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Judge Ellis’ jurisprudence

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From the Spring 2006 issue of The News Media & The Law, page 6.

When judges determine a statute is vague, they look to its legislative history to help decipher its meaning.

In a March 24 hearing, U.S. District Judge T.S. Ellis acknowledged that the AIPAC case is “in new uncharted waters and that’s why I’m going to consider this matter extremely carefully.”

But his previous decisions concerning constitutional challenges to statutes give little insight on how he approaches vague statutes or uses legislative history to resolve ambiguities. In two cases challenging obscenity laws — 1992’s Eckstein v. Cullen and 1987’s United States v. Pryba — Ellis declined to parse the language of the statutes at issue or look to their legislative history, but instead held that many other courts previously resolved the issue. Citing a 1974 U.S. Supreme Court decision, Ellis explained in Eckstein that the “Court has explicitly recognized that close questions concerning the applicability of an obscenity statute in a particular case do not suffice to invalidate the statute on vagueness grounds.”

In 1990, Ellis considered United States v. Dyer, a case concerning the constitutionality of the Mail Order Drug Paraphernalia Control Act. Although Ellis acknowledged that at least one federal appeals court had found the statute not so vague to be unconstitutional, he nonetheless more closely inspected the law, examining both the statute’s language and legislative history. Ruling the statute not void, Ellis explained that it gave fair notice of what type of conduct it prohibited by listing prohibited paraphernalia such as roach clips and chamber pipes, and by including a state of mind requirement for the defendant to be found guilty. Ellis was not bothered that the ambiguous legislative history did not help interpret the statute because he considered the law’s language clear.

In two hearings held concerning whether the AIPAC case should be dismissed, Ellis pressed both parties for help interpreting the statute. “As you can tell, because I have wrestled with this problem, I find this a very, very, hard problem,” he told prosecutor Kevin DiGregory April 21. He did not ask counsel to discuss the history or purpose of the statute, but pushed both sides to explain whether the statute applies to the defendants’ conduct and whether it violated the First Amendment.

“I have to decide whether, textually, [the statute] applies,” he alerted DiGregory March 24, asking the government to provide additional briefing on the subject. “Because if textually it doesn’t apply, then I don’t have to reach any [constitutional] question.”

Analyzing whether a statute is so vague it’s unconstitutional — the vagueness doctrine — is “a very hard standard to apply,” Ellis explained. “It sounds right. It sounds noble. But I’m always reminded of the judgments that people have to make about obscenity.” The First Amendment “requires that you be thick-skinned and take chances, because there is no sharp line between what is merely pornographic and what is obscene and not protected by the First Amendment.”

Victor Glasberg, the attorney who represented Kathleen L. Eckstein in challenging the constitutionality of the federal obscenity statute, cautions that predicting how a judge might rule is an academic exercise. In the AIPAC case in particular, Glasberg said, “the government’s case is so poor, that a given judge’s jurisprudential proclivities have little bearing on what the result should be.” — SB