Category: Election Law

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FAN 117 (First Amendment News) Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law

Columnist George Will held them out as the go-to group when it comes to the First Amendment and campaign finance laws. The group: The Center for Competitive Politics. Consistent with that reputation, the Center has recently prevailed in a challenge it leveled against  a Utah campaign finance law (Utah Taxpayers Association v. Cox). Here are some excerpts from a press release from the Center:

Screen Shot 2016-07-19 at 9.39.24 PM

“In an agreement approved by a federal judge this afternoon, Utah agreed not to enforce a state campaign finance law that violated the First Amendment. The complex law required nonprofit advocacy groups to register with the state and publicly report their supporters’ private information, threatening donations to those organizations.”

“The agreement, known as a consent decree, was approved by U.S. District Court Judge Dale A. Kimball and settles a lawsuit filed on behalf of three Utah groups by attorneys at the Center for Competitive Politics, America’s largest nonprofit working to promote and defend First Amendment rights to freedom of political speech, assembly, and petition.”

Allen Dickerson, CCP Legal Director and the lead attorney in the lawsuit said, ‘This complicated law chilled speech and association protected by the First Amendment. By regulating speech about any public policy issue and groups with only trivial connections to elections, Utah failed to regulate with the care the Constitution demands. We appreciate the work done by Attorney General Sean Reyes’s office to settle this litigation and provide necessary guidance to all advocacy groups in Utah.'”

The plaintiffs were represented by Center for Competitive Politics’ Allen Dickerson and Staff Attorney Owen Yeates.

Here are a few excerpts from the consent decree:

“The State Defendants and their agents, officers, and employees agree not to enforce the law currently codified at Utah Code Ann. §§ 20A-11-701 to -702, as modified to create a donor reporting regime by H.B. 43, because imposing such requirements on Plaintiffs for engaging in constitutionally protected political advocacy and political issues advocacy is unconstitutional unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose. In particular, the State Defendants will not impose fines against corporations for failing to comply with the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose; file or refer criminal charges against such corporations; or otherwise enforce the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose.”

Colorado Petitions SCOTUS in Campaign Disclosure-Requirements Case

The case is Williams v. Coalition for Secular GovernmentThe issue in the case is whether Buckley v. Valeo’s “wholly without rationality” test apply to all dollar thresholds that trigger campaign finance disclosures, or are thresholds below some as- yet-undefined amount subject to heightened constitutional scrutiny?

In its cert. petition Colorado notes:

“To trigger campaign finance disclosure regulations, States rely on dollar thresholds ranging from zero to amounts in the thousands. Recognizing that setting a disclosure threshold is a policy decision entitled to deference, this Court held in Buckley v. Valeo that disclosure thresholds must be upheld unless they are “wholly without rationality.” 424 U.S. 1, 83 (1976). The Tenth Circuit, however, has rejected this test. In two decisions, it has held that Colorado’s disclosure threshold for “issue committees” is too low, although it declined to explain what number would be constitutional. Under that reasoning, even groups that spend $3,500 on campaign advocacy—a figure over ten times greater than the amount that triggers similar disclosure regulations in other States—are exempt from Colorado’s disclosure laws.”

Colorado urged the Court to grant review for the following reasons:

“I.  This Court’s review is necessary to resolve the circuit split over the standard of review for campaign finance triggering thresholds.”

“A. The Circuits are split three ways over Buckley’s ‘wholly without rationality’ test.”

“B. The outcome below conflicts with cases from the Fifth, Ninth, and Eleventh Circuits, which uphold disclosure thresholds for issue committees ranging from $0 to $500.”

“II. The constitutional standards that govern campaign finance disclosure laws, particularly laws that apply in the ballot issue context, are exceptionally important in dozens of States.”

“III. Because it comes from the outlier circuit after a bench trial, this case is an excellent vehicle for resolving the confusion among the lower courts.”

Frederick Yarger, Solicitor Generall, counsel of record for Colorado.

The challenge to the Colorado law was brought by the Center for Competitive Policits.

The ACLU & Campaign Finance Laws: Marcia Coyle Interviews Outgoing Legal Director Steven Shapiro Read More

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UCLA Law Review Vol. 64, Discourse

Volume 64, Discourse
Discourse

Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United

Alexander Hertel-Fernandez & Paul Secunda

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Lessons From Social Science for Kennedy’s Doctrinal Inquiry in Fisher v. University of Texas II Liliana M. Garces 18
Why Race Matters in Physics Class Rachel D. Godsil 40
The Indignities of Color Blindness Elise C. Boddie 64
The Misuse of Asian Americans in the Affirmative Action Debate Nancy Leong 90
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FAN 110 (First Amendment News) Steve Shapiro to Step Down as ACLU’s Legal Director

Civil liberties without Steve Shapiro is like the Rolling Stones without Jagger. — Kathleen Sullivan

Steve Shapiro

          Steven Shapiro

He is a giant in his world, the world of civil liberties. For some two decades he has been the man at the helm of defending freedom on various fronts ranging from free speech to NSA surveillance and more, much more. His journey began 40 years ago as a staff counsel to the New York Civil Liberties Union.

He is Steven R. Shapiro.

Sometime this fall Shapiro will step down as the Legal Director of the American Civil Liberties Union. He has long been the one ultimately responsible for the ACLU’s entire legal program. Equally significant, Shapiro has been most closely involved with the ACLU’s Supreme Court docket. Ever since 1987, he helped to shape, edit, and occasionally write every ACLU brief to the Supreme Court.

  • Law Clerk (1975-1976 ) Judge J. Edward Lumbard, Court of Appeals, Second Circuit
  • J.D. (1975), Harvard Law School, magna cum laude.
  • B.A. (1972), Columbia College

Since 1995 Shapiro has served as an adjunct professor at Columbia Law School, where he has taught “Civil Liberties & the Response to Terrorism,” and “Free Speech and the Internet.”

 Shapiro is a member of the Board of Directors of Human Rights First and the Policy Committee of Human Rights Watch, as well as the Advisory Committees of the U.S. Program and Asia Program of Human Rights Watch.

Steven Shapiro, “The Roberts Court and the Future of Civil Liberties,” Houston Law Center, April 20, 2012

Natalie Singer, “Freedom Fighter, A conversation with Steven R. Shapiro ’75

SCOTUSblog on Camera: Steven R. Shapiro (complete six-part series here)

The Measure of the Man: What Others Say

I invited a few of those who know Steve Shapiro and are familiar with his work to offer a few comments. Before proceeding to their full comments, I selected a set of words drawn from them that capture the measure of the man: Here are those seven words:

“thoughtful” 

“principled”

 “unflappable”

 “effective” 

“remarkable” 

“honest”

“extraordinary”

Nadine Strossen: “Steve Shapiro has been a supremely thoughtful, lucid, persuasive advocate of First Amendment rights and other civil liberties, both orally and in writing. Whether he is serving as Counsel of Record on a Supreme Court brief or giving a sound-bite for the national media, he always presents even the most complex, controversial positions clearly, colorfully, and compellingly.”

EVAN E. PARKER/ THE TIMES Steven Shapiro, legal director of the American Civil Liberties Union, speaks Thursday at Valparaiso University's School of Law about the legal aspects of the United States Patriot Act.

   [credit: Evan E. Parker/ The Times]

Robert Corn-Revere: “Through his long career in defending civil liberties, and First Amendment rights in particular, Steve Shapiro demonstrated that protecting individual rights often requires championing the right to express ideas you abhor, but that doing so is necessary to protect basic freedoms. For those of us who had the privilege of working with him, his principled advocacy will be greatly missed.”

Burt Neuborne: “Steve Shapiro set the standard for all once and future ACLU Legal Directors. I know because I didn’t reach his standard. Steve has a precise and uncannily quick analytic mind that breaks complex fact patterns down into controllable issues, together with a keen strategic sense that accurately separates a good academic argument from an argument having a chance in the real world. Couple Steve’s extraordinary legal ability with his careful approach to administration, unflappable good humor, patience, and deeply principled commitment to the ACLU, and you have the key to his enormous success. He leaves office with the respect and affection of hundreds of lawyers whose work he aided, and with the knowledge that he performed one of the nation’s most important legal tasks with brilliance and humanity.”

Erwin Chemerinsky: “Steve Shapiro has done a truly spectacular job as Legal Director of the ACLU. The ACLU legal staff has grown tremendously and likewise benefitted greatly under his leadership and has made a huge difference in so many areas of law. He has been especially effective in directing the ACLU’s presence in the Supreme Court.”

Kathleen Sullivan: “Over his remarkable tenure Steve’s energy, intellect, and suppleness enabled the ACLU to navigate profound changes in the landscape of security, privacy, and freedom. It has always been a joy to work with him.”

Paul M. Smith: “It has been my privilege and pleasure to work with Steve Shapiro on a large number of projects over the years. For a quarter century, he has been on the job at the ACLU displaying a breadth of knowledge and a depth of wisdom that has been extraordinary.”

Arthur Spitzer: “At a recent ACLU Nationwide Staff Conference where Steve Shapiro’s forthcoming retirement was announced, the event planners handed out cardboard fans that said, ‘We’re all fans of Steve.’ The humor may not have been brilliantly original, but I think no one disagreed with the sentiment. Steve is a terrific lawyer, often seeing the deep problems in a case before anyone else and then seeing the way around them. But I think his even greater value to the ACLU has been his ability to be an honest broker among all the competing viewpoints within the ACLU. As far as I’ve been able to perceive (although from afar, at the local affiliate in DC), everyone feels that Steve understands and appreciates his or her concerns, weighs them fairly, and takes them into account, even if not ultimately agreeing. That will be a hard act to follow.”

UnknownOne Measure of His Work: Free Expression Cases

Below is a list of all the free speech cases (not all First Amendment cases) in the Supreme Court where the ACLU filed or signed onto a brief in the last ten terms. The direct cases are marked by an asterisk; all the others are amicus briefs.

2014 Term:

2013 Term:

2012 Term:

2011 Term:

2010 Term:

2009 Term:

2008 Term:

2006 Term:

2005 Term:

____________

Court Denies Review in Sign Case Read More

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FAN 107.2 (First Amendment Law) Hasen on the Next Big Campaign Finance Case

James Bopp, Jr.

James Bopp, Jr.

The case is Republican Party of Louisiana, et al. v. FECAs noted on the Federal Election Commission’s website: “On August 3, 2015, the Republican Party of Louisiana, the Jefferson Parish Republican Parish Executive Committee and the Orleans Parish Republican Executive Committee (collectively, plaintiffs) filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of portions of the Federal Election Campaign Act that specify how state and local parties must finance and disclose certain ‘federal election activity’ that they plan to engage in, including fundraising costs for such activity. They argue that the provisions are unconstitutional under the First Amendment because they burden the plaintifffs’ ‘core political speech and association’ and that there is no sufficiently ‘cognizable’ governmental interest justifying the challenged provisions.”

Prof. Richard Hasen

Prof. Richard Hasen

The case is now before a three-judge court with James Bopp arguing on behalf of the Republican Party of Louisiana. Recall that Mr. Bopp was the one who played a major role in orchestrating the litigation around such campaign finance cases as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014).

As Professor Richard Hasen sees it, the Republican Party of Louisiana case could prove to be a major moment in the ongoing battle over campaign finance laws and the First Amendment. Writing in The Atlantic, Professor Hasen notes:

“The three-judge court is unlikely to overturn the soft-money ban. It has to follow the Supreme Court precedent set in a 2003 case, McConnell v. FEC, which specifically upheld the prohibition. But thanks to a quirk in the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.”

“If the Supreme Court still has a vacancy when the soft-money case arrives,” adds Hasen, “that means the lower-court ruling could stand on a 4-4 split. But even if that happens, there will be other cases waiting in the wings. Eventually, when the Court has its full complement of justices, it will face a fundamental decision: Should it embrace the vision of Justice Scalia, in which the Court holds that the First Amendment does not allow meaningful limits on money in politics?”

Related Documents

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FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)

Abstract

51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

Unknown-1

Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment Read More

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FAN 102.3 (First Amendment News) Court Denies Review in Campaign Finance Case

Today the Court issued its orders list in which the Justices declined to hear the case of Justice v. Hoseman.

The issue in the case was whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.

The cert. petition was filed by the Institute for Justice with Paul Avelar as counsel of record for the Petitioners.

The Center for Competitive Politics (Allen Dickerson), the Cato Institute (Ilya Shapiro), and the Independence Institute filed an amicus brief on behalf of the Petitioners.

* * * *

The Court also denied review in a First Amendment related caseStackhouse v. Colorado (see below)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Justice v. Hosemann 
  2. Electronic Arts, Inc. v. Davis
  3. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Town of Mocksville v. Hunter
  6. Miller v. Federal Election Commission
  7. Sun-Times Media, LLC v. Dahlstrom
  8. Rubin v. Padilla
  9. Hines v. Alldredge
  10. Yamada v. Snipes
  11. Center for Competitive Politics v. Harris
  12. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims):  Cert. denied

Freedom of Information Case

 The Court’s next Conference is on April 15, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

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FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

* * * * 

Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

* *  *

A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

* *  *

Commentaries 

Georgetown Appellate Litigation Clinic Files Brief in 1-A Retaliation Case  Read More

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FAC 6 (First Amendment Conversations) The Law & Politics of Money: A Q & A with Professor Richard Hasen – Part II

This is Part II of my interview with Professor Richard Hasen concerning his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, 2016) (cloth: $32.50, 256 pp.). Part I of my first interview appears here.

 A hyperlinked list of previous FAC interviews can be found at the end of this Q&A.

First Amendment News (FAN 100) will return next Wednesday.

____________________

Is Compromise Possible?

{99A7FD02-1A3C-40A1-888E-748696B03D3B}Img400Collins: “Any set of limits and rules” on campaign funding, you have written, “must be careful not to squelch too much political speech and competition.” To that end, in your book you propose a compromise:

“An individual or entity may contribute, spend from one’s own personal or general treasury, or both, no more $25,000 in each federal election on election-related express advocacy or electioneering communications supporting or opposing candidates for that election. Such limits shall not apply to the press, to political committees that solely spend contributions received from others, or to money contributed or spent in a voluntary government-created public finance program. An individual also cannot contribute and/or spend more than $500,000 total on all federal election activity in a two-year election cycle.”

In light of your “brief formula,” permit me to make a comment and then ask but three questions, the kind that would be raised time-and-again by election-law lawyers who make it their business to circumvent such rules:

Comment: Since you equate the spending of electoral monies with speech, your formula seems like another way of saying that the Government may dictate when a citizen may or may not speak during an election. Is that a fair statement? If so, how does it square with the command that “Congress shall make no law”?

  1. Would your proposed law apply to an “entity” that created 20 other entities, say non-profit corporations, and then gave them each $500,000 to be spent during a two-year federal election period? Presumably, the $500,000 cap would not bar this since it applies to an “individual.”
  1. Do “electioneering communications” as you understand those terms include books, including e-books?
  1. Would your proposed rule bar a Rupert Murdoch or George Soros from starting a “Save America” TV cable station, the purpose of which was to advance certain political candidates and causes? Presumably it would not bar this since your limits do “not apply to the ” True?

Hasen: I find the entire question whether “money is speech” to be an unhelpful way to think about the question. Money facilitates political speech, and we all agree that a law which would completely bar anyone from spending any money to support or oppose a candidate for office implicates the First Amendment.

Similarly, I find the use of the “Congress shall make no law” formulation also very unhelpful. Of course, it is no law abridging the freedom of speech, and we all agree that some laws which limit speech may be constitutional.

Consider, for example, a federal law that barred Canadian lawyer Benjamin Bluman from spending 50 cents at Kinkos to make flyers saying “Vote Obama” to distribute in Central Park. That’s a law some might say limits freedom of speech. Yet, as I quote in Plutocrats United, Floyd Abrams, Bradley Smith, and James Bopp (three leading First Amendment deregulationists) believe the federal ban on someone like Bluman spending a penny on election-related advertising is consistent with the First Amendment. I urge you to read the quotes on this point in the book, which show that, contrary to Citizens United, sometimes the identity of the speaker does matter for First Amendment purposes even to ardent opponents of regulation.

So let’s move beyond clichés about “no law” and “censorship” and “money is speech” and recognize that all of us believe that in certain circumstances the government has a compelling interest in limiting campaign spending. The question then is when and how.

  1. I should have stated this aspect of my proposal more clearly. We would need anti-circumvention rules that prevent the creation of shell corporations and other artificial entities for the purpose of getting around campaign limits.
  1. The term “electioneering communications” originates in the Bipartisan Campaign Reform Act (more commonly known as McCain-Feingold), and it applies only to certain television and radio ads broadcast close to an election featuring a candidate for office. My proposal would extend to those, as well as to Internet based advertising which is like television and radio ads, not e-books. This question, for the uninitiated, echoes a question Justice Alito asked at the oral argument the first time the Court heard Citizens United v. FEC. Justice Alito asked if Congress had the power to “ban” books. I discuss this question (and the right answers) in detail in my book.
  1. Of course they could set up a TV station. Think of Rupert Murdoch owning FOX News or Sheldon Adelson recently buying the Las Vegas Review Journal. And these entities get the press exemption, so long as they are bona fide press. I offer tests for how to figure out what the press is, especially in the social media age, in my book. One example I give is NRA News, which started out as a way of pushing the boundary on what counts as press. In the end, NRA News became a bona fide press entity.

The Power of PACs? Read More

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FAC 6 (First Amendment Conversations) The Law & Politics of Money: A Q & A with Richard Hasen – Part I

Professor Richard Hasen

Professor Richard Hasen

Richard Hasen is the Chancellor’s Professor of Law and Political Science at the University of California at Irvine. I am pleased to do FAC Q&A interview with him in connection with his new book:

Two of Professor Hasen’s previous books in this same area of study are:

  1. The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2013), and
  2. The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003).

{99A7FD02-1A3C-40A1-888E-748696B03D3B}Img400He has been writing in this field for over two decades (see 14 Cardozo L. Rev. 1311 (1993)). Today, Professor Hasen is one of as the nation’s leading authorities on election law and is the publisher of the much-noticed and highly regarded Election Law Blog. He is also the co-author of a leading election law casebook, author of a book on statutory interpretation, and author of numerous scholarly articles, including a review essay published in the Harvard Law Review.

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Collins: Thank you Rick for agreeing to do this interview and congratulations on the publication of your latest book, which is getting quite a lot of favorable attention, including a four-part video interview on SCOTUSblog.

Hasen: Ron, let me thank you for the opportunity to answer your questions and engage in this dialogue. It is too rare these days for there to be serious discussion on these contentious First Amendment issues. Even among academics, much of what we read on blogs etc. is little more than talking points.

NB: A hyperlinked list of previous FAC interviews can be found at the end of this Q&A.

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Can the System be Fixed? / Need it Be?

UnknownCollins: Four years ago you wrote: “Fixing Washington’s money problems may have to await widespread scandal, and fixing its broader problems likely will have to await a societal shift that alleviates the partisanship currently gripping national politics.” Do you still hold to that?

Hasen: I do stand by this statement. Even though many voters—Democrats, Republicans, and independents—believe that the Supreme Court’s decision in Citizens United v. FEC was wrong, and that more reasonable campaign finance laws are necessary, there is now a deep partisan divide on this issue among elites in Washington. More than ever, this is seen as a Democratic/Republican issue. As I argue in Plutocrats United, the John McCains of the Republican Party have gone silent on this issue, and the Mitch McConnells, who used to argue for no limits and full and instant disclosure, now argue even against effective disclosure.

I do expect that we will see continued attempts to improve campaign finance laws on the state and local levels, especially in those places with voter initiatives (which can bypass self-interested legislatures). Some of these laws may raise constitutional questions, which could lead a new progressive Supreme Court (if one arrives) to reconsider the First Amendment balancing in the campaign finance arena.

Collins: Does money translate to political power and advantage? Consider this news item (2-22-06) from the New York Times: “When Jeb Bush formally entered the presidential campaign in June, there was already more money behind him than every other Republican candidate combined. When he suspended his campaign on Saturday night in South Carolina, Mr. Bush had burned through the vast majority of that cash without winning a single state.” What do you make of this?

Hasen: I begin my book by urging progressives to reject facile campaign finance arguments such as “all politicians are corrupt” or money buys elections. A little while ago, I had a prebuttal to the Jeb Bush point in the Washington Post which pointed out that Money Can’t Buy Jeb Bush the White House, But It Still Skews Politics. I argued there:

“But this overly simplistic analysis misses the key role of money in contemporary American politics. In spite of the rhetoric of some campaign reformers, money doesn’t buy elections. Instead, it increases the odds of electoral victory and of getting one’s way on policies, tax breaks and government contracts. And the presidential race is the place we are least likely to see money’s effects. Looking to Congress and the states, though, we can see that the era of big money unleashed by the Supreme Court is hurtling us toward a plutocracy in which the people with the greatest economic power can wield great political power through campaign donations and lobbying….”

“And yet a single donor’s influence in presidential contests is tempered by other factors. With billions of dollars sloshing around on all sides, so much free media attention (especially to outlandish candidacies like Trump’s) and widespread public interest, mega-donors are only one part of a larger picture.”

“Money can matter more to the outcomes of congressional and state races because of relative scale. Millions of dollars spent in these contests can swamp the competition and help swing close elections, especially by influencing low-information voters. Merely the threat of such spending gets the attention of candidates, who worry about the next super PAC to line up against them.”

And there is more at stake here as I pointed out in my Washington Post piece:

“Even more significant, big money skews public policy in the direction of the wealthiest donors. In Illinois, a handful of the super-rich, including hedge-fund billionaire Kenneth C. Griffin, played a key role in getting Republican Bruce Rauner elected governor with an agenda to slash government spending, impose term limits and weaken employee unions. Hedge funds have used campaign to block a potential bankruptcy declaration by Puerto Rico that could help its people but hurt bondholders’ interests.”

“We’re supposed to be in a post-earmark era, yet Congress’s recent must-pass omnibus bill to fund the government was full of special interest deals backed by big spenders. The New York Times reported that “as congressional leaders were hastily braiding together a tax and spending bill of more than 2,000 pages, lobbyists swooped in to add 54 words that temporarily preserved a loophole sought by the hotel, restaurant and gambling industries, along with billionaire Wall Street investors, that allowed them to put real estate in trusts and avoid taxes.” Senate Minority Leader Harry Reid supported the language, and the company of one of Reid’s top donors admitted to being among those “involved in the discussions with congressional staff members.”

The Crisis of Liberalism Divided

Collins: As you well know, the campaign finance controversy has divided the liberal civil liberties community. In that regard, I understand that your aim in Plutocrats “is to start a dialogue among progressives.” Even if that dialogue might point to some common ground “among progressives,” there are still conservative Americans. What, if anything, is there in Plutocrats United for conservatives?

Hasen: There is a conservative case for campaign finance reform. I would point readers to Richard Painter’s new book, Taxation Only with Representation (2016). Painter was President George W. Bush’s ethics czar. My book has a different purpose: it is to talk among progressives and moderates about what the real problems of money in politics are and how to fix them. I say that the main problem is a system in which we allow ever increasing economic inequality to be translated into political inequalities, which distort our elections and politics. I then advocate conducting the First Amendment balance by considering not only anti-corruption arguments, but also political equality arguments, on the government interests side.

(credit: AP Photo-- J. Scott Applewhite)

(credit: AP Photo– J. Scott Applewhite)

Collins: The death of Justice Antonin Scalia has placed the entire nomination and confirmation process in bold ideological relief – and you have commented on the that very point. Mindful of that, Vice President Joseph Biden has suggested that the President nominate a “centrist.” In that regard,

  1. would you consider someone like Justice Potter Stewart or Justice Lewis Powell to be such a “centrist,”
  2. and would you support such a nomination as a compromise of sorts?

Hasen:

  1. It is hard to evaluate how the equivalent of a Justice Stewart or Powell would decide things today. The fact is that on the current Supreme Court all of the conservatives have been appointed by Republican presidents and all the liberals by Democratic ones. It is not that these Justices are deciding cases to help their party. It is that they are chosen because of how they would be likely to vote given their jurisprudential commitments on issues each of the parties cares about the most. This is not how things were even a few years ago. So what would we mean by a “centrist” today? Some conservatives consider Justice Kennedy a centrist (or a vacillator). On election-related issues, Justice Kennedy was in the majority in both Citizens United and the 2013 Shelby County v. Holder case, striking down a key portion of the Voting Rights Act. So he is no centrist on issues I care about.
  2. No, I see the Supreme Court today as essentially a political institution and the battle over confirmation essentially a political one. Why should the Left include a compromise candidate, especially when there is no reason to believe the Right would do so? The compromise I support would be to eliminate life tenure, and to move to 18-year non-renewable terms. This would ensure orderly turnover and that over time the Court reflects more of the public’s views on these issues. It is an idea supported by strong conservatives such as the Federalist Society’s Steven Calabresi.
Professor Lawrence Lessig

Professor Lawrence Lessig

Collins: Professor Lawrence Lessig took issue with you for discounting corruption (see here) as a viable reason for squelching First Amendment rights in the context of campaign financing. He writes: “I have had the pleasure of reading [Professor Hasen’s] . . . Plutocrats United, a book that will certainly mark him as the dean of this field—I think that he has presented us with a false dichotomy. It is not either corruption or equality. It is both. Our current system for funding campaigns is corrupt, but it is corrupt precisely because it violates a certain kind of equality. The violation is not an equality of speech, but an equality of citizenship. . . . We should not, as scholars, be fighting about which flaw our Republic reveals — inequality or corruption. We should be united — let us say, not citizens or plutocrats, but scholars, united—in the view that our Republic is both unequal and corrupt.”

Is Lessig right? Is there some troublesome division in the progressive ranks here? Is this a case of Progressives Disunited?

Hasen: I love the “Progressive Disunited” label! (Isn’t that always true?) I don’t think there is a large gap between Larry and me anymore. We went back and forth on what the problem is with money in politics in law reviews and blog posts, and in the end I think what is left is primarily a semantic difference. There is much value for an activist to labeling reform in anticorruption terms. Larry is an activist and wants to harness voter anger on this issue. I’m not. But in the end, we both think that the problem is that those with the greatest economic power are able to translate that power into political power, by influencing both who is taken seriously as a candidate for election, and by influencing the public policy that our elected officials pursue.

→ This FAN 6 Q&A will continue tomorrow with Part II.←  

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Previous First Amendment Conversations

FAC #1: Larry Tribe on Free Expression

FAC #2Bruce Johnson on Press Access to Prisons

FAC #3Martin Redish on Free Speech, the Roberts Court, & the Liberal Academy

FAC #4Steve Shiffrin, the Dissenter at the First Amendment Table

FAC #5Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book

Other Interviews 

  1. On Legal Scholarship: Questions for Judge Harry T. Edwards (Journal of Legal Education)
  2. The Complete Posner on Posner Series
  3. Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky
  4. Ask the author: Chief Judge Katzmann on statutory interpretation*
  5. Ask the author: Garrett Epps on clashing visions on the Court*
  6. Ask the author: Three decades of Court watching – a political scientist’s take on the Court*
  7. Ask the authors: Conflict in the Court — an inside look at New York Times v. Sullivan and its progeny*
  8. Ask the author: Floyd Abrams & his fighting faith*
  9. Ask the author: Marcia Coyle on the Roberts Court*
  10. Ask the author: Kathryn Watts on the workings of the Supreme Court*
  11. Ask the author: Alex Wohl on Tom and Ramsey Clark and the Constitution*
  12. Ask the author: Jeffrey Toobin on The Oath*

* Published on SCOTUSblog

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FAN 98 (First Amendment News) The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive?

Justice Scalia’s passing is a huge eventIlya Shapiro

America today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. — George Will 

It might be that . . . determined campaign finance reformers like me just got the opening [we] need. — Richard Hasen

Last week I listed Justice Antonin Scalia’s First Amendment free-expression opinions — majority, concurring, and dissenting. In light of the Justice’s passing, renewed attention is certain to focus on those First Amendment rulings in which the Roberts Court was divided by a 5-4 margin and in which Justice Scalia cast the deciding vote. Below is a list of the Court’s 5-4 rulings in which Justice Scalia was in the majority:

  1. Garcetti v. Ceballos (2006)
  2. E.C. v. Wisconsin Right to Life, Inc. (2007)
  3. Morse et al. v. Frederick (2007)
  4. Davis v. Federal Election Commission (2008)
  5. Citizens United v. Federal Election Commission (2010)
  6. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
  7. Harris v. Quinn (2014)
  8. McCutcheon v. Federal Election Commission (2014)

Hence, depending on the future makeup of the Court, the following categories of speech cases could be in doctrinal flux: government employee speech, student speech and various forms of campaign finance speech.

Though Holder v. Humanitarian Law Project (2010) was a 6-3 ruling (with Justice Scalia in the majority), Justice Stevens joined the conservative bloc. Since then he has been replaced by Justice Elena Kagan. If Justice Kagan were to join the dissenters in the case (Justices Ginsburg, Breyer & Sotomayor), that would leave a 4-4 split. Here, too, a new Justice could tilt the outcome in a future case.

The Public Employees Union-Fee Case & the Future of Abood

And then there is Friedrichs v. California Teachers Association, et al., which was argued last month. Recall the two issues raised in that case:

  1. Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and
  2. Whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
Justice Scalia

Justice Antonin Scalia

After oral arguments in the case, Adam Liptak noted that the “Supreme Court seemed poised on . . . to deliver a severe blow to organized labor. . . . [T]he court’s conservative majority seemed ready to say that forcing public workers to support unions they have declined to join violates the First Amendment. . . . The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile” during oral arguments in Friedrichs:

Here are some of Justice Scalia’s comments from those oral arguments:

  • “Mr. Carvin, is ­­ is it okay to force somebody to contribute to a cause that he does believe in?”
  • “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”
  • “Why do you think that the union would survive without these ­­ these fees charged to nonmembers of the union? Federal employee unions do not charge agency fees to nonmembers, and they to survive; indeed, they prosper. Why ­­ why is California different?”

In light of the likely 4-4 divide on the Court following Justice Scalia’s death, Friedrichs may either be summarily affirmed on rescheduled for oral argument at some unknown date.

The Future of the Roberts Court’s Campaign Finance Rulings

Professor Richard Hasen

Professor Richard Hasen

Writing in Politico, Professor Richard Hasen noted that “[a] lmost all of the important campaign finance decisions for a generation have been decided by a 5-4 majority on the Supreme Court. In some periods, the Court has been narrowly in favor of limits. More recently, the pendulum has swung to an absolutist view of the First Amendment, which sees most limits on money in politics as obstructions of free speech and thus unconstitutional.”

“His opposition to limits began in 1990,”Hasen continued,” when Scalia dissented from a Supreme Court decisionAustin v. Michigan Chamber of Commerce, allowing limits on how corporations can spend money in elections. He called the decision requiring corporations to use a political action committee for election ads “Orwellian,” and for the next 25 years he dissented and fought against Supreme Court decisions that allowed sensible limits on money in politics. Scalia finally got his way in the 2010 Citizens United case, which overturned Austin in a 5-4 decision and ushered in our current era . . .”

→ In another post, Professor Hasen also notes that “[o]ne of the first ways that Justice Scalia’s absence will be felt in Court decisions is on emergency motions and stay request which make its way to the Supreme Court on an expedited basis, what Prof. Will Baude calls the Supreme court’s ‘shadow docket.‘”

Student Speech After Morse v. Frederick

Greg Lukianoff

Greg Lukianoff

Shortly after the Court handed down its 5-4 ruling in Morse v. Frederick (2007), FIRE’s Greg Lukianoff wrote: “Even days after the opinion was handed down, it is difficult to know where to begin in dissecting the potential harm of the Morse v. Frederick opinion. One thing is clear to me, however: there is a word missing from the opinion that could have helped re-focus and clarify the case and might have helped convince the Court to avoid its risky adventure into new viewpoint-based restrictions on speech. That word is ‘joke.'” (June 29, 2017)

In light of Justice Scalia’s passing, Lukianoff has now “come to believe that even if it were decided last week, ​Fredrick would have prevailed on his free speech claim (not the QI claim, though) if only because of Robert’s evolution on freedom of speech. But now with Justice Scalia gone, I tend to think a future Court would simply ignore the opinion and if a case like it came up again they would be inclined to take the strong free speech position. But that, of course, depends on who replaces Scalia.”

Quote of the Month: Jeb Bush on Citizens United  

Despite being backed by the monumental Right to Rise super PAC, Jeb Bush said Monday he would “eliminate” the Supreme Court decision that paved the way for super PACs.”If I could do it all again I’d eliminate the Supreme Court ruling” Citizens United, Bush told CNN’s Dana Bash. “This is a ridiculous system we have now where you have campaigns that struggle to raise money directly and they can’t be held accountable for the spending of the super PAC that’s their affiliate.” — CNN, Feb. 8, 2016

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