FAN.9 (First Amendment News) — Sunstein on Sullivan & its “Dark Side”

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In the wide-open, robust, and uninhibited world of the First Amendment, nothing is sacred, not even the hallowed opinion in New York Times, Inc. v. Sullivan (1964). Case in point: Justice Antonin Scalia’s originalist reservations about Justice William Brennan’s constitutional handiwork in that landmark case. But alas, the conservative jurist is not alone. Enter the sometimes liberal Harvard Law Professor Cass Sunstein, who has recently authored an op-ed titled “The dark side of the First Amendment” (Bloomberg, March 26, 2014).Unknown

Some two decades ago, in his Democracy and the Problem of Free Speech, Professor Sunstein labeled the Sullivan case as “one of the greatest cases of modern free speech law.” Even so, he made it clear in that book and in later works that his understanding of the Sullivan principle was a cabined one. Later, in an August 21, 1995 review essay in The New Republic, he spoke of the question of causation, among other things. There Sunstein maintained that “it isn’t necessary to demand proof of causation before encouraging greater responsibility on simple prudential grounds.” In that regard, he argued that cultural questions should not be confused with constitutional ones when it comes to questions of causation. It is against that backdrop that we return to his views on Sullivan, which are at once somewhat laudatory and at the same time rather cautionary.

On the occasion of the 50th anniversary of Sullivan, Sunstein writes: “amid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.” (emphasis added).  Later on in his op-ed, he was more modest in his critique: “False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” (emphasis added). Having said all of that, in the end he conceded that “the Court got the balance right” in Sullivan. What are we to make of this?

A few preliminary responses, first my own, and then some from a colleague. If I read him correctly, Professor Sunstein seems to be saying that constitutionally speaking Sullivan is a good thing, but culturally speaking it is not, or may not be so wonderful. Fair enough, for general discussion purposes anyway. That said, it must be remembered that we pay a price for liberty. So much for the constitutional side of the equation. On the cultural side, however, Sunstein seems to make his case on the back of a weak causation claim (recall: “it isn’t necessary to demand proof of causation . . . .”). That leads me to wonder: Is it unreasonable to expect that any meaningful cultural critique of Sullivan be related in some actual sense to questions of proof of causation? In other words, should cultural critiques be oblivious to what science can tell us, or at least suggest to us? Granted, one might understandably deplore the state of “discourse” in modern America.  But faulting Sullivan is another matter. More importantly, what is sorely missing from Professor Sunstein’s cultural critique is a critique of the culture writ large. By that measure, Sullivan may make for a convenient scapegoat, but little more, at least standing alone.

By way of another look, American University law professor Stephen Wermiel, who co-authored the seminal biography of Justice Brennan and more recently co-authored a book on Sullivan and its legacy, offered the following comment on Professor Sunstein’s article:

“Professor Cass Sunstein joined the fiftieth anniversary celebration of New York Times v. Sullivan, but bemoaned the ability of “talk show hosts, bloggers and users of social media” to “spread ugly falsehoods in an instant,” adding to “a climate of distrust and political polarization.” But Sunstein’s concerns lay too much blame on the shoulders of Sullivan. That unanimous ruling did not create a society in which free-flowing criticism, replete with occasional falsehoods, is rampant. That culture already existed; Sullivan only helped to fit it all into a robust constitutional democracy. To the extent that Sunstein’s criticism turns on the proliferation of instant means of communication, he gives too little weight to the access that victims of social media have to respond. Moreover, Justice Brennan, the author of Sullivan, was not alone in his belief that society benefits from “robust and wide-open debate.” It was, after all, the more judicially modest Justice John Harlan who 1971 observed that the ability of society to handle the cacophony of free speech is a sign of strength, not weakness.”

Returning to the constitutional side of the ledger, in his latest book (Conspiracy Theories and other Dangerous Ideas) Professor Sunstein further elaborates on his ideas about the virtues of “minimalist” judging, which makes one wonder if he would have indeed signed onto what Justice Brennan wrote in Sullivan. My guess: no.

Watch your calendar: The petition in Elane Photography, LLC v. Willock is scheduled to be considered at the Court’s April 4th Conference.

Note: I plan to have immediate and updated postings re McCutcheon v. FEC, the campaign finance First Amendment case now awaiting a ruling from the Supreme Court.

Journalists & “qualified First Amendment privileges”

Joel Kurtzberg of Cahill Gordon & Reindel has just filed a cert. petition in the case of Risen v. United States in which two issues are presented: (1) Do journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial?, and (2) should a federal common law privilege be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial?

The case stems from a piece coauthored by James Risen, author of State of War: The Secret History of the CIA and the Bush Administration (2006). The book exposed examples of undue government secrecy and incompetence in U.S. intelligence and included details concerning the National Security Agency’s (NSA) warrantless wiretapping program. Sometime before that, Risen and his Times colleague Eric Lichtbau wrote a piece revealing the existence of the NSA program. That won them a Pulitzer. It also won Mr. Risen subpoenas from not one but two grand juries looking into unauthorized government disclosures. At first, the government sought testimony and documents about his confidential sources. But later, Attorney General Eric Holder authorized prosecutors to seek another grand jury subpoena that sought not the name(s) of Risen’s confidential source(s), but instead very detailed information regarding “the where, the what, the how, and the when” of all communications with sources used in writing his book. Risen’s lawyer moved to quash the subpoena and the District Court granted the motion.

In the summer of 2013, the Court of Appeals for the Fourth Circuit issued a 2-1 ruling reversing the district court’s order concerning Risen’s testimony. In contesting that ruling, Mr. Kurtzberg offered the following reasons in support of his Supreme Court petition for granting review:

“Every day in newsrooms across this country, reporters gather information of enormous import to the public from sources who only agree to disclose that information if the reporters will keep their identities confidentiality. As the record reveals, countless stories of tremendous historical significance—the Watergate break-in and cover up, the abuse of prisoners in Abu Ghraib, Iraq, the CIA’s water-boarding of terrorism suspects, the existence of secret CIA prisons in Eastern Europe, the NSA’s use of warrantless wiretaps on U.S. citizens, and the systematic lack of adequate care for veterans at Walter Reed Army Medical Center to name just a few—would never have been written without the reporter’s ability to promise sources confidentiality and keep those promises.”

Where’s the beef . . . & where’s it from?

The case is American Meat Institute v. AGRI (D.C. Cir., March 28, 2014). It involves an action brought by the American Meat Institute and a group of trade associations representing livestock producers, feedlot operators, and meat packers seeking declaratory and injunctive relief in connection with a 2013 rule promulgated by the Agricultural Marketing Service (“AMS”), a branch of the Department of Agriculture. The rule requires country-of- origin labeling (“COOL”).  It also requires retailers of “muscle cuts” of meat, i.e., covered meat other than ground meat to list (with some qualifications) the countries of origin and production steps—born, raised or slaughtered—occurring in each country. Both statutory and constitutional challenges were tendered. Though the Circuit Court determined the Institute had Article III standing, it denied the Appellants’ other claims, including their First Amendment challenges. The case was argued before Chief Judge Srikanth Srinivasan, Judge Merrick Garland, and Senior Circuit Judge Stephen F. Williams, who wrote the opinion for the Court.

As Judge Williams noted, the Appellants argued that “compulsion to make the disclosures required by the 2013 rule violates its First Amendment rights. Its first step in this contention is that we should apply thegeneral test for commercial speech formulated in CentralHudson Gas & Electric Corp. v. Public Service Commission (1980), rather than that of Zauderer v.Office of Disciplinary Counsel (1985), a standard that applies only to requirements that a commercialactor disclose factual and non-controversial information.”

In dismissing that argument, Judge Williams declared that the rule in question “restricts speech only in the sense of requiring a disclosure, a prerequisite to invoking Zauderer.  [Moreover], the disclosure is purely factual and non-controversial. Unlike the challengers inUnited States v. United Foods, Inc., (2001), or R.J. Reynolds Tobacco Co. v. FDA (D.C. Cir. 2012), AMI has not articulated an objection to the content of the message conveyed by the mandated speech.”

Having said all of that, and having distinguished all of the relevant precedents, Judge Williams added this:

We recognize that reasonable judges may read Reynolds as holding that Zauderer can apply only where the government’s interest is in correcting deception. Accordingly, we suggest that the full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information.

Catherine E. Stetson argued the cause for Appellants. Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for Appellees. Stay tuned for more.

 Assuming “Arguendo” — The play’s the thing!WMT-14003_ARG753x288Shwpg_cs 

Do you know the case of Barnes v. Glen Theatre, Inc., the 1991 “pasties” and a “G-string” First Amendment case? That was the South Bend, Indiana case involving the Glen Theatre and the Kitty Kat Lounge, entertainment establishments with  nude dancers. An Indiana law required such dancers to wear “pasties” and a “G-string” when performing. The Theatre and Lounge challenged the law on First Amendment free expression grounds. They lost, 5-4 with Chief Justice William Rehnquist writing for the majority. (Recall, years earlier Rehnquist had declared that the First Amendment does not protect “bacchanalian revelries.”) Justice Byron White wrote for the dissenters. (Note: the late and much missed Bruce Ennis argued the case for the Respondents.)

Make of the judgment what you will, but others have made a play of it — “Arguendo,” now showing at the Woolly Mammoth Theatre Co. in Washington, D.C. until April 27, 2014.

Arguendo is a staging of Barnes v. Glen Theatre’s entire oral argument interspersed with bits of real interviews with the Justices, the lawyers and an exotic dancer who traveled all the way from the Déja Vu Club in Saginaw, Michigan to listen to the argument at the Supreme Court. “Using verbatim oral arguments and breathtaking projections by celebrated visual artist Ben Rubin, Arguendo introduces us to the Justices—who try to get to the bottom of this First Amendment puzzle—and the attorneys on both sides who gamely try to keep up.” Thus is it described. The performance is followed by a post-show discussion of the case by various First Amendment scholars and lawyers.

I wonder if any of the Nine will attend or have attended? Justices Anthony Kennedy and Antonin Scalia both participated in the case and voted with the majority, though Justice Scalia wrote a special concurrence in which he argued that conduct “not specifically directed at expression it is not subject to First-Amendment scrutiny at all.”

Quick Hits:

Last FAN Column: FAN.8: go here

Next FAN Column: April 9th.

Last FAC.3 (First Amendment Conversations): with Martin Redish

Next FAC.4 (First Amendment Conversation): with Steven Shiffrin (forthcoming)

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1 Response

  1. AndyK says:

    What are we to make of this? I think it’s quite obvious. Those advocates who found formal free-speech arguments useful to “smash the patriarchy” are now in positions of authority and find these arguments less useful. If Justice Brennan were alive today and the petitioner were Fox News, would the case come out the same way?