Category: Constitutional Law

0

FAN 97 (First Amendment News) Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern?

The ACLU’s timidity in protecting speech looks more and more like complicity in censoring it. 

                                 — Wendy Kaminer (Feb. 8, 2016)

It is that time of year again when those of us who have supported and continue to support the American Civil Liberties Union get out our checkbooks. Why? Because this is the time when we receive an annual fundraising letter from the group’s Executive Director. The letter is accompanied by an annual National ACLU Workplan. The latter “lays out [the ACLU’s] plans for the year ahead [and] always addresses the most critical civil liberties challenges facing our country” (emphasis added).

So begins a January 29, 2016 fundraising letter for Anthony D. Romero. Surprisingly, protecting free-speech freedoms is not listed as one of this year’s “critical civil liberties” issues. Neither of the documents contains any mention of the First Amendment.

IMG_3716 copy

The 2016 letter and Workplan cover a “broad spectrum” of “wide-ranging assaults on liberty.” In that regard, five areas of government wrong doing are identified where “fundamental freedoms are on the line.” Free speech is not flagged as one of those endangered “fundamental freedoms.”

IMG_3717 copy

Workplans, Priorities & Fundraising

Last year, when a similar omission in the ACLU’s 2015 Workplan (see FAN 49) was pointed out, Mr. Romero replied (see FAN 50) by noting the many areas in which both the national ACLU and its state affiliates continue to defend a variety of free-speech rights. Hence, the ACLU had not abandoned this field (see two news items below). Still, insofar as the workplans are any indication of the group’s priorities, protecting free speech does not appear to be one of them, at least not for fundraising purposes.

 Contrast Ohio 2016 Workplan (listing “protecting the right to dissent” as a top priority — “The ACLU of Ohio has a longstanding history of being the foremost guardian of the freedom of speech and assembly. Our work has never been more important as we are now preparing for the Republican National Convention.”)

Some Dissension in the ACLU ranks

Wendy Kaminer

Wendy Kaminer

Wendy Kaminer is an ardent free-speech advocate; she is currently a member of the advisory board of the Foundation for Individual Rights in Education (FIRE). Ms. Kaminer Kaminer was a member of the board of the ACLU of Massachusetts from the early 1990s until June 2009. She was also a national board member of the ACLU from 1999 until her term expired in June 2006. As to the omission of any reference to protecting First Amendment free-speech freedoms in the 2016 Workplan, she stated:

I’m not at all surprised that the ACLU’s 2016 work plan doesn’t include an explicit commitment to protecting freedom of speech. At the national level, ACLU has been exercising its right to remain silent on key free speech issues for years, in apparent deference to progressive support for restricting  speech deemed racist, sexist, homophobic or otherwise exclusionary. Still, while it’s unsurprising, the ACLU’s withdrawal from free speech battles that could eventually lead the U.S. to adopt a Western European approach to regulating “hate speech” is indeed alarming. As threats to free speech intensify — on campus (thanks partly to arguably unconstitutional federal mandates) and in the remarkable tendency of some liberals to blame the victims of violence for giving offense to their murderers (remember Charlie Hebdo) — the ACLU’s timidity in protecting speech looks more and more like complicity in censoring it. 

Harvey Silverglate

Harvey Silverglate

Here is how Harvey A. Silverglate, co-founder of FIRE and a former member of the Board President of the ACLU of Massachusetts, replied:

Sadly, it comes as no surprise that the national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda where the overriding importance of the goal transcends, in the eyes of ACLU’s leadership, the needed vitality of free speech principles neutrally and apolitically applied. Fortunately, some ACLU state affiliates still carry the free speech battle flag, but they are a diminishing army in a war that is getting more and more difficult, even though more and more important, to wage.  

Does the New ACLU Still Support the First Amendment Positions of the Old ACLU?  

Consider the following cases — would the national ACLU still defend the First Amendment claims it once defended in all of the cases listed below?

  1. Brandenburg v. Ohio (1969) (KKK hate speech) (Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton & Bernard A. Berkman)
  2. Buckley v. Valeo (1976) (campaign finance) (Joel M. Gora & Melvin Wulf)
  3. National Socialist Party of America v. Village of Skokie (1977) (Nazi hate speech)  (Burt Joseph in 7th Cir.)
  4. R.A.V. v. St. Paul (1992) (race hate speech) (Steven R. Shapiro, John A. Powell & Mark R. Anfinson)
  5. Lorillard Tobacco Company v. Reilly (2000) (tobacco advertising) (Steven R. Shapiro)
  6. Hill v. Colorado (2000) (abortion clinic protests) (Stephen R. Shapiro) {contrast ACLU amicus brief filed in McCullen v. Coakley (2014) (Steven R. Shapiro)}
  7. Citizens United v. FEC (2010) (campaign finance) (Steven R. Shapiro)

The 2014 & 2015 Terms: The ACLU & First Amendment Free-Expression Cases 

 In the 2015-2016 Term, thus far the ACLU has not filed a brief in either of the two First Amendment cases concurrently under review by the Supreme Court — Heffernan v. City of Patterson and Friedrichs, et al. v. California Teachers Association, et al.

In the 2014-2015 Term, the ACLU did not file a brief in Reed v. Gilbert, though it did file briefs supporting the First Amendment free-expression claims in Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Williams-Yulee v. Florida Bar

Open Invitation to Reply 

As in the past, Mr. Romero is invited to reply, both to the Workplan issue and to the question concerning the ACLU’s continued commitment to protecting First Amendment rights in the seven cases listed above. Better still, and to reiterate my request from last year, I welcome the chance to do a Q & A with Mr. Romero on the ACLU and the First Amendment.

A Hyperlinked History of the Controversy:  ACLU & the First Amendment 

_____________________________

What Citizens United Did & Did Not Do  Read More

1

Harry Truman and The Bill of Rights–Part Two

188px-Truman_initiating_Korean_involvementTo return to my theme from last week, let’s see how President Truman discussed the Bill of Rights from 1947-1952 as a way of distinguishing the United States from the Soviet Union.

At a Q&A with the Association of Radio News Analysts (May 13, 1947), Truman said:

“I believe in the Bill of Rights. I think that is the most important part of our Constitution–the right of the individual to go where he pleases, to do what he pleases, say what he pleases, as long as he is not materially injuring his neighbors.  That is the basis on which our Government is founded, and I think it is the greatest basis in the world for a government.  Totalitarian governments do not work that way.  The police state is a police state; I don’t care what you call it.  I have tried me level best to get along with our friends the Russians, and I still want to get along with them.”

Address Before the Attorney General’s Conference on Law Enforcement (Feb. 15, 1950):

“I know that it would be easier to catch and jail criminals if we did not have a Bill of Rights in our Federal and State Constitutions. But I thank God every day that it is there, that the Bill of Rights is a fundamental law. That is what distinguishes us from the totalitarian powers.”

Address on Constitution Day at the Library of Congress (Sept. 17, 1951):

“[T]he first 10 amendments–the Bill of Rights . . . are just as fundamental a part of our basic law as the original version that we are sealing up here today. I hope that the first 10 amendments will be put on parchment and sealed up and placed alongside the original document. In my opinion they are the most important parts of the Constitution.

. . .

A Constitution is not just a matter of words. There are other constitutions which may read as well as ours. Just take, for example, the constitution of the Soviet Union. That constitution of the Soviet Union says that Soviet citizens are guaranteed freedom of speech, freedom of the press, and freedom of assembly.  I wonder what would happen to a citizen of the Soviet Union is he tried to exercise any of those freedoms? It professes to guarantee that citizens of the Soviet Union shall be secure in their persons and in their homes. And in addition, it purports to guarantee equality, the right to work, the right to an education, the right to rest and leisure, freedom of religion, and a lot of other fine things.

But these good words in the Soviet Constitution means less than nothing.  They are empty promises, because the citizens of the Soviet Union have no way of enforcing their rights against the state.”

 

stairway-to-heaven-1319562-m-720x340
0

FAN 96 (First Amendment News) Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture

Upcoming: FAC 7 (First Amendment Conversations) — Richard Hasen discusses his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016) . . . and more.  Stay tuned.

* * * *

Plaintiffs have a continuing right of access under the First Amendment . . . to view the bison culling activiies that occur on public land, including Yellowstone National Park. — Complaint in Ketcham v. U.S. National Park Service (Jan. 26, 2016)

Last week Jamie M. Woolsey, Professor Alan. K. Chen, and Stefanie Wilson filed a complaint in a Wyoming federal district court on “behalf of journalist Christopher Ketcham and wild bison advocate Stephany Seay, who are seeking access to Yellowstone Park’s controversial bison trapping operations that lead to the slaughter of hundreds of bison. The lawsuit argues that the First Amendment guarantees citizens and journalists reasonable, non-disruptive access to the publicly funded national park.”

This is how their complaint seeking injunctive and declaratory relief begins:

I love this land and the buffalo and will not part with it . . .  These soldiers cut down my timber, they kill my buffalo and when I see that, my heart feels like bursting. —  Satanta-Kiowa Chief

According to an Animal Legal Defense Fund press release, “the National Park Service is scheduled to capture and facilitate the killing of up to 900 bison inside Yellowstone Park starting on February 15, 2016. During the capture and kill operation, the Park Service closes parts of the park to public access. ‘It’s ironic that to benefit Montana ranchers grazing their cattle—an invasive species—Yellowstone Park has agreed to facilitate the capture and killing of 900 American bison, an iconic, native species,’ said law professor and ALDF attorney Justin Marceau. . . .”

bison2“‘If the First Amendment right of access is to mean anything,’ Marceau went on to say, ‘it means that citizens and journalists should have reasonable, non-disruptive access to their publicly-funded national park to observe and memorialize one of the most controversial uses of national park land imaginable.'”

“‘Denying access to the park during this controversial publicly-funded wildlife slaughter campaign is very similar to the intent of Ag-Gag laws,’ said ALDF Executive Director Stephen Wells. ‘Such laws ‘gag’ would-be whistleblowers, journalists and activists by making it illegal to record and disseminate photos or footage taken in agricultural operations. ALDF has successfully proven Ag-Gag laws are unconstitutional under the First Amendment and we are confident we will do the same in this case.’ . . .”

The complaint alleges that “from the late 1990s until 2006, Defendants regularly allowed the public and the media to view the herding, trapping, sorting, and shipping of bison from the catwalks over the pens withint the [National Park].”

Jamie Woolsey, lead counsel for Plaintiffs

Jamie Woolsey, lead counsel for Plaintiffs

According to an Associated Press story, “Yellowstone spokeswoman Sandra Snell-Dobert said the restrictions are meant to protect park workers and the public. Moving and sorting bison can be dangerous, particularly within the narrow confines of the corrals, Snell-Dobert said. The lawsuit says such safety claims are exaggerated and that access to the corrals was routinely allowed until 2006, with no reports of anyone being injured.”

“‘It’s about public safety, but also about trying to reduce stress on the animal,’ Snell-Dobert said in a statement, adding that a large exclusion zone is necessary so that bison will feel comfortable enough to wander toward capture pens as they graze.”

→ Nature World News reports that the “driving force behind the large-scale bison cull is to reduce potential conflicts between the park and Montana landowners, as bison often travel outside of the park for food during the winter. Unfortunately, the arrival of bison instills fear in landowners that the bison will transmit a highly-infectious disease known as brucellosis to their cattle – even though there have been no such recorded instances to date.”

→ Hearing: February 3, 2016, District Court in Casper, Wyoming before Judge Scott Skavdahl. Professor Alan Chen will argue on behalf of the Plaintiffs in support of their motion for a preliminary injunction.

→ Related item: Steven Schwinn, “Park Service Inauguration Regs Don’t Violate Free Speech,” Constitutional Law Prof Blog, Jan. 28, 2016

NY Post Attacks Commission’s Ethics Rule Read More

1

Harry Truman and the Bill of Rights

Harry_S._TrumanMy research on the Bill of Rights is at a new stage, and I thought I’d talk about where that is going.

Two conceptions of the Bill of Rights developed in the first half of the twentieth century. One was the countermajoritarian version that we are familiar with and was expressed best by Justice Jackson in Barnette.  (Basically, that the Bill of Rights is about judicial review and protecting minority rights.) The other is unfamiliar today and is the focus of the paper that I’m submitting to this law reviews.  Let’s call this the “majoritarian” Bill of Rights, which refers to how that text was used to legitimate greater national authority over the states, foreign territories, and the economy.  FDR’s “Second Bill of Rights” speech was the most powerful expression of this idea.

Here’s the fascinating question.  Why did the first understanding oust the second one?  My working hypothesis is that the Cold War had a lot to do with this, and part of my evidence for this is the shift in Harry Truman’s rhetoric on the Bill of Rights during his tenure.  Truman talked about the Bill of Rights as often as FDR did and was the last President who did so in a substantive way.

How did Truman’s rhetoric change?  Well, in 1945 and 1946 almost all of his references to the Bill of Rights involved the majoritarian understanding I described above.  He was either talking about the GI Bill of Rights or FDR’s Second Bill of Rights (which Truman called an Economic Bill of Rights).  In 1947, though, Truman starts using the Bill of Rights as a cudgel against Soviet Communism and repeats that theme in many significant speeches until 1952.  More on that in the next post.

15

William Crosskey’s Unconventional Ideas

I just finished reading the first two volumes of William Crosskey’s magnum opus on Poiltics and the Constitution.  It’s a stimulating book, in part because he pays almost no attention to conventional wisdom on anything.  I thought I’d outline his themes:

1. Congress was given a police power by the Framers.

This is Crosskey’s central argument.  He was fiercely opposed to interpretative theories that embraced states’-rights, and argued that those who took that view–especially Madison–were just supporters of slavery who should be disregarded.

2.  The enumeration of Congress’s powers was meant to express that the President lacked those powers.

Given Crosskey’s first point, he needed some explanation for the enumeration of Congress’s authority.  His answer was that the list should be understood as limits on executive authority.

3.  Most of the Bill of Rights was originally meant to bind the states.  (In other words, Barron v. Baltimore was wrong.)

He argues that Congress intended the First Amendment to apply only to the Federal Government and made that clear by including the word “Congress.” The other amendments, except for the 7th, were general and thus should be read as applying to everyone.

4.  Madison’s Notes on the Constitutional Convention were a fraud.

This, of course, has some truth to it, as Mary Bilder’s new book says.

On all of these issues, Crosskey was a prophet, which is not the same as saying that he was historically accurate.  Still, his historical claims on these issues are very interesting, not to mention some of his other points (for example, Erie was wrongly decided and judicial review of Acts of Congress was not part of the original understanding).  He was a true iconoclast.

 

 

 

0

FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

[T]he Central Hudson test is susceptible to a wide variety of interpretations . . . . Martin Redish (2001)

After a period of much controversy, the Court in 1980 in Central Hudson articulated a general test for determining the constitutionality of regulations of commercial speech. Although the test has subsequently been interpreted from radically different perspectives, and although it has been attacked by numerous Justices, it has nevertheless remained the dominant test. — Robert Post (2000)

Before Sorrell v. IMS Health Inc. (2011) and 44 Liquormart, Inc. v. Rhode Island (1996), there was Central Hudson Gas & Electric v. Public Service Commission (1980).

When it comes to commercial speech and the First Amendment, Central Hudson was the coin of the realm in its day. Recall, the vote was 8-1 with Justice Lewis Powell writing the majority opinion (joined by Justices Stewart, White, Marshall, and Chief Justice Burger), with separate concurrences by Justice Brennan, Blackmun, and Stevens. Justice William Rehnquist wrote a lone dissent.

David O. Stewart, former Powell law clerk

David O. Stewart

Recall as well that Telford Taylor (counsel for the prosecution at the Nuremberg Trials) argued the case on behalf of the Appellants and Burt Neuborne filed an amicus brief on behalf of the Long Island Lighting Co. supporting the Appellants.

Justice Powell was virtually silent during oral arguments. Justices Byron White, John Paul Stevens, Potter Stewart, William Rehnquist, and Harry Blackmun asked the lion’s share of the questions. Even so, the Chief Justice assigned the opinion to Justice Powell.

Central Hudson was the case where the famed four-prong test was announced. Recently, I had occasion to look through the Powell papers archived at the Washington and Lee School of Law library. In browsing through those papers, I came upon a batch of memos and draft opinions concerning the Central Hudson case.

Much to my surprise, a good friend of mine, David O. Stewart, played a major role as the law clerk responsible for drafting Justice Powell’s Central Hudson majority opinion. In that regard, I asked David if he would answer a few questions about the case and his involvement in it. He kindly agreed; his responses are set out below. Read More

7

Twelfth Amendment Follies

One thing that we can say about this election is that the odds of a significant third-party candidacy are at their highest since 2000.  Maybe it will be Michael Bloomberg.  Maybe it will be a conservative who can’t stand Donald Trump.  Maybe it will be Donald Trump.

With this in mind, we should pause to consider how poorly the Twelfth Amendment was designed to handle situations where no presidential or vice-presidential candidate receives a majority in the Electoral College.  For example:

The House of Representatives must choose from the top three presidential candidates, but in this ballot each state gets one vote and a majority of the states is required to win.  (The assumption here is that you need a majority of a state delegation to cast a vote.)  This means that the member from Delaware gets the same vote as 28 Representatives from the California delegation.  It also means that states with equal divided caucuses may be unable to cast a vote, or that an illness that prevents some member from voting could swing a state’s vote.  Egads.

Next, the Senate gets to choose the Vice-President by an ordinary majority vote but only from the top two candidates.  [Query:  Could you filibuster this?  Maybe.]  This means that the President could get saddled with a Vice-President from the other party.  Worse still, the third candidate for President cannot get his or her running mate.  (Basically, the Vice-President would have to resign and then allow the new third-place President to nominate a new one.)

This creaky machinery has not been used since 1837 (when the Senate had to pick the Vice-President).  Let’s hope we don’t need it next January.

 

stairway-to-heaven-1319562-m-720x340
0

FAN 95 (First Amendment News) “Fifty Shades of Grey” too Blue for Idaho?

Coming tomorrow: FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

_______________________

new-scenes-from-fifty-shades-of-greyThe Associated Press reported that a “movie theater is suing the Idaho State Police for threatening to revoke the theater’s liquor license because it served alcohol while showing ‘Fifty Shades of Grey.'”

“Village Cinema in Meridian, just west of Boise, has a liquor license and lets people drink alcohol in a restaurant or while watching movies in a designated 21-and-older VIP area, The Idaho Statesman reported. But state law prohibits places that are licensed to serve alcohol from showing movies that depict sexual acts.”

“Idaho police say a waitress at the theater served beer and rum to two undercover detectives watching the risque ‘Fifty Shades’ in the VIP seating last February. . . .”

“Idaho State Police later told Meridian Cinemas that it served alcohol while showing “Fifty Shades” from Feb. 13 to 18 and on Feb. 26, and attempted to revoke the theater’s liquor license.”

Counsel for Plaintiff: Jeremy Chou

→ Plaintiff’s complaint here. Among other things, Plaintiff’s counsel relies on the following precedent:

The Court decided 44 Liquormart on May 13, 1996.  The incidents in question here occurred in 1997. Thus, at the time that the Officials warned the Center’s management that hosting LSO’s art exhibition might subject the Center to sanctions, it was clearly established that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment. Thus, LSO’s right was “clearly established.” — LSO, Ltd. v. Stroh (9th Cir., 2000)

Michael Deeds, “Idaho theater lawsuit should spank stupid alcohol law,” Idaho Stateman, Jan. 22, 2016

 Eugene Volokh, “Idaho trying to revoke theater’s liquor license for showing ‘Fifty Shades of Grey’,The Volokh Conspiracy, Jan. 26, 2016

Missouri State lawmakers consider mandatory First Amendment classes

This from ABC News: “JEFFERSON CITY, Mo. The House committee on higher education considered a bill in Jefferson City Tuesday morning that would boost First Amendment education for Missouri students.

If passed, the legislation would require all college students to take a freedom of speech course before receiving a diploma.

The bill’s sponsor, Rep. Dean Dohrman, says last year’s protests on the MU campus was the main influence for this proposed legislation. . . .” (see Associated Press story here)

See also: Erik Wemple, “Mizzou professor Melissa Click charged with third-degree assault in quad clash,” Washington Post, Jan. 25, 2016

→ Jim Suhr, “Mizzou Chancellor Says He’s Not Going To Rush To Fire Melissa Click,” Huffington Post, Jan. 26, 2016

Campus Free-Speech Watch Read More

7

The Tenth Amendment in 1791

I’m reading William Crosskey’s Politics and the Constitution, which contains many wonderfully strange arguments and observations.  Here’s one that I found interesting.

When the constitutionality of the First Bank of the United States was debated in 1791, critics such as Thomas Jefferson invoked the Tenth Amendment to support their position.  But there was a problem with this.  The Amendment was not yet ratified (that did not happen until after the Bank bill was signed into law.)

What was the rationale for citing a proposed but unratified amendment?  Clearly Jefferson et. al. were not acting as legal positivists.  Maybe everyone thought that the Tenth Amendment would be ratified, thus it should be taken into consideration.  Or maybe the thought was that a proposed amendment that gets the required supermajority in Congress is some sort of persuasive authority.  (Arguably the Supreme Court did something similar in Frontiero by citing the passage of the ERA by Congress in its decision striking down a law discriminating on the basis of sex.) Or maybe the Tenth Amendment was seen as just declaratory.

Thoughts?

0

FAN 94.2 (First Amendment News) Buckley v. Valeo: 40th Anniversary — Cato & Center for Competitive Politics to Host Event

United States Supreme Court

BUCKLEY v. VALEO (1976)

No. 75-436

Argued: November 10, 1975    Decided: January 30, 1976

The event is titled “The Past and Future of Buckley v. Valeo” and is being presented by the Cato Institute and the Center for Competitive Politics. It will take place on Tuesday, January 26th at Hayek Auditorium at the Cato Institute in Washington, D.C. (1000 Massachusetts Ave, NW).

Should Buckley be considered a First Amendment failure? Or did it embrace inevitable compromises that were both worse and better than everyone desired? How does Buckley affect the law and American politics and campaigning today? Does the decision have a future?” Those and related questions will be discussed at the upcoming event.

Introduction (9:00 a.m.)

Bradley Smith, Center for Competitive Politics

The Impact of Buckley on Campaigns and Elections (9:15-10:15)

Jeffrey Milyo, University of Missouri
Jay Goodliffe, Brigham Young University
Interviewer: Wendy KaminerThe Atlantic

Why the Buckley Decision Matters (10:15-11:15)

Bradley Smith, Center for Competitive Politics
Floyd Abrams, Cahill Gordon & Reindel LLP
Interviewer: Matea GoldWashington Post

What is Living and What Is Dead in Buckley v. Valeo? (11:30-12:30) 

John Samples, Cato Institute
Jan Baran, Wiley Rein LLP
James Bopp, The Bopp Law Firm
Interviewer: David SavageLos Angeles Times

Lunch

To register to attend this event, click here and then submit the form on the page that opens, or e-mail events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by 9:00AM on Monday, January 25, 2016.

Audio of oral arguments in Buckley here.