Category: First Amendment


John Bingham and the Alien & Sedition Act

We think of John Bingham as a civil libertarian because he called for the extension of the Bill of Rights to the States.  Some of his views on free speech, therefore, may come as a surprise.  (They certainly did to me.)

During President Andrew Johnson’s Senate trial, Bingham (as a House manager) defended the article of impeachment that accused the President of sedition because of his criticisms of Republicans in Congress. In response to defense counsel’s argument that the charge violated the First Amendment, Bingham said that this was wrong because, in his view, the Alien and Sedition Act of 1798 was constitutional.  After pointing out that no court had held the Act invalid, he explained:

“I admit that no such law as that ought to be upon your statute-book, of general opposition and application in the country, except in a day of national peril.  That was a day of national peril.  There was sedition in the land.  The French Minister was abroad in the republic, everywhere attempting to stir up the people to enter into combinations abroad hurtful and dangerous to the security of American institutions.”

. . .

“The freedom of speech guaranteed by the Constitution to all the people of the United States is that freedom of speech which respects, first, the right of the nation itself, which respects the supremacy of the nation’s laws, and which finally respects the rights of every citizen of the republic.  . . . I stand, Senators, for that freedom of speech, but I stand against that freedom of speech which would disturb the peace of nations and disturb the repose of men even in their graves.”

Somehow I doubt that Bingham’s (qualified) endorsement of the Alien and Sedition Acts will be cited by anyone as an expression of the original understanding of incorporation.


Money Talks Symposium: Rights and Resources

Deborah Hellman’s marvelous essay aims to establish that “Money is not speech,” and who could disagree with that?  But I am not sure that anything follows from that conclusion for free speech doctrine.  Like Hellman, I think that the key to understanding this issue is to back away from the particular controversy–money in elections–and consider the general relationship between rights and resources.

Consider a series of hypotheticals in which government regulates resources in ways that impact on the ability of right holders to exercise their rights:

Hypothetical 1: Abortion and Medical Resources. Imagine that the state makes a law the prohibits the use of particular medical resources to perform abortions.  Doctors are not allowed to use medical instruments to perform abortions.  It is true that “medical instruments” are not the right to choose whether to give birth.  But does this fact establish that the constitutional right of choice would not be violated by this resource regulation?

Hypothetical 2: Assembly and Transportation Resources. Imagine that a group of protestors want to hold a demonstration outside a nuclear testing facility in Nevada.  The government enacts a law that forbids the use of transportation facilities (buses, taxis, and private vehicles) for the purpose of attending the demonstration.  It is true that “buses” are not “assembly”.  But does that fact establish that the constitutional right of assembly would not be violated by this resource regulation.

Hypothetical 3: Blogging and Computing Devices. Imagine that I want to blog about legal theory.  The government enacts a statute that forbids the use of computing resources (PC’s, laptops, iPhones, etc.) for this purpose.  It is true that “laptops” are not “speech.  But does that fact establish that the constitutonal right of free speech would not be violated by this resource regulation.

Each of these three hypotheticals can be altered to bring “money” into the picture.  What if the government prohibited the expenditure of funds to purchase medical instruments use to perform abortions?  What if the government prohibited the expenditure of funds to rent a bus to get to the demonstration?  What if the government prohibited the purchase of laptops for the purpose of blogging?  In each case, money is the means by which resources are obtained.  Of course, it is true that “money is not speech,” but does it follow that regulations of money cannot violate the freedom of speech for that reason?


Money Talks Symposium: Money as a Means to More Speech

I am delighted to participate in this discussion about Professor Hellman’s excellent article. Having read earlier messages from today, I find that I am much more in agreement with Professor Teachout than with Professor Seidman.

Professor Hellman rightly questions whether spending money in election campaigns should be regarded as a form of speech in itself. As she rightly points out, this is the premise of Citizens United v. Federal Election Commission and has been assumed ever since Buckley v. Valeo. It is often forgotten that in Buckley, the D.C. Circuit came to an opposite conclusion and held that spending money in elections is not itself speech, but rather conduct that communicates.

Money is speech only in that spending money is a form of communicating a message of support. But as Buckley recognized, this is achieved by any size contribution or expenditure. Allowing unlimited contributions or expenditures does not necessarily (though it could) express greater support.

The real argument for protecting spending money in election campaigns is that money facilitates speech. More spending likely translates into more speech. But that does not make spending money speech, just something that leads to more expression. This is the central insight of Professor Hellman’s article: there is a relationship between money and many constitutional rights. Her article very carefully details the different types of relationships that might exist.

Most importantly, once it is recognized that spending money in elections is not itself speech, but rather only a means to more speech, then it should be appropriate to restrict spending to ensure that more speech really happens. In other words, once it is realized that spending money is a means to the end of more speech, then spending can be restricted if it is done for the sake of having more speech occur.


Money Talks Back: A Quick Response to Seidman’s Response to Hellman

Delighted to be here! Deborah Hellman’s article is so wonderful and clear-headed that it makes you feel downright healthy, as if someone had gone into the weeds and, in fact, weeded them. It displays none of the learned helplessness that can often drag down post-Buckley writing, and takes on directly Buckley’s problematic conclusion that the use of money in the political campaign context constitutes protected first amendment speech.

She starts by removing the question from its usual arena—”what is the relationship between money and political speech?”—into a new one—”what is the relationship between money and all constitutionally protected rights?” Money, she points out, is useful to the exercise of most of our constitutional rights. How it is distributed also creates incentives and disincentives to the actual exercise of all of them. However, the incentive relationship between the distribution of funds and the exercise of speech does not mean that all laws limiting certain kinds of spending require the strictest constitutional scrutiny. It would be useful to be able to spend money to exercise the right to sexual intimacy, but Congress is free to ban prostitution. It might be useful for states to pay people to exercise the constitutionally protected right to vote, but Congress is free to ban such payments.

Instead, she suggests, Congress must protect rights, but it can do so in one of two ways—either by making them (the rights) freely available to all, or by allowing the market to make them available, and not banning people from spending money to get them.
This is where I think that Professor Seidman gets something wrong in his interpretation of Prof. Hellman’s article. He suggests that in Hellman’s world, the government could ban selling books and give away only a few, on its own terms. (And the same with abortions).

I take Hellman to be saying something different. I take her to be saying that if it isn’t distributed via the market, it has to be universally distributed by the government. (Like, e.g., the right to a lawyer in a criminal trial). I take her to be saying that if there is a right, there must be a non-monetary way for everyone to exercise that right, or they have to allow people to spend money to access that right.

In other words, the government could never ban writing or creating books, but it could ban buying books if it made every book free. The government could never ban abortions, but it could ban paying for abortions if it made access to abortions universally acceptable.

And so I come to the opposite conclusion of Professor Seidman: I take it to mean that all civil liberties must be protected, but the government has leeway in terms of how to protect them, either by providing them freely, or providing a market for them. The potential doctrinal impact of her article would be to give legislatures more leeway in how—not whether–to enable universal access to constitutionally protected rights.


Money Talks: Civil Liberties and Market Allocations

It is a great honor to participate in this symposium on Deborah Hellman’s fine article.  For me, the article raises very deep questions about whether a regime of civil liberties is really possible without significant reallocation of economic resources.  Let me explain why.

Professor Hellman argues that “Where the good used to effectuate [a] right is distributed via the market, then a right which depends on that good includes the right to spend money,” but not otherwise.  Taken at face value, this assertion is entirely circular.  What a market consists of is a method of allocating goods through the expenditure of money (or some substitute for money).  The assertion therefore amounts to a claim that access to rights can be distributed by markets when they can be distributed by markets.

This apparent circularity is eliminated by Professor Hellman’s assertion, later in the paper, that the political branches should be free to determine whether or not to utilize market allocations.  But this revision avoids circularity only by permitting some strikingly counterintuitive results.  Suppose, for example, the government eliminated the market in books and provided, instead, that the government would allocate a limited supply of books on some nonmarket basis.  Or suppose that the government abolished the right to buy an abortion and, instead, provided that the government would allocate the limited supply of abortions based on its judgment of which women needed them the most.  Surely, these plans would be unconstitutional, but Hellman’s proposal would appear to allow them.

Indeed, on reflection, I think it is clear that Hellman’s proposal means that no civil liberties would be guaranteed against government invasion.  The reason for this is that the exercise of every right is dependent on some sort of property entitlement.  Consider, for example, freedom of speech.  Virtually all speech requires some property, whether it is a printing press, a megaphone, or a computer.  Even a person using nothing but her own vocal cords must speak from some location, and the location is owned by someone.  If the government could eliminate markets in all of this property, then it could allocate the property in other ways that suited its purposes.  It would follow that all speech would be subject to government permission.

In order to avoid this conclusion, there must be some kind of limits on the extent to which government can order and reorder markets.  What are those limits?  One possibility is that the Lochner Court was right after all.  On this view, the Constitution requires laissez-faire ordering,  but not just because “freedom of contract” protects these allocations.  It turns out that freedom of speech protects them as well.

Professor Hellman wants to reject this possibility, and so do I.  It assumes incorrectly that supposedly laissez-faire market allocations are “just there” and are not, themselves, the product of rules that the government is responsible for.  The other possibility, that I favor, is to subject government allocation rules to constitutional criticism on civil liberties grounds.  On this view, the government has an affirmative obligation to establish market rules that permit meaningful exercise of civil liberties.


BRIGHT IDEAS: Nunziato on Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

My colleague at George Washington University Law School, Professor Dawn Nunziato, has recently published a provocative book about the First Amendment and the Internet — Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (Stanford University Press 2009).

Her book explains that, contrary to the prevailing understanding of the Internet as a haven for free speech, our communications on the Internet today are subject to censorship and control by a host of private gatekeepers – most notably, by broadband providers.  Under the prevailing negative conception of the First Amendment, these powerful private gatekeepers are not subject to the First Amendment’s mandate prohibiting censorship.  Unlike real space conduits for communication – like telecommunications providers and the postal service – broadband providers are unregulated in their power to censor speech on the Internet.  Dawn argues for an affirmative conception of the First Amendment, under which public and powerful private gatekeepers of Internet communications are subject to the First Amendment’s mandate to ensure the free flow of communications in the digital age.

I had a chance to ask Dawn a few questions about her new book.

SOLOVE: You point out many compelling examples of how ISPs, search engines, and news aggregators are censoring speech.  Can you briefly describe one or two of the most troublesome of your many examples of speech censorship?

NUNZIATO: The examples of censorship that are most troublesome to me involve content or viewpoint discrimination by broadband providers and wireless carriers.  In my view, broadband providers and wireless carriers should be required to serve as neutral conduits for our expression and should not be permitted to censor or block communications.  In one troubling incident, Verizon Wireless initially refused to allow NARAL Pro-Choice America to send text messages to Verizon customers who had signed up to receive such messages.  Verizon relied on its authority to block messages that “may be seen as controversial or unsavory to any of our users.”  In another incident, Comcast refused to deliver politically-charged, time-sensitive emails from an organization that was critical of President Bush’s handling of the War with Iraq.  Examples like these led me to argue that broadband providers and wireless carriers should be prohibited from discriminating against speech on the basis of viewpoint or content.  Just as telecommunications providers and the postal service have long been regulated as “common carriers” and prohibited from engaging in content discrimination, so too should broadband providers be prohibited from discriminating against content in serving as communications conduits.

SOLOVE: You propose what you call “an affirmative conception of the First Amendment.”  What do you mean by that?

NUNZIATO: Let’s contrast two conceptions of the First Amendment.  Under the negative conception, individuals do not enjoy any affirmative right to speak; rather, they only enjoy the right to prevent the government (and only the government) from censoring their speech.  Censorship by other powerful conduits for expression – like broadband or wireless providers – is permissible under this negative conception – even if it means that individuals actually have no meaningful avenues for expressing themselves.  In contrast, under the affirmative conception of the First Amendment, individuals enjoy an affirmative right to speak, free from content and viewpoint discrimination — regardless of whether such discrimination occurs at the hands of the government or other powerful regulators of speech.  The Supreme Court has recognized such an affirmative conception of the First Amendment in several areas, including in the public forum and company town contexts and must carry regulations governing cable TV providers.  But so far, the affirmative conception has not taken root in the Internet context.  This is problematic because virtually all of our speech on the Internet is subject to control by powerful private entities – by broadband providers, email providers, search engines, etc. – and if these gatekeepers of Internet speech are not subject to the First Amendment’s mandate prohibiting censorship, then there is no guarantee that our communication will be free.

SOLOVE: There are some who argue for “net neutrality” – that all ISPs be prohibited from censoring or discriminating against content or applications in any way.   How is what you’re arguing different?

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Introducing Symposium on Deborah Hellman’s “Money Talks, But It Isn’t Speech”

moneyshirt.jpgIt’s an honor to introduce Deborah Hellman and the participants in this cyber-symposium. In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article “Money Talks, But It Isn’t Speech.” Justice Kennedy based the majority opinion in Citizens United on the assumption that spending and speech are interchangeable. But what if this equivalence does not hold? Might a future Court declare Citizens United “not well reasoned” because it “puts us on a course that is sure error” (to borrow Kennedy’s characterizations of the precedents that Citizens United overruled)?

A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to some provisions in the recently passed health reform legislation. But Citizens’ United has proven far less popular than health reform; “the court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats,” and by 80% of the nation as a whole. Though I was ready to give up on campaign finance regulation three years ago, numbers like these convince me that the Court needs to listen to scholarship like Hellman’s now more than ever.

At least some justices have shown remorse for deregulatory dogmatism. Might the Court back down from its current war on campaign regulation? If it is so inclined, will arguments like Hellman’s help it “see the light” and reclaim the egalitarian roots of democratic governance? To consider these and other issues raised by Hellman’s rigorous and illuminating paper, we’ve invited an all-star cast of legal thinkers:

Erwin Chemerinsky
Louis Michael Seidman
Lawrence Solum
Zephyr Teachout

Some of our regular crew of perma-bloggers & guests will likely have some contributions, as well. Whatever you think of campaign finance reform, I’m confident you’ll find both Hellman’s article and our guests’ commentaries to be bold and invigorating contributions to legal theory.

Photo Credit: Rob Lee/Flickr, Money Shirt.


US v. Stevens: The Dog That Didn’t Bark

Danielle asked me to post a few thoughts about yesterday’s Supreme Court decision in U.S. v. Stevens, in which the Court struck down the 1999 federal Depiction of Animal Cruelty Act.  Apologies for the terrible pun in the title, but I think that Stevens is a significant case precisely because it is the proverbial “dog that didn’t bark.”  The case involved the conviction of Robert J. Stevens for 37 months for selling videos of pit bulls fighting each other and hunting wild boar, which was squarely prohibited by the Act.  In its opinion yesterday, the Court held that the Act violated the First Amendment.  In so doing, it reaffirmed that unpleasant, even offensive speech is protected by the First Amendment, and it rejected three seductive, but seductively wrong doctrinal ways that it could have upheld the Act.

First, the Court could have declared that offensive depictions of violent cruelty were unprotected by the First Amendment.  In so doing, it would have created a new category of unprotected speech like libel, obscenity, or child pornography.  Justice Roberts’ opinion makes clear that First Amendment law disfavors the creation of new categories of unprotected speech, and that the Supreme Court essentially lacks the power to freely create new ones.  The Court explained that while it balances the social costs and benefits of speech to determine what is and is not protected (a technique called “categorical balancing”), this process is not a “free-wheeling” power to declare lots of new categories outside the protection of the First Amendment.  This is an important holding – although the Court declared child pornography to be outside the First Amendment in 1982, Stevens makes clear that the child pornography cases are probably an isolated (and limited) special and exceptional case.  The court then struck down the statute on overbreadth grounds because a substantial number of its applications (e.g., videos of hunting) would restrict protected speech.

The second seductively wrong path the court could have taken would have been to expand obscenity law to include a kind of violent obscenity.  This idea would go something like “because we ban obscene depictions of sex that are offensive and valueless, why shouldn’t we also ban offensive and valueless depictions of graphic true violence?”  If you accept the rationale for obscenty being unprotected, this is a serious argument – after all, most people would find depictions of dismemberment more shocking and offensive than depictions of sex.  The Act in Stevens actually suggested such a reading (in a nod to the governing obscenity case of Miller v. California) by excluding  from punishment depictions of animal cruelty that had a “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”  The 1999 Act even had a sexual element, as much of the impetus for banning depictions of animal cruelty seems to have been to prohibit the circulation of “crush films”: sexual fetish videos depicting women in high heels squashing small animals.  But the court rejected the obscenity analogy, again on the grounds that it did not want to expand existing categories of unprotected speech without good reason.  Implicitly, the Court seems to be saying that existing categories of unprotected speech might remain as matters of stare decisis, but the weight of the First Amendment tradition of the past 75 years (Roberts says since 1791, which is a bit of poetic license) means that speech is protected robustly and broadly from government criminal punishment, even if it is offensive.

A third seductively wrong way that the Court might have upheld the Act was by analogy not to obscenity, but child pornography.  Child pornography is not protected by the First Amendment on the ground that the harm to children in the creation of child porn is severe and inextricably linked to its distribution.  Accordingly, criminal punishment of the possession of depictions of child abuse is necessary to “dry up the market” for their creation.  If we take animal cruelty seriously, an almost identical argument would justify the Act in Stevens: animal cruelty is so bad and so often prompted by the demand for crush films or pit bull fighting videos that we should ban possession to dry up the market and stop the creation harm.  But the Court rejected this argument also, suggesting not only that child pornography is a special (and strictly defined) category of First Amendment law, but also that even gratuitous harm to animals is a less important legal interest than harm to human children.

So after Stevens, First Amendment law is pretty much the same as it was before, and the real significance of Stevens seems to be that outside the area of campaign finance law, the Roberts Court sees itself as continuing the tradition of broad protection for speech, even speech that contains offensive or disturbing ideas, images, or information.  I think this is normatively a good development, and one that is well within the mainstream of conventional First Amendment theory.  It also suggests that the Depictions of Animal Cruelty Act was targeted not at animal cruelty per se, but at the niche market of crush films as an offensive idea.  I personally don’t understand why someone would want to watch a crush film (much less find it sexually gratifying), but Congress seems to have been targeting just this weird idea, rather than animal cruelty more generally.  After all, Congress outlawed crush films, but left intensive chicken farming and cattle feedlots legal, which are a much greater source of animal cruelty than crush films or Mr. Stevens’s videos.  And if the Stevens case was about the protection of offensive ideas rather than animal cruelty itself, the Court should be commended for continuing the broad protection of all ideas, even the weird and shocking ones.


The First Amendment Goes to the Prom

In spring a young woman’s fancy turns to love.  Take Constance McMillen for example.  A senior at Itawamba Agricultural High School in north Mississippi, McMillen has been out as a lesbian since the eighth grade. Back in February the high school — for some reason — issued a policy directing that only opposite sex couples could attend the upcoming prom in early April.  McMillen asked for an exception so she could bring her girlfriend, and she also asked permission to wear a tuxedo. The high school and the county school board denied her requests.  McMillen and the girlfriend could attend, but only if each came with a boy as her date, if the girls wore dresses (not a tux, not slacks and a nice top), and if they did not slow dance with each other, which would “push people’s buttons”.  After McMillen got the Mississippi ACLU involved, the school board cancelled the prom altogether, citing  potential “distractions to the educational process”.   The school board expressed the “hope that private citizens [would] organize an event for the juniors and seniors.”

McMillen promptly sued in federal court, seeking an injunction to compel the prom to go forward.  In a decision issued March 23, just one day after the hearing, Senior U.S. District Judge  Glen Davidson (no liberal he — a Reagan appointee) denied her request.    McMillen v. Itawamba County School Dist., 2010 U.S. Dist. LEXIS 27589 (N.D. Miss. 2010).  The opinion contains some interesting holdings.  The judge found that McMillen had a First Amendment interest in attending the  prom with a same-sex partner, and also a First Amendment interest in wearing cross-gender formal attire to the prom.   More on those notions in a moment.  Holding number three — he denied the preliminary injunction, based on his assessment of the familiar fourth factor for injunctive relief, consideration of the public interest. There was no need to reinject the school board into the prom process via court order or to get the court involved in planning and overseeing a prom, he found, because the parents of the high school students represented to him that they were now planning a  “private” prom which all the students in the high school would be invited to attend.  Judge  Davidson’s opinion used the scare quotes  around “private” and the italics for all.  Perhaps he suspected something was up.

With good reason, it turns out.  There were some additional shenanigans.  McMillen couldn’t find out where to buy a ticket to the “private” prom, then when she did, was told she had missed the cutoff time for purchase by a few minutes.   Then the parents announced that the prom they had told the judge about was cancelled altogether.   Eventually, though, McMillen thought that it was finally settled and on April 2 off she went in her tuxedo to her hard-won prom.   Only to find it was a decoy.   McMillen and her date (not the girlfriend, BTW — the girlfriend’s parents wouldn’t let her attend because of the media attention) were just about the only ones there — five other students, two of them with learning disabilities, and the chaperones, who were the high school principal and other school officials.  All the other students had gone to another,  “private”  prom being held at the same time in a location concealed from McMillen.  Some of the high school students later bragged on Facebook about the whole deception, further mocking McMillen.

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The U.S. Supreme Court and Privacy Law

I can’t help but note that there are quite a few cases on the U.S. Supreme Court calendar involving privacy law:

City of Ontario v. Quon

(Fourth Amendment, electronic communications of government employees)

(my thoughts are here)

NASA v. Nelson

(constitutional right to information privacy)

(my thoughts are here and here)

Snyder v. Phelps

(intentional infliction of emotional distress, intrusion upon seclusion)

(my thoughts are here and here)

Sadly, though, only in 1 of the 3 cases above do I think the privacy claim ought to prevail.  Regardless, these are exciting times to be a privacy law scholar.  But it is always an exciting time to be a privacy law scholar — so many interesting things going on.  If you’re not a privacy law scholar, you’re really missing out!

UPDATE: In the comments, Omer Tene points out another privacy case before the Court — Doe v. Reed, the case involving whether the state could compel disclosure of the identities of those supporting Proposition 8 (an anti-gay marriage proposition in California).  I have not studied this case in depth, but from what I know, my preliminary take is that the First Amendment bars the disclosure.