a recording of activity that is a matter of public concern and is done by someone who is lawfully present on that private property is protected speech. That is not to say that all regulation of such recordings violates the First Amendment, and we therefore address when countervailing governmental interests might justify limitations on the right to record, including tangible property interests and reasonable privacy expectations. Throughout this part, we draw on examples of laws regulating video recordings to suggest how our proposed model for a right to record would apply in context. The First Amendment model developed in this

Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century

This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state. Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty. We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution

Simulation of the thermal profile of a mushy metallic sample during tensile tests

Strain measurement is a major challenge in tensile tests performed in a mushy state. While non-contact technique devices like the laser speckle extensometer remain the most reliable facility for this type of measurement, these devices are often not readily available. So the strain measurement is usually performed by determining the length of the ‘‘hot zone’’ of the sample. This is possible with the help of the thermal profile associated with the sample under heating. The purpose of our work is to develop a numerical model to predict the thermal profile of a A356 aluminum alloy sample at high temperature, taking into account the device geometry and characteristics. We simulate the joule heating effect using the FE software Abaqus. Our model takes into account the grips of a Gleeble machine, the thermal contact conductance and electrical contact resistance at the grip-sample interfaces, as well as the convection heat transfer on the free surfaces of the system. These thermo-physical properties have been determined by fitting the experimental thermal profile obtained at 545°C. The model was then used to simulate the temperature profile on the sample at higher temperatures (when the sample is in the mushy state). The thermal profile predicted by our model is in excellent agreement with the profile obtained experimentally