Category: Constitutional Law

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Barbara Babcock reviews new book on Ruth Bader Ginsburg

Professor Barbara Babcock

Professor Barbara Babcock

Over at SCOTUSblog, Standford Law Professor Emerita Barbara Babcock has a book review of Scott Dodson’s new The Legacy of Ruth Bader GinsburgCambridge University Press, 2015 (336 pp., cloth, $29.99), which he edited.

Babcock’s review is titled “Law Professor, Feminist, and Jurist” and draws on some of her own history with RBG.

As you may recall, in an earlier post on this blog Danielle Citron also wrote about Justice Ginsburg and the collection of essays in the Dodson volume.

In case you missed it, take a look at Gail Collins’ recent column in the New York Times titled “The Unsinkable R.B.G.”

(In the interest of full disclosure, I also serve as the book editor for SCOTUSblog.)

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UCLA Law Review Vol. 62, Issue 2

Volume 62, Issue 2 (February 2015)
Articles

Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of Texas Mario L. Barnes, Erwin Chemerinsky & Angela Onwuachi-Willig 272
Enforcing Rights Nancy Leong & Aaron Belzer 306
Milliken, Meredith, and Metropolitan Segregation Myron Orfield 364

 

Comments

David’s Sling: How to Give Copyright Owners a Practical Way to Pursue Small Claims Jeffrey Bils 464
Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences Jordan Cunnings 510
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FAN 49 (First Amendment News) ACLU “2015 Workplan” sets out narrow range of First Amendment Activities

When the ACLU was founded in 1920, its focus was on freedom of speech. — Wikipedia 

His expansive reading of civil liberties was arguably [Roger] Baldwin’s greatest contribution to American thought and practice.  It helped to redefine American liberalism and democracy and was propounded in the very period when others subscribed to a much narrower interpretation of First Amendment rights. — Robert Cottrell, Roger Nash Baldwin & the American Civil Liberties Union (2000)

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A few weeks ago I received the ACLU’s “2015 Workplan: An Urgent Plan to Protect our Rights.” The eight-page, single-spaced document was accompanied two-page letter from ACLU Executive Director Anthony Romero and a contribution form. The Workplan began: “At the beginning of each year, ACLU attorneys and advocates construct a Workplan outlining the major civil liberties battles we are facing. I am proud to share this year’s plan with you.” In that regard he added: “Your passion, energy and financial support are crucial to our ability to meet the challenges ahead and change the lives of millions whose civil liberties are in jeopardy.”

Walter Nelles was the co-founder and first chief legal counsel of the National Civil Liberties Bureau and its successor, the American Civil Liberties Union. He was an ardent defender of free speech rights. His First Amendment cases included Gitlow v. New York (1925) and Whitney v. California (1927).

Anthony Romero

Anthony Romero

As an ACLU supporter and one who has had the honor of writing several ACLU briefs over the years, I read the 2015 Workplan with great interest. As I read the eight-page document I was surprised to find nothing more than a passing reference to the First Amendment — a mainstay of the ACLU since its founding. There was no highlighted listing of free speech rights in the categories of activities to be protected. The following categories and subcategories were listed in the 2015 Workplan:

1.) Reproductive rights
2.) Discrimination Against Women (Hobby Lobby)
3.)  Anti-Choice Legislation
4.) Freedom to Marry
5.) Privacy & Due Process Rights re Technology
6.) Government Surveillance (4th Amend., Clapper v. Amnesty)*
7.) Third Party Doctrine (expectation of privacy)
8.)  Cell Phone Privacy & GPS Tracking (US v. Jones)
9.) Voter IDs
10.) Police Misconduct
11.)  Mass Incarceration
Harriet Pilpel (1911-1991), Nanette Dembitz (1913-1989), and Nancy F. Wechsler (1916-2009) — Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in New York Times, Co. v. Sullivan.
* The only reference to free speech freedoms came in connection with government surveillance: “[T]he bulk collection of American’s call records . . . [is] an infringement of the twin First Amendment liberties of free association and free expression.” (emphasis added)
Brandenburg v. Ohio (1969) — ACLU lawyer Allen Brown argued the cause for appellant. With him on the briefs were ACLU lawyers Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman.

On February 2, 2015 I sent an e-mail to Mr. Romero. I expressed my concerns re the virtual absence of any real and comprehensive commitment to securing First Amendment free expression rights in any variety of areas beyond the one stated. I just heard back from his office this past Monday, this after having sent a follow-up e-mail earlier that day. I was informed that Mr. Romero “intends to respond.”

Liberty in America is better off because of Al Bendich (1929-2015) and what he did as a lawyer for the American Civil Liberties Union. He gave free speech life to poetry and lawful voice to comedy . . . and more. (January 7, 2015)

I welcome Mr. Romero’s response, if only to explain why protecting our First Amendment freedoms did not receive greater and more expanded attention in the national ACLU’s 2015 Workplan, the one sent out for fundraising purposes. I will post his response once it arrives.

Update: See Howard Wasserman, “Declaring Victory?, PrawfsBlawg, Fe. 26, 2015.

Invitation to Anthony Romero re a Q&A on the First Amendment 

Beyond his response, I extend a cordial invitation to Anthony Romero to do Question & Answer segment with me — much like the ones I have done with everyone from Professor Laurence Tribe to Judge Richard Posner — related to the ACLU and its views on protecting free expression rights under the First Amendment. I am sure our readers would have great interest in hearing from him. 

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 THE COURT’S 2014-15 FREE EXPRESSION DOCKET Read More

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Committees in the Constitutional Convention

In reading David Stewart’s excellent new book on James Madison, I was surprised to learn that we have no idea why certain delegates to the Constitutional Convention served on some of the ad-hoc committees and not others. This fact is tucked into the Acknowledgements, which shows why should you read everything in a book (including endnotes) carefully.

Madison’s Notes simply name the people who serve on a given committee without explaining the process used to select the members.  Maybe this was a purely voluntary process, but maybe with some diligence another pattern can be discovered if one examines all of the committee assignments.

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FAN 48.1 (First Amendment News) Court Denies Cert in Two First Amendment Cases

 The Court’s latest order list was just made public. In it the Court denied cert. in Kagan v. City of New Orleans (re tour-guide licensing requirements) and in Clayton v. Niska (re a state statute banning false political speech).

  The Court is expected to hand down opinions tomorrow and Wednesday in one or more argued cases. 

 THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. ProtectMarriage.com-Yes on 8 v. Bowen
  7. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Kagan v. City of New Orleans
  2. Clayton v. Niska
  3. Pregnancy Care Center of New York v. City of New York 
  4. City of Indianapolis, Indiana v. Annex Books, Inc.
  5. Ashley Furniture Industries, Inc. v. United States 
  6. Mehanna v. United States
  7. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  8. Vermont Right to Life Committee, et al v. Sorrell
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Illegal Immigrants and the Bill of Rights

My next article is going to analyze the application of the Bill of Rights to illegal immigrants.  Some circuit courts have held (drawing in part on language in Heller) that the Second Amendment does not apply to them.  The Supreme Court has expressly reserved the issue of whether the Fourth Amendment applies to them.  These are important questions that I would like to address in a series of posts.

Here is the basic problem.  There are parts of the Bill of Rights that clearly apply to all persons.  (The Fifth Amendment’s protections for grand jury indictment, double jeopardy, self-incrimination, and due process.)  Other parts use definitions that are defined in terms that can apply to any person.  The Sixth Amendment refers to “the accused,” the Third Amendment refers to “any house,” and the Seventh Amendment refers to “suits at common law.”  Still other parts make general statements that cannot be limited to only some (The Eighth Amendment and most of the First Amendment).

Other parts of the Bill of Rights, though, that use the term “the people” to refer to the right in question.  (The Second, Fourth, Ninth, and Tenth Amendments, along with the Assembly and Petition Clauses of the First Amendment.)  The Supreme Court has said (more than once) that this term is not just the plural of person.  Instead, “the people” refers to the American political community and thus arguably excludes illegal aliens.  If this interpretation is correct, then there are two tiers of rights in the Bill of Rights.  In the Fourteenth Amendment, of course, there are two tiers of rights (privileges or immunities for citizens, due process and equal protection for everyone).  But is this reading of “the people” right?  I’ll take that up in another post.

This is just one piece of the puzzle.  Consider also that the Amendments that use “the people” have been incorporated through the Due Process Clause of the Fourteenth Amendment, which uses the term person.  Does this mean that the rights in the states are broader in scope than as against the National Government? If not, why?  Here’s another.  Does “the people” mean the same thing in each amendment that uses it?  Can you distinguish, say, the Fourth Amendment from the Second?  How does this relate to “We the People” in the Preamble?  And what about the Ninth Amendment?  Are some people entitled to unwritten rights but not others?  More to come.

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FAN 48 (First Amendment News) The Dangers and Values of Offensive Speech

 If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful. — Carsten Jensen (Danish author and political columnist)

In Mumbai, India a newspaper was shut down recently and its editor arrested for reprinting a 2006 Charlie Hebdo cartoon of the Prophet Muhammad weeping. According to a New York Times story, such “news coverage often conflicts with the government’s efforts to protect religious groups from insult and disrespect.” One of those who filed a police complaint was Nusrat Ali, a reporter. “You are free to write anything in our country, but you are not free to hurt religious sentiments,” he said. “Why would [Shirin Dalvi] print something that has caused tension and violence across the world?” he asked. “Publishing such cartoons threatens the peace and calm of our country.”

Professor Geoffrey Stone

Professor Geoffrey Stone

Legitimate concerns, real dangers. Ask yourself: what if those dangers became more likely and imminent here? How strong would our commitment to free speech be? Mindful of that, in a thoughtful Huffington Post piece  titled “Charlie Hebdo and the First Amendment,” University of Chicago Law Professor Geoffrey Stone asks:

Are there any circumstances in which the government can constitutionally silence a speaker because others threaten violence if the speaker is allowed to proceed? Consider an extreme hypothetical. Suppose ISIS threatens to behead six American hostages if anyone in the United States publishes or otherwise displays the Charlie Hebdo cartoons. Can our government, consistent with the First Amendment, make it a crime for anyone to do so? The Supreme Court has never faced such a case. What do you think?

Okay, how’s this for starters? — The proposed law seems to codify the heckler’s veto (or, more aptly put, a terrorist’s veto). Even before we venture to answer Professor Stone’s question we would have to assume that such a law would be precise and narrowly tailored, this as a constitutional threshold matter. That said, is the gravity of the threatened evil so great as to relieve the government of its constitutional obligation to, in Professor Stone’s words, “take every possible measure to prevent the violence before it may silence the speaker”? If so, would not the terrorist’s veto almost always trump the speaker’s First Amendment rights?

Terrorism is just bullying, extreme bullying. — Bill Maher (Jan. 2015)

Among other things, Professor Stone’s hypothetical invites us to think hard about just how far down the free speech road we wish to travel when that path may lead to lethal dangers. However absolutist the defenders of free speech may be, even they have their limits as Pater Holmes made clear in his Abrams dissent.

The Values of Offensive Speech 

Ilya Shapiro

Ilya Shapiro

But there is more to this free speech debate than the dangers of so-called hate speech; there is also the question of the values, if any, of such speech. And that is the question that Carsten Jensen asks us to consider in the epigraph quote above.

Thankfully, a brief recently filed in the Supreme Court by the Cato Institute speaks to precisely that question. The amicus brief was submitted by Ilya Shapiro (counsel of record) and Robert Corn-Revere in Walker v. Texas Division, Sons of Confederate Veterans, the license plate case that will be argued next month.

Here are a few excerpts from their brief, which was recently filed with the Court:

 – Offensive Speech Contributes to the Marketplace of Ideas: “The borderlands of the marketplace of ideas are inhabited by ideas that unsettle and offend. Only those ideas that people are allowed to express can be freely traded, so a “free trade in ideas” cannot exist when some ideas are relegated to the black market. . . . Indeed, because offensive speech changes the parameters of the marketplace, it is as vital to the exchange of ideas as so-called mainstream speech. Without expanding the borders of the marketplace, a society may stagnate. If no one ever offensively says ‘the Emperor has no clothes’ then a society may be condemned to dynasties of naked emperors, and that would be truly offensive.”

And they quote Salman Rushdie, “who certainly knows something about offending people: ‘What is freedom of expression? Without the freedom to offend, it ceases to exist. Without the freedom to challenge, even to satirise all orthodoxies, including religious orthodoxies, it ceases to exist.'”

 Offensive Speech Fosters Self Expression and Helps Develop Personal Autonomy: “Expressing one’s deepest thoughts, feelings, and values is vital to defining oneself as a unique and autonomous individual. Those who are restrained from self-expression are often called ‘repressed,’ and years of therapy is often the cure. . . . Even more than ‘mainstream’ speech, offensive speech helps define us. Our commonalities do less to define our personalities than our eccentricities, offensive or otherwise. If speech is squelched by the government because it ‘might be offensive to any member of the public,’ then the government has closed off an important avenue for self-expression.”

There is more, much more, to this truly insightful (dare I say inciteful?) brief. In a legal world where amicus briefs too often add little beyond formulaic case-crunching, this brief is chock-full of value added, and for that reason I commend it to you.

Meanwhile, I leave you with the closing words of the Cato brief: “It would be offensive to the First Amendment for this Court allow Texas to tell us what is offensive. After all, one man’s offensive speech is another’s exercise of social commentary or personal expression.”

Is Flower v. U.S. (1972) still good law? . .  . & why that question is important 

On remand, the United States Court of Appeals affirmed Mr. Apel’s conviction, rejecting his First Amendment argument with no mention or apparent consideration of Flower v. United States. It seemingly accepted the argument made by the United States that Flower is no longer good law. — Erwin Chemerinsky, cert. petition in Apel v. United States (2015)

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The Terrorist’s Veto

We live in terrorist times — post-Charlie Hebdo times. In this brutish world the target of attack is liberty as we know it, the kind in which people come together to discuss “Art, Blasphemy and the Freedom of Expression.” But as recent events in Copenhagen reveal, even in that world armed guards may not be enough to turn back the barbarity at the door. What to do?

Carsten Jensen, a Danish author and political columnist, urges us to reconsider our commitment to free speech freedom: “If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful.”

Fair question, fair point. So is hate speech fruitful? Just for the sake of argument, let us say that it is – that vibrant criticism of a radical fringe of a religious group is important to the wellbeing of democratic rule. What then? I suspect the temptation to roll back freedom would be much the same. Why? Because the terrorists have terrorized us.

The terrorist’s veto is the savage cousin of the heckler’s veto. The logic of both is the same: freedom of speech is abridged in order to prevent the dangerous behavior of the reacting party. Once such veto power is granted, either formally or functionally, the hostile audience gets its way while freedom flees.

It really doesn’t matter if the speech in question is hateful or political or what have you. One only need look back in history to see how Salvation Army members, Jehovah’s Witnesses, Socialists, labor activists, racial justice activists, and political activists were silenced by the veto power. And recall that Professor Harry Kalven coined the phrase “heckler’s veto” in connection with bigoted opposition to free speech freedom in support of racial justice. (See his The Negro and the First Amendment (1965).)

It makes for a strange legal brew: once empowered, the veto renders the lawful unlawful; it turns liberty into license; and in the process reconstitutes our system of constitutional freedom in favor of ruthless anarchy. In his 1897 Introduction to the Study of the Law of the Constitution, the famed British jurist and constitutional theorist A.V. Dicey contested such legal logic:

[N]o meeting which would not otherwise be illegal becomes unlawful because it will excite opposition which is itself unlawful, and thus will indirectly lead to a breach of the peace. The plain principle is that A’s right to do a lawful act, namely walk down the High Street, cannot be diminished by X’s threat to do an unlawful act, namely to knock A down.

To develop Dicey’s point a bit, there is something profoundly disturbing about conditioning one person’s lawful free speech rights based on the degree of unlawful hostility demonstrated by the speaker’s adversaries. (See Note, “Constitutional Law — Unconstitutional Abridgement of Free Speech by Municipal Ordinance,” 24 N.Y.U. L. Rev. 891, 893 (1949).) In this regard, Professor Franklyn Haiman put it powerfully nearly a half-century ago when he countered: “Only by the firmest display of the government’s intention to use all the power at its disposal to protect the constitutional rights of dissenters will hecklers be discouraged from taking the law into their own hands.”

What is really at stake here is not so much the value of so-called hate speech as the willingness of a free society to recommit itself to freedom in the face of ferocious opposition. Having grown fat on freedom, we are use to tolerating speech with which we disagree if only because the consequences are typically of no moment. Hence, we defend the free speech principle because it’s risk-free. To borrow from old Tom Paine, we are “sunshine patriots” when it comes to defending free speech freedom. But if they bad guys ratchet up the consequences of our toleration, will we continue hold firm to our commitment?

There is no escaping it: In a democracy committed to the principle of free speech, the veto power – be it that of the heckler or the terrorist – must not be permitted to silence a society. For if you take the risks out of freedom, nothing of real value remains. In such a world, the tyranny of the veto is emboldened by the cowardice of the people.

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FAN 47 (First Amendment News) Anniversary Issue: Returning “Home” — Looking Back on Fox v. Washington (1915)

Anniversary: It was a year ago (February 10, 2014 to be precise) that I posted my first FAN column on Concurring Opinions. Now, 46-plus posts later (there were also a number of non-scheduled posts), I think the endeavor well worth the time to spread the First Amendment word — the serious and silly, the admirable and objectionable, the high and low, the liberal and conservative, and everything in between and beyond. Thanks to Dan Solove (our blog publisher) for inviting me onboard. Dan’s respect for the integrity of the work product and his encouragement to take it to “the next level” have made the adventure all the more challenging and exciting. Thanks also to all those who so kindly directed First Amendment news my way. In the coming year I hope to improve on what works while testing out a few new ways of how to look at our free speech world. — RKLC      

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“The agitator is the mostly roundly abused and at the same time most necessary individual in society.” Jay Fox 

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Ponder this creed: HOME is where freedom resides. That ideal was as much a personal hope as it was a political ideal for some who long ago traveled through Puget Sound to a cove in the Pacific Northwest. They toiled first to buy nearby land (26 acres) and then to build on it — not just log cabins but a commune of anarchists, radical feminists, artists, and free-thinking women and men dedicated to a way of living very much counter to the conventions of late 19th century America.

It began in 1896 when a group of free-spirt types, known as “Homeites,” set out to establish the utopian colony of Home. Things started out well in this idyllic community as more and more families came and pitched in to make Home their home. As they invested more and more of their lives into that experiment in freedom, their lifestyles drew more and more attention beyond the borders of their beloved Home. And that proved to be a problem — one with realpolitik consequences.

“In 1902, after charges of violation of the Comstock Act resulting from an article advocating free-love published in the local anarchist newspaper Discontent: Mother of Progress, Home’s post office was closed by postal inspectors and moved two miles to the smaller town of Lakebay.” (Source here). But that did not stop their counter-culture ways. True to their libertine life styles, some “Homeites” took to nude sun tanning in the woods of the Key Peninsula, near Tacoma in Washington State.

It was too good to last: In short time, four individuals were arrested for indecent exposure. Incensed by their arrests, on July 11, 1911 Jay Fox (1870-1961), the editor of The Agitator, published an essay entitled “The Nudes and the Prudes.” In it Fox — an independent-minded man devoted to halting “the crimes of capitalism” — urged boycotts of the businesses of those who railed against nude bathing.

Note: “The Agitator” bold text above is a copy of the original banner of Jay Fox’s publication.

According to Washington State historian and librarian Mary M. Carr, “The Agitator made its first appearance on November 18, 1910, although in his editorial Fox proclaimed that it appeared on November 11, the 25th [sic] anniversary of the execution of the Haymarket martyrs. (Actually, he was four days late for the 23d anniversary.) In its subtitle, The Agitator defined itself as an ‘Advocate of the Modem School, Industrial Unionism, and Individual Freedom.’ Fox declared that it would ‘stand for freedom first, last and all the time,’ and would promote the right of every person to express his opinions. He hoped to popularize knowledge so that common toilers, as well as the ‘rich and privileged class’ cou1d be ‘uplifted to philosophy and science.'”

“It is only by agitation that the laws of the land are made better. It is only by agitation that reforms have been broughtabout in the world. Show me a country where there is the most tyranny and I’ll show you the country where there is no free speech. This country was settled on that right, the right of free expression.”Jay Fox (January 11, 1912)

Not surprisingly, Fox’s passionate opposition to the prudish ways of those in power did not sit well with Washington State’s bluenose establishment. Hence, he was prosecuted  under a Washington statute that prohibited printing or circulating publications that encouraged a commission of a crime. Fox was tried and convicted in 1912 and received a two month sentence, which the Washington Supreme Court declined to set aside in State v. Fox, 71 Wash. 185 (1912). Review was then sought in the United States Supreme Court.

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FAN 46.1 (First Amendment News) The Court’s 2014-15 Free Expression Docket & Other News

The next FAN posting (#47, this Wednesday) will be an anniversary issue dedicated entirely to an account of Fox v. Washington (1915), a First Amendment opinion authored by Justice Oliver Wendell Holmes for a unanimous Court. Given that, I thought I’d offer a few news items, including an update of the Court’s Free Expression Docket.

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THE COURT’S 2014-15 FREE EXPRESSION DOCKET

The Court’s next Conference is on February 20, 2015.

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions 

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Kagan v. City of New Orleans (see Cato amicus brief  of Ilya Shapiro & Eugene Volokh)
  6. Friedrichs v. California Teachers Association, et al.
  7. ProtectMarriage.com-Yes on 8 v. Bowen

Review Denied

  1. Pregnancy Care Center of New York v. City of New York 
  2. City of Indianapolis, Indiana v. Annex Books, Inc.
  3. Ashley Furniture Industries, Inc. v. United States 
  4. Mehanna v. United States
  5. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  6. Vermont Right to Life Committee, et al v. Sorrell

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