Category: Constitutional Law

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Strange State Constitutional Provisions

I’m reading through state bills of rights as part of my book research, so this may become a regular series.  Let’s start with Article One, Section 2b of the New Jersey Constitution, which states:

“The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress.”

So with respect to members of Congress, this clause is clearly invalid.  A state cannot recall a member of Congress before their term is up.  A state legislature could petition the relevant House of Congress and ask it to expel the member (that would trigger a special election), but the decision would rest there.

Now I suppose a state could hold a symbolic recall of a Representative or Senator (sort of like a vote of no confidence), but that seems odd.

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FAN 69 (First Amendment News) Justice Alito discusses four First Amendment cases in Kristol interview — Free-Speech Jurisprudence Comes into Sharper Focus

“[I]f we lose focus on what is at the core of the free-speech protection by concentrating on . . . peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction.” — Justice Samuel Alito

Recently, Justice Samuel Alito participated in a video-recoreded interview with Bill Kristol. In the “Conversations with Bill Kristol” program the Justice discussed his legal education and the workings of the Supreme Court. He also discussed four First Amendment free-expression cases: United States v. Stevens (2010), Snyder v. Phelps (2011), United States v. Alvarez (2012), and Citizens United v. Federal Election Commission (2010).

Below are some excerpts I transcribed from the video-recorded interview in which Justice Alito discussed the First Amendment, this in response to questions posed to him by Mr. Kristol. I have added captions to the transcript and have edited it in places as well. (There is also a transcript of the entire interview  (login required) on the “Conversations with Bill Kristol website.)    

Following the exchange between the Justice and Mr. Kristol, I added some preliminary commentaries on what Justice Alito’s remarks may suggest about his larger First Amendment jurisprudence.  

Finally, I ended with some general information about Justice Alito and his free-speech jurisprudence.  

The Stevens Case

Justice Alito on "Conversations with Bill Kristol"

Justice Alito on “Conversations with Bill Kristol”

The Justice’s discussion of Stevens — the videoing of animal cruelty case — was largely descriptive. What concerned Justice Alito about the case the fact that it was “virtually impossible to find out who was [killing the animals that were being filmed]. The physical activity could be made illegal,” he noted. “[N]o one questions that . . . you could have a law against animal cruelty. Can you have a law that prohibits the creation of these videos without which the animal cruelty would not take place?”

Because of overbreadth problems, seven Justices voted to strike down the law on First Amendment grounds while Justice Alito felt otherwise and dissented.

The Phelps Case

Here, too, much of the discussion of Phelps — the military funerals protest case — was descriptive. What concerned the Justice was the fact that in “this particular case the . . .  [protesters] had placards that said horrible things about [the soldier being buried] . . . It was very distressing to the family members, who were in attendance.”

“So they were sued under a very well-established tort that goes back to the nineteenth century — the intentional infliction of severe emotional distress. And I thought that this tort constituted a reasonable exception to the First Amendment, but my colleagues disagreed about that.”

Bill Kristol

William Kristol

Mr. Kristol: “. . . What about the obvious sort of simple argument that . . . it is a slippery slope, that you cannot curtail speech? That is kind of the argument that the majority made, in one way or  the other, I would say.”

Justice Alito: “Well I think that some members of the majority — this is not based on inside information, this is what I get from reading the opinion — I think that there are those who would support the majority decision in both those cases for exactly that reason. So if we say, even in these outrageous situations, ‘we will not tolerate any abridgment of freedom of speech,’ then when something comes along that I would regard, and I think our cases would regard as really being at the core of the free-speech protection, these decisions provide a guarantee, or they provide a wall of proaction against a bad decision in those areas. If I really believed that to be the case, I might think it was an appropriate tradeoff. I don’t think that’s the case. I think that judges who are inclined to make a bad decision, an anti-free speech decision in a case involving core political speech, will find a way of getting around these little cases.”

The Alvarez Case

Justice Alito: “So what I think has been going on in those two cases and another one where I was in dissent, this time not by myself, in United States v. Alvarez, which had to do with the constitutionality of a statute passed by Congress called ‘The Stolen Valor Act,’ [which] prohibited a false claim of having received a military medal. . . .”

Mr. Kristol: “Which was happening a lot at the time.”

Justice Alito: “It was happening a lot. People were making up, you know, claiming to have won the Congressional Medal of Honor . . . “

Reflecting on StevensPhelps and Alvarez, Justice Alito stressed that “those cases involve a diversion, I think, of attention from the core, from what is most important about the guarantee of freedom of speech.”

He then developed that point as noted below.

Protecting Core Political Speech

Justice Alito: “I think freedom of speech protects and serves many purposes, but I believe, and I think the Court has said that at the core, whatever other purposes it may serve, it is vitally important for democratic self-government. If people cannot debate public issues, if they cannot debate the relative merits of political candidates, then democracy is basically impossible. So I think that is the core of the protection. These cases involving . . . depictions of animal cruelty, the protest at military funerals, [and] falsely claiming to have won the Congressional Medal of Honor don’t involve anything like that.”

“And if we lose focus on what is at the core of the free-speech protection by concentrating on these peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction. In the cases that we’ve had that I think involve core free speech. . . the chief example that I would give from my time on the Court is the Citizens United case. . . . [N[ow that [case] came out five to four . . . . Citizens United, I think, is core political speech. It is a video about a candidate for the Presidency of the United States. If that’s not protected by First Amendment free speech, by the First Amendment free speech guarantee, I don’t know what is.”

“So on things that are at the core, the Court has been shakier than it has been on these things that are at the periphery.”

Mr. Kristol: “So the argument that protecting the periphery helps protect the core doesn’t seem to hold in this case.”

Justice Alito: “I don’t think it works.”

Mr. Kristol: “You also make the argument, as I recall, in at least one or two of those three dissents, you make more of a positive argument for the virtues, for the right, for . . . the ability of the community to draw certain boundaries around civility or civilized behavior almost, mostly in the case of the soldiers’ funerals or all of them really, the animal cruelty [and the] lying [case]. Those are all things a community would have a reasonable interest in discouraging, to say the least.”

Justice Alito: “I think that’s true. And I think that’s appropriate in cases that don’t involve political speech. I would not make the same argument in a case . . . involving political speech. I thought all of them were cabined by specific rules, very reasonable rules. So in the animal cruelty case, I thought that was very similar to the rationale . . . against child pornography. Which is that you can’t produce child pornography without abusing a child and by stamping out child pornography, or trying to stamp out child pornography, you are attacking the underlying abuse – same thing [holds true] with these crush videos. You couldn’t stamp them out without preventing the creation and the circulation of the videos. . . . I think that kind of an argument is a dangerous argument when you’re talking about political speech. . . .”

The discussion ended with some brief additional comments about hate speech in Europe.

[ht: Tony Mauro]

Commentary Read More

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The Certiorari Grant in Fisher

I’d been meaning to say something about the not-so-new affirmative action case, but writing a book review knocked me offline for a while.

The new grant of cert in Fisher is peculiar.  Media reports suggest that the last time around the Court was going to issue a stronger opinion curtailing the use of race-conscious admissions policies.  Faced with a sharp dissent from Justice Sotomayor, though, the majority backed down and (after extended wrangling) produced a brief opinion remanding the case to the Fifth Circuit.  Now we get another grant (after the Fifth Circuit reaffirmed its prior holding).

It’s worth noting that this second grant is problematic in a couple of respects.  First, there’s a certain waste of resources in going through a second round of briefing and argument in the same case.  Sure, the briefs will be freshened up a bit, and you have a new circuit opinion as well, but the Justices are largely spinning their wheels.  Second, there is the awkward fact that Justice Kagan is recused because she worked on the case as Solicitor General.  (Indeed, you would think that this is the last case that will prompt her recusal for that reason.)  Any other challenge to university admissions accepted by the Court would have been decided by all nine Justices–perhaps that would have better.  Finally, Fisher has always struck me as a poor vehicle for thinking about race-conscious admissions given the structure of Texas public schools and the way the UT plan was designed.

So what’s going on?  Could it be that the current majority (that is, the one that did go forward the first time) is aware that there may not be another opportunity to take a stand before there is a different majority?  Or is this a situation where (as with campaign regulation and the Voting Rights Act) the Court will use Fisher I as authority for a broader ruling in Fisher II, but was not comfortable doing that without a Fisher I?

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FAN 68.1 (First Amendment News) Wisconsin high court strikes down campaign finance laws in Walker dispute

As reported in the New York Times: “The Wisconsin Supreme Court on Thursday ruled that a criminal investigation into coordination between conservative groups and Gov. Scott Walker’s 2012 campaign cannot continue. The decision of the court ends the specter of a criminal investigation as Mr. Walker pursues the Republican nomination for president. Mr. Walker, who has won three elections for governor over the last five years including a recall challenge in 2012, officially announced his bid on Monday.”

Today the Wisconsin Supreme Court handed down in ruling in Wisconsin v. Peterson, et alJustice Michael Gableman wrote the lead opinion. Justice David T. Prosser wrote a long concurring opinion in which Chief Justice Patience Drake Roggensack joined as to Sections IV and V of the opinion, and Justices Annette Kingsland Ziegler and Michael Gableman joined as to Section IV of the opinion. Justice Shirley Abrahamson wrote an opinion concurring and dissenting in part. Justice Patrick Crooks likewise wrote an opinion concurring and dissenting in part. All tolled the various opinions came to 634 paragraphs. (Justice Ann Walsh Bradley did not participate).

The case concerned charges that Governor Scott Walker’s campaign team violated certain campaign finance laws during the 2012 recall elections by working in conjunction with dark money groups.

In relevant part, the Court declared:

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

It also added:

Our lengthy discussion of these three cases can be distilled into a few simple, but important, points.  It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

Over at the Election Law Blog, Professor Richard Hasen noted:

Today’s lengthy and contentious 4-2 ruling dividing the Court on partisan/ideological lines, from the Wisconsin Supreme Court ending the so-called “John Doe” probe is significant for three reasons: (1) it removes a cloud from the Scott Walker presidential campaign; (2) it guts, perhaps for years, the effectiveness of the state of Wisconsin’s campaign finance laws, and (3) it reenforces conservative beliefs that they are the victims of frightening harassment, a belief which is likely to lead conservative judges to strike more campaign laws.  The case also raises significant questions about judicial recusal which go unanswered, and provide one of two potential bases to seek U.S. Supreme Court review in this case. Still, high court review seems unlikely.

Check with the Election Law Blog as Professor Hasen has additional substantive comments on the case.

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FAN 68 (First Amendment News) Court of Appeals for the Armed Forces to hear “true threats” case

The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. — Justice Samuel Alito, concurring & dissenting in part in Elonis v. U.S. 

UnknownThe Court of Appeals for the Armed Forces (the highest military court) has just agreed to review a “true threats” case in United States v. Rapert (No. 15-0476/AR). The issue the five-member court will consider is “whether the finding of guilty .  . . for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of circumstances and in light of the Supreme Court’s decision in Elonis v. United States (2015).” 

As reported in CAAFLOG, there is no opinion in Rapert on the Army Court of Criminal Appeals’ website, which may be because that “court summarily affirmed the conviction.” Communicating a threat is an  Article 134 UCMJ, offense, which not only requires some misconduct (i.e., communicating a threat), but also that the conduct is either prejudicial to good order and discipline or service discrediting.

As  Zachary Spilman pointed out in his CAAFLOG post: “for [Eric L.] Rapert a footnote in a recent CAAF opinion looms large.” That opinion is United States v. Goings, 72 M.J. 202, 205 n.3 (C.A.A.F. 2013) and the pertinent language in a footnote in that case is:

From start to finish, the contested issue in the case was whether Appellant’s conduct met the terminal element of Article 134, UCMJ. Appellant argued that his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting. The trier of fact disagreed, and the ACCA concluded that the evidence was legally sufficient. What amounts to an argument that the Government has not put forth legally sufficient evidence to support an Article 134, UCMJ, conviction is fundamentally different from a constitutional argument that, in the military context, Appellant’s conduct is protected.

 (ht: Jeffrey Barnum)

Update on Elonis on remand to 3rd Circuit: According to Ronald H. Levine, who argued the Elonis case in the Third Circuit, “the Third Circuit has not yet acted other than to recall its original mandate. Whether it will vacate and remand to the district court or seek briefing per the concurrence of Justice Alito is unknown.”

Headline: “Lawmakers want Internet sites to flag ‘terrorist activity’ to law enforcement”

Screen Shot 2015-07-14 at 1.35.09 PMA story in the Washington Post by Ellen Nakashima reports that “[s]ocial media sites such as Twitter and YouTube would be required to report videos and other content posted by suspected terrorists to federal authorities under legislation approved this past week by the Senate Intelligence Committee. The measure, contained in the 2016 intelligence authorization, which still has to be voted on by the full Senate, is an effort to help intelligence and law enforcement officials detect threats from the Islamic State and other terrorist groups.”

“. . . It would not require companies to monitor their sites if they do not already do so, said a committee aide, who requested anonymity because the bill has not yet been filed. The measure applies to ‘electronic communication service providers,’ which includes e-mail services such as Google and Yahoo. . . .”

Senate Bill 1705: Intelligence Authorization Act for Fiscal Year 2016: The relevant provision of the proposed measure is Section 603: Requirement to report terrorist activities and the unlawful distribution of information relating to explosives.

Subsection (a) of section 603 concerns the duty to report and provides:

Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any terrorist activity, including the facts or circumstances described in subsection (c) shall, as soon as reasonably possible, provide to the appropriate authorities the facts or circumstances of the alleged terrorist activities.

Subsection (b) of section 603 provides:

The Attorney General shall determine the appropriate authorities under subsection (a).

Subsection (c) of section 603 concerns facts and circumstances and provides:

The facts or circumstances described in this subsection, include any facts or circumstances from which there is an apparent violation of section 842(p) of title 18, United States Code, that involves distribution of information relating to explosives, destructive devices, and weapons of mass destruction.

Subsection (d) of section 603 concerns privacy protection and provides:

Nothing in this section may be construed to require an electronic communication service provider or a remote computing service provider—

(1) to monitor any user, subscriber, or customer of that provider; or

(2) to monitor the content of any communication of any person described in paragraph (1).

The ACLU’s Gabe Rottman said that the Senate “committee had secretly inserted a provision in a spending bill that would require social media companies to report posts about “any terrorist activity” to the government. The bill is hopelessly vague on what that means. That’s because it goes far beyond a reporting requirement for wrongful conduct—terrorist activity—and will invariably result in the reporting of speech about terrorism—including by activists and other peaceful people with forceful opinions.”

“In practice, he added, “were this to become law, websites will likely do a couple of things”:

  1. “First, they will overcorrect and start taking down content wholesale. They will monitor posts for keywords like ISIS or “don’t tread on me” (a libertarian slogan that some identify with white supremacist and anti-government ideology) and pull them. That will chill an enormous amount of online debate . . .”
  2. “Second, and perhaps worse, companies—faced with the proposal’s utter lack of guidance on what the law requires them to report—will apply it inconsistently. . . .”

(ht: Emma Llansó, Free Expression Project: See also Ms. Llansó’s “Intel Authorization Bill Would Turn Online Service Providers into Law Enforcement Watchdogs,”) 

10th Circuit rejects compelled speech & compelled silence claims in Little Sisters Case

Yesterday a majority of the judges of a Tenth Circuit three-judge panel rejected the compelled speech and compelled silence claims, among others, raised by the Appellants in Little Sisters of the Poor Home for the Aged v. Burwell. Judge Scott Matheson, Jr. wrote for the majority (joined by Judge Monroe G. McKay) with Judge Bobby R. Baldock writing in dissent, but on RFRA grounds.

“Plaintiffs, wrote Matheson, “contend the accommodation scheme violates the Free Speech Clause of the First Amendment . . .  by compelling them both to speak and remain silent . . . . . First, they argue that requiring them to sign and deliver the Form or the notification to HHS constitutes compelled speech. Second, they argue that prohibiting them from influencing their TPAs’ provision of contraceptive coverage compels them to be silent. Both arguments fail.”

“To the extent such a claim requires government interference with the plaintiff’s own message, . . . . the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise express. The only act the accommodation scheme requires is for religious non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage. . . .”

“We further reject the claim that the accommodation scheme compels Plaintiffs’ silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general claims objecting to the non-interference regulation and have failed to indicate how it precludes speech in which they wish to engage. . . . After the issuance of the interim final rule repealing the non-interference regulation, we do not believe this question is before us. We agree with the Government and the D.C. Circuit that the repeal of the non-interference rule renders Plaintiffs’ claims regarding compelled silence moot.”

llya Shapiro & Ira Glasser on Redskins trademark flap Read More

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FAN 67 (First Amendment News) En Banc Unanimous Ruling from DC Circuit Upholds Federal Ban on Contributions by Federal Contractors

This is quite a big deal, especially in its unanimity. — Richard Hasen, Election Law Blog

Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity. — Alan Morrison, lead counsel for the Plaintiffs

On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space. Ilya Shapiro, co-counsel on amicus brief in support of the Plaintiffs.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

“In a victory for good government, the en banc D.C. Circuit Court of Appeals today unanimously — and correctly — rejected a challenge to the constitutionality of the federal ban on campaign contributions by federal contractors. The ban applies to corporations, other entities and individuals who have federal contracts.” That is how Fred Wertheimer of Democracy 21 described yesterday’s ruling in Wagner v. Federal Election CommissionDemocracy 21 joined with the Campaign Legal Center and Public Citizen to file an amicus brief in the Wagner case supporting the constitutionality of the government contractor contribution ban. (See 52 U.S.C. § 30119(a)(1))

The 62-page opinion was written by Chief Judge Merrick Garland, and there were no separate opinions. The other jurists sitting on the case were Circuit Judges Karen Henderson, Judith Rogers, David Tatel, Janice Rogers Brown, Kavanaugh, Sri Srinivasan, Patricia Millett, Nina Pillard, and Robert Wilkins.

Here are some highlights from Chief Judge Garland’s opinion:

  1. Standard of Review: “We . . . proceed to examine whether, with respect to § 30119, the government has “‘demonstrate[d] a sufficiently important interest and employ[ed] means closely drawn to avoid unnecessary abridgment of associational freedoms.’”
  2. Historical backdrop: “historical pedigree is significant. As the Court said in Beaumont, ‘[j]udicial deference is particularly warranted where, as here, we deal with a congressional judgment that has remained essentially unchanged throughout a century of ‘careful legislative adjustment.’ [citation] Moreover, . . . the lineage of the statute makes clear that its objects are the legitimate and important purposes that the Commission claims they are.”
  3. Quid pro quo corruption: “Of course, we would not expect to find — and we cannot demand — continuing evidence of large-scale quid pro quo corruption or coercion involving federal contractor contributions because such contributions have been banned since 1940. . . . [Even so, the] FEC has assembled an impressive, if dismaying, account of pay-to-play contracting scandals, not only in the above states, but also in New Mexico, Hawaii, Ohio, California, and elsewhere. [W]e think that the evidence canvassed thus far suffices to show that, in government contracting, the risk of quid pro quo corruption and its appearance, and of interference with merit-based administration, has not dissipated. Taken together, the record offers every reason to believe that, if the dam barring contributions were broken, more money in exchange for contracts would flow through the same channels already on display.”
  4. Significant change in government contracting: “[P]erhaps the most relevant change in government contracting over the past several decades has been the enormous increase in the government’s reliance on contractors to do work previously performed by employees. . . . If anything, that shift has only strengthened the original rationales for the contractor contribution ban by increasing the number of potential targets of corruption and coercion — targets who do not have the merit system protections available to government employees.”
  5. Different rules for federal employers vs contractors: “Increased reliance on individual contractors — particularly retirees such as Brown and Miller — also raises a concern that some former federal employees may unwittingly violate § 30119 because they are unaware that they have become subject to a different set of restrictions as contractors. However, as FEC counsel advised the court, there is no criminal violation unless the individual knows his or her conduct violates the law.”
  6. Corporations vs individual contractors: “The plaintiffs also question whether there is sufficient evidence of corruption or coercion specifically with respect to individual contractors, as compared to those organized as corporations or other kinds of firms. It is true that most of the examples set forth [earlier in our opinion] above involve firms. We see no reason, however, to believe that the motivations for corruption and coercion exhibited in those examples are inapplicable in the case of individual contractors.”
  7. Two justifications: “Our historical review makes clear that the two Court-approved justifications for limitations on campaign activities — to protect against quid pro quo corruption and its appearance, and to protect merit-based public administration — were the justifications that lay behind the contractor contribution statute.”
  8. “Closely drawn” requirement: “[T]he point of the ‘closely drawn’ test is that “‘[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.’” [citation] And we conclude that the ban at issue here is permissible in the circumstances that we address in this opinion: a regulation that bars only campaign contributions and that is imposed only on government contractors. . . . We do not discount the possibility that Congress could have narrowed its aim even further, targeting only certain specific kinds of government contracting or doing so only during specific periods. But as the Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”
  9. Underinclusiveness: “We conclude that the contractor contribution ban is not fatally underinclusive. There is no doubt that ‘the proffered state interest actually underlies the law,” and that it can “fairly be said” that the statute “advance[s] a[] genuinely substantial governmental interest.’ [citations] The plaintiffs may well be right that the ban would be even more effective if it swept in more potential contributors. But §30119 “aims squarely at the conduct most likely to undermine” the important interests that underlie it, and ‘[w]e will not punish [Congress] for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.'”

Additional claim: The Court also addressed and rejected the Fifth Amendment equal protection arguments raised by the Plaintiffs.

→ Mootness: “The plaintiffs advise us that both Wagner and Brown have now completed their federal contracts and hence are once again free to make campaign contributions. Brown, at least, has already done so.  Accordingly, Wagner’s and Brown’s claims are moot,” which leaves Plaintiff Jan Miller, whose “contract is ongoing” and therefore “his constitutional claims . . . remain alive.”

→ Reliance on Williams-YuleeThe Chief Judge cited to Williams-Yulee v. Florida Bar fifteen times — e.g., “But as the [Williams-Yulee] Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”

The Lawyers & Amici

  • Alan B. Morrison argued the cause for plaintiffs. With him on the briefs was Arthur B. Spitzer
  • Ilya Shapiro and Allen J. Dickerson were on the brief for amici curiae Center for Competitive Politics, et al. in support of plaintiffs.
  • Kevin Deeley, Acting Associate General Counsel, Federal Election Commission, argued the cause for defendant. With him on the briefs were Harry J. Summers, Assistant General Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys.
  • J. Gerald Hebert, Scott L. Nelson, Fred Wertheimer, and Donald J. Simon were on the brief for amici curiae Campaign Legal Center, et al. in support of defendant.

* * *  *

Alan Morrison

Alan Morrison

Liberal & libertarian lawyers challenge contractor law

Alan Morrison, a seasoned appellate advocate and law professor, is known as a liberal. In 1971, for example, he worked with Ralph Nader to cofound the Public Citizen Litigation Group, the litigation arm of the famed consumer advocacy organization. In that capacity, he was the lawyer who successfully argued Virginia Pharmacy Bd. v. Virginia Consumer Council (1976), which recognized First Amendment protection for certain kinds of commercial speech (in that case for a non-profit corporate advocacy group).

In Wagner v. FEC he was co-counsel with Arthur B. Spitzer of the ACLU in challenging a little known section of the Federal Election Campaign Act that provided: “[A]ny person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for federal office.” In their brief to the Court of Appeals  Morrison and Spitzer argued that the three plaintiffs were prevented from making their intended campaign contributions. “One of the plaintiffs,” they noted, “is a law professor who had a contract to do a study for the Administrative Conference of the United States; the other two are retired federal employees who continue to work for their former agency on a contract basis. Unlike every other U.S. citizen who does not have a federal contract, they are forbidden by [federal law] from making a contribution of even $1 to any federal candidate, political party, or political committee.” Such a law, Morrison and Spitzer maintained, violated both the equal protection component of the Fifth Amendment and the First Amendment. A lower court denied those claims, whereupon review was sought in the court of appeals. Yesterday, their hopes were dashed by a 10-0 vote.

Kevin Deeley, Acting FEC Associate General Counsel

Kevin Deeley, Acting FEC Associate General Counsel

“We are disappointed,” Morrison e-mailed me, “in the result and in the failure of the Court to appreciate the unnecessarily broad reach of the total ban on individual contractors such as these plaintiffs from making any contributions in a federal election. We were surprised at the more than dozen favorable citations to McCutcheon v. FEC, a 2014 case in which another over-broad contribution law was struck down by the Supreme Court as not being closely drawn. Even more difficult to understand were the similar number of citations to the 5-4 ruling Williams-Yulee v. Florida Bar, in which the candidate for judicial office was only precluded from making personal solicitations for campaign funds, while retaining the full ability to raise money through a separate committee.  Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity.”

Morrison and Spitzer received some help by way of an amicus brief submitted on their clients’ behalf by the Center for Competitive Politics and the Cato Institute. “This case presents an unusual question,” wrote Allen Dickerson for the Center and Institute (Cato’s Ilya Shapiro was co-counsel on the brief.)  “While suits challenging limits on political contributions are familiar, the statute at issue here completely prohibits a broad group of private, individual citizens from making any contribution. Such sweeping prohibitions are seldom enacted, and courts have rarely assessed their constitutionality. Nevertheless, the limited pronouncements made by the Supreme Court on the subject suggest that strict scrutiny is the appropriate standard of review in this instance” and that the appellants should, therefore, prevail.”  They did not.

Ilya Shapiro

Ilya Shapiro

Here is how Ilya Shapiro summed up his response to the Wagner decision: “This is a fascinating and fairly technical opinion, ultimately disappointing to those like me who supported the challenge but probably not one that will have repercussions beyond politically minded contractors. Nobody short of Justice Hugo Black has argued that the First Amendment is absolute — and while the D.C. Circuit rejected the subtle arguments made against the ban on contractor contributions, this is an argument over line-drawing rather than first principles. I still think that the ban is overbroad and that the government should have to prove that its targeted class of people is somehow too dangerous to be allowed to participate in the political process (and also that the ban applies only to that set of uniquely dangerous people). But the court disagreed — unanimously, which was the real surprise here and will alas lessen the Supreme Court’s appetite to hear the case. On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space.”

The Ramifications of Wagner: 

Over at his own blog, Lyle Denniston thinks Wagner could have important legal/political ramifications on “two other potential campaign law controversies”:

  1. “The first of those possible changes has been under study by President Obama and his White House aides for some time: a plan to issue a presidential order to force business firms doing business with the federal government to disclose publicly all of their political activity.  Although contractors are banned from making direct political contributions to candidates or campaign organizations, they may channel money into politics in other ways.” [ See Daniel I. Weiner, Lawrence Norden & Brent Ferguson, “Requiring Government Contractors to Disclose Political Spending,” Brennan Center for Justice ]
  2. “The second possible revision was a study by the Internal Revenue Service — now suspended, perhaps for an indefinite period, because of political opposition — to revise the rules on eligibility fo tax-exempt status of private groups that are active in funding federal election campaigns. Current IRS rules allow many such groups to gain tax-exempt status on the theory that they are doing ‘charitable’ work. The IRS had draft plans to severely restrict that status for such groups.”

Professor David Skover, co-author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (2014), had this to say about the Wagner ruling:

Considering the elimination of all issues involving independent expenditures, the ruling in this case is not surprising. Despite some obvious differences between the Hatch Act and the law challenged here, a First Amendment victory would have put into question the continuing viability of the Hatch Act and Letter Carriers, and that the Circuit Court judges were clearly unwilling to do.

See also: Charles Tiefer, “Today’s Wagner Decision Encourages an Obama Order on Campaign Contributions by Federal Contractors,” Forbes, July 7, 2015

Newseum Releases 2015 State of the First Amendment Report Read More

15

Hunting for “Three Coequal Branches”

This is a longer-than-average post about why we think that the Constitution establishes three equal branches.  As I’ve explained in some earlier posts, the text does not support that proposition, and at the Founding it’s hard to find anyone who said that the three branches were equal.  The Fourteenth Amendment also refutes that claim by reinforcing Congress’s position as the superior branch (more on that in a separate post).

What’s really surprising about my research thus far is the paucity of authorities that say that we have three equal branches.  Here’s what I’ve found so far (though, of course, the work goes on, the cause still lives, and the dream shall never die).

1.  Andrew Jackson appears to have invented the idea that we have three coequal branches.  (Take that–those who want him off the $20 bill.)  He made this argument in his Protest against the Senate Censure Resolution that attacked his withdrawal of deposits from the National Bank as unconstitutional.  Nobody, though, appears to have relied on his assertion afterwards, and no President made a similar claim until the 1950s.

2.  In 1864, the Supreme Court stated in dicta:  “It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government.”  Nobody cited this statement afterwards either (as far as I can tell).

Maybe that was because there were some major problems with the Court’s claim (in an opinion by Chief Justice Taney).  First, the Court was at the low ebb of its authority at that point (during the Civil War), and so its statement about coequality seems self-serving.  Second, the Fourteenth Amendment undercut the assertion that the Court was equal in title to Congress, as I’ll explain tomorrow.

 

3.  In Marshall Field & Co. v. Clark (1892), Justice Harlan wrote for the Court in a case where the issue was whether an Act of Congress was, in fact, an Act of Congress.  (In other words, did the same bill pass both houses of Congress?)  Harlan said:  “The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.”

This line was cited in two other opinions by Harlan, and my tentative conclusion is that he just cared about a lot about this idea, as he also wrote in 1911 that:  “The illustrious men who laid the foundations of our institutions deemed no part of the national Constitution of more consequence or more essential to the permanency of our form of government than the provisions under which were distributed the powers of government among three separate, equal, and co-ordinate departments,—legislative, executive, and judicial.”

Anyway, more work to be done.

 

 

 

1

FAN 66.1 (First Amendment News) The Indecency Wars Continue — WDBJ TV opposes $325K fine proposed by FCC

The enormous fine proposed by the FCC is also an extraordinary burden on protected speech. The FCC’s largest base fine for other types of violations by broadcasters is $10,000. — Jeffrey A. Marks, President & General Manager of WDBJ

* *  * * 

Travis LeBlanc, chief of the FCC’s enforcement bureau, said that the agency’s action “sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching.” (Variety, March 23, 2015)

Yesterday lawyers for WDBJ Television filed an Opposition to a FCC Notice of Apparent Liability (NAL) against the station. The 55-page opposition was filed by Jack N. Goodman and Robert Corn-Revere. The case is titled In the Matter of WDBJ Television, Inc. (files #s: EB-IHD-14-00016819 & EB-12-IH-1363).

UnknownThe proposed FCC fine stemmed from a July 12, 2012 WDBJ newscast concerning a Roanoke County controversy over a former adult film star who had joined the local volunteer rescue squad. WDBJ covered the story and the dispute over the firing of a female volunteer. Parts of WDBJ’s story were illustrated from materials taken from the Internet, including some from an adult-film website.  “Due to equipment limitations,” Goodman and Corn-Revere argue, “station personnel were unable to see the full screen of the online material, and the eventual broadcast briefly displayed a small image of an erect penis at the extreme margin of the screen. The image appeared for 2.7 seconds during a three minute and ten second story, covered only 1.7 percent of screen at the far right edge, and prompted an immediate response from WDBJ once it became aware of the mishap.”

In response, on March 23, 2015 the FCC issued a NAL and a proposed fine of $325,000 — the maximum amount permissible under the Broadcast Decency Enforcement Act.

Dennis Wharton, spokesman for the National Assn. of Broadcasters, said, “NAB is disappointed with today’s remarkably punitive indecency fine proposed against WDBJ. Schurz Communications apologized for the fleeting image, which was clearly unintended. This unprecedented fine against a family-owned broadcaster with a demonstrated commitment to serving communities is wholly unwarranted.”  (VarietyMarch 23, 2015)

WDBJ’s lawyers contend that the FCC’s NAL “rests on incorrect factual premises” and that the Commission “misapplied its indecency standard to the WDBJ newscast.” As to the latter point, they make three basic arguments:

  1. “The newscast was not graphic and explicit under Commission precedent”
  2. “The broadcast did not dwell on or repeat sexual material,” and
  3. “The broadcast did not seek to pander or titillate.”
Jack N. Goodman

Jack N. Goodman

Goodman and Corn-Revere also maintain that the FCC “lacks a constitutionally sound test for indecency.” In this regard, they offer three basic arguments:

  1. “The Supreme Court neither upheld nor ratified the FCC’s indecency policy” (“The constitutional questions left open in Fox must be addressed.”)
  2. “Devising a constitutional policy to regulate broadcast indecency requires great restraint” (The FCC must adhere to the First Amendment” and “Pacifica’s restrained enforcement approach is constitutionally required.”) and
  3. “As applied to WDBJ, the proposed fine violates the First Amendment.”
Robert Corn-Revere

Robert Corn-Revere

Additionally, Goodman and Corn-Revere contend that the FCC’s NAL “articulates an erroneous and unconstitutional standard for willfulness. On this point they contend that the FCC’s NAL is unlawful insofar as it “proposes to penalize WDBJ for an alleged indecency violation that was neither ‘willful” nor ‘repeated,’ as required by 47 U.S.C.  503 (b)(1).”

Finally, they argue that even if the Commission “could find that WDBJ violated the indecency policy, the proposed [fine] should be vastly reduced.” Here Goodman and Corn-Revere maintain that the FCC’s NAL “sets out various reasons — many of which are incorrect — for a [maximum fine], but utterly fails to explain why it is appropriate to impose a [fine] more than forty-six times the base amount for the inadvertent inclusion in a news program of a depiction of a sexual organ for less than three seconds.” As for the enhanced fines allowed for under the Broadcast Decency Enforcement Act of 2005, they argue that “Congress did not attempt to establish [the $325,000 fine] as the minimum or even the expected [fine], or to indicate any intent to override the Commission’s normal decision with respect to the amount of a [fine] in any particular case.”

5

Undue Burden and Federalism

Before saying more on the cases just decided, I want to throw out an observation about the Texas abortion regulations that were stayed by the Court yesterday.

Suppose that Rhode Island put strict limitations on abortions.  If that statute were challenged under the “undue burden” standard set forth in Casey, one response could go something like this.  “Hey, all of our neighboring state have broad access to abortion.  We’re tiny, and so getting from Providence to another state takes hardly any time or cost.  Therefore, no undue burden is being imposed.

Does this argument work?  The reason I ask is that in Texas the opposite is true.  It’s a huge state, many of the neighboring states do not have broad abortion access, and thus it would be costly and time-consuming to go elsewhere for an abortion.  Thus, you could say that an undue burden is being imposed.  If this is so, though, then wouldn’t you have to say that small states with a pro-choice neighbor would have greater leeway to restrict abortion than large states?

1

Revisiting Capital Punishment

I want to go through the opinions on the three-drug protocol more carefully, but I will say that I’m not persuaded (and never have been) that the death penalty is unconstitutional across the board.  Whether the states or the federal government should choose to have the death penalty is a different matter, but I think Justice Scalia has the better of the constitutional argument with Justice Breyer.

I wonder if this means that Breyer and Ginsburg, like Brennan and Marshall before them, will dissent in every new death penalty case.  Or is there a distinction between asking for briefing (as they did today) and actually taking the position that the death penalty is unlawful?