Category: Feminism and Gender

FAN 200 (First Amendment News) Special 200th Issue: 15 Women & Their Views on Free Speech

To commemorate the 200th issue of First Amendment News, I invited women from various professions (lawyers, law professors, and a journalism professor) to draft original essays on any aspect of free speech law. Why only women? Fair question. My answer has to do with the fact, as I perceive it, that by-and-large those who receive the most attention in the First Amendment arena are men. I leave it to others to explain if and why that might be so — some of the contributors to this symposium do just that. However that may be, of this I can say with a good measure of certainty: the essays that follow are diverse, thoughtful, somtimes provocative, original, and often mind-opening.  I extend my thanks to the 15 contributors for their sympsoium essays and to Kellye Testy for kindly agreeing to write the Foreword.   → Related: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018 (Aug. 7, 2018)       → With this issue First Amendment News ends its long and rewarding affiliation with Concurring Opinions. I want to thank my colleagues here for their valuable and generous support. I especially want to thank Professor Dan Solove who years ago dared to invite me to be a part of his team. Happily, Dan and his colleagues have agreed to allow me to continue to contribute to Concurring Opinions. Starting sometime in October, FAN’s new host will be the Foundation for Individual Rights in Education (FIRE). Among other things, you can expect more news along with a variety of digital improvements. From time to time, FAN will also host or co-host live and online symposia and may even conduct a study or two. One thing will, however, remain constant: my commitment to being a fair broker of content. So stay tuned — some of the best is yet to come. — RKLC     _______Symposium_______ Foreword Kellye Testy, “Prior Restraint: Women’s Voices and the First Amendment” 15 Contributors   Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder” Mary Anne Franks, “The Free Speech Fraternity” Sarah C. Haan, “Facebook and the Identity Business” Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech” Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’” Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place” Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories” Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency” Helen Norton, “Taking Listeners’ First Amendment Interests Seriously” Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra” Ruthann Robson, “The Cyber Company Town” Kelli Sager& Selina MacLaren, “First Amendment Rights of Access” Sonja West, “President Trump and the Press Clause: A Cautionary Tale”

FAN 200 (First Amendment News) Mary Anne Franks, “The Free Speech Fraternity”

FAN 200 (First Amendment News) Mary Anne Franks, “The Free Speech Fraternity”

Mary Anne Franks is a professor at the University of Miami School of Law. She is  the President and Legislative and Tech Policy Director of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination. Professor Franks authored the first model criminal statute on a practice often referred to as “revenge porn,” the unauthorized disclosure of private, sexually explicit images. _______________________________ “…who will stand against Tyranny and who will stand for free speech?  We’re all Alex Jones now.” – Alex Jones If there is one case widely considered to illustrate the American commitment to free speech, it is that of the neo-Nazis in Skokie. In 1978, a federal appellate court ruled that the First Amendment required the town of Skokie, where one in six residents was either a Holocaust survivor or related to one, to allow members of the National Socialist Party of America (NSPA) to march through its streets. Most people familiar with the story know that the neo-Nazi marchers planned to wear Nazi-style uniforms and display swastikas during their demonstration. A lesser-known detail is that they also planned to carry placards bearing various slogans, including “Free Speech for the White Man.” The sign was a crude provocation, but it was also an apt description of the state of free speech in the United States, and not only in 1976. Since the First Amendment was enacted in 1791 and continuing into the present day, the theory and practice of free speech has been dominated by white men. The First Amendment, like the rest of the Constitution and the Bill of Rights, was written and enacted by a group of white men who deliberately excluded all women and people of color from participation in the political process. The body tasked with its ultimate interpretation, the Supreme Court, was composed entirely of men until 1981 (exclusively of white men until 1967). To put that in perspective, of the 113 Supreme Court Justices that have served in its 228-year history, all but six have been white men. Of the 500 or so cases that the Supreme Court has heard involving the First Amendment and free speech, all but about 60 were brought by men and all but 38 were litigated by men. From the Catholic Church to Hollywood, from Silicon Valley to the White House, it has become painfully clear that male-dominated institutions and industries are rife with bias, abuse, exploitation, and corruption. White men’s outsized influence over the creation, interpretation, and application of First Amendment doctrine and practice calls for its own reckoning: an accounting of the harms it has inflicted and a reorientation of free speech priorities. The free speech questions of our time should focus on how traditional interpretations of the First Amendment have served to silence vulnerable populations and undermine democracy. Among those questions should be how more than two centuries of professed commitment to freedom of speech have co-existed with the systematic censorship of half of the American population — women. At the time the First Amendment was written, the...

FAN 200 (First Amendment News) Kellye Testy, Foreword:  Prior Restraint: Women’s Voices and the First Amendment

FAN 200 (First Amendment News) Kellye Testy, Foreword: Prior Restraint: Women’s Voices and the First Amendment

Kellye Testy was the first woman to lead the University of Washington School of Law, serving as dean from 2009-17. From 2004-09 she was the dean of Seattle University School of Law (and its first female dean as well). In 2016, Dean Testy was president of the Association of American Law Schools (AALS). She now serves as the president and CEO of the Law School Admission Council (LSAC). _______________________________ Kelly Testy Like other terms in law, the meaning of the First Amendment springs from many sources – the intent and language of the drafters, those originally called upon to interpret it, and then others who have explained it since. Drafters, lawmakers, lawyers, judges, scholars, and activists, too, have all, in one way or another, added to the bounty that has produced the jurisprudence of the First Amendment. While Mr. Madison’s constitutional handiwork gave rise to an enormous number of cases, controversies, and critiques, substantially all of those came to be seen as largely, if not exclusively, the work of men. Just consult any list of First Amendment greats, or any summary of First Amendment history (even wiki), and what are you likely to find?  Lists and pictures of (typically white) men. Why is this so? Is it because women were excluded from the interpretive mix? To a large extent, yes. After all, Mr. Madison did not share the drafting table or parlor room debates with women. So much for women and originalism. Much the same holds true for judges from the time of Holmes and Brandeis through that of Black and Brennan. Women were admitted to law schools in very small numbers until the mid-1970s, which limited (and continues to limit) women’s influence in law. Professor Catharine MacKinnon  (credit: Charlie Rose) And what of First Amendment scholars? Here, too, sex discrimination has restrained women’s voices in many ways, from hiring practices to course assignments, to what “counts” as First Amendment scholarship. To take one example, consider Catharine MacKinnon’s significant critique of protecting pornography as speech under the First Amendment. Whether we agree with her viewpoint or not, her argument about the First Amendment was influential and creative. Yet, her work is more likely to be seen as about “pornography” or “sex discrimination” than about the First Amendment.     Olive Rabe (credit: Marty Caivano) A final point about the possible reasons for the relative lack of women’s visibility in First Amendment jurisprudence bears note. We may often be more eager to protect freedoms and rights that we feel we have and enjoy using. Put simply, men who have had “free speech” want to keep speaking. But women’s speech has been restrained, both as a matter of formal law and of social practices, including violence. Much of women’s energy has had to be directed to gaining the right to speak and, then, to finding one’s voice. To again reference Professor MacKinnon’s work:  “Take your foot off our necks, then we will hear in what tongue women speak.” More and more, we do hear women speak – at least some women. Women’s access to speech (and being...

Nation’s only History Book Festival returns to Lewes, DE — Sept. 28th & 29th

I had the great privilege of presenting at the 2017 History Book Festival. It was an absolute delight. The organizers and hosts were extraordinarily hospitable, the events were well attended and lively, the audience was bubbling over with questions. Overall, it was a terrific and memorable experience. Great start! And, to top it off, the town of Lewes is lovely. — Geoffrey Stone, Sex & the Constitution: Sex, Religion, & Law from America’s Origins to the Twenty-First Century (2017) ___________________________________________ The nation’s only History Book Festival returns to Lewes, DE., for its second year. History Book Festival Speakers Friday Sept. 28th & Saturday Sept. 29th KEYNOTE (Friday Evening Sept. 28th / tickets here)  — Blanche Wiesen Cook  Eleanor Roosevet: The War Years & After, 1939-1962 (vol. 3) → Interviewed by Paul Sparrow, Director of the FDR Library → Musical accompaniment by David Cieri, composer for the Ken Burns documentary on FDR _________________Saturday Sept. 29th_________________ — Lighting the Fires of Freedom: African American Women in the Civil Rights Movement by Janet Dewart Bell  — Young Benjamin Franklin: The Birth of Ingenuity by Nick Bunker — The Comeback: Greg LeMond, the True King of American Cycling, and a Legendary Tour de France by Daniel de Visé — Valley Forge by Bob Drury and Tom Clavin, — Dinner in Camelot: The Night America’s Greatest Scientists, Writers, and Scholars Partied at the Kennedy White House by Joseph A. Esposito — Tinderbox: The Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation by Robert W. Fieseler, — The Royal Art of Poison: Filthy Palaces, Fatal Cosmetic, Deadly Medicine, and Murder Most Foul by Eleanor Herman — The Lost Locket of Lewes (children’s historical fiction) by Ilona E. Holland, Ed.D — Damnation Island: Poor, Sick, Mad, and Criminal in 19th-Century New York by Stacy Horn — Kosher USA: How Coke Became Kosher and Other Tales of Modern Food by Roger Horowitz — The Hunger (historical fiction), by Alma Katsu — The Kennedy Debutante (historical fiction) by Kerri Maher  — The Widows of Malabar Hill (historical fiction) by Sujata Massey  — Five for Freedom: The African American Soldiers in John Brown’s Army by Eugene L. Meyer — The Rise of Yeast: How the Sugar Fungus Shaped Civilization by Nicholas P. Money — Inspector Oldfield and the Black Hand Society: America’s Original Gangsters and the U.S. Postal Detective Service Who Brought Them to Justice by William Oldfield and Victoria Bruce — Delaware’s John Dickinson: The Constant Watchman of Liberty  — Chesapeake Requiem: A Year with the Watermen of Vanishing Tangier Island by Earl Swift —Miles and Me by Quincy Troupe — Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock by Amy Werbel  — Not Our Kind (historical fiction) by Kitty Zeldis

FAN 199 (First Amendment News) SPECIAL ISSUE: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

It was a Friday, April 12, 1929, when Olive Rabe, counsel for the appellant, entered the old Senate chamber with its grayish walls. She walked down the red carpet toward the bench, took her assigned seat at a mahogany table, and waited for the justices to enter the small chamber from the robing room across the Capitol corridor. Only a few other women had done what she was about to do, argue a case before the Supreme Court — the first woman lawyer being Belva Ann Lockwood. (A couple of pro se women preceded her.) There in that solemn chamber, with Chief Justice William Howard Taft in the center flanked by Oliver Wendell Holmes Jr. and Louis Brandeis and their brethren, Rabe (age 40) would make the case for another woman, Rosika Schwimmer (age 51). She would be the first woman to argue a “free speech” case in the high court. For any number of reasons, it was a rare moment in Supreme Court history. — Ronald Collins & David Hudson (May 26, 2008) * * * * When it comes to the First Amendment, relatively little is known about the roles women played in the development of that body of law. While many may know of Justice Holmes’s oft-quoted free-speech dissent in U.S. v. Schwimmer (1929), how many are aware that Olive H. Rabe, a labor lawyer, represented the respondent in that case?  Schwimmer, however, was a free speech statutory interpretation case but not, strictly speaking, a First Amendment case. It would take another 24 years before a woman  (Florence Perlow Shientag) would argue a First Amendment free expression case —  Superior Films v. Dep’t of Education of Ohio (1953) (for respondent). Thereafter, it took  15 years before another woman would do likewise. That woman was Eleanor Holmes Norton, who successfully argued on behalf of the petitioner in Carroll v. President and Commissioners of Princess Ann (1968). Four years later Sophia H. Hall successfully argued on behalf of the appellant in Grayned v. City of Rockford (1972) (oral argument transcript here). The world was starting to change, but not fast or often enough.   The list below consists of 38 women who  argued 43 First Amendment freedom of expression (speech, press and assembly) cases before the Supreme Court between 1880 and 2018.  Since the data bases I consulted started in 1880, my list begins there and continues through the 2018 line of Supreme Court cases. The woman who argued the most such cases was Barbara D. Underwood (3 cases) followed by Patricia Millett (2 cases), Ann E. Beeson (2 cases), and Elena Kagan (2 cases). Pamela Karlan was the last woamn to argue a First Amendment free expression case — Lozman v. City of Riviera Beach, Florida  (2018). To the best of my knowledge, the list below is complete though given the difficulty of identifying the lawyers and cases, it might be that I overlooked someone — if so, please inform me and I’ll update the list. Related FAN 36: Forgotten Free Press Advocates — The Women Lawyers in NYT v. Sullivan (Oct. 15, 2014) _____________The 38...

New Op-ed by Donna Lenhoff: Major reforms needed to make the “Me Too Movement” viable

New Op-ed by Donna Lenhoff: Major reforms needed to make the “Me Too Movement” viable

Over the past few months, the #MeToo movement has exposed an epidemic of sexual harassment and retaliation in the workplace. But without substantial reforms to our legal system, that movement may be all for naught. So begins an important new op-ed in today’s Washington Post.  The piece is titled: The #MeToo movement will be in vain if we don’t make these changes. The author is Donna Lenhoff (more about her in a moment). This op-ed brings to the forefront legal issues central to the success of the “Me Too Movement.” “What has become all too clear,” writes Lenhoff, “is that [Title VII and the mechanisms for enforcing it] — designed decades ago to redress and deter harassment and retaliation — are woefully inadequate, for four significant reasons.” First, while the threat of large damages can be effective in getting management to take preventive action, under Title VII, pain-and-suffering and punitive damages combined are capped. . . “ “Second, many companies insist that harassment settlements be confidential. . . .” “Third, the agencies that enforce Title VII have never had the necessary resources . .  .” “Fourth, private litigation is quite rare considering the prevalence of workplace harassment. . . .” There is more, much more, but you’ll have to read the entire op-ed. Suffice it to say that Lenhoff’s no-nonsense brand of progressive thinking is needed if real change is to occur. Meanwhile, here is some info about Donna Lenhoff: Lenhoff has worked for strong enforcement of laws against workplace discrimination from both inside and outside the federal government.  She served as Senior Civil Rights Advisor in the U.S. Labor Department’s Office of Federal Contract Compliance Programs during the Obama Administration, where she was responsible for updating 35+-year-old sex-discrimination regulations.  As a staff attorney at the then-Women’s Legal Defense Fund, she was the first person to testify in Congress about sexual harassment.  She lobbied for EEOC Guidelines on harassment and oversaw women’s groups’ amicus briefs in every major Supreme Court case involving harassment from 1978 to 2000.  Lenhoff also lobbied for legislative changes to strengthen civil-rights and labor laws that help workers, including the 1991 Civil Rights Act, and led the coalition that advocated for the Family and Medical Leave Act of 1993. 

Stanley v. Illinois: Terminating A Rapist’s Paternal “Rights” in Maryland

Stanley v. Illinois: Terminating A Rapist’s Paternal “Rights” in Maryland

In my first two posts on the mixed legacy of Stanley v. Illinois, I discussed my preferred relationship approach, some background about the family, why I think some justices may have seen the case as involving racial as well as gender equality, and how I think that could have made a difference.  In this last post, I address one aspect of the negative legacy of Stanley:  the continuing vitality in state legislatures of the idea that paternal rights should be recognized in every man, including a man whose rape of the mother resulted in the child’s conception. Let me give you a modern example to chew on.  This year, the Maryland legislature considered and refused to pass for the ninth time a bill to remove paternal rights of men when the child’s conception occurred as the result of a rape. Remember that this is 2017, and Stanley was decided 45 years ago.  During much of the intervening 45 years, usually as the result of legislation enacted by state legislatures after Stanley, marital and non-marital fathers have had the same rights as marital and non-marital mothers to the custody and guardianship of their children and to decide about a child’s adoption, regardless of whether the parent exhibited any commitment to care.  A number of states have limited those rights where the conception occurred as the result of a rape, but not all.  Even where the rights have been limited, however, the negative legacy of Stanley lingers.  I’ll demonstrate that point by a close examination of Maryland’s most recent failed attempt. Maryland’s legislation would have created a process to address the paternal rights of a man to a child whose conception was the result of the man’s rape of the mother.  Under the proposed legislation, the paternal rights of some of these men could be terminated.  If the rights were terminated, the man would be denied the opportunity to make claims of custody and guardianship of or access to his biological child. Bill with the same goal have been introduced and failed in each of the prior eight sessions of the legislature.  The bill failed this time after a conference committee did not resolve the differences between the bill passed by the Senate with the bill passed by the House.  The House bill went further in terms of allowing the termination of paternal rights.  It is the better example for my analysis since, in my view, even the House bill protects paternal rights in ways that disempower women without enhancing the care and well-being of children.  I think the bill may protect only a small number of mothers who want to protect themselves and their children from an ongoing relationship with the rapist. Under the House bill, a man’s paternal rights to a child conceived without the consent of the mother can be terminated if he is convicted of nonconsensual sexual conduct, which includes sexual assault on the mother in the first or second degree and incestuous intercourse with the mother.  In...

Stanley v. Illinois, Race and Gender

Stanley v. Illinois, Race and Gender

In yesterday’s post, I introduced the 45 year old case of Stanley v. Illinois, described what we know about the Stanley family, and introduced the idea that legal parenthood should be recognized only in parents who demonstrate a commitment of care for the child. Today, I turn to what why I think members of the Court may have believed the Stanley family was African-American and what that may have meant for the decision. If I am right that the Court could have seen the Stanley case as involving both gender equality and racial equality, there needs to be some reason to believe that at least some members of the Court would have viewed the Stanley family as African-American. I think that reason exists. When race is not mentioned in a society where European-Americans dominate the conversation, the observer usually assumes the parties to be white. That may or may not have been true when the justices looked at Peter Stanley, however. Think about the confounding parts of the story. For one thing, the Stanleys had children together but they weren’t married. The Stanley children were born in the 1950s and the 1960s when non-marital childbearing was much more common among African-American families than among white families. For another thing, Joan Stanley was probably employed for wages outside the home for enough time to qualify her children for survivor benefits. At the time, relatively few white women worked outside the home, but many African American women did. As it turns out, Peter and Joan Stanley were both European-American, a fact revealed by the 1940 Census and probably confirmed by Joan’s burial being handled by a white-owned funeral home. The Court had access to neither source of information. I think it justifiable to assume, therefore, that justices could have read the record to demonstrate that Joan Stanley is an African-American woman and Peter Stanley is an African-American man. How could the conclusion that the Stanleys are African-American influence justices to view the case differently from a case about European-American families? I think there are at least two ways the justices might have framed the case differently. Each framing has positive and negative aspects when it comes to deciding whether to recognize legal parenthood in a parent like Peter Stanley. First is the importance of the post-Civil War amendments to the Constitution. Professor Peggy Cooper Davis has examined how the Court could have seen the Stanley case in the context of centuries-old struggles of African-Americans for legal recognition of their family ties.  Professor Davis traces Stanley back to the post-Civil War amendments to the Constitution which were motivated, in part, by the arguments of slaves and of abolitionists about family ties. They argued that one of the worst abuses of slavery was the denial by slave-owners and the law to recognize the rights of slaves to marry and to have the legal rights of parenthood with respect to their children. Claims about family ties were amplified during the Civil War, when innumerable slaves...

Stanley v. Illinois and Rapist-“Fathers”

Stanley v. Illinois and Rapist-“Fathers”

I am delighted to return to Concurring Opinions as a guest contributor.  Many thanks to Solangel for her kind invitation. My posts this week are about the continuing influence of Stanley v. Illinois, 45 years after it was decided.  Stanley’s legacy is positive in terms of encouraging legal recognition of men as fathers to children for whom they provide care and commitment.  The legacy also includes, however, legal recognition of men as fathers in the absence of any involvement, much less care and commitment.  This part of the legacy contributes to the empowerment of men as parents at the expense, in some cases, of the empowerment of women as parents, an ironic result given the gender equality rhetoric of the decision. One example of the negative legacy is the ongoing controversy about whether a man should enjoy legal fatherhood when his rape of the mother resulted in her pregnancy.  Later, I’ll address that controversy in the context of the recent failure of corrective legislation in Maryland. In my view, the negative legacy of Stanley reflects unexamined and intersecting stereotypes not only about gender but also about race.  I argue that the Justices may have assumed, without evidence and without express acknowledgement, that the Stanley family was African-American.  If that speculation is correct, the court may have been pursuing what some justices saw as a racial justice agenda along with gender equality claims.  I will address in my next post where the agenda may have led the court. First, some background.  In 1972, the Supreme Court decided that Illinois was required to recognize Peter Stanley as a parent, even though he was not married to the mother of his children when she died.  Because Stanley, as an unmarried father, was the surviving parent, the state declared the younger Stanley children parent-less and wanted to take them into care.  According to the Court, the failure of the parents to marry was not equivalent to the evidence of neglect or abuse that would be required if the state wanted to take into care the children of a mother or a married father.  The Court concluded that unmarried fathers were entitled to recognition as parents and the same level of process accorded to all mothers and to married fathers before the state could take their children. In a concurring opinion that I wrote for Feminist Judgments a few years ago, I agree that Peter Stanley was entitled to parental recognition.  I argued that recognition should not arise solely from Stanley’s biological connection to the children, however.  Instead, Stanley’s entitlement should be based in the level of care and commitment he had demonstrated for his children. My concurrence reflects two strands of feminist thought.  First, many feminists emphasize that caring relationships should count for more in the law.  Second, many feminists agree that law needs to take stories into account to provide context and support reality-based law-making.  In particular, courts do a better job deciding cases when they see people’s relationships to one another as meaningful,...

The Meaning of Patriotism

The Meaning of Patriotism

Last fall, I began reading Hillbilly Elegy. I wanted to see how the author, J.D. Vance, would deal with the question of class. I was particularly interested to see if his experiences at Yale Law School were anything like mine. They were in one respect – we were both introduced to sparkling water at large law firms and couldn’t understand why anyone would drink the stuff. I finished reading the book after the election. Vance’s memoir is more an effort to deal with his dysfunctional upbringing than an explanation of the white working class’s electoral preferences. There are no more than a half dozen political comments in the volume. Before the election, I quickly glossed over them. After the election, the asides, however brief, rankled. The one to which I kept returning was his declaration that his people were “patriotic.” Yet, he gave the idea of patriotism no content. It made me reflect on my own upbringing. My working class family certainly thought of itself as patriotic. My father had fought in World War II and he identified strongly with that service. When we moved out to the suburbs, he bought a flagpole and mounted it in the center of our front yard, flying the flag every day the weather permitted. Beyond the flag, however, my parents’ patriotism had content that they frequently repeated. Most of the litany was “this is a great country because” and the most important because was that the country embraced us. All four of my grandparents had come from Italy around the turn of the twentieth century. My parents kept telling us as children that we would be “American.” For my brother and me, with our blue eyes, blond hair, and inability to speak any language other than English, this was a source of amusement. But we also understood that our parents meant that we were to embrace American values. The first of those values was the importance of education. Two of my four grandparents had been illiterate. My parents had been the first in their families to complete high school and they felt deprived of the opportunity to go further. They spent our childhood telling us that education was the American secret to success and that we must be prepared to seize the opportunities America offered. In Catholic school, the nuns also taught us about what it meant to be American. They prepared us to do battle with our perceived enemies – the Protestants, who we were told would challenge our faith. But we were also taught that we could be loyal Americans and good Catholics because of the separation of church and state. The need to separate private devotion from public leadership was central to our understanding of citizenship. We saw tolerance as the great American virtue, and learned that it was something we owed others if we were to demand it for ourselves. Next in my parents’ litany of “this is a great country” was their belief that the United States was...