Category: First Amendment

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FAN 99.6 (First Amendment News) Floyd Abrams on Campus Censorship (Then & Now) & Related Topics

On March 1, 2016, Floyd Abrams gave the Levitt Lecture at the University of Iowa School of Law. Below are a few excerpts from his remarks:

Floyd Abrams

Floyd Abrams

Years Ago: In London with Justice Scalia & Nadine Strossen (then President of the ACLU): “We started talking about some First Amendment cases, particularly Hill v. Colorado, a ruling affirming the constitutionality of significant limitations on speech in areas near facilities in which abortions were performed. All three of us agreed on how terrible the majority opinion of Justice Stevens was and how enlightened Justice Scalia’s dissent was. (In those days, although not more recently, the ACLU, which Nadine then headed, took a strong First Amendment stand against such laws.) Justice Scalia, one could tell, enjoyed the conversation, and at one point leaned back, drink in hand, cigar in mouth, and said ‘you know, I’m not really bad about the First Amendment.’”

Campus Censorship in the 1950s: Reading [about] examples [of censorship on college campuses today], I couldn’t help but compare them to the time when I entered Cornell University more — as you will undoubted be surprised to hear — than a few years ago. At that time, upon entrance into the university, all students were required to sign some sort of document agreeing that we could be suspended for saying just about anything on just about any topic of which the university disapproved. In fact, we were required to carry at all times some sort of identification card saying just that. And as I recall it, there really was very little controversial speech at all on campus — a real loss, I can say in retrospect — but very much the ethos of life in America on and off campus in the long ago 1950s.”

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Free Speech on College Campuses Today: “Just about a year ago, I gave a speech in Philadelphia at Temple University in which I maintained that the single greatest threat to freedom of speech in the country was on college campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, even disturbing. Nothing that has occurred in the last year has led me to change that view. Part of the problem stems from the behavior—misbehavior might be the better word–of college and university administrations. The indispensable organization called FIRE, which tracks the behavior of colleges and universities with respect to free speech on campus, has just published its list of the 10 worst colleges for free speech in 2016. I held my breath as I read it, wondering if your great university would make the list in time for me to comment on it in this talk.”

The New Censors: “[T]oday there are new censors who seek to place new limits on what may be said on campus. And I’m sorry to say they’re students. . . . Most campus activism in public universities is protected by First Amendment and is indispensable if society is to change for the better. But too often in recent days, students have overstepped the bounds of activism into demanding a sort of de facto censorship. And too often, those desires of those students are accommodated by all-too-compliant university administrators that are willing to bend to their demands rather than risk the turmoil or worse that could result in their not doing so.”

Mr. Trump & the First Amendment: “[I]t’s worth remembering that some of [Mr. Trump’s] rhetoric would not only be controversial in other democratic nations, as it certainly is here, but illegal. In Belgium, a member of Parliament was convicted of a crime for saying, ‘Stop the Islamification of Belgium’ and making similar statements. In England, a man was convicted for carrying a poster that said, ‘Islam out of Britain-Protect the British People.’ Whatever you think of more than one not dissimilar statement of Mr. Trump in this campaign – and, in case you’re interested, I think they are appalling – the First Amendment protects them.” (See also Abrams & Collins: “Confronting Trump — An American Debate Censorship Cannot Stop,” Concurring Opinions, Dec. 18, 2015).

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FAN 99.5 (First Amendment News) Execution secrecy bill passed by Mississippi Senate

Attorney General Jim Hood applauded the Mississippi Senate today for approving a measure intended to protect the safety of the individuals responsible for carrying out executions. Senate Bill No. 2237 would protect the identities of the state executioner and members of the execution team, and would also keep confidential the names of the local supplier or suppliers of lethal injection drugs located in the State of Mississippi. The bill was drafted by the Attorney General’s Office, and it is part of the Attorney General’s legislative agenda. — Office of Attorney General Tim Hood, March 1, 2016

Mississippi Senator Sean Tindell introduced Senate Bill No. 2237, which in relevant part provides

“The identities of all members of the execution team, a supplier of lethal injection chemicals, and the identities of those witnesses listed in Section 99-19-55(2) who attend as members of the victim’s or the condemned person’s immediate family shall at all times remain confidential, and the information is exempt from disclosure under the provisions of the Mississippi Public Records Act of 1983.”

Senator Sean Tindell

Senator Sean Tindell

“Notwithstanding any provision of law to the contrary, any portion of any record of any kind that could identify a person as being a current or former member of an execution team or a current or former supplier of lethal injection chemicals, or those witnesses listed in Section 99-19-55(2), shall be privileged and shall only be subject to discovery, subpoena, or other means of legal compulsion for disclosure by order of a court of competent jurisdiction, and the remainder of the record shall not be privileged or closed unless protected from disclosure by law.”

“A person may not knowingly disclose the identity of a current or former member of an execution team, a current or former supplier of lethal injection chemicals, or witness who wishes to remain confidential, or disclose any record of any kind knowing that it could identify a person as being a current or former member of an execution team, current or former supplier of lethal injection chemicals or confidential witness.  Any person whose identity is disclosed in violation of this section shall:

(a)  Have a civil cause of action against a person who violates this section;

(b)  Be entitled to recover from any such person:

(i)  Actual damages; and

(ii)  Punitive damages on a showing of a willful violation of this section. . . .”

The bill passed 32-18 and is currently being held in the Senate on a motion to reconsider.

Press Opposition

  • “‘If we’re going to be in the business of putting people to death, there needs to be as much openness as possible,’ said Layne Bruce, executive director of the Mississippi Press Association.”
  • “[G]overnment secrecy coupled with prior restraint — the gag of state censorship — is unacceptable. — Geoff Pender, Clarion Ledger
  • “If there is anything that should be completely transparent, it is everything related to the state’s taking the life of one of its citizens. [This bill] rightfully should send chills down the spine of every Mississippian who values the civil liberties guaranteed by a free and unfettered press. This is Mississippi, not the old Soviet Union, not some banana republic, and this cannot be allowed to stand.” — Ray Mosby, Deer Creek Pilot
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FAN 99.4 (First Amendment News) Reporters Committee, “The Justice & the First Amendment: Justice Scalia’s role in press freedom cases”

2016-winter-coverThe Winter 2016 issue of the The Reporters Committee for Freedom of the Press journal has just been posted. The contents of the issue are set out below.

Editors: Bruce D. Brown, Gregg P. Leslie & Debra Gersh Hernandez

Cover

— Ronald Collins, “When five became four: Justice Scalia’s contribution to the law of free speech

— Reporters Committee letter, “Six degrees of Antonin Scalia

Reporter’s Privilege

— Michael Lambert, “Stopping an end-run around the reporter’s privilege

Freedom of Information 

— Caitlin Vogus, “Private email, government business

Prior Restraints 

— Kevin Delaney, “Near at 85: A look back at the landmark decision

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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.

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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 99.3 (First Amendment News) Court Denies Review in Off-Campus Speech Case

Today the Court denied review in Bell v. Itawamba County School Board. The issue in the case was whether and to what extent a public high school, consistent with the First Amendment, may discipline students for their off-campus speech. In a divided en banc ruling, the Fifth Circuit denied the First Amendment claim.

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. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  2. Town of Mocksville v. Hunter
  3. Miller v. Federal Election Commission
  4. Sun-Times Media, LLC v. Dahlstrom
  5. Rubin v. Padilla
  6. Hines v. Alldredge
  7. Yamada v. Snipes
  8. Center for Competitive Politics v. Harris
  9. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Electronic Arts, Inc. v. Davis
  5. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

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)

Freedom of Information Case

 The Court’s next Conference is on March 4, 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 99.2 (First Amendment News) Trump on Libel Law & Freedom of the Press

Mr. Trum speaking at Texas rally

Mr. Trum speaking at Texas rally

Yesterday, Donald Trump spoke at a rally in Fort Worth, Texas. According to Politico, in the course of that rally he took aim at the New York Times and the Washington Post — those “dishonest” publications.  He then elaborated on what he planned to do to change the law of libel:

“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” (video clip here)

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From FAN 78 (Sept. 23, 2015):

Alan Garten, executive vice president & general counsel to The Trump Organization

Alan Garten, executive vice president & general counsel to The Trump Organization

Presidential candidate Donald Trump’s lawyer, Alan G. Garten, is helping his boss retaliate against the Club for Growth’s TV ads attacking Mr. Trump’s record on taxes. According to a New York Times story, Mr. Garten “sent a two-page letter to the group’s president, David McIntosh, accusing it of trying to damage Mr. Trump’s reputation by lying about his policies. The threat of litigation comes a week after the group started a $1 million advertising campaign that paints Mr. Trump as a disingenuous politician who intends to impose a huge tax increase if elected president.”

Here are some excerpts from Mr. Garten’s September 21, 2015 letter:

“Simply stated, your attack ad is not only completely disingenious, but replete with outright lies, false, defamatory and destructive statements and downright fabrications, which you fully know to be untrue, thereby exposing you and your so-called ‘club’ to liability for damages and other tortious harm. For example, while your Attack Ad blatantly misrepresents to the public that Mr. Trump ‘supports higher taxes,’ nothing could be further from the truth. To be clear, Mr. Trump’s tax plan, which is scheduled to be released later this wek, supports a lowering of taxes. . . .”

“In the interest of avoiding what will certainly be a costly litigation process, we are prepared to offer you the one-time opportunity to rectify this matter by providing us with your prompt written assusrances that (i) you have stopped running the Attack Ads; and (ii) you will not generate or disseminate any misleading or inaccurate information or make any factually baseless accusations you know to be untrue with respect to my client at any point in the future. In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused to my client’s interests as well as pursue all other remedies available to us at law or in equity. [ ¶ ] Please be guided accordingly.” [Video of Club for Growth ad here.]

* * *

Eugene Volokh, “Donald Trump says he’ll ‘open up libel laws’,The Volokh Conspiracy (Feb. 26, 2016)

Matea Gold, “Bush PAC attorney to Trump counsel: You may want to try learning election law,” Washington Post (Dec. 9, 2015)

FAN 78: “Alan Garten, Trump’s Lawyer, Threatens ‘Multi-million dollar’ Lawsuit for Attack Ads Against His Client” (Sept. 23, 2015)

Abrams & Collins, “Confronting Trump — An American Debate Censorship Cannot Stop” (Dec. 18, 2015)

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FAN 99.1 (First Amendment News) Scholars in the Sun — Free Speech Dialogue in the Desert

It was a glorious day for First Amendment scholars in the sun. The two-day event, titled “Speech Holes: A workshop on Free Speech Theory,” was hosted by the University of Arizona Law School. The event was the brainchild of Professors Derek and Jane Bambauer — and what a remarkable event it was, replete with a wide-range of good-spirited give-and-take views on an array of First Amendment topics.

Sabino Canyon Park, AZ

Sabino Canyon Park, AZ.  Top, Left to Right: Toni Massaro,Roy SpeceJack BalkinRon CollinsDavid SkoverDerek BambauerMargot KaminskiSeth Kremer // Bottom, Left to Right: Chris RobertsonJane BambauerHelen Norton, & Genevieve Lankier

stairway-to-heaven-1319562-m-720x340
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FAN 99 (First Amendment News) Welcome to the Marketplace of Ideologies — Where Ideas go to Die

One of the prerogatives of publishing First Amendment News is that I am free to express an editorial opinion from time to time. Thus the one that follows . . . along with some news items, of course. — RKLC

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One fact has come into bold relief following the death of Justice Antonin Scalia: Ours is a more a marketplace of ideologies than one of ideas. Let me say it again: Ours is a marketplace of ideologies. In this marketplace ideas do not count for much unless they can be tapped to further some political or religious ideology. So, too, facts are of no moment if they conflict with ideology. Even the constitutional process of governing can be put on hold if it cannot be squared with ideology. And the noble pursuit of truth must take a back seat to ideology. In all of this, conservatives and liberals alike push their respective ideologies into the marketplace. We are, after all, at war — a culture war (or a “kulturkampf” as Justice Scalia tagged in in Romer v. Evans).

→ I  D  E  O  L  O  G  Y ← 

Say goodbye to John Milton and his claims in Areopagitica (1644): “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

Farewell to Harold Laski’s hope expressed in Authority in the Modern State (1919): It “is in the clash of ideas that we shall find the means of truth. There is no other safeguard of progress.”

Au revoir to Holmes’s dissent in Abrams: “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

And adios to the “marketplace of ideas,” the one coined by Justice William O. Douglas in his concurrence in  United States v. Rumely (1953): “Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.”

Bunk, all bunk! And why? The answer is because too often we no longer trade in ideas when they conflict with our ideologies; too frequently we no longer concern ourselves with having our thoughts accepted in the competition of the market if those thoughts cannot serve our ideologies; and who, pray tell, gives a Holmesian hoot about truth when it cannot be squared with our ideologies?

Politicians make up facts; they deny truths; they evade tough questions; and they now say anything, no matter how bizarre or hypocritical, to appeal to our ideologies. While Supreme Court Justices are not yet entirely in that league, time and again their rulings in controversial cases cut along ideological lines. In that clash, ideas have value only insofar as they advance this or that ideological end.

So scrap the old Enlightenment ideal; forget the quest for Truth; discard all that Meiklejohnian idealism about free speech and an informed electorate; chuck all that aspirational Brennan-talk about the importance of the “unfettered interchange of ideas” as a way of “bringing about of political and social changes desired by the people”; and dump all that highfalutin free speech theory preached from the pulpits of the legal academy.

Can we speak frankly? Can we talk openly about what we all know privately? Can we bring some realism into the room? If so, perhaps we will stop conflating ideas with ideologies.

Dogmatism is ideology’s calling card. Where ideology reigns supreme, an open mind poses a clear and present danger to its stability. There is no trade in ideas with ideologues, there is only the demand that all opposing views surrender to the preferred creed.

Ideology is akin to groupthink, which is to say it does not involve individual thought. It is more a reaction than a reason, more influenced by opinion than fact, and more beholden to outcomes than premises. An idea is a thought whereas ideology is an orientation. The two are very different. Whereas an idea can be tested, an ideology cannot, if only because its measure is not truth. Ideology cares not about science or logic or history or facts unless they are harnessed in its name. I D E O L O G Y trumps all.

My fear: The idea of our faith in ideas has passed. We have abdicated; we have moved on; today we trade in the marketplace of ideologies — the very place where ideas go to die.

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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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