FAN 24 (First Amendment News) — Stephen Barnett: The Little-Known Man Behind the Well-Known Words

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We live by falsehoods. They feed the myths of the great figures whose words are etched in our collective memory as if they were tablets from on High. We know those words; we are moved by those words; and those words define who we are or yearn to be.

Words fitly selected and artfully strung together can change minds and even alter the arc of history. Take, for example, the following words:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 

Of course, they are the words of Justice William Brennan — the famous words from his celebrated opinion in New York Times Co. v. Sullivan.

Stephen Barnett

Stephen Barnett

Those words have had a profound impact on the direction of American law and culture. Their importance transcends the mere holding of the case and all the black-letter law that followed them. Talk about doctrine as much as you will; stress the importance of this or that theory of constitutional interpretation as you like; and laud or condemn either judicial activism or judicial restraint as you see fit; but in the end, nothing really matches a tantalizing metaphor or an alluring string of words.

This brings me to my point: For all the kudos that have been and continue to be bestowed on him, the naked fact is that Justice Brennan did not author the words that further enhanced his First Amendment reputation. Let me repeat: he did not write the words that made him yet more famous in free speech circles. One of his law clerks did.

His name? Stephen R. Barnett (1935-2009). Before venturing further, let me say this: I know, this is not news. Seth Stern and Stephen Wermiel flagged this historical point on page 224 of their comprehensive biography of Justice Brennan. Though Tony Lewis did not mention this particular fact in his Make No Law: The Sullivan Case and the First Amendment (1991), he did, nonetheless, mention young Barnett and his recollections of the internal history of the case.

While it is certainly true that Stern and Wermiel shed light on the Barnett authorship, the fact is that Professor Barnett’s great contribution to First Amendment history is otherwise ignored in virtually all academic literature, including casebooks.

→» So, here is the news part, if I may take the liberty: Let’s stop the charade — if judges insist on having their law clerks write their opinions, then credit for those opinions or for notable passages within them must be allowed, if only after a designated period of time not to exceed twenty years after the termination of the clerkship. Though I might be open to reconsidering the matter, for now I am inclined to say that confidentiality agreements should be deemed contrary to public policy if they deny that possibility. I say this as a former law clerk who continues to respect fair norms of confidentiality. (Of course, in my case it was easy since Justice Hans Linde, not his law clerks, wrote all of his opinions.)

Justice Brennan was a great jurist even if he did not write the famous passage from Sullivan or even if he did not author NAACP v. Button (his clerk Richard Posner did). That said, let’s raise a glass to Steve Barnett and let’s credit him whenever we quote that “robust” language from Sullivan.  

» One more thing, by way of a related point — You know these words: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The author? Justice Oliver Wendell Holmes, of course, writing in Schenck v. United States (March 3, 1919).

But hold on. As Professor Lucas Powe has observed, in “the summer of 1918, Benjamin W. Shaw, defending (unsuccessfully until appeal) an Espionage Act case, uttered the following during his closing argument to the jury”:

‘Under all of the facts and circumstances disclosed by the evidence in this case, how can it be said that he wilfully [sic] said and did the things alleged? How can the words used under the circumstances detailed in the evidence have the tendency to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?” 

John Fontana, “12 American State Trials 897, 932 (John D. Lawson, editor) (F.H. Thomas Book Co., 1920) (emphasis added), quoted in L. A. Powe, “Searching for the False Shout of ‘Fire,’” 19 Constitutional Commentary 345, 352, n. 61 (2002), discussed in Ronald Collins, The Fundamental Holmes  (2010), p. 234.

California Voters asked to weigh in on Citizens United

A law recently passed in California seeks advice from voters as to whether they approve or disapprove of the following proposal:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States   Constitution are the rights of natural persons only?

Governor Edmund G. Brown, Jr. allowed the measure to become law without his signature. See Keith Paul Bishop, “Californians To Vote On Stripping Common Cause Of Its First Amendment Rights,” JD Supra, July 21, 2014

Related Stories

→ Senator Mike Lee (R-UT) opposes move to amend First Amendment (see statement here)

→ Anna Palmer & Tarini Parti, “Money Gap? Why Don’t Women Give?,” Politico, July 22, 2014

→ Josh Gerstein, “Stars may be aligning for transparency legislation,” Politico, July 21, 2014

SCOTUS Vacates 9th Circuit Stay of Execution Ruling — First Amendment Claim Rejected 

The case is Wood v. Ryan. On July 18th, a divided Ninth Circuit panel stayed the execution of Joseph Wood on the grounds that the Arizona Department of Corrections unconstitutionally deprived him of information regarding the lethal injection method of his execution. In that regard, he sought and was granted a preliminary injunction to stay his execution pending receipt of the information requested. The lead opinion was authored by Judge Sidney Thomas and joined by Judge Ronald Gould with Judge Jay Bybee in dissent.

CJ Alex Kozinski

C..J. Alex Kozinski, dissenting

The Appellant sought the following information, claiming a First Amendment right of access to it: “the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information: and documents explaining how the Department developed its current lethal-injection drug protocol.”

On July 21st, the Ninth Circuit sitting en banc denied an appeal for a rehearing. Judge Consuelo Callahan dissented and was joined by ten other members of the Court. Though he joined the dissenters, Chief Judge Alex Kozinski also authored a separate dissent in which he declared: “I have little doubt that the Supreme Court will thwart this latest attempt to interfere with the State of Arizona’s efforts to carry out its lawful sentence and bring Wood to justice for the heinous crimes he committed a quarter century ago. There is little I can add to the irrefutable arguments in Judge Bybee’s dissent and Judge Callahan’s disentail.”

That said, the Chief Judge added:

“Whatever happens to Wood, the attacks will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.” 

→ The case for the Appellant Wood was argued by Dale A. Baich and Robin C. Conrad, Assistant Federal Public Defenders.

→ Over at the Volokh Conspiracy blog, Professor Orin Kerr, sets out some thoughtful reservations he has about Judge Thomas’s July 18th majority opinion and, as he sees it, the unusual nature of the remedy sought given the posture of the case.

Last evening a unanimous Supreme Court vacated the Ninth Circuit’s temporary stay. Over at SCOTUSblog, Amy Howe filed this report on the case:

Kozinski’s words proved prophetic, as this evening the Supreme Court granted the state’s request to vacate the temporary stay ordered by the Ninth Circuit. The Court also denied Wood’s request for a stay of execution, along with his petition for certiorari. Although the requests originally went to Justice Anthony Kennedy, the Justice responsible for (among other things) stay requests from the geographic area of the Ninth Circuit, which includes Arizona, Justice Kennedy – as the Justices often do – referred the requests to the whole Court, and there were no dissents or separate statements from any of the Justices regarding the Court’s actions tonight. The basis for the Court’s ruling was that the district court had not abused its discretion in denying a stay, so conceivably the result would have been different if Wood had won in both lower courts. But the dearth of dissents suggests not.

Upcoming Net Neutrality Event

The Floyd Abrams Institute for Freedom of Expression will host a conference entitled “Net Neutrality: From Debate to Policy Decisions”

Here is a description of the forthcoming event:

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality.

Date: Monday, November 3, 2014

Location: The Century Association, 7 West 43rd Street, New York, N.Y.

→ More information to follow as we near the conference date.

Steve Shapiro

Steve Shapiro

ACLU’s Steve Shapiro Interviewed 

Check out the SCOTUSblog video interview with Steven Shapiro, the legal director of the American Civil Liberties Union. Quite interesting how an ACLU fellowship affected his life early on. (And Part II of the interview can be found here.)

Forthcoming Books

Quick Hits

→  Nota Bene

  1. Bill Moyers reviews the Term with Linda Greenhouse and Dahlia Lithwick, Moyers & Co., July 17, 2014 (discussing, among other things, the Roberts Court’s 1-A free expression opinions)
  2. Eugene Volokh, “Federal bill to restrict the content of gun advertising,” The Volokh Conspiracy, July 17, 2014

News Stories, Editorials & Op-eds

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Next Scheduled FAN Column: FAN #25: Wednesday, July 29th

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