FAN 23 (First Amendment News) — Paul Smith & Erin Murphy Debate Campaign Finance Law

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Paul Smith & Erin Murphy

Paul Smith & Erin Murphy

It was quite an evening as Paul Smith and Erin Murphy went back-and-forth in a lively exchange discussing the McCutcheon case, campaign financing law, and the First Amendment. Professor David Skover moderated as the two one-time case foes — Erin represented Shaun McCutcheon & Paul filed an amicus brief on the other side — debated the pros and cons of government regulation. In his own casual, confident, and witty way, Paul pushed his views while Erin took it all in stride, always calm, cautious, and pointed. The exchange took place at the Washington, D.C. offices of Levine, Sullivan, Koch & Schulz (there was a live videocast feed to the firm’s New York office). This was the latest First Amendment salon. The discussion ranged from the technical to the philosophical as the two advocates and the discussants teased out various arguments. In the end, Smith and Murphy came together with big smiles and a firm handshake (the pair worked on the same side in the recently decided Aero case.)

Among others, the discussants included: Lee LevineBenjamin GinsbergLaura Handman, James Swanson, Joel Gora, Adam Liptak, David Savage, Jess Bravin, Stephen WermielKatherine Bolger, and Jeff Bowman (former AA to FEC Chairman Scott Thomas).

John Seigenthaler (1927-2014) — the Man Who Loved Light 

“His commitment to the First Amendment was unflagging.” Ken Paulson

“A champion of the First Amendment, giant of journalism,  and a wonderful human being.”              – Judy Woodruff 

We lost John Seigenthaler last week — he was 86. I was privileged to have worked with John while I was at the Newseum’s First Amendment Center, first in Arlington, Va. and then in Washington, D.C. John founded the Center in 1991.

In a recent USA Today column, Ken Paulson (John’s friend and longtime colleague) observed:

John Seigenthaler

John Seigenthaler

“John was . . . the first editorial page editor of the then-new USA TODAY in 1982, developing the most balanced opinion pages in the country. For every USA TODAY editorial there would be a countervailing view. John embraced light instead of heat.”

“He was fueled by his passion for the First Amendment, the sense that every voice has value. He liked to tell the story of a liberal woman who found conservative radio deeply offensive. He told her ‘whenever I want to hush Rush, I turn the knob.’ With a pained expression she responded, ‘Then I get G. Gordon Liddy.’ John would roar with each retelling.”

“In 1991 John retired from his newspaper role to found the First Amendment Center. It was a role he was born to. Long an advocate for the underdog, John was a passionate champion for the five freedoms that few Americans knew much about and inevitably took for granted.”

Gene Policinski, a friend who worked with John since 1981, offered this life assessment of his colleague: “John’s passion for the First Amendment was driven by a belief in equality and in the ‘marketplace of ideas.’ He had a lifelong commitment to the idea that this nation would not just endure but would prosper if its citizens could freely discuss, debate, and decide public issues without the burden of the heavy hand of government.” (see here, too)

→ For more about John and his remarkable life, see:

High Court Agrees to Hear Sign Ordinance Case 

The case is Reed v. Town of Gilbert. The Court granted cert. on July 1, 2014. The issue in the case is whether the Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

By a 2-1 vote, the Ninth Circuit upheld the city sign ordinance in an opinion by Circuit Judge Consuelo María Callahan joined by District Court Judge James Singleton. Circuit Judge Paul Watford dissented.

→ Facts: “For a time, Good News placed about 17 signs in the area surrounding its place of worship in Gilbert announcing the time and location of its services. In 2005, Good News received an advisory notice from [the township of] Gilbert that it was violating the town’s sign ordinance because ‘the signs were displayed outside the statutorily-limited time period.’ For a while thereafter, Good News reduced the number of signs it erected and the amount of time its signs were in place, but friction with Gilbert persisted. In March 2008, Good News filed suit in federal court in Arizona alleging that Gilbert’s Sign Code violated the Free Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.” (from 9th Cir. opinion)

David A. Cortman, counsel for Petitioners

David A. Cortman, counsel for Petitioners

→ Held: “Applying [the applicable First Amendment case law] to the Town of Gilbert’s Sign Code’s treatment of different types of noncommercial speech, we conclude that the treatment is content-neutral. That is to say, each exemption allowing for the erection of temporary signs and its restrictions are based on objective factors relevant to the creation of the specific exemption and do not otherwise consider the substance of a sign. We further conclude that the exemptions are narrowly tailored because they serve significant governmental interests and leave open ample alternative channels of communication. We also conclude that the Sign Code does not violate Good News’ (or its members’) right to the free exercise of religion or right to equal protection of law, and is not unconstitutionally vague or overbroad. The district court’s grant of summary judgment in favor of the Town of Gilbert isAffirmed.”

→  Petitioning Counsel: David A. Cortman of the Alliance Defending Freedom is the counsel of record and filed the cert. petition in the case on behalf of the Petitioners. (Mr. Cortman also filed the cert. petition and merits brief on behalf of the Petitioners in Conestoga Wood Specialities Corp. v. Sebelius (2014).)

Senate Committee Approves Proposed Amendment to First Amendment & House Begins Action

Last Thursday the Senate Judiciary Committee approved a proposed amendment to the First Amendment. The proposed amendment provides:

SECTION 1: To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

SECTION 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

SECTION 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

“The committee,” wrote John Eggerton, “following a debate rancorous even when measured against the high bar set in this bitterly divided Congress, passed along pure party lines (10-8) a proposal to adopt a constitutional amendment allowing Congress and the states to essentially restore the limits on direct funding of electoral speech—as in TV ads—by corporations and unions, limits the Supremes ruled an unconstitutional restriction on speech in the Citizens United decision.” The matter now goes to the full Senate where 67 votes are needed.

→ Lauren French, “House Democrats to Unveil Campaign Finance Amendment,” Politico, July 14, 2014

→ Professor Josh Blackman has some noteworthy observations on both the proposed amendment and Senator Ted Cruz’s views on related matters.  (See here and here.)

→ See also Senator Chuck Schumer & Representative Ted Deutch, “What Ted Cruz Gets Wrong About the First Amendment,” Politico, July 15, 2014

Scrutinizing the Language of Scrutiny 

Over at the Volokh Conspiracy, Professor William Baude has some insightful observations concerning the various ways of expressing the degree of scrutiny analysis in First Amendment free expression cases. In this regard, there are phrases such as the following:

  1. “an urgent objective of the highest order.” (Holder v. Humanitarian Law Project)
  2. “exacting scrutiny” (Buckley v. Valeo re contribution limits & disclosure)
  3. a “rigorous standard of review” (Buckley v. Valeo, echoed in McCutcheon v. FEC)

According to what Chief Justice Roberts wrote in McCullen, and as Professor Baude also notes, the Holder phrase is synonymous with strict scrutiny. In the McCutcheon plurality we are told that “exacting scrutiny” required a government showing of a “compelling interest,” one that “is the least restrictive means to further the articulated interest.”

To add to the mix, there is also this passage from McCullen:

The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in
 McCutcheon v. Federal Election Commission, (plurality opinion). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have required overruling a precedent.

In other words, as Professor Richard Hasen puts it, “McCutcheon purported to use the same ‘exacting scrutiny’ standard it has used for contribution limits in other cases, and because the measure failed exacting scrutiny, there was no need for the Court to decide whether it failed strict scrutiny.”

It is odd that the plurality opinion seemed so concerned about respecting precedent that, on the one hand, it declined to invoke Buckley’s “rigorous” review, yet, on the other hand, freely breached the Buckley dichotomy between contributions and expenditures, at least when it came to aggregate contributions. Still, the Chief Justice felt confident enough to declare that the plurality saw “no need in this case to revisit Buckley’s distinction between contributions and expenditures and the corollary distinction in the applicable standards of review.”

In that respect, Justice Thomas made a telling point in his McCutcheon dissent: “I regret only that the plurality does not acknowledge that today’s decision, although purporting not to overrule Buckley, continues to chip away at its footings.” But even on that score, the plurality went out of its way to state that it was not overruling McConnell v. FEC, let alone Buckley (see fn 6 of the plurality opinion).

Professor Rick Hasen

Professor Rick Hasen

In his just-relaased book Examples & Explanations: Legislation, Statutory Interpretation, and Election Law (Aspen Law, July 2014), Professor Hasen makes the following helpful points, among others:

  1. “The plurality did not decide to apply strict scrutiny to contribution limits, finding the issue unnecessary to reach in this case. Only Justice Thomas, in a separate opinion, urged application of strict scrutiny. (Interestingly, Justices Scalia and Kennedy, who had in the past agreed with Justice Thomas on strict scrutiny, did not join the opinion.) Four justices, in an opinion by Justice Breyer, dissented.”
  2. “Despite the Court’s failure to adopt strict scrutiny for review of campaign contribution limitations in McCutcheon (something the Court left the door open to in a future case), the plurality opinion is doctrinally very significant and makes it much more likely that other campaign contribution limits could be struck down as unconstitutional going forward. To begin with, the opinion incorporated the narrow definition of corruption from the spending limits case, Citizens United, ignoring the much broader definition in cases such as Shrink Missouri. ‘Ingratiation and access’ or ‘undue influence’ do not count as ‘corruption’ for purposes of determining the constitutionality of contribution limits.”
  3. “Similarly, the opinion read ‘appearance of corruption’ narrowly, to apply only to an ‘appearance of quid pro quo corruption,’ much narrower than Buckley’s language about ‘‘appearance of improper influence.’
  4. “Finally, the Court ratcheted up the meaning of ‘exact scrutiny’ so that it is apparently a much more ‘‘rigorous’’ test for reviewing the constitutionality of contribution limits. How close it is to strict scrutiny is uncertain.”
  5. “Also of note is dicta appearing in McCutcheon extolling the virtues of money flowing through political parties, perhaps laying the groundwork for a renewed attack on the soft money limitations in the McCain-Feingold law.”

Fifth Circuit Strikes Down License Plate Law

confederateplates-300x150This past Monday the Fifth Circuit ruled, by a 2-1 vote, that a Texas ban on Confederate battle flags for placement on license plates violated the First and Fourteenth Amendments in that the law amounted to “viewpoint discrimination.”

The case is Texas Division, Sons of Confederate Veterans, Inc. v. Vandergriff. Circuit Judge Edward Prado wrote for the majority and was joined by Judge Jennifer Elrod. Judge Jerry E. Smith dissented.  (Hat tip to David Horowitz)

First Amendment Lawyers Association Meets in Toronto 

Catherine Sevcenko and others at FALA conference

Catherine Sevcenko and others at FALA conference

They savor free-speech freedom so much so that they make a career of it — the lawyers of the First Amendment Lawyers Association, that is. They gathered last week in Toronto for their summer meting. The topics of discussion for the various panels included:

  1. Recent First Amendment Cases (Gary Edinger, Edward Rudofsky & Reed Lee)
  2. The First Amendment & the Canadian Charters of Rights & Freedoms (Larry Walters, Reed Lee & Kevin J. Weber)
  3. The Death of “Alternative Avenue” Cases (Bruce McLaughlin, Gary Edinger & Michael Kahn)
  4.  Arguing State Constitutional Provisions (Brad Shafer)
  5. “Inside the Beltway” (Robert Corn-Revere & Ronnie London)
  6. Project Hurricane — A Blueprint for Free Expression on Campus (Catherine Sevcenko & Robert Corn-Revere)
  7. Defamation Law — U.S. vs. Canada (Marc Randazza & Antonin Pribetic)
  8. Ethics — Recent Developments (Paul Cambria)
  9. The Ivory Tower vs Trench Warfare — The First Amendment Understood by the Academy and as Applied by Practitioners (David Skover & Ron Collins)

Robert Corn-Revere is the outgoing president and Allan Rubin is the incoming one. Keep your eyes on this organization as it has some big plans in the works. Stay tuned.

Forthcoming Book

Quick Hits

Last Scheduled FAN Column #22: “New Documentary on Mr. First Amendment — Nat Hentoff

Next Scheduled FAN Column #24: Wednesday, July 23rd.

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