The Committee for Justice | Op-Ed Publications

Legal Briefs

February 18, 2020

Copyright cases do not call for a free-ranging search for the best copyright policy, but rather depends solely on statutory interpretation. After all, the proper course is not to bend and twist the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade. The audience for Google’s concerns, therefore, is across the street.

September 30, 2019

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and its progeny held that courts should apply narrow tailoring to violations of the freedom of association. Has that requirement been overruled such that the right to associate privately does not enjoy the strong protective standard that applies to other First Amendment rights, which this Court has held requires narrow tailoring regardless of the level of scrutiny?

September 20, 2019

The Court should also grant review to revisit the concept of deference and the scope of deference granted to an executive agency. The power to determine the meaning of a law is vested in the judiciary. Judicial deference raises questions of separation of powers – especially where it results in authorizing an agency to formulate law, interpret law, and enforce that law.

May 11, 2018

Last year, the Committee for Justice joined Cause of Action Institute and Floor 64, Inc. in filing an amicus brief in support of the appellant in United States v. Kolsuz, arguing that that the Fourth Amendment's border search exception does not  give U.S. Customs and Border Protection unlimited warrantless search authority for electronic devices. “Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States,” the brief states. On Wednesday, the Fourth Circuit ruled that individualized suspicion is needed before government officials can use forensic software to search an electronic device seized at the border.

November 18, 2017

The Committee for Justice (CFJ) joined the Center for Democracy and Technology (CDT), the Electronic Frontier Foundation (EFF), Media Alliance, and Public Participation Project (PPP) in filing an amicus brief in United States v. Glassdoor in support of the rights of anonymous online speakers against involuntary unmasking, as well as the rights of companies against government subpoenas that compel disclosure of users’ identities.

The Committee for Justice joined with a group of a dozen conservative organizations and libertarian policy leaders -- who believe that the Constitution's protection of private property extends with undiminished force to intellectual property -- in filing an amicus brief in support of the petitioner in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC.

August 14, 2017

On Friday, the Committee for Justice (CFJ) joined the Competitive Enterprise Institute, the Cato Institute, and the Reason Foundation in filing an amicus brief in support of Fourth Amendment privacy rights in the Supreme Court case Carpenter v. United States. When the Court hears this case this fall, the justices will determine whether law enforcement can seize and search an individual's cell phone location data—revealing virtually all of the person's movements—without a search warrant. The brief says no. Under the plain text and intent of the Fourth Amendment, our brief argues, the government should not be able to turn a cell phone into a tracking device without a warrant. The appellants in the case are two men convicted on federal charges following a series of armed robberies. They argue that the government violated their Fourth Amendment rights when it acquired the location data from their wireless carriers without a search warrant. The U.S. Court of Appeals for the Sixt...

Friday the Competitive Enterprise Institute filed an amicus brief in Carpenter v. United States, a Supreme Court case centered on whether or not a warrant is needed to collect customer data from cell phone providers. Arguing that digital Terms of Service and privacy policies are contracts that allocate property rights in data, CEI says that collecting such data should require a warrant. CEI is joined on the brief by the Cato Institute, the Reason Foundation, and the Committee for Justice. “Thanks to a sort of ‘degraded’ legal status for data, the government is currently able to access huge amounts of often highly sensitive information about us without our say-so,” explained CEI Vice President Jim Harper. “Enjoying privacy on the terms we decide is one of the hallmarks of living in a free society. The government shouldn’t be able to collect personal communications data with just a subpoena, and we hope the Supreme Court finds it is unreasonable to gather this information without a prop...

August 13, 2017

"...In harder cases dealing with unfamiliar items such as communications and data, however, courts retreat to the Supreme Court’s “reasonable expectation of privacy” doctrine that emerged from Katz v. United States (1967). The Court has decided to review the important criminal-procedure and digital-privacy issues here. ...Cato and the Competitive Enterprise Institute, joined by Reason Foundation and the Committee for Justice, filed an amicus brief [in Carpenter v. United States] urging the Court to return to the text of the Fourth Amendment. The reasonable expectation of privacy test is outdated because it lacks a strong connection to the text and asks courts to conduct a sociological exercise rather than a judicial one. This is especially true in the context of new technology, where societal expectations have not been fully formed yet and will change based on the Court’s judgment, leading to circular reasoning..." Read more by Ilya Shapiro in CATO AT LIBERTY...

April 1, 2017

The Committee for Justice joined Cause of Action Institute and Floor 64, Inc. in filing an amicus brief in support of the appellant in United States v. Kolsuz.

CFJ’s brief in McCutcheon v. SEC was authored by Emory Law School’s Supreme Court Advocacy Project and CFJ President Curt Levey. A PDF copy of CFJ’s brief is available here.

Today the Supreme Court hears oral argument in the biggest campaign finance case since Citizens United, and the Committee for Justice has weighed in on the side of free speech. CFJ’s amicus brief in today’s case, McCutcheon v. FEC, supports the Republican National Committee and campaign donor Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold.

This week, the Committee for Justice filed an amicus curiae brief in McCutcheon v. FEC, the next big campaign finance case before the U.S. Supreme Court.  CFJ’s brief supports the Republican National Committee and individual plaintiff Shaun McCutcheon in their First Amendment challenge to the aggregate contribution limits imposed by McCain-Feingold. The Supreme Court will hear arguments in the case this fall. CFJ president Curt Levey described the brief as “part of CFJ’s continuing effort to battle judicial activism.  Prior to the Roberts Court, the Supreme Court functioned more as legislators than judges on this issue, bending the First Amendment to accommodate the push for campaign finance reform.  The result is a politically convenient but constitutionally groundless interpretation of the First Amendment that allows the government to treat campaign contributions as a lesser form of speech.”

The media coverage leading up to today’s Supreme Court argument in United States v. Arizona has focused almost entirely on the issue of illegal immigration. But the most important issue in the case is not immigration policy or even the specifics of whether some or all of Arizona’s immigration law is preempted by federal law. The most profound impact of this case will likely be on the constitutional balance of power between the states and the federal government, an issue that goes back to the nation’s founding and will always be at the heart of any debate about the nature of our democracy, long after the issue of immigration has faded from the headlines.

In a Supreme Court amicus (friend of the court) brief submitted by the Committee for Justice in this case, we remind the Court of what is at stake: 

“States have a broad right to protect the public health, safety and welfare of their citizens … [that] should not be superseded by federal acts, unless clearly intended by Co...

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