FAN 13 (First Amendment News) — Burt Neuborne’s Forthcoming Book on Madison, Music, & the First Amendment

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Note: Oral arguments for the 2013-2014 Term end today. 

UnknownWikipedia describes him as “a nationally renowned civil liberties defender.”

  • He is the former National Legal Director of the American Civil Liberties Union.
  • He is the Inez Milholland Professor of Civil Liberties at New York University School of Law.
  • He is the Legal Director of the Brennan Center for Justice.
  • He was the focus of a six-part series on SCOTUSblog.
  • He is the author of Free Speech Free Markets Free Choice: An Essay on Commercial Speech (1986), and Building a Better Democracy: Reflections on Money, Politics and Free Speech (2002).  
  • And he is the one who on several occasions forcefully contested the ACLU’s position on the First Amendment and campaign finance reform.  

He is, of course, Burt Neuborne — a man not known for shunning controversy.

True to his contrarian spirit, Professor Neuborne has authored a new book that comes out next February. The book is titled Madison’s Music: On Reading the First Amendment (The New Press). (For a few sample bars from the forthcoming musical work, listen to Professor Neuborn’s 2012 Cooper Union remarks here.) Casting modesty to the wind, here is how the publisher describes the work:

Are you sitting down? It turns out that everything you learned about the First Amendment is wrong. For too long, we’ve been treating small, isolated snippets of the text as infallible gospel without looking at the masterpiece of the whole. Legal luminary Burt Neuborne argues that the structure of the First Amendment as well as of the entire Bill of Rights was more intentional than most people realize, beginning with the internal freedom of conscience and working outward to freedom of expression and finally freedom of public association. This design, Neuborne argues, was not to protect discrete individual rights—such as the rights of corporations to spend unlimited amounts of money to influence elections—but to guarantee that the process of democracy continues without disenfranchisement, oppression, or injustice. (emphasis added)   

If you have regained your “composure,” there is more — more music and flowers and eloquence:

Neuborne . . . invites us to hear the “music” within the form and content of Madison’s carefully formulated text. When we hear Madison’s music, a democratic ideal flowers in front of us, and we can see that the First Amendment gives us the tools to fight for campaign finance reform, the right to vote, equal rights in the military, the right to be full citizens, and the right to prevent corporations from riding roughshod over the weakest among us. Neuborne gives us an eloquent lesson in democracy that informs and inspires.

As the publication date nears, I will say more about this book.

Meanwhile, books that sound a similar tune include Dean Robert Post’s soon-to-be-released Citizens Divided: Campaign Finance Reform and the Constitution (Harvard U. Press, June 2, 2014), which has already been approvingly cited by Justice Stepehen Breyer in his dissent in McCutcheon v. FEC.

On a related score, there is Ralph Nader’s new book, Unstoppable, which joins the anti-Citizens United chorus in ways both simple and bold — as in Nader’s clarion call for initiatives and referenda in every state and even at the federal constitutional level as well.

First Amendment Salon Debuts in NYC

Floyd Abrams, Nadine Strossen & Steven Shapiro

Floyd Abrams, Nadine Strossen & Steven Shapiro

Monday, April 28th, 7:00-8:30 pm: The Levine, Sullivan, Koch & Schulz law firm hosted the first in a series of First Amendment salons. The New York City event was webcast live to the firm’s offices in Washington, D.C.  A small group of invited lawyers, journalists, professors and others (approximately 25 at each of the two venues) first listened and then partook in a lively discussion of McCullen v. Coakley. The discussion centered around an exchange between the noted First Amendment lawyer Floyd Abrams and the ACLU’s national legal director Steven Shapiro. The exchange was moderated by New York Law School Professor Nadine Strossen. The next salon will occur in D.C. with a live webcast to New York.

Florida Appellate Court Grants Press Access to Jury Selection in High- Profile Criminal Case 

The District Court of Appeal for the First District of Florida issued a unanimous opinion last week in which it reversed a trial court order excluding the media from the courtroom during voir dire proceedings. To compensate for this physical exclusion, County Court Judge Russell Healey set up an “overflow” courtroom with an audio feed for the media. That “accommodation,” however, was legally impermissible under Florida common law and the First and Fourteenth Amendments. So ruled a state appellate court in Morris Publishing Group v. Florida,

George Gabel, Jr.

George Gabel, Jr.

The 27-page opinion was written by Judge Stephanie W. Ray. What was especially interesting about this case was that the state argued that the voir dire proceeding was effectively a “bench conference” to which the media enjoy no right of access. In resolving that question, Judge Ray discounted labels and noted that a “functional analysis is necessary to determine whether the closed proceeding is part of the trial process to which the First Amendment right of access attaches.” In that regard, the appellate court held that “the purported ‘bench conference’ was, in fact, a substantive part of the trial.” Futhermore, the Court ruled that “the juror challenge phase of jury selection is a ‘judicial proceeding’ and an essential part of a criminal trial,” and as such Florida common law “provides an additional mandate for a qualified right to public access, requiring both procedural and substantive safeguards prior to closure.” The case was successfully argued by George D. Gabel, Jr. of the Holland and Knight law firm. An appeal is not expected.

The Employee Speech case

All right. Tell me what you want as your rule. Anyone subpoenaed in a criminal trial is protected? — Justice Sonia Sotomayor

So you could fire him because he testified? — Chief Justice John Roberts

This past Monday the Justices heard oral arguments in Lane v. Franks, the employee speech case raising the question of whether, consistent with the First Amendment, a government employer can retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities. (There is also a qualified immunity question raised in the case.) Throughout the arguments, the Justices went back and forth between discounting the extremes of no First Amendment protection, on the one hand, to some categorical exception for court testimony, on the other. Even so, it seemed likely that the Petitioner’s First Amendment argument might well prevail, though it was unclear on exactly what grounds it might do so.

Justice Samuel Alito inquired about the scope of one’s job duties, as in the case of an inspector general. What about, asked Justice Sotomayor, police officers or  lab technicians who testify in court regularly? And, what about Pickering balancing, Justice Ruth Bader Ginsburg inquired? At one point later on Justice Anthony Kennedy asked: “What’s an example of a subpoena that requires the employee to testify, but that he’s not testifying on public matters?” And later still, Justice Antonin Scalia stated: “So your position is you cannot speak as a citizen if ­­ if your speech consists of disclosing material that you knew as an employee. Why is that true?”

For an analysis of the oral arguments in the case, see Professor Ruthann Robson’s post in SCOTUSlog (“It does seem clear that the Eleventh Circuit was wrong in this case. But how the Court will attempt to prevent future wrongs by articulating a new rule and how the Court will remedy the past wrong by deciding the issue of qualified immunity is much murkier.”)

McCutcheon Counsel to Speak at Constitutional Accountability Center 

Tomorrow Ms. Erin Murphy, who successfully represented Shaun McCutcheon in the recent Supreme Court campaign finance case, will participate in a program hosted by the Constitutional Accountability Center. The event at the Press Club in Washington, D.C. will begin at 9:30 a.m. and will feature a panel including Dahlia Lithwick of Slate, Marty Lederman of Georgetown Law School, and the Center’s chief counsel Elizabeth Wydra. (To attend, contact Kelly Landis — kelly@theusconstitution.org) 

Todd Gaziano named Executive Director of PLF’s new DC Center

The Pacific Legal Foundation recently announced the appointment of Todd F. Gaziano as Executive Director of its new DC Center, where he will also serve as a Senior Fellow in Constitutional Law. According to the group’s press release: “Mr. Gaziano brings valuable experience from distinguished government jobs and leadership roles in promoting the freedom-based public interest legal movement.  Prior to joining PLF, he served in the U.S. DOJ’s Office of Legal Counsel, where he provided advice to the White House and four Attorneys General on constitutional matters, was a chief subcommittee counsel in the U.S. House of Representatives, and was the founding director of Heritage Foundation’s Center for Legal and Judicial Studies.” 

Gaziano is a graduate of the University of Chicago Law School, where he was selected as a John M. Olin Fellow in Law and Economics. He clerked for the Judge Edith H. Jones on the U.S. Court of Appeals for the Fifth Circuit.

Among other areas of the law, the Foundation litigates First Amendment freedom of expression issues.

Video Flashback: Justice Black & The Bill of Rights

Justice Black at his home being interviewed

Justice Black at his home being interviewed

On December 3, 1968, CBS News correspondents Eric Sevareid and Martin Agronsky conducted a TV interview with Justice Hugo Black. This was the first such TV interview with a sitting Justice. In it Black discusses the possible conflict between constitutional law and morality, freedom of speech, and police powers versus the rights of the accused.  (see YouTube clip here)

Speaking of  Justice Black, check out Will Baude’s “The greatness of Justice Hugo Black” and David Bernstein’s “Will hasn’t persuaded me that Hugo Black was a ‘great’ Justice.”

Rep. Chris Van Hollen defends DISCLOSURE Act at AEI 

This last Monday, Congressman Chris Van Hollen (D-MD) spoke at the American Enterprise Institute. In his remarks there, the principal House sponsor of the DISCLOSE 2013 Act (H.R. 148),  reiterated his call for legislation that would mandate the disclosure of contributions to and expenditures made by outside groups to influence federal elections. 

In his speech entitled “A Healthy Democracy Requires Disclosure of Campaign Spending,” Van Hollen declared: “Polls have consistently shown that over 85 percent of the public agrees that all political contributions and expenditures should be publicly disclosed – and this view is held by over 80 percent of Republicans, Democrats, and Independents. In addition, while the ultimate decision in Supreme Court’s controversial 2010 Citizens United case was a close 5-4 split, eight of the nine Justices gave full throated support to disclosure, which they said brings “transparency that enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

In refuting claims made by Senate Republican Leader Mitch McConnell in speeches to AEI in 2012 and 2013, Van Hollen added:

Senator McConnell says he now opposes disclosure because it will hurt our democracy and undermine free speech by exposing people who spend money in election campaigns to such awful harassment that it effectively denies them their First Amendment right to free speech. In his speech here at AEI, he urged all of you to read Justice Thomas’s partial dissent in the Citizens United case on this matter. In doing so, Senator McConnell failed to disclose that all of the other eight justices in Citizens United rejected that argument, and that the Supreme Court has already developed mechanisms to address cases of extreme and demonstrable oppression.

The Supreme Court, in cases ranging from Buckley v. Valeo (1976), to Citizens United, to the recent McCutcheon case have repeatedly argued that the disclosure of campaign contributions and expenditures advances important pubic interests, and the Court has rejected the arguments put forward by Senator McConnell and Justice Thomas. The Courts have put forward three main arguments in favor of disclosure: the public interest in knowing who is spending money to try to influence their votes; that transparency serves an important anti-corruption interest; and that disclosure helps to enforce other campaign finance laws – like the prohibition on foreigners or foreign-owned corporations spending money in US elections.

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