Category: First Amendment

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FAN 43.1 (First Amendment News) Two Upcoming Events on First Amendment & Elections

This week there will be two events in Washington, D.C. concerning elections and the First Amendment. One is on the Williams-Yule judicial elections case, and the other is on the Citizens United case.

Speaking of Citizens United, my FAN post for this Wednesday will be devoted to the case, this on the occasion of its fifth anniversary. Among other things, the post will contain comments on the case from noted First Amendment scholars and lawyers.  

Heritage to host event on judicial campaign solicitation case

Tomorrow the Heritage Foundation in Washington, D.C. will host an event titled “Judicial Elections and the First Amendment — Williams-Yulee v. The Florida Bar.” (The Williams-Yulee case will be argued tomorrow.)

The event will feature:

Hans A. von Spakovsky,  a Senior Legal Fellow at Heritage, will host and moderate the event.

Here is a description of the upcoming event:

On January 20, the U.S. Supreme Court will be hearing oral arguments in Lanell Williams-Yulee v. The Florida Bar. At issue is whether a ban on solicitation of campaign donations by judicial candidates in state elections in Florida violates the First Amendment rights of the candidates. Does Florida have a compelling interest in imposing such a ban to preserve the appearance of impartiality of its judges? Is it necessary to ensure judicial independence and maintain public confidence in the judicial system? Does this ban on solicitation violate the First Amendment rights of candidates to engage in political speech and political activity? Does the soliciting of campaign donations involve core political speech? In a post-argument briefing, two First Amendment experts who filed amicus briefs in the case, along with the former Chief Justice of the Indiana Supreme Court, will discuss these issues as well as the oral arguments conducted that morning before the Supreme Court. Moderating the panel will be a former FEC commissioner.

→ For more information, go here.

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Event: Citizens United v. FEC after Five Years

This coming Wednesday the Center for Competitive Politics is sponsoring a conference on Citizens United.

LocationCato Institute


Agenda

9:00 AM: The Story Behind the Lawsuit

  • Michael Boos, General Counsel, Citizens United
Interviewer: TBA

9:20 AM: The Impact on Parties in the age of Citizens United: Are changes needed?

  • Joel Gora, Professor of Law, Brooklyn Law School
  • Neil Reiff, Founding partner, Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.
  • Peter J. Wallison, Arthur F. Burns Fellow, American Enterprise Institute

10:20 AM: Should liberals support Citizens United?

Interviewer:
 Stuart Taylor, Jr.Author, freelance writer and a Brookings Institution nonresident senior fellow

  • Ira Glasser, former Executive Director, ACLU
  • Gabe Rottman, legislative counsel, ACLU
  • Wendy Kaminer, Author, lawyer, social critic and contributing editor of The Atlantic

11:20 AM: Beyond Citizens United: the future of campaign finance jurisprudence

  • Bobby R. Burchfield, Partner, McDermott Will & Emery LLP
  • Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Bradley A. Smith, Chairman and Founder, Center for Competitive Politics, Judge John T. Copenhaver Visiting Endowed Chair of Law at the West Virginia University, former FEC Chairman
Interviewer:
  • Matea GoldThe Washington Post

The Black Box Society: Interviews

My book, The Black Box Society, is finally out! In addition to the interview Lawrence Joseph conducted in the fall, I’ve been fortunate to complete some radio and magazine interviews on the book. They include:

New Books in Law

Stanford Center for Internet & Society: Hearsay Culture

Canadian Broadcasting Corporation: The Spark

Texas Public Radio: The Source

WNYC: Brian Lehrer Show.

Fleishman-Hillard’s True.

I hope to be back to posting soon, on some of the constitutional and politico-economic themes in the book.

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FAN 42.1 (First Amendment News) High Court denies cert in 2 campaign finance cases

Earlier today the Supreme Court issued its orders. Those orders included a denial of cert. in Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission and in Vermont Right to Life Committee, et al v. Sorrell [ht: Ilya Shapiro]

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (to be argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Berger v. American Civil Liberties Union of North Carolina (license plate case) (no date set for OA)
  5. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (no date set for OA)

Review Denied

  1. Pregnancy Care Center of New York v. City of New York 
  2. City of Indianapolis, Indiana v. Annex Books, Inc.
  3. Ashley Furniture Industries, Inc. v. United States 
  4. Mehanna v. United States
  5. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  6. Vermont Right to Life Committee, et al v. Sorrell
Posner
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The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, Spring, 2015) by William Domnarski.

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FAN 42 (First Amendment News) Tribute to Al Bendich (1929-2015) — the ACLU lawyer who made the difference in the HOWL & Lenny Bruce cases

Al Bendich, April 5, 2013

Al Bendich, April 5, 2013

Some people make a difference in their lives; some people actually add to the bounty of freedom we call ours; and some people are so modest as to go quietly into the dark of their eternal night. Albert Bendich was one of those rare few. Sadly, Al died this past Monday.

Liberty in America is better off because of Al and what he did as a lawyer for the American Civil Liberties Union. He gave legal life to poetry and lawful voice to comedy . . . and more.

To know him was to like him — calm, mild mannered, soft spoken, and kind to a fault. But if you wanted to see sparks of passion — the ones that revealed the fire burning within him — all you had to do was start up a conversation about free speech. When it came to that, this lifetime defender of free expression became quite animated, but always with the composure of a learned lawyer who knew not only the law but also its history and the grand principles underlying it.

“I can’t think of anything more rewarding than fighting for matters of fundamental principles necessary to the preservation of democracy,” said Bendich in 2009. “The ACLU,” he added, “is absolutely necessary in that process. Without it we’d be going backward instead of trying to maintain our position and maybe inch a little bit forward.”

Al Bendich was a true inspiration to everyone in the ACLU community. . . From his time as staff counsel at the ACLU of Northern California, to his days as a teacher, and then a career in music and film with his colleague Saul Zaentz, Al’s passion for the Constitution and his country was a constant. — Abdi Soltani, Executive Director, ACLU of Northern California

The People vs Poetry 

Turn the clock back to 1957. On June 3rd of that year San Francisco police arrested Shig Murao, the manager of City Lights Bookstore, for selling HOWL and Other Poems to an undercover officer. Thereafter, City Lights’s publisher Lawrence Ferlinghetti was arrested for publishing HOWL. (See here and here for accounts of the arrest and what followed).  The case, People v. Ferlinghetti, went to trial.

The trio of defense counsel: the famed and flashy criminal defense lawyer Jake Ehrlich, the talented and knowledgeable public-interest lawyer Lawrence Speiser, and a recent Boalt Hall law graduate, Al Bendich (Speiser and Bendich were ACLU lawyers).

Here is how Nadine Strossen, the ACLU’s past President and a friend of Al’s, described what happened next:  “When Al Bendich worked on the landmark HOWL case, he was a very new lawyer, and the Supreme Court’s Roth decision, defining the obscenity exception to the First Amendment, was a very new decision. The HOWL case was one of first impression — the first actual application of Roth to an obscenity prosecution. Accordingly, Al’s brief in the case played a key role in shaping the law on point.”

“All free speech advocates,” she added, “are eternally indebted to Al for brilliantly managing to construe the Roth obscenity exception as narrowly as feasible, and persuasively explaining why it didn’t encompass HOWL. The brief had a palpable impact on the judge’s historic, speech-protective opinion, which in turn has had an ongoing positive impact on law and literature alike.”

Here is a passage from that brief:

Would there be any freedom of the press or speech if one must reduce his vocabularly to vapid and innocous euphemisms? An author should be real in treating his subject and be allowed to express his thoughts and ideas in his own words. Al Bendich (brief in People v. Ferlinghetti, 1957)

When it was all over, poetry prevailed.

Screen Shot 2015-01-05 at 10.56.30 PM

It was a new day in First Amendment America. HOWL could be sold in City Lights Bookstore and elsewhere. And all of this from a ruling by a San Francisco municipal court judge (Clayton W. Horn) who wrote a remarkable opinion that drew heavily on the work of a young ACLU lawyer named Al Bendich. Incredibly, it was the last time that a poem was the target of prosecution in an American court.

Even so, censors returned to the scene. Decades later, in 2005, Congress raised limits on the fines for indecency on the broadcast airwaves. That enabled the F.C.C. to charge up to $325,000 for every violation of its standards. And those standards barred reading HOWL on broadcast radio or television. “It seems like déjà vu all over again,” said Al.

Comedy on Trial

Imagine being busted for being a tad too colorful in telling jokes (many of them by way of social commentary) in a comedy club . . . in San Francisco . . . in the 1960s. Well, it happened to Lenny Bruce — no joke! The infamous comedian was hauled away from using indecent words during his performance at a club in North Beach in 1961 (see The Trials of Lenny Bruce).

The prosecutor was Hell bent on putting the “filthy” comedian behind bars for words spoken to adults at a joint called The Jazz Workshop where the likes of Thelonious Monk and others performed. No one was offended, no one complained, and no children were in the audience. Never mind. Bruce’s choice words violated sections 176 and 205 of the Municipal Police Code (unlawful presentation of an “obscene, indecent, immoral, or impure” performance) and section 311.6 of the California Penal Code (“lewd or obscene” words used in “any public place”). Now Lenny Bruce would have to face the music — and it wasn’t free-spirited jazz.

Al Bendich & Lenny Bruce at Bruce's 1961 SF obscenity trial

Al Bendich & Lenny Bruce at Bruce’s 1961 SF obscenity trial

Bruce had been looking around for a powerhouse mouthpiece, preferably someone who was “hip” to First Amendment law. Predictably, Al Bendich’s name came up. They met, they spoke, and soon enough Al agreed to defend the comedian on First Amendment grounds. So they went to trial.

The Judge? None other than Clayton Horn, the same judge who followed Bendich’s counsel and ruled in favor of Lawrence Ferlinghetti. Given the Horn-Bendich connection, things looked quite promising for Lenny. Ever the contrarian, Bruce demanded a jury trial. It was insanity. Still, Bendich preserved and thanks to several brilliant legal maneuvers was successful in securing a not guilty ruling.

photoHere is the kicker: the jury wanted to convict Bruce but ruled otherwise solely because of the precise jury instructions given to them by Judge Horn. Said one juror afterwards: “We hate this verdict, but under the instructions there was nothing we could do but give the ‘not guilty’ verdict.”

And who drafted those instructions? Yes, it was that same ACLU lawyer. Bendich had done it again; he had beaten back the forces of censorship. Now norm-breaking poetry and speak-your-mind comedy were safe in San Francisco.

* * * * 

There is, to be sure, more to Al Bendich’s life story than those two landmark First Amendment cases. There is, for example, his many years as counsel for Fantasy Records. And there is also his work on behalf of the constitutional rights of gays (see here, circa 1960), the poor, and the criminally accused.

My last conversation with Al Bendich was about the death penalty. His opposition was deep and passionate. His abiding sense of justice stemmed from multiple sources – his brilliant intellect; his commitment to the constitution and finally, his life experience.

He also spoke with his characteristic humility, but great pride, about his role in litigating one of the  most influential  cases establishing the unconstitutional conditions doctrine for recipients of public benefits, Parrish v. Civil Service Commission. In Parrish the California Supreme Court ruled in the 1960’s that predawn “bed raids” of recipients was a violation of their Fourth Amendment rights, and that the government could not condition continued receipt of public assistance on the forfeiture of constitutional rights. — Dorothy M. Ehrlich, Deputy Executive Director, national ACLU

Remember the First Amendment lawyers 

We think of First Amendment law as synonymous with judge-made law. We know the names of the judges — Holmes and Brandeis, Black and Brennan, etc. — who penned the famous opinions. But what of the lawyers who, like Al Bendich, argued those cases and advanced novel and persuasive arguments? Regrettably, too often they receive too little credit for the work they do. We must do more to remember them, to learn from them, and to share their life stories with new generations of lawyers eager to defend civil rights and civil liberties.

Now he stands tall in the memorial ranks of other First Amendment lawyers — the likes of everyone from Walter H. Pollak to Ephraim London to Stanley Fleishman to Bruce J. Ennis and beyond. They were, after all, the ones who helped to shape the law in ways to make the impossible possible. In the process they gave new and vibrant meaning to the First Amendment.

Farewell 

“Al Bendich contributed so much to the strong protection of free expression in the United States,” said Robert Corn-Revere, a noted First Amendment lawyer. “He had the vision and courage to defend speech that many people found to be unacceptable. I hope this sad occasion will at least move us to remember — and to celebrate — his accomplishments.”

With Al in 2013

With Al in 2013

On a personal note: Al was a dear friend. A year or so ago I was with him in Seattle with David Skover, whose law school hosted a conference at which Al spoke (see video here). And then there was the time when David and I spent a wondrous evening in San Francisco with Al and his wife Pam — chatting away for hours on everything from Alex Meiklejohn to Citizens United to Humanitarian Law ProjectDespite a few differences of views, Al picked up the tab (fancy wine and all). The sparkle in his eye, his gentle grin, his soft tone, and the way he spoke with such an admirable commitment to freedom — I remember it all as I write this.

In my mind’s eye I venture to City Lights Bookstore and see Al and Lawrence Ferlinghetti there — the lawyer and the poet — talking about the need for more insurgent poetry. And I imagine the tall poet leaning over to Al and saying: “Poetry is a radical presence constantly goading us.” Al smiles. “Ah yes, and remember,” he adds, “one of the reasons we have a First Amendment is to safeguard that radical presence.”

One final thought: If you believe in the work that Al Bendich did, if you believe in freedom for radical poets and ribald comics, and if you care about free speech in America, you can do something — exercise your First Amendment rights / help to protect the rights of others (even if you disagree with them) / and support the American Civil Liberties Union (go here to donate) or whatever group (liberal, conservative, or libertarian) that supports the principle of free speech for all.

Farewell Al.

Postscript: See also Michael Tigar, “Al Bendich, Mentor, Lawyer, Friend” (1-8-15)

Posner
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On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others

I’m exaggerating a little, but I think privacy is primarily wanted by people because they want to conceal information to fool others. Richard Posner

Privacy is overratedRichard Posner (2013)

 Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.Richard Posner (2014)

This is the seventh installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, and the sixth one here.

Privacy has been on Richard Posner’s mind for more than three-and-a-half decades. His views, as evidenced by the epigraph quotes above, have sparked debate in a variety of quarters, both academic and policy. In some ways those views seem oddly consistent with his persona – on the one hand, he is a very public man as revealed by his many writings, while on the other hand, he is a very private man about whom we know little of his life outside of the law save for a New Yorker piece on him thirteen years ago.

On the scholarly side of the privacy divide, his writings include:

  1. The Right of Privacy,” 12 Georgia Law Review 393 (1978)
  2. Privacy, Secrecy, and Reputation,” 28 Buffalo Law Review 1 (1979)
  3. The Uncertain Protection of Privacy by the Supreme Court,” 1979 Supreme Court Review 173
  4. The Economics of Privacy,” 71 The American Economic Review 405 (1981)
  5. Privacy,” Big Think (video clip, nd)
  6. Privacy is Overrated,” New York Daily News, April 28, 2014

For a sampling of Judge Posner’s opinion on privacy, go here (and search Privacy)

(Note: Some links will only open in Firefox or Chrome.)

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Privacy – “What’s the big deal?”

Privacy interests should really have very little weight when you’re talking about national security. The world is in an extremely turbulent state – very dangerous. — Richard Posner (2014)

Recently, Georgetown Law Center held a conference entitled “Cybercrime 2020: The Future of Online Crime and Investigations” (full C-SPAN video here). In the course of that event, Judge Posner joined with others in government, private industry, and in the legal academy to discuss privacy, the Fourth Amendment, and free speech, among other things. A portion of the exchange between Judge Posner and Georgetown law professor David Cole was captured on video.

Judge Richard Posner

Judge Richard Posner

Scene: The Judge sitting in his office, speaking into a video conference camera — As he rubbed his fingers across the page and looked down, Posner began: “I was thinking, listening to Professor Cole, what exactly is the information that he’s worried about?” Posner paused, as if to setup his next point: “I have a cell phone – iPhone 6 – so if someone drained my cell phone, they would find a picture of my cat [laughter], some phone numbers, some e-mail addresses, some e-mail texts – so what’s the big deal?”

He then glanced up from the text he appeared to be reading and spoke with a grin: “Other people must have really exciting stuff. [laughter] Could they narrate their adulteries or something like that?” [laughter] He then waved his hands in the air before posing a question to the Georgetown Professor.

“What is it that you’re worrying about?” Posner asked as if truly puzzled.

At that point, Cole leaned into his microphone and looked up at the video screen bearing the Judge’s image next to case reports on his left and the American flag on his right.

Cole: “That’s a great question, Judge Posner.”

Professor Cole continued, adding his own humor to the mix: “And I, like you, have only pictures of cats on my phone. [laughter] And I’m not worried about anything from myself, but I’m worried for others.”

On a more substantive note, Cole added: “Your question, which goes back to your original statement, . . . value[s] . . . privacy unless you have something to hide. That is a very, very shortsighted way of thinking about the value [of privacy]. I agree with Michael Dreeben: Privacy is critical to a democracy; it is critical to political freedom; [and] it is critical to intimacy.”

The sex video hypothetical

And then with a sparkle in his spectacled eye, Cole stated: “Your question brings to mind a cartoon that was in the New Yorker, just in the last couple of issues, where a couple is sitting in bed and they have video surveillance cameras over each one of them trained down on the bed [Cole holds his hands above his head to illustrate the peering cameras]. And the wife says to the husband: ‘What are you worried about if you’ve got nothing to hide, you’ve got nothing to fear.’”

Using the cartoon as his conceptual springboard, Cole moved on to his main point: “It seems to me that all of us, whether we are engaged in entirely cat-loving behavior, or whether we are going to psychiatrists, or abortion providers, or rape crises centers, or Alcoholics Anonymous, or have an affair – all of us have something to hide. Even if you don’t have anything to hide, if you live a life that could be entirely transparent to the rest of the world, I still think the value of that life would be significantly diminished if it had to be transparent.”

Without missing a beat, Cole circled back to his video theme: “Again you could say, ‘if you’ve got nothing to hide, and you’re not engaged in criminal activity, let’s put video cameras in every person’s bedroom. And let’s just record the video, 24/7, in their bedroom. And we won’t look at it until we have reason to look at it. You shouldn’t be concerned because . . .’”

At this point, Posner interrupted: “Look, that’s a silly argument.”

Cole: “But it’s based on a New Yorker cartoon.”

The Judge was a tad miffed; he waved his right hand up and down in a dismissive way: “The sex video, that’s silly!Waving his index finger to emphasize his point, he added: “What you should be saying, [what] you should be worried about [are] the types of revelation[s] of private conduct [that] discourage people from doing constructive things. You mentioned Alcoholics Anonymous . . .”

Cole: “I find sex to be a constructive thing.”

Obviously frustrated, Posner raised his palms up high in protest: “Let me finish, will you please?”

Cole: “Sure.”

Posner: “Look, that was a good example, right? Because you can have a person who has an alcohol problem, and so he goes to Alcoholics Anonymous, but he doesn’t want this to be known. If he can’t protect that secret,” Posner continued while pointing, “then he’s not going to go to Alcoholics Anonymous. That’s gonna be bad. That’s the sort of thing you should be concerned about rather than with sex videos. . . . [The Alcoholics Anonymous example] is a good example of the kind of privacy that should be protected.”

David Cole

Professor David Cole

Privacy & Politics 

Meanwhile, the audience listened and watched on with its attention now fixed on the Georgetown professor.

Cole: “Well, let me give you an example of sex privacy. I think we all have an interest in keeping our sex lives private. That’s why we close doors into our bedroom, etc. I think that’s a legitimate interest, and it’s a legitimate concern. And it’s not because you have something wrong you want to hide, but because intimacy requires privacy, number one. And number two: think about the government’s use of sex information with respect to Dr. Martin Luther King. They investigated him, intruded on his privacy by bugging his hotel rooms to learn [about his] affair, and then sought to use that – and the threat of disclosing that affair – to change his behavior. Why? Because he was an active, political, dissident fighting for justice.”

“We have a history of that,” he added. “Our country has a history of that; most countries have a history of that; and that’s another reason the government will use information – that doesn’t necessarily concern [it] – to target people who [it is] concerned about . . . – not just because of their alcohol problem [or] not just because of their sexual proclivities – but because they have political views and political ideas that the government doesn’t approve of.”

At this point the moderator invited the Judge to respond.

Posner: “What happened to cell phones? Do you have sex photos on your cell phones?”

Cole: “I imagine if Dr. Martin Luther King was having an affair in 2014, as opposed to the 1960s, his cell phone, his smart phone, would have quite a bit of evidence that would lead the government to that affair. He’d have call logs; he might have texts; he might have e-mails – all of that would be on the phone.”

The discussion then moved onto the other panelists.

Afterwards, and writing on the Volokh Conspiracy blog, Professor Orin Kerr, who was one of the participants in the conference, summed up his views of the exchange this way:

“I score this Cole 1, Posner 0.”

The First Amendment — Enter Glenn Greenwald Read More

Posner
3

On Free Expression & the First Amendment — More Questions for Judge Posner

 The American concept of freedom of speech poses a challenge to the pragmatist because, like ‘democracy,’ it is the repository of a great deal of unpragmatic rhetoric. It is at the heart of the American ‘civil religion,’ a term well chosen to convey the moralistic fervor in which free speech is celebrated. — Richard Posner (2003)

This is the sixth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, and the fifth one here.  

Here, as elsewhere, controversy is never far from the conceptual corner where Richard Posner lingers. Merely consider, for example, the following point he made in a 2001 article: “political free speech is not an unalloyed blessing.” Or consider his take on the most famous line from NYT v. Sullivan — he tags it (see below) “empty rhetoric.” Or think about his views on privacy and the First Amendment (see Glenn Greenwald’s criticisms below). Such comments are sure to raise skeptical eyebrows among the rah-rah First Amendment crowd.

Then again, that crowd happily hails the Judge for the robust defense of free speech he displayed in NAACP v. Button (1963), which he takes credit for authoring while he was a law clerk to Justice William Brennan. And then there are his opinions in cases such  American Amusement Machine Association v. Kendrick, the violent video game case. For staunch conservatives, such as Justice Clarence Thomas, protection of such expression “does not comport with the original public understanding of the First Amendment.” No matter, Posner paves his own path, sans any Hugo Black-like passion in defense of free speech or any Clarence Thomas-like zeal in defense of originalism.  

Of course, there is more to be said about Posner’s pragmatic approach to our free speech jurisprudence, and on that score some will approve and others not. In the tumble of it all, he remains a Maverick, which is how he likes it.  

Some of the Judge’s more notable writings on free expression can be found in the following works:

  1. Economic Analysis of Law (9th ed. 2014) (chapter 29)
  2. Not a Suicide Pact: The Constitution in a Time of a National Emergency (2009) (chapter 5)
  3. Law, Pragmatism and Democracy (2003) (chapter 10)
  4. Frontiers of Legal Theory (2001) (chapter 2)
  5. The Speech Market and the Legacy of Schenck,” in Lee Bollinger & Geoffrey Stone, eds., Eternally Vigilant: Free Speech in the Modern Era 121 (2002)
  6. Pragmatism versus Purposivism in First Amendment Analysis,” 54 Stanford Law Review 737 (2002)
  7. Free Speech in an Economic Perspective,” 20 Suffolk University Law Review 1 (1986)

For a sampling of his First Amendment opinions, go here and search “First Amendment.”

Below are some questions, on the topic of free expression and the First Amendment, that I posed to the Judge followed by his replies. (Note: Some links will only open in Firefox or Chrome.)

NB: A segment of this post, quoting a well-known journalist, has been temporarily omitted because of a strong objection. I will explain why in this Monday’s post.      

Question: Is speech overprotected by our courts and in our culture?

Posner: I think so. The most notorious example is expenditures on political advertising — Citizens United and its sequels.

Question: Though the Pentagon Papers Case (1971) is much celebrated in First Amendment circles, you seem to think that the Court might have gone too far. Two questions:

  1. What is your criticism of the case?
  2. Does over classification of national security information raise a a First Amendment issue?

Posner:

  1. I don’t think there is a right to read classified material. National security classification is one of many sensible exceptions to freedom of speech, along with threats, trade secrets, defamation, distribution of child pornography, lawful wiretapping and other lawful searches for communicative material, copyright infringement, and much else.
  2. It could, if there were no security justification.

Question: The so-called “war on terrorism” is unlike the Great Wars in that the enemy is ever changing and even hard to identify and the duration of the conflict is indeterminate. How does this affect the calculus of free speech “in wartime”?

Posner: I don’t see why the nature of the military conflict should make a difference.

Question: You have written that “some restrictions on speech actually promote speech.” That general idea seems to be getting some traction among egalitarian-minded liberal scholars dissatisfied with certain tenets of current free speech doctrine. Can you say more about your thinking here, especially as it might apply to the liberal defense of speech restrictions?

Posner: An obvious example is copyright protection, which restricts speech (the speech of copiers) but promotes speech overall by granting legal protection to original speech. Another obvious example is restricting the number of speakers in a political debate so that the debate won’t degenerate into an unintelligible babble of interruptions. Similarly one doesn’t want to allow the use of threats to silence people. A subtle example is the censorship of the Elizabethan theatre, which may well have promoted creativity by forcing playwrights like Shakespeare to situate contemporary problems in exotic times and places, in order to get by the censor.

Question: You pride yourself on being a “balancer,” as one who compares the social pluses and minuses of restrictions on free speech. Can you be an effective balancer absent a reliable record of the actual or even conjectural harms and benefits of speech? And what if the lawyers, as if often the case, tender no reliable empirical evidence one way or the other? Who wins, where is the conceptual default? Or must the reviewing court do its own research to resolve the question?

Posner: I don’t know how much empirical work has been done on the subject. In its absence, there is just guesswork, although the basic structure of American free speech law seems okay. Some of it strikes me as silly, notably granting rights of free speech to school kids.

[RKLC: 12-12-14: See William Baude’s commentary here.]

Question: Whatever its shortcomings, one of the benefits of a category-based approach to free speech (combined with certain tailoring tools, e.g., overbreath, etc.), is judicial efficiency. The rules are not unworkably open-ended and subjective, and are therefore relatively manageable for judges and lawyers alike.

  1. Mindful of that, how judicially efficient is your economic-based approach with its assorted variables? – e.g., taking into account and balancing the relevant benefits (B), harms (H), offensiveness (O), probability (P), the number of years between when speech occurs and when the harm is likely to materialize, and the administrative costs of a regulation (A).
  2. What about lawmakers, the focus of the First Amendment (Congress shall make no law . . . )? How likely are they to engage in such sophisticated cost-benefit analysis? Is your proposed approach a realistic test for them to employ in considering the constitutionality of proposed laws affecting speech?

Posner:

  1. One can hardly exclude offensiveness, other harms, probability of harm, remoteness of harm, etc. from consideration, any more than you can do that in an ordinary tort case.
  2. Do lawmakers ever do sophisticated cost-benefit analysis?

Question: In cases such as Holder v. Humanitarian Law Project (2010), is the purported harm so great as to preclude any meaningful balancing? It was precisely that concern that prompted Justice Stephen Breyer to complain in dissent: “I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion.”

How would you weigh in on this? By your standards, was Holder a case of failed balancing?

Judge Learned Hand

Judge Learned Hand

Posner: I haven’t read the case.

Question: You have expressed some conceptual approval of Judge Learned Hand’s opinion in United States v. Dennis (1950) in which he upheld the convictions of eleven Communist Party leaders for violating the Smith Act. Do you agree with the judgment in that case? Please say a few words about why you agree or disagree with the Dennis judgment.

Posner: Hand’s formula in Dennis is I think fine—it is a variant of the famous Hand negligence formula from his opinion in Carroll Towing. The Communist Party leaders were essentially agents of the Soviet Union, so I don’t see why their speech should be thought privileged by the First Amendment.

Question: Don’t phrases like “clear and present danger” (which, by the way, was used by the attorney Benjamin W. Shaw in 1918) invite, as Paul Freund suggested in 1949, a kind of mantra-like application devoid of the kind of realist and pragmatic balancing you endorse?

Posner:  It’s a dumb phrase. A murky remote danger could be very great.

Question: Based on what you know in light of the book you edited on Holmes, did he get the judgments right in Schenck, Frohwerk and Debs?

Posner: Probably not in Schenck or Debs; I don’t recall Frohwerk.

Question: “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . .”

Do you consider those lines from New York Times Co. v. Sullivan (1964) to be “unpragmatic rhetoric”?

Posner: Empty rhetoric.

 Question: The Rehnquist and Roberts Courts have said relatively little about textualism when it comes to free speech and press issues. Why do you suppose that is?

Posner: There is no text. “Freedom of speech” is a heading, not a test.

Chief Justice John Roberts

Chief Justice John Roberts

Question: The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amendment jurisprudence of the current Court?

Posner: Very nice for fat cats and enemies of abortion.

Question: You have long been on record as being a critic of the Court’s decision in Buckley v. Valeo (1976). You maintain that the “American system of campaign financing is extremely porous and is widely and probably correctly believed to constitute a thinly disguised system of quasi-bribes of elected officials; at the very least it tilts the playing field very steeply toward the wealthy and the well organized . . . .” Given that, how bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)?

Posner: Very bad.

Question: Do you favor some kind of constitutional amendment to remedy the problems you have identified

Posner: [The idea of a constitutional amendment is] a waste of time.

Posner on Roberts

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. [Source here]

Question: In his dissent in McCutcheon v. FEC (2014), Justice Breyer declared: “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” What is you view on this idea “collective speech” and the First Amendment?

Posner: A little high-falutin’ for my taste. I would just say that large corporations and wealthy people shouldn’t be allowed to buy elections.

Question: Despite your criticisms of Buckley and its progeny, you have also expressed serious doubts about campaign finance reform proposals. Please explain why you think such efforts are problematic.

Posner: Have I? I don’t recall

Question: In Frontiers of Legal Theory you wrote: “Individuals or groups that have more money than the average amount of money have always had more than the average ability to spend money on trying to influence public opinion. We do not consider such inequality a compelling reason for limiting free speech.” Do you still believe that?

Posner: The mere fact of inequality is not critical. And it would be very difficult for a new candidate to get launched without access to substantial donors. The problems are the concealment of the identity of big donors, the implicit quid pro quo (donor is buying influence, and donee who is not influenced is unlikely to obtain substantial future donations), and the failure to place some ceiling on the amount of donations that a particular individual should be free to make. And I doubt that companies as distinct from individuals should be permitted to make campaign contributions.

Question: As you know, the speech in question in Citizens United involved a political documentary titled Hillary: The Movie. A conservative non-profit group sought to air it within 30 days of the primary. During oral arguments in the case, the question was asked: “What if the particular movie involved here had not been distributed by Video on Demand? Suppose that people could view it for free on Netflix over the Internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.”

 How would you answer that question? Is it your position that showing that political documentary and/or publishing a book on it during an election is not protected speech under the First Amendment?

Posner: The question is the scope of protection. I don’t think the First Amendment should be interpreted to prevent government from limiting the amount of broadcasting (or equivalent, like movies) in the last few weeks before a national election.

Question: What is your view of the secondary effects doctrine as it has been applied by the Court and lower courts since its use in Renton v. Playtime Theatres, Inc. (1986) and then again in Barnes v. Glen Theatre (1991), which overruled an opinion that you authored. In 1988, your former boss, Justice William Brennan, warned that the doctrine “could set the court on a road that will lead to the evisceration of First Amendment freedoms.” Do you agree? Where do you stand on this matter?

Posner: I don’t think there’s anything wrong with it if it is supported by real evidence, though I think it was misapplied in the Barnes case because there wasn’t any evidence that nude dancing promotes crime to any significant extent.

The next installment, the seventh, in the Posner on Posner series was scheduled to be “On Judicial Reputation.” It will now be preceded by a special post on free speech and privacy.  

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FAN 41 (First Amendment News) Three Harvard Law Review essays discuss Justice Breyer’s free speech jurisprudence

  • Judge Breyer has a unique zig-zag style. Ralph Nader (confirmation hearing statement, July 15, 1994)
  • I do not rest my conclusion upon a strict categorical analysis. — Justice Stephen Breyer (concurring in United States v. Alvarez, June 28, 2012)
  • The single most important area of Breyer’s work on the Court has been his opinions on the First Amendment, in which he has developed a unique and pathbreaking approach to issues of freedom of speech. — Paul Gewirtz (Yale Law Journal, 2006)
Justice Stephen Breyer

On the one hand . . . but then on the other

When it comes to free speech, he is darling of the Liberal Left . . . or some on the Left, or of some on the Left in the legal academy, or of those on the Left who abhor rulings such as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014). To others, he is the Justice who got the First Amendment right (albeit in dissent) in cases such as Holder v. Humanitarian Law Project (2010) and Garcetti v. Ceballos (2006). Many of those same defenders shy away from their praise when it comes to opinions such as the one Justice Breyer authored in Randall v. Sorrell (2006).

In his pragmatist approach, one will readily discern the vernacular of ad hoc balancing, of  “competing constitutional concerns” or “First Amendment interests . . . on both sides of the legal equation.” Mindful of such concerns, he asks: Are the “restrictions on speech disproportionate when measured against their speech-related benefits”? And why? What is the purpose of such balancing? He responds: to “facilitate a conversation among ordinary citizens that will encourage their informed participation.” To that end, government may limit speech in the supposed service of “preserving a democratic order” or for the purpose of promoting and protecting  “collective speech.” In this way an others, and dating back to his 1997 concurrence in Turner Broadcasting System, Inc. v. FCC II, Stephen Breyer has set out to rewrite First Amendment jurisprudence.

In light of his two decades of service on the Supreme Court, I thought I would offer some background information on how the Justice has decided First Amendment free expression cases (29 are listed below), his thoughts on free speech generally, and how scholars and lawyers have viewed his jurisprudence in this area. A sketch of all of that is set out below by way of select references to various sources.

HLR Essays in Honor of Justice Breyer 

The November issue of the Harvard Law Review has a collection of essays in honor of Justice Stephen Breyer’s twenty years of service on  the United States Supreme Court. The following three essays concern the Justice’s free speech jurisprudence:

Let me pose a hypothetical

Let me pose a hypothetical: “Candidate Smith — we can only give him $2,600 — has a lot of supporters.”

Active Liberty: Justice Breyer on Free Speech

In his 2005 book, Active Liberty: Interpreting our Democratic Constitution, Justice Breyer devoted a chapter (pp. 39-55) to the question of free speech.

Roberts Court Era: Justice Breyer’s Majority or Plurality Opinions in Free Expression Cases

In what follows, S indicates that a majority of the Court sustained the First Amendment claimed whereas D means that it was denied.

Separate Opinions: Below is a list of separate opinions authored by Justice Breyer in free expression cases decided during the Roberts Court era:

a pensive moment

the pensive pragmatist

Justice Breyer’s Pre-Roberts Court Opinions: Selected Cases 

First Circuit Free Expression Opinions Read More

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The Flawed Foundations of Article III Standing in Surveillance Cases (Part IV)

In my first three posts, I’ve opened a critical discussion of Article III standing for plaintiffs challenging government surveillance programs by introducing the 1972 Supreme Court case of Laird v. Tatum. In today’s post, I’ll examine the Court’s decision itself, which held that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

The Burger Court

It didn’t take long for courts to embrace Laird as a useful tool to dismiss cases where plaintiffs sought to challenge government surveillance programs, especially where the complaints rested on a First Amendment chill from political profiling by law enforcement. Some judges took exception to a broad interpretation of Laird, but objections largely showed up in dissenting opinions. For the most part, early interpretations of Laird sympathized with the government’s view of surveillance claims.

Read More

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FAN 40.1 (First Amendment News) Banzhaf responds to Corn-Revere on FCC Redskins Flap

Professor John Banzhaf

Professor John Banzhaf, III

In an earlier post I profiled Robert Corn-Revere’s WSJ op-ed entitled “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.” The op-ed was written in critical response to a petition filed by George Washington Law Professor John Banzhaf to the Federal Communications Commission concerning the use of the Washington Redskins’ name on broadcast airwaves. At the end of my blog profile I invited Professor Banzhaf to respond, which he has now done. His response is set out below.

Robert Corn-Revere apparently objects that I have asked the FCC not to renew the broadcast license of a station that repeatedly and unnecessarily broadcasts a word which has been found in several legal proceedings to be a racial slur even when applied to an NFL team – “R*dskins,” the so-called R-word, equivalent to the N-word so hateful to African Americans, and never used on the air – and is even so defined in most dictionaries. But, in an apparent attempt to prove some point, he describes at length a major life-saving step I persuaded the FCC to take, and (perhaps deliberately) overlooks several obvious points.

In 1966 I persuaded the FCC with one filing (far shorter than the one now in question, and one which many likewise called “frivolous” at the time) to apply a largely unknown and moribund principle – the “Fairness Doctrine” — to cigarette advertising. The result was that anti-smoking messages were broadcast on radio and TV for the first time — hundreds of millions of (1968) dollars worth. This caused the country’s first major drop in cigarette consumption; estimated by itself to have saved millions of lives. It also led directly to a ban on cigarettes commercials; something which saved even more lives, and hundreds of billions of dollars in health care costs. [See  Banzhaf, et al. v. Federal Communications Commission, et al. (D.C. Cir., 1968, per Bazelon, C.J.)]

imagesThose who seek to hide behind the First Amendment argued then, as Corn-Revere does now, that both moves — first forcing stations to broadcast statements against smoking, and then banning them from running cigarette commercials — violated Free Speech, but I successfully defended both decisions in court. Thus, I was able to persuade the FCC to make one of its most important and significant decisions ever — one which saved millions of lives and got rid of cigarette commercials — yet Corn-Revere criticizes the fact that the FCC granted my request, apparently because the Fairness Doctrine was later abandoned. Yet this makes as much sense as criticizing the Special Prosecutor legislation (which I also had a hand in bringing into effect) — which helped save the country from a major constitutional crisis during Watergate — because it likewise was eventually allowed to expire.

He also fails to mention another FCC filing of mine that forced the major TV stations in DC — and eventually around the country – to begin featuring African Americans as reporters and in other significant on-air positions. That one, like the one he now criticizes and seeks to belittle, was likewise based on allegations of racism. Corn-Revere also fails to note how many of my other agency petitions, likewise derided as “frivolous” and/or publicity stunts at the time, were granted and were successful: in getting women admitted, for the first time, to the Cosmos Club and to formerly all-male state-supported military academies; in restricting and ultimately banning smoking on airplanes; in changing labels on foods, birth control pills and elsewhere; in striking down various forms of sex-based price discrimination, etc.

Although Corn-Revere opines (citing no authority) that my petition has no legal basis, three former FCC commissioners (including a former Chairman), as well as almost a dozen broadcasting law superstars, have publicly stated that such broadcasts are probably illegal under current law. The current FCC Chairman has stated that my petition will be taken seriously and evaluated on its merits, something he would not have said if it were obviously “a publicity stunt, not a serious legal argument.” And other broadcast law attorneys who oppose the petition have been forced to admit that it will at the very least likely hold up the license renewals of the stations for a considerable period of time, impacting their credit ratings, their ability to sell or transfer assets, etc.

Given that at least one TV station lost its license based upon allegations of racism, and that the FCC previously ruled that racial slurs constituted “profanity” (which cannot be broadcast during prime time), the tremendous value of a station’s broadcast license, and my track record in persuading the FCC and many other agencies to take unprecedented steps in response to imaginative petitions many said had no chance of success, given all that the question is: Should stations ignore this new movement and continue to bet the farm (their FCC licenses), simply to be able to say “R*dskins” rather than “DC” or “Washington” when providing the sports scores or otherwise talking about this NFL team?