Category: First Amendment


Book Review: The National Security Presidency – A Primer with Provocation (Reviewing Denvir’s Freeing Speech: The Constitutional War Over National Security)

Freeing Speech: The Constitutional War Over National Security, by John Denvir. New York University Press, 2010, Pp. 189 pp., $45 (cloth).

If the volume of political dissent alone were the measure of a healthy democracy, then America has been thriving since 9/11.  The roaring avalanche of critical perspectives on the “war on terrorism”— propelled by thousands of books, law review and political journal essays, and newspaper and magazine articles – might suggest that the state of our political discourse and of the constitutional order that it supports is fundamentally sound.  Ironically, of course, this outpouring aims largely to prove the opposite: that unfounded claims of inherent executive authority to preserve national security imperil our free-speech system and tip the delicate balance of our tri-partite federal governmental powers.

To this resounding chorus of critique, John Denvir, the Research Professor of Constitutional Policy at the University of San Francisco School of Law, now adds his voice.  Freeing Speech introduces Denvir’s concept of a “National Security Presidency” (NSP), explores several interrelated factors that have given rise to the phenomenon, and suggests political and judicial reforms as counter-forces to the excesses of the NSP.  In all of this, Denvir hopes to contribute to a revitalization of democratic debate, a reanimation of political activism, a reaffirmation of constitutional safeguards – and, ultimately, to the reactivation of legislative and judicial checks on presidential overreaching in the name of national security.

Freeing Speech organizes its arguments by way of a triadic structure.  After an introduction that discusses competing notions of the term “constitution,” the first three chapters of the book address the “problem” – that is, the complex of policies, practices, and pressures that have enabled Executive claims of extraordinary powers in the realm of national security.  The final three chapters of the book then present the “solution” – that is, the reconfiguration of legislative and judicial responsibilities to secure the limitation of presidential power and the expansion of democratic discourse.  As Denvir succinctly puts it: “The primary problem is the president’s ability to dominate debate on national security; the solution is a First Amendment that makes sure that opposition voices are heard.”

The “Problem”

The most potent vision of the NSP, as Denvir outlines it in Chapter 1, holds that the Executive has an inherent and largely unchecked constitutional duty to protect American lives and interests.  Whether or not Congress sanctions his conduct either ex ante or ex post facto, the president may discharge his constitutional duty by acting on his own authority, given that time may be of the essence or secret information may not be disclosed.  Moreover, neither legislative mandates nor individual constitutional rights should stand in his way.  This NSP vision evolved through both Republican and Democratic administrations, beginning with Abraham Lincoln’s exercise of “emergency war powers” in the wake of the firing on Fort Sumter and continuing through the decades until its fullest blossoming in George W. Bush’s initiation of the current “war on terrorism.”  Assured by the Justice Department’s Office of Legal Counsel that Congress cannot “place any limits on the President’s determinations as to any terrorist threat, the amount of force to be used in response, or the method, timing, and nature of the response,” Bush claimed powers to singlehandedly terminate treaty obligations, to employ “aggressive” interrogation techniques on suspected terrorists, and to issue “signing statements” authorizing underenforcement of legislative provisions that infringed on his constitutional authority, among other actions.

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BRIGHT IDEAS: Collins on Justice Holmes and Free Speech

In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr.   Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.

Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books.  Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout.  Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment.  There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.

I recently had a chance to talk with Ron about the book.

SOLOVE: What inspired you to write this book?

COLLINS: Long story.  It began when I was in law school and read Holmes’s 1919 free speech opinions.  And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time.  This was in the 1970s when I was an impressionable law student.  Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book.  That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes.  True, he challenged my mind, and I like that sort of thing even when I disagree with someone.

SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?

COLLINS: There are so many things; Holmes was such a complex man.  Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions.  So, not much surprise there.  I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.

SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?

COLLINS: Hard call.  But here they are, in no special order:

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No For Sale Signs Allowed IV

With summer at an end, I have a final post about the ban on for sale signs in a Chicago suburb.  (You can read the others here, here and here.)  In this last post, I offer some observations about how community norms and identity play a role in perpetuating the ban.

In prior posts, I’ve written that many in the Village are unaware of how problematic the ordinance is under the First Amendment.  But some residents undoubtedly know, either because of their own familiarity with constitutional law or because the issue is occasionally raised in the opinion section of the local paper or on local blogs.  Political will to change the ordinance, however, seems close to non-existent. 

This lack of will may partly reflect the political reality within the Village.  The same political organization has been in control for more than thirty years and its candidates almost invariably support the Village’s integration policies, which include the ban.  Some residents probably also appreciate the aesthetic effects of the ordinance, because the lack of signage makes the Village prettier than it otherwise would be.  Other residents may feel that the issue doesn’t warrant action, either because they are already inclined to use a realtor to sell their house or because the inability to use a sign does not deter them from entering the for-sale-by-owner market.  I also suspect, however, that some residents who are aware of the constitutional issue would describe themselves as trading freedom of speech for integration. Read More


The Partisan Price of Judicial Elections

A major study of judicial elections released today reports that campaign spending in judicial elections doubled over the past decade and that “judicial elections are increasingly focusing not on competence and fairness but on promising results in the courtroom after election day.” The report was authored by the Justice at Stake Campaign, the Brennan Center for Justice, and the National Institute on Money in State Politics, with a foreword by Sandra Day O’Connor. It has already received extensive press coverage as the fall cycle begins to heat up.

My forthcoming article in N.Y.U. Law Review with my co-author Joanna Shepherd offers some important insights regarding the influence of campaign money on judicial decisions. Using a dataset of virtually every state supreme court decision in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions that they have received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with a statistically significant increase in the probability that the judges will vote for business litigants. Although Joanna and I study the period preceding this decade, from 1996 through 1998, our finding helps substantiate the concerns articulated by the Brennan Center report released today.

What is more, we find that this association between dollars and decisions disappears when we look at only retiring judges in their final term. Those judges, unburdened by campaign considerations for the future, seem not to decide in favor of their business contributors’ interests to the same degree. Although we offer only very tentative conclusions in this direction, this latter finding suggests that the association between dollars and decisions is the result of more than a mere selection effect in the election of judges, but instead hints at a potential biasing of incumbent judges by the expected need for campaign money in the future.

However, Joanna and I also find that holding nonpartisan elections, instead of partisan ones, seems to make a significant difference when it comes to the relationship between campaign contributions and later decisions. At least over our period of study, we find a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests only for judges elected in partisan elections, not nonpartisan ones. Numerous commentators have suggested that nonpartisan judicial elections are partisan in all but name, but our findings point to an important role of political parties in connecting campaign contributions to judicial decisions under partisan elections that appears not the same under nonpartisan ones. Of course, there are many reasons to choose between nonpartisan and partisan elections on other grounds, but when it comes to an uncomfortably tight relationship between campaign money and judicial decisions, our article concludes that nonpartisan elections likely present fewer concerns.

Rethinking Net Neutrality after the Verizon/Google Framework

There has been a lot of insightful commentary on the new Verizon/Google framework proposal; Marvin Ammori’s post is a good place to start. Here are my “two cents” on the larger implications of this move from business cooperation to lobbying alliance.

1) The companies’ CEOs have stated that, in their view, “A provider that offers a broadband Internet access service complying with [basic net neutrality] principles” should be able to “offer any other additional or differentiated services” free of net neutrality regulation. The key question here is the quality and cost of the “broadband Internet access service complying with [net neutrality] principles,” as compared with the “additional services” that can be offered without net neutrality. In the best case scenario, most people use the compliant service for most traffic, and run “additional services” on top of it in order to access special content/apps. Unfortunately, I think it’s far more likely that the net-neutrality-compliant service will gradually decline in quality, so that it’s vestigial (like public broadcasting) or a poor program for poor people (ala Medicaid).
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No For Sale Signs Allowed III

This third post about why a municipality’s ban on for sale signs persists more than 30 years after Linmark focuses on the role of real estate agents and the local realtor’s association. (You can read the prior posts here and here.)  These are the players best-positioned to legally challenge an ordinance that affects the sale of property.  Moreover, the use of signs by one agency would likely create pressure for others to use them, which might make the practice in the Village tip in favor of signs.

When I first began examining the Village’s ordinance, I hypothesized that real estate agents have a financial incentive to comply with the ordinance because the perceived inability to use a for sale sign makes selling by owner extraordinarily difficult.  I’ll begin with the economics of the ban, even though my research hasn’t been terribly revealing.  Then I’ll turn to the norms of the local real estate industry, to which my initial hypothesis did not attribute enough significance. Read More


Book Review: Barringer-Gordon’s The Spirit of the Law and Eisgruber and Sager’s Religious Freedom and the Constitution

Sarah Barringer-Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Belknap/Harvard University Press: Cambridge, 2010) pp. 316

Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution (Harvard University Press: Cambridge, 2010, Paperback) pp. 352

Everson v. Board of Education is one of the most important and well-known Supreme Court cases for two reasons. First, it finally incorporated the Establishment Clause to apply to both the states as well as the federal government and second, it ushered in Thomas Jefferson’s “wall of separation” metaphor into the jurisprudence of the Religion Clauses. Both of these developments are at the heart of the two books we have under consideration.

Sarah Gordon’s engaging new book, The Spirit of the Law, takes a look at the flesh-and-blood stories surrounding some of the cases that flooded the Supreme Court in the post-Everson period, or what the author calls the “new constitutional world.” Through five distinct but interwoven histories of people and groups which have shaped the ever-fluid contours of the constitutional law of religion, we are invited to view the present constitutional world through the struggles of those who fought to have the law protect the mandates of their respective faiths. These stories would not have been possible without the collapse of the old regime that was largely powered by state law.

As Gordon describes in the first few pages, there are three distinct constitutional landscapes in American history that is more or less reflected in the trajectory of the nation’s religious history. The first period covers the Founding up to more or less the middle of the nineteenth century while the second period covers mostly the period after the last state disestablishment up to the promulgation of Everson. Gordon situates the stories of the Mormons, the Salvation Army and the Jehovah’s Witnesses during this second period. Interestingly, this long nineteenth century also saw the rise of a moral establishment where, despite the earlier state disestablishments, laws and other social reform measures were undergirded by the notion that Christianity formed part of common law. State attempts to enforce their monopoly on adjudicating religious issues were met by the persistence and creativity of believers who sought to bring to life the promise of liberty embedded in the Religion Clauses.

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No For Sale Signs Allowed II

In a recent post I marveled that a particular Chicago suburb has no for sale signs, even though we are in the midst of the worst housing market in recent history.  The suburb has an ordinance banning for sale signs (you can read its text in the earlier post) and I wondered why the ban continued to have force even though the Supreme Court ruled that such ordinances were unconstitutional in the 1977 case Linmark Associates v. Willingboro.  Here’s what I speculated: 

Most residents assume that ordinances in the local statutory code are good law; that is, they perceive themselves as being legally prohibited from using a For Sale sign.  Those residents who are familiar with First Amendment law are nonetheless deterred from using a sign because (1) there is a residual risk that the Village will try to enforce the ordinance; and (2) there is reason to worry about sending a market signal of “desperation” if you are the sole seller using a sign.  As for real estate agents, most know that the ordinance is unconstitutional but they have incentives to comply with it nonetheless. The perceived inability to put a For Sale sign in one’s yard makes it extraordinarily difficult to sell by owner . . . . Furthermore, as repeat players in the Village, real estate agents may be reluctant to do anything that the Village will view with displeasure. 

I’ve spent the last month researching whether this hypothesis is correct.  In this post, I want to focus on the effect of the ordinance remaining on the books and on the actions of the Village, both with respect to its own citizens and with real agents.  The bottom line is that if a municipality carries on as though it is acting constitutionally, a lot of people will believe that it is. 

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On Nondisclosure Agreements and Societal Harm

Shh! Don't tell anyone we're about to blow.

Shh! Don't tell anyone we're about to blow!

Below, Larry Cunningham posts:

For centuries, contract law has readily permitted contracting parties to agree to hold information confidential and law has recognized essentially unbridled party capacity to so commit, subject only to the usual rules on contract formation, interpretation and performance.

I want to focus on that qualifier, “subject only to the usual rules on contract formation,” and expand a bit on some of the assumptions in my post on contracts and privacy. When thinking about enforceability, I start with the premise that society provides private law protection for a small subset of carefully chosen promises: a legal remedy for breach of trust is the exception, not the rule, in social exchange.  Fuller and Perdue showed that we provide such damages for “juristic” reasons: a “policy consciously pursued by courts and other lawmakers.”  So, in evaluating the enforceability of an agreement to hold a certain piece of information secret, we ask first what policies does such an exchange advance?  Put aside, if you will for a minute, the potential application of first amendment law to the problem of nondisclosure agreements, which Solove and Richards helpfully clarified.  What remains is a complex welter of issues.  But this policy analysis may lead us to a different conclusion about courts’ general approach than Larry’s “pockets of relationships” post suggests.

The strongest case for damages after breach of an NDA arises in the trade secret context, where we assume that the property right is necessary to spur investment.  That’s why explicit contractual protection is only sometimes necessary. (I say that we assume an investment effect because there is mixed evidence on whether NDAs have such a behavioral consequence.)  A different, but strong, argument can be made for employment-related NDAs, where the information to be protected relates to employers’ strategies and business plans.  Here, enforcing the promise reduces social costs by promoting relational agreements, firm-specific investment, and stability. (For more on this, check out Promises of Silence: Contract Law and Freedom of Speech.)

Is there such a strong case to be made for a contract between strangers?  A common stranger-secrecy contract is generated during litigation: e.g., confidentiality during discovery and after settlement.  These clauses are often enforced because not enforcing them would make a hash of the orderly disposition of cases.  We know that “protecting judicial interests” is the policy being validated because if the disclosure impedes a later judicial proceeding, or conceals crimes or statutory violations, the clause won’t be enforced.

Outside of litigation, we might think of a commercial private information clause as a form of NDA.  Here, interests conflict.  On one hand, it looks a little bit like the employer-employee context: we want to encourage long-term relationships that require the sharing of information, so we protect the information shared with a damages rule.  But there are limits to such protection, quite apart from the usual time, place and manner restrictions.   Yesterday, I  discussed an important limitation: information about family life.  But we might imagine others, especially as the risks to third parties of secrecy become exigent.

Thus, what if A and B enter into an agreement whereby A agrees to keep private any information it learns about B during the course of an hour long conversation they are about to have.  B discloses to A that B is considering whether or not to shoot C to prevent C from making up new legal hypotheticals of dubious practical relevance.  Can A disclose without fear of civil liability under contract? Of course A can!   A might actually be compelled to do so.  You might object that the hypothetical is overdetermined because B is disclosing a plan to commit a crime. So now suppose that B has instead merely confessed that B is unsure whether the blowout preventer on B’s oil drilling platform is working well, suggesting that the entire project was a “nightmare.”  B further tells A, however, that B is convinced that the current well design and operation is not unlawful or in violation of an applicable regulation, because “we’ve captured the agency.”  A, an ardent environmentalist, decides that the social and environmental risks of a spill are likely to be catastrophic and discloses.  This disclosure results in a huge scandal and B is fired.  B sues A for breach.  Who thinks that B has a strong claim to recover damages ?


Hellman on the fate of Arizona’s matching fund law

Below Deborah Hellman (whose work we recently featured in an online symposium) offers her thoughts on the Supreme Court’s reinstatement of the injunction against Arizona’s matching fund law:

On Tuesday, the Supreme Court reinstated the injunction against the application of Arizona’s matching fund law.  The law at issue in McComish v. Bennett provides matching funds for candidates accepting public funding whose opponents spend or benefit from independent expenditures which together exceed the initial grant of public funds.  The District Court initially issued an injunction.  The 9th Circuit vacated the injunction and the Supreme Court has now reinstated it.  As the concurring opinion of Judge Kleinfeld of the 9th Circuit points out, the law at issue contains no spending or contribution limits.  Why then is the First Amendment even implicated?

Speaking in response to a persuasive argument by an opponent is not a restriction on speech. The “remedy to be applied is more speech.” (Whitney v. California, Brandeis, J. concurring)  While the Court has held that restrictions on contributions or spending are restrictions on speech and in that way equated money with speech, these decisions do not lead to the conclusion that public funding of candidates raises First Amendment problems.  Rather, the Court has repeatedly approved of public funding as in line with the First Amendment.  Even if money facilitates speech, clearly spending can be met with more spending without raising any First Amendment problems.  Especially, as Judge Kleinfeld points out, “when the same subsidy is available to the challenger if the challenger accepts the same terms as his opponent.”

The plaintiffs argue that the fact that their opponents will qualify for matching funds if the plaintiffs spend more than a specified amount leads them sometimes to censor themselves.  The 9th Circuit majority rejects this claim because it finds insufficient evidence to support it.  But even this concedes too much.  The fact that government action may cause me to censor myself doesn’t by itself establish that the government action restricts speech.  It matters how the government action leads to self-censorship.  When Congress enacted civil rights laws, it changed norms of behavior such that racist statements were no longer socially acceptable.  In doing so, Congress may have caused some politicians to self-censor their racist remarks.  Yet clearly the enactment of civil rights laws does not abridge the freedom of speech of those who self-censor in response.  In order to raise a potential First Amendment issue, the state must act by restricting or punishing some speech or conduct. When the government speaks, as when it passes civil rights laws, any chilling of speech this causes raises no First Amendment problem.  Similarly, if the government offers money to candidates whose opponents spend a lot of money, the fact that this may chill some spending and thereby some speech is, quite simply, irrelevant. Read More