Category: General Law

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No Questions Asked

GutmanCairoMaltFalc1941TrailerIn going through what happened to the original parchments of the Bill of Rights, I’ve come across another oddity that I’d like to share.

The Library of Congress and the New York Public Library both hold originals from 1789.  The LOC purchased its version from a manuscript dealer in 1943, and the New York Public Library acquired its copy somewhat earlier.

Where did they come from?  There were 14 copies made and signed by the relevant congressional officials (such as John Adams and the Speaker of the House).  The one now in the National Archives was the copy retained by the Federal Government, and one was sent to each state.  Some of those copies went missing or were destroyed.

Doesn’t this mean that the copies in the LOC and in the NY Library are two of those missing state versions?  Don’t they belong to the states to which they were originally sent?  Put another way, aren’t these copies stolen property?  Not so, they say.  The theory of both institutions is that the clerk in the First Congress made some “extra” copies and that these are what they have.

The trouble is that there is no evidence that any extra copies were made.  Indeed, when the Library of Congress bought its version in 1943, it was from a dealer who (like Peter Lorre in The Maltese Falcoln) went with the thought that “No questions will be asked” about its origins.  Perhaps there is no way of proving which state each copy came from, but an expert might be able to figure that out.

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FAN 75 (First Amendment News) Justice Kagan & the future of Abood, the strength of stare decisis, & the relevance of Garcetti

imagesThis post marks the 75th weekly issue of First Amendment News. I want to thank our publisher Dan Solove for making this possible. Thanks, too, to all those in the free-speech community — lawyers, professors, judges,  journalists, and activists — who brought me their news and kindly shared mine. And thanks to my fellow bloggers, both here and elsewhere, for their support. In the days ahead I will explore ways to make FAN better and ever more timely and informative. Thus, if you have any ideas (small or big), please pass them along. Finally, and consistent with the spirit of the First Amendment, I try to be fair to all sides in what I select and how I present it. So if you have some news to share, pass it along. Meanwhile, onward!

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 (Photo by Chip Somodevilla/Getty Images, Credit: Chip Somodevilla)

(Photo by Chip Somodevilla/Getty Images, Credit: Chip Somodevilla)

This October will mark the beginning of her sixth term on the Court. At 55, she could spend another 27 years on the Court before she is Justice Ruth Bader Ginsburg’s age. So she has plenty of time, she can move slowly and deliberatively, and she can plant seeds in today’s dissents for harvest in a future year. She is, of course, Justice Elena Kagan.

Soon, the Court will schedule oral arguments in Friedrichs v. California Teachers Association, et al., the latest public employees union case involving a First Amendment challenge to an opt-out requirement in a union-fee case. Among other issues, Justice Kagan has previously flagged two points that could prove to be important in Friedrichs. (1) how will the Court finesse the stare decisis  question? And (2), how much latitude will it give to what it ruled in Garcetti v. Ceballos (2006). Those two points are highlighted below.

________ Just How Binding is Stare Decisis? ________

In Brulotte v. Thys Co. (1964), this Court held that a patent holder cannot charge royalties for the use of his invention after its patent term has expired. The sole question presented here is whether we should overrule Brulotte. Adhering to principles of stare decisis, we decline to do so. . . Overruling precedent is never a small matter. . . Respecting stare decisis means sticking to some wrong decisions. — Justice Elena Kagan for 6-3 majority in Kimple v. Marvel Entertainment (2015)

One of the specific issues in Friedrichs is whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. In that regard, recall that Justice Kagan joined Justice Stephen Breyer’s dissent in Knox v. Service Employees International Union, Local 110 (2012), wherein it was said: “Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance.” In Friedrichs it will have precisely that “benefit of argument” . . . assuming the case is not dismissed.

It is also well to remember how Justice Kagan began her dissent in Harris v. Quinn (2014):

Abood v. Detroit Bd. of Ed. answers the question presented in this case. Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. . .  The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.”

Sensitive to the doctrine of stare decisis — a creed to which all would-be Justices feign allegiance when appearing before a Senate confirmation hearing — she roundly defended that doctrine as it applies to Abood:

“This Court’s view of stare decisis makes plain why the majority cannot—and did not—overturn Abood. That doctrine, we have stated, is

  1. a ‘foundation stone of the rule of law.’ Michigan v. Bay Mills Indian Community (2014). It ‘promotes the evenhanded, predictable, and consistent development of legal principles [and] fosters reliance on judicial decisions.’  Payne v. Tennessee (1991).
  2. As important, it ‘contributes to the actual and perceived integrity of the judicial process,’ ibid., by ensuring that decisions are ‘founded in the law rather than in the proclivities of individuals,’ Vasquez v. Hillery (1986). For all those reasons, this Court has always held that ‘any departure’ from precedent ‘demands special justification.’ Arizona v. Rumsey (1984).
  3.  And Abood,” she stressed, “is not just any precedent: It is entrenched in a way not many decisions are. Over nearly four decades, we have cited Abood favorably numerous times, and we have repeatedly affirmed and applied its core distinction between the costs of collective bargaining (which the government can demand its employees share) and those of political activities (which it cannot).”
  4. “Perhaps still more important, Abood has created enormous reliance interests. More than 20 States have enacted statutes authorizing fair-share provisions, and on that basis public entities of all stripes have entered into multi-year contracts with unions containing such clauses.” [indented numbers added to text]

Notably, many of those same arguments, even worded the same way, were set out in her Kimple majority opinion, with the Chief Justice and Justice Clarence Thomas joining in Justice Samuel Alito’s dissent. Perhaps fearful of the application of stare decisis to future cases such as FriedrichsJustice Alito began his Kimple dissent by stating: “The Court employs stare decisis, normally a tool of restraint, to reaffirm a clear case of judicial overreach.”

________ Garcetti’s Liberal Promise? ________

There is also the Garcetti point raised by Justice Kagan in the course of oral arguments in Harris: “[I]n the workplace we’ve given the government a very wide degree of latitude and there’s much that the government can do. It can fire people. It can demote people for things that they say in the workplace, not for things that they say as a citizen, but for things that they say in the workplace. That’s the fundamental lesson of Garcetti and of many, many others of our cases. So you’re saying, well, the government can punish somebody for saying something [as in Garcetti], but the government in the exact same exact position cannot compel somebody to say something they disagree with. And I want to know what’s the basis for that distinction . . . .”

SCOTUSblog Symposium on Friedrichs 

Charlotte Garden, “Another battle in the war over union fees,” SCOTUSblog, Aug. 28, 2015; David Rivkin & Andrew Grossman, “Correcting the “historical accident” of opt-out requirements,” SCOTUSblog, Aug. 27, 2015; Catherine Fisk, “The Friedrichs petition should be dismissed,” SCOTUSblog, Aug. 26, 2015; Bill Messenger, “Will the Court continue to recognize a distinction between bargaining with government and lobbying the government?,” SCOTUSblog, Aug. 25, 2015; Ann C. Hodges, “Public-sector unions, labor relations, and free speech,” SCOTUSblog, Aug. 25, 2015; and Deborah J. LaFetra, “Overrule Abood to protect individual rights,” SCOTUSblog, Aug. 24, 2015.

Reed Opinion fuels Challenge to D.C. Panhandling Law 

This from Martin Austermuhle at WAMU 88.5:  “If someone walks down a D.C. sidewalk loudly expressing a political opinion, it’s considered free speech that’s protected by the First Amendment. But what if they’re homeless, and instead of making a statement ask someone else for money? Is that also protected speech?”

Robert S. Reynolds (credit: Richmond Times-Dispatch)

(credit: Richmond Times-Dispatch)

“D.C. attorney William Claiborne thinks so, and he’s hoping a D.C. court agrees with him.”

“Claiborne has filed a class action lawsuit challenging the city’s panhandling law, saying that it unconstitutionally infringes upon the First Amendment by distinguishing between panhandlers who ask passers-by for money on spot and organizations like the Girls Scouts who might ask for donations to be given later. . . . “

The First Amendment challenge is grounded largely in the Court’s recent ruling in Reed v. Town of Glibert

See also: Clay Calvert, “Content-Based Confusion and Panhandling: Muddling a Weathered First Amendment Doctrine Takes its Toll on Society’s Less Fortunate,” Richmond Journal of Law & Public Interest (2015)

FAN 54 (First Amendment News): “Fourth Circuit Skeptical of Local Panhandling Law . . . Issue Before SCOTUS in Another Case,” April 1, 2015

Rick Hasen Interviews Floyd Abrams: Selected Excerpts  Read More

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Stealing the Bill of Rights

I wanted to share a story about the Bill of Rights that I had not heard  before, though perhaps some of you have.

In 1789, each state was sent a copy of the 12 amendments proposed by Congress. The one sent to North Carolina, though, was stolen by a Union soldier at the end of the Civil War.  He returned to Ohio and sold it to a man named Charles Shotwell for $5.  (Shotwell may have been related to the Shotwells of Cadiz who knew John Bingham, but I’m not sure).  Shotwell moved to Indianapolis, where he kept the copy in his office or in his house until his death in the 1930s!  The document then passed down through the family until 2002, when it was sold to an antiques dealer.  He then tried to sell the text to the National Constitution Center, but at that point the FBI came in and seized the relic as stolen property.  Ultimately, the courts held that the document belonged to North Carolina.

Anyway, the full story is told in this book, which is a fun read.

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Making Contracts on Kickstarter

11111In 2013, Chapman Ducote, a professional race car driver, and his wife, Kristin Ducote, had an idea for a new book about the world of professional motor sports, to be called Naked Paddock. Rather than the traditional route through book publishing—hiring an agent, seeking a publisher to pay an advance, and having the house handle the rest—they opted for a new approach of crowd-funding and self-publishing.

Crowd-funding refers to project financing generated from among the general public, usually facilitated by an internet-based service designed to match money to ideas. Creators post project proposals on the site and invite backers to buy the product in advance or stake funds in exchange for bonus mementos or voice in production. Proposals state the total amount sought to be raised and the deadline. If the goal is not reached on time, no funds change hands. But otherwise a deal is made: the facilitating site has enabled backers and creators to form a bargain.

Facilitators, such as Kickstarter, present on their web sites “terms of use” that all creators and backers must agree to in order to access the site. Such terms of use include standards designed to promote the commercial efficacy of the site. Kickstarter is where Chapman and Kristin Ducote hatched their book idea, posting their project and thus manifesting their assent to the terms of use.

The couple launched heavy promotional efforts, which included an appearance on a reality TV show—a spin-off of  But within a week, Kickstarer took it down because it violated its rules. The Ducotes sued for breach of contract, saying Kickstarter had no basis to remove the project. But they soon withdrew the suit acknowledging that they had made a contract with Kickstarter to abide by it rules yet failed to do so.

Kickstarter therefore had the right to remove the project.  While neither side disclosed publicly what rules were broken, they revealed that Kickstarrter acted in response to complaints from other users. Among likely violations were rules restricting what creators can do to promote projects—creators may not spam, use link-bomb forums, or promote on other Kickstarter project pages.

Terms of use flourish on the internet, where web site builders use them to define business models and a sense of community norms. While the means of assent vary from traditional means—clicking at prompts rather than signing a form—they have similar purposes, efficacy and limits.  While the traditional rules of contract formation fit the creator-facilitator relationship well, they require adaptation, at least conceptually, when considering other pairs of relationships in crowd-funding.

Consider that between backers and facilitators. On the surface, it may seem that the facilitator has agreed to provide a service to the backer, such as assuring product delivery and quality. But the sites disclaim such a traditional contractual relation, instead establishing the facilitator as a pure middleman without duties.   The Kicktarter terms of use state, for example: “The creator is solely responsible for fulfilling the promises made in their project.” Kickstarter’s terms of use declare that “Kickstarter doesn’t evaluate a project’s claims, resolve disputes, or offer refunds—backers decide what’s worth funding and what’s not.” The facilitator disclaims any duty to backers concerning product delivery, quality, warranties, or refunds. Read More

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FAN 74.1 (First Amendment News) First Amendment Salon goes to L.A. — Chemerinsky & Volokh discuss Roberts Court & First Amendment . . . & more!

It was a remarkable late-afternoon program yesterday as the First Amendment Salon went on the road for the first time with an event held at the Los Angeles office of Davis Wright Tremaine. There was a live video feed to DWT’s offices in New York City and Washington, D.C. Those participating in the Salon (the sixth) were UC Irvine Dean Erwin Chemerinsky and UCLA Law Professor Eugene Volokh with DWT lawyer Kelli Sager moderating the exchange between the two. The Salons are conducted in association with the law firm of Levine Sullivan Koch & Schulz and the Floyd Abrams Institute for Free Expression at Yale Law School. (Chemerinsky and Volokh are on the Salon’s advisory board). Lee Levine introduced the program. The topic of discussion for the 90-minute exchange, replete with questions from the audience, was “The Roberts Court and the First Amendment.”

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

                        Eugene Volokh, Erwin Chemerinsky & Kelli Sager

The Chemerinsky-Volokh exchange was nuanced and esoteric yet always insightful, informative, and engaging. Ms.Sager ably navigated the discussion through a variety of topics including:

  • First Amendment law in the context of the government acting as sovereign vs the government acting in a managerial capacity
  • the reach of the government speech doctrine after Walker
  •  the future of “strict scrutiny” analysis after Williams-Yulee
  • whether in light of Williams-Yulee (and the idea that judicial elections are different) independent expenditures might be regulated notwithstanding the holding in Buckley
  • the impact of Reed on the “secondary effects” doctrine
  • the likelihood that the trio of Breyer, Ginsburg, and Kagan will be able to persuade a majority of the Court to abandon strict scrutiny in content-discrimination cases
  • whether in the Friedrichs case the Court will overrule Abood (reference was made to Catherine Fisk’s SCOTUSblog post “The Friedrichs petition should be dismissed“)
  • what important First Amendment issues are not before the Court but which need to be
  • whether the Court is likely to grant cert. in a “right to publicity” case (see Law360 Aug. 14, 2015 news story here)
  • and how the Court has yet to give any serious consideration, post Reno and Ashcroft, as to how the Internet impacts First Amendment law.
Judge Alex Kozinski

Judge Alex Kozinski

And there was more, much more, including a variety of questions from the audience consisting of First Amendment lawyers and law professors, journalists, and free-speech activists.

BTW: Ninth Circuit Judge Alex Kozinski was in the audience and asked the two professors to comment on the following statement: “The big threat to free speech in the next twenty years is from foreign countries” trying to enforce “right to be forgotten” laws against the likes of Google and ordering them to remove certain items from all of their posts in all nations, including the United States. “The right to be forgotten,” he added, “is just the first of what may be many laws that are more speech restrictive than those of the U.S., e.g. defamation, privacy, and moral rights.” [See Mike Masnick, “Google Disappears Techdirt Article About Right To Be Forgotten Due To Right To Be Forgotten Request,” Infowars.com, Aug. 25, 2015)]

Shout out to the fine folks at Davis Wright Tremaine for hosting the Los Angeles Salon.

The L.A. Salon event was video-recored and I hope to post a link to it soon.

Go here for video of fifth Salon: “Is the First Amendment Being Misused as a Deregulatory Tool?”  The exchange, held at the Abrams Institute at Yale Law School, was between Professors Jack Balkin and Martin Redish with Floyd Abrams moderating.

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FAN 74 (First Amendment News) Summer thoughts on dissent

Before the summer runs its course, I thought I’d do a post on one of my favorite topics — dissent. So no news this week, just some thoughts on dissent — and some lists of books, and songs, and what have you.

Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. One of the First Amendment’s greatest virtues is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists, Tea Party supporters, religious zealots, the politically incorrect, and even nihilists.

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William F. Buckley, Jr.

William F. Buckley, Jr.

Dissent. It is a word we all know. We use the word with regularity in any variety of contexts. Judges dissent against a court majority. Political activists dissent against the establishment. Religious protesters dissent against orthodoxy. Students dissent against an administration. Newspaper editorialists dissent against politicians. And employees dissent against management. The list goes on.

In these ways and others, America values dissent, or so it seems. We often tolerate, encourage, and protect dissent. It is part of our Madisonian heritage. Some preach it, some practice it, others safeguard it, and still others endure it even when they oppose its message. Dissent is a salient feature of our modern society. It is a cultural and constitutional given.

Over the ages, dissent has been championed for assorted reasons. Dissent, it might be said, promotes self-realization and autonomy. It enables individual self-expression without fear of societal repression. The liberty of self is meaningless if one must always conform to majority will. Freedom for the outsider allows a unique brand of self-identity and self-expression.

Dissent, it might be said, advances religious freedom. When people of faith are permitted to question prevailing beliefs, they stand to redefine the relationship between themselves and their Maker. This spirit of moderation extinguishes the fires of heresy.

Dissent, it might also be said, contributes to the marketplace of ideas. It does this by promoting competition among divergent viewpoints. The hope is that, in the battle of opinions, some form of truth will prevail over falsehood, and the struggle will produce a more enlightened citizenry.

(credit: Adam Zyglis / The Buffalo News)

(credit: Adam Zyglis / The Buffalo News)

Dissent, it might further be said, enables self-governance by civic participation. Such participation is a two-way street: it is the prerogative to agree or disagree with governmental action. When the governed rule, they must have the right to differ from their governors.

Dissent likewise checks governmental abuses of power. When the whistleblower exposes governmental corruption or malfeasance, political power then comes under public scrutiny. By raising citizen awareness, dissent might bring about institutional reforms.

Dissent might moreover cultivate a democratic culture of tolerance, where all views are suffered no matter how objectionable they may be. Democracy is diversity, and diversity of views is often born out of dissent. One measure of a thriving democracy is the extent to which it fosters vibrant dissent.

Finally, it might also be said that a culture of dissent secures a safe haven for the outsider. When individuals no longer fear censure simply for being different, they can give public voice to their private views. Thereby, dissenters are afforded a chance to expand the behavioral boundaries of their society.

Whatever the objections to dissent, it is valued for all these reasons and others.  (source: Collins & Skover, On Dissent: Its Meaning in America)

Unknown rebel in front of tank in Tiananmen Square (credit: The Mirror, UK)

Unknown rebel in front of tank in Tiananmen Square (credit: The Mirror, UK)

Books of and on Dissent 

  1. Pierre Berton, editor, Voices from the Sixties: Twenty-Two Views of a Revolutionary Decade (1966)
  2. William F. Buckley, Jr., God and Man at Yale: The Superstitions of “Academic Freedom” (1951)
  3. Stokely Carmichael & Charles Hamilton, Black Power: The Politics of Liberation in America (1976)
  4. Stephen Carter, The Dissent of the Governed (1998)
  5. Nancy Chang, Silencing Political Dissent (2002)
  6. Collins & Skover, On Dissent: Its Meaning in America (2013)
  7. Dinesh D’Souza, Letters to a Young Conservative (2005)
  8. William O. Douglas, Points of Rebellion (1969)
  9. Christopher Fairman, Fuck: Word Taboo and Protecting our First Amendment Liberties (2009)
  10. Betty Friedan, The Feminine Mystique (1963)
  11.  Amin Ghaziani, The Dividends of Dissent: How Conflict and Culture Work in Lesbian and Gay Marches on Washington (2008)
  12. Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (2009)
  13. Andrew Hsiao & Audrea Lim, editors, The Verso Book of Dissent: From Spartacus to the Shoe-Thrower of Baghdad (2010)
  14.  Eugene Dennis

                   Eugene Dennis

    Martin Luther King, Letter From a Birmingham Jail (1963) (full text here)

  15. Anthony Lewis, Freedom for the Thought That We Hate: A Biography of the First Amendment (2007)
  16. Robert W.T. Martin, Government by Dissent: Protest, Resistance, and Radical Democratic Thought in the Early American Republic (2013)
  17. Kate Millett, Sexual Politics (1970)
  18. Jack Newfield, editor, American Rebels (2003)
  19. The Port Huron Statement: The Visionary Call of the 1960s Revolution (1962, 2005)
  20. Michael Ratner & Margaret Ratner Kunstler, Hell No: Your Right to Dissent in 21st-century America (2011)
  21. Charles Reich, The Greening of America (1964)
  22. Austin Sarat, editor, Dissent in Dangerous Times (2005)
  23. Steven Shiffrin, Dissent, Injustice, and the Meanings of America (2010)
  24. Herbert Storing, editor, The Complete Anti-Federalist (1981)
  25. Cass Sunstein, Why Societies Need Dissent (2003)
  26. Henry David Thoreau, Jeffrey S. Cramer, editor, Essays (2013)
  27. Gordon S. Wood, The Radicalism of the American Revolution (1991)
  28. Ralph Young, Dissent: The History of an American Idea (2015)
  29. Howard Zinn, Declarations of Independence: Cross-Examining American Ideology (1990)

51CmbungqBL._SX327_BO1,204,203,200_Forthcoming Books on Dissent

  1. Melvin Urofsky, Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue (Pantheon, October 13, 2015)
  2. Stephen D. Solomon, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press (April 26, 2016)
  3. Thomas Grace, Kent State: Death and Dissent in the Long Sixties (University of Massachusetts Press, January 14, 2016)
  4. Maria Rovisco & Jonathan Corpus Ong, editors, Taking the Square: Mediated Dissent and Occupations of Public Space (Rowman & Littfield, April 2016)
  5. Wendy B. Scott & Linda S. Greene, I Dissent!: The Dissenting Opinions of Justice Thurgood Marshall (Carolina Academic Press, March 11, 2016)
  6. Thomas Grace, Kent State: Death and Dissent in the Long Sixties (University of Massachusetts Press, January 14, 2016)

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 [I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate. — Holmes, dissenting in United States v. Schwimmer (1929)

Editorial_cartoon_depicting_Charles_Darwin_as_an_ape_(1871)Books of and on Religious Dissent

  1. Margaret H. Bacon, The Quiet Rebels: The Story of the Quakers in America (1969)
  2. John M. Barry, Roger Williams and the Creation of the American Soul (2012)
  3. Nicholas P. Miller, The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (2012)
  4. William Lee Miller, The First Liberty, Expanded and Updated: The First Liberty: America’s Foundation in Religious Freedom (2003)
  5. Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (2010)
  6. Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000)
  7. John Ragosta, Wellspring of Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution & Secured Religious Liberty (2010)
  8. Stephen Stein, Communities of Dissent: A History of Alternative Religions in America (2003)
  9. Roger Williams, The Bloudy Tenent of Persecution for Cause of Conscience (1644)
  10. John Winthrop, A Short History of the Rise, Reign, and Ruin of the Antinomians, Familists, and Libertines (1644)
Bob Dylan & Joan Baez (credit: SVA Picture Collection)

Bob Dylan & Joan Baez (credit: SVA Picture Collection)

Songs of Dissent (YouTube clips)

  1. Tracy Chapman, Talkin’ bout a Revolution
  2. Sam Cooke, A Change is Gonna Come
  3. Crosby, Stills, Nash and Young, Ohio
  4. Bob Dylan, Masters of War
  5. Dylan, The Lonesome Death of Hattie Carroll
  6. Dylan, The Times They Are A-Changin
  7. Peter Gabriel, Biko
  8. Marvin Gay, What’s Goin On?
  9. Woody Guthrie, This Land is Your Land
  10. Billie Holiday, Strange Fruit
  11. Macklemore & Ryan Lewis (feat. Mary Lambert), Same Love 
  12. Barry McGuire, Eve of Destruction (Reply: Barry Sadler, Ballad of the Green Berets)
  13. N.W.A., Fuk Da The Police
  14. Phil Ochs, I Ain’t Marching Anymore
  15. The Plastic Ono Band, Give Peace a Chance
  16. Public Enemy, Fight the Power
  17. Nina Simome

             Nina Simone

    Rage Against the Machine, Killing in the Name

  18. Pete Seeger sings Woody Guthrie Deportee
  19. Seeger, We Shall Overcome
  20. Nina Simone, Mississippi Goddam
  21. Todd Snider, Ballad of the Kingsmen 
  22. Buffalo Springfield, For What It’s Worth
  23. Buffy St Marie, Universal Soldier
  24. U2, Sunday Bloody Sunday
  25. Suzanne Vega, Luka
  26. The Wailers, Get Up, Stand Up

Last Scheduled FAN #73: “D.C. Circuit strikes down SEC “conflict minerals” rule by 2-1 margin

Next Scheduled FAN #75: September 2, 2015

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Judge Posner Is Wrong

I want to draw your attention to the Seventh Circuit’s opinion in Rowe v. Gibson, which addresses a Section 1983 claim by a prisoner. The panel was sharply–very sharply–divided on the majority’s reliance on facts outside of the record drawn from some medical websites.  Judge Posner, who wrote the majority opinion, argued that this was appropriate, while Judge Hamilton dissented and said that this research was not appropriate.  (Disclosure–I have met Judge Hamilton at some functions, but not for many years.)

I think the dissent has the better of this argument, and that Judge Posner’s discussion of the issue is poorly reasoned.  Here is a key passage:

There is a high standard for taking judicial notice of a fact, and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross-examination, but is there no room for anything in between? Must judges abjure visits to Internet web sites of premier hospitals and drug companies, not in order to take judicial notice but to assure the existence of a genuine issue of material fact that precludes summary judgment? Are we to forbear lest we be accused of having “entered unknown territory”? This year the bar associations are busy celebrating the eight hundredth anniversary of Magna Carta. The barons who forced King John to sign that notable document were certainly entering unknown territory, and risking their lives to boot. Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit?

My first thought on reading this is that Judge Posner’s comparison of his situation to the barons at Runnymede sounds like something silly that an undergraduate would say in a seminar paper.  My next thought is that is this sounds a lot like saying that courts should do factual research on behalf of pro se plaintiffs or plaintiffs who look overmatched in the adversarial process.  Where does that end?

Maybe we would be better off with an inquisitorial system.  But we don’t have one, and Judge Posner can’t give us one (comparisons to Magna Carta notwithstanding).  He should know better, but recently his decision read as if he just knows best.

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FAN 73 (First Amendment News) D.C. Circuit strikes down SEC “conflict minerals” rule by 2-1 margin

Yesterday, the DC Circuit handed down its ruling in National Association of Manufacturers v. SECThe case involves a First Amendment challenge brought by the National Association of Manufacturers concerning the SEC’s conflict minerals disclosure rule, which requires companies to publicly disclose their use of conflict minerals that originated in the Democratic Republic of the Congo (DRC) or an adjoining country. “Conflict minerals” are minerals mined in conditions of armed conflict and human rights violations, particularly in the DRC.

A. Raymond Randolph (photo by Adrian R. Rowan)

Judge  Raymond Randolph (photo by Adrian R. Rowan)

By a 2-1 margin, the court ruled that the SEC disclosure requirement violated the First Amendment. Circuit Judge Raymond Randolph wrote the majority opinion which Judge David Sentelle joined. Judge Sri Srinivasan dissented.

The case was reheard in light of the court’s ruling in American Meat Institute v. U.S. Department of Agriculture (D.C. Cir. 2014) (en banc) and its treatment of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985).

“Using Zauderer’s relaxed standard of review,” said Judge Randolph, “AMI held that the federal government had not violated the First Amendment when it forced companies to list on the labels of their meat cuts the country in which the animal was born, raised, and slaughtered. The AMI court therefore overruled the portion of our decisions in NAM, R.J. Reynolds, and National Association of Manufacturers v. NLRB holding that the analysis in Zauderer was confined to government compelled disclosures designed to prevent the deception of consumers.” In yesterday’s ruling, the majority declared that the issue then before it was “whether Zauderer, as now interpreted in AMI, reaches compelled disclosures that are unconnected to advertising or product labeling at the point of sale.”

Judge Randolph concluded that “Zauderer has no application to this case.This puts the case in the same posture as in our initial opinion when we determined that Zauderer did not apply, but for a different reason. As we ruled in our initial decision, we need not decide whether ‘strict scrutiny or the Central Hudson test for commercial speech’ applies. For the reasons we gave in that opinion, the SEC’s ‘final rule does not survive even Central Hudson’s intermediate standard.’ We need not repeat our reasoning in this regard.” (footnotes omitted)

To buttress the majority’s First Amendment argument, Judge Randolph added: “But given the flux and uncertainty of the First Amendment doctrine of commercial speech, and the conflict in the circuits regarding the reach of Zauderer, we think it prudent to add an alternative ground for our decision. It is this. Even if the compelled disclosures here are commercial speech and even if AMI’s view of Zauderer governed the analysis, we still believe that the statute and the regulations violate the First Amendment.” (footnotes omitted) The majority thus concluded that “the Commission’s final rule, 77 Fed. Reg. at 56,362-65, violate[s] the First Amendment to the extent the statute and rule require regulated entities to report to the Commission and to state on their website that any of their products have ‘not been found to be ‘DRC conflict free.’’”

Judge Sri Srinivasan

Judge Sri Srinivasan

Writing in dissent, Judge Srinivasan argued that “[i]ssuers of securities must make all sorts of disclosures about their products for the benefit of the investing public. No one thinks that garden-variety disclosure obligations of that ilk raise a significant First Amendment problem. So here, there should be no viable First Amendment objection to a requirement for an issuer to disclose the country of origin of a product’s materials—including, say, whether the product contains specified minerals from the Democratic Republic of the Congo (DRC) or an adjoining country, the site of a longstanding conflict financed in part by trade in those minerals. Such a requirement provides investors and consumers with useful information about the geographic origins of a product’s source materials. Indeed, our court, sitting en banc, recently relied on “the time-tested consensus that consumers want to know the geographical origin of potential purchases” in upholding a requirement for companies to identify the source country of food products. Am. Meat Inst. v. U.S. Dep’t of Agric. It is hard to see what is altogether different about another species of “geographical origin” law requiring identification of products whose minerals come from the DRC or adjoining countries.”

The Liberal Divide Widens — Abrams & Post on the Vices vs Virtues of Reed Ruling Read More

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FAN 72 (First Amendment News) Megyn Kelly — Bold Defender of Free Speech Freedoms

In America we stand for liberty, and freedom to offend, to provoke, to persuade, and to defy. — Megyn Kelly

Megyn Kelly

Megyn Kelly

Though she is a news anchor, she is very much in the news these days. She is the object of a national discussion about women. And it all stemmed from a pointed, polite, and entirely appropriate  question she posed to the most outspoken candidate currently seeking to be President of the United States.

She is, of course, Fox’s Megyn Kelly, the one who has a TV following of 2.8 million followers. Before entering the world of journalism, Ms. Kelly held her able own at the Jones Day law firm.

Her calling card: Feisty, informed, incredulous, and quick-witted. Make of her what you will — too conservative, too blond, or maybe too tough on the likes of Karl RoveDick Cheney and Donald Trump. As for the Trump flap, Ms. Kelly stood her free-press ground: ““I certainly will not apologize for doing good journalism, so I’ll continue doing my job without fear or favor,” she told viewers of The Kelly File. By the same journalistic measure, recall Ms. Kelly’s skepticism, which proved to be founded, concerning Duke University’s alleged sexual assault incident.

However you cast her, there is also this: Megyn Kelly is bullish on the First Amendment. While we still need to hear more from her on any variety of free-speech issues, what we do know at this point is that she is a woman who yields no ground when it come to our First Freedom.

[N]o matter how abhorrent one might find another’s words, in this country, we defend their right to say them. Standing up for that principle is not an endorsement of the controversial speech. It is promoting a value at the very core of who we are.  Megyn Kelly

There’s a spark of Nat Hentoff in her steadfast commitment to free speech. Just consider her response to a claim made by TV critic Howard Kurtz: “There’s a reason free speech is in Amendment number one. It goes to the core of our principles as Americans and what we stand for. You can hate the message, you can hate everything they’re saying … that is allowed in the United States of America, because, as the Supreme Court once put it, the answer to speech you do not like is not less speech. It’s more speech,”

Mr. Kelly & Mr. O'Reilly

Ms. Kelly & Mr. O’Reilly

When it comes to free speech, the TV news anchor and commentator is willing to go toe-to-toe with  anyone, even if that someone is Bill O’Reilly: “The relevnt question is not [whether] those under attack say something offensive, the relevnt question is what we do about a group that wants to kill us for exercising our contitutional rights.” (See also here)

Before the recent Trump flap, she gave the blustery billionaire a civics lesson: “What do we stand for as Americans if not freedom of speech and the ability to express yourself?”

Not surprisingly, some in the First Amendment community are taking note of Ms. Kelly and her views on free speech.

Alan Dershowitz: “Megyn Kelly has demonstrated how the First Amendment can be used to expose the real views of candidates. She provokes, and she succeeds. Keep it up.” (see also here)

Nadine Strossen: “As a law professor, I join Prof. Alan Dershowitz in awarding Megyn Kelly an A for her solid understanding of core First Amendment principles that Justices across the ideological spectrum have consistently upheld.  As a civil libertarian, I award her an A+ for her fearless, impassioned, and eloquent defense of those principles when too many others – also across the ideological spectrum – seek to trim back our First Amendment rights in response to what the Supreme Court has called “the heckler’s veto,” but what Megyn has correctly referred to as “the assassin’s veto.”

Robert Corn-Revere: “Megyn Kelly provides a clear and consistent reminder that the right to free expression includes the right to offend, and, in fact, that right cannot exist when some assert a right not to be offended.  Ms. Kelly recognizes that the role of some people in the marketplace of ideas may be mainly to serve as bad examples – but that is the only way the system can work effectively.  Everyone should have their say, and people will choose what ideas to accept or to reject.”

“Kelly speaks in a jazz-improv progression of italics, all-caps and boldface.” That is how Jim Rutenberg portrayed her in a recent and lengthy New York Times magazine profile titled “The Megyn Kelly Moment.” There is truth there provided one adds the word informed.

Ms. Kelly & Richard Fowler

Ms. Kelly & Richard Fowler

When it comes to free speech, her passion tracks her informed grasp of her subject. Simply consider her exchange with Richard Fowler when they were discussing the “Draw Muhammad” cartoon contest: “The more offensive speech is, Richard, the more protection it needs. That’s how the First Amendment works. We can defend the First Amendment right to say it without aligning ourselves with the message.” She took exception, strong exception, to notion that Americans should be squeamish or apologetic about their exercise of their First Amendment rights. She took even strainer exception to those who counseled otherwise.

In much the same vein, she took the Catholic League’s President, Bill Donohue, to task over his criticism of the Charlie Hebdo cartoonists. With finger pointed and eyes scanning, she quoted approvingly from Chief Justice William Rehnquist’s 1988 majority opinion in Hustler Magazine v. Falwell: “[T]he freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.” [quoting Bose Corp. v. Consumers Union of United States, Inc. (1984)]

Ms. Kelly & Professor Eugene Volokh

Ms. Kelly & Professor Eugene Volokh

In a May 7, 2015 program, Kelly found a First Amendment ally in UCLA Law Professor Eugene Volokh. At the outset of that program she was emphatic: “The terrorist point was to shut us up, not just the organizers of the [Draw Muhammed Cartoon Contest] but also any American who danes to disagree with their  way of life or thinking. . . . In this country we have every right to say what we want to say about Muhammed or about anyone else for that matter.” Volokh agreed: “People are free to engage in much more offensive speech than that.” He went on to explain how the contours of modern free speech law were consistent with Ms. Kelly’s views and how such speech had value as “a reaffirmation of our free speech rights . . . “

Will her commitment continue? Will she vacillate when other tough First Amendment issues are presented to her? Who knows?  That said, it seems likely that Ms. Kelly will become an even grander figure in the world of free speech in the days and months ahead.

 See here for a listing of Ms. Kelly’s various comments concerning the First Amendment.

Opinion in Amarin Pharma, Inc. v. U.S. Food & Drug Adminstration Read More

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FAN 71.2 (First Amendment News) Floyd Abrams prevails in off-label drug case — Court grants preliminary injunction

[Today a] U.S. judge . . . barred the U.S. Food and Drug Administration from stopping Irish drugmaker Amarin Corp from promoting its fish oil drug for off-label uses, saying the company is protected by the First Amendment.The preliminary order by U.S. District Judge Paul Engelmayer in Manhattan means Amarin can promote its Vascepa pill to doctors for off-label use as long as it does so truthfully. Friday’s decision is a preliminary injunction, not a final order. However, Engelmayer said in granting the injunction that Amarin was likely to prevail. –Reuters, Aug. 7, 2015

Four days ago I wrote a post titled “Amarin v. FDA –Important Commercial Speech Case May be Decided Soon.”

Well, that case was decided today. In a detailed and nuanced 71-page opinion, U.S. District Judge Paul A. Engelmayer ruled in the Plaintiffs’ favor and granted a preliminary injunction. Floyd Abrams was the lead counsel for Amarin.

Recall the respective claims made by the parties:

→ Plaintiff’s Claim: “Amarin Pharma wants to provide healthcare professionals with truthful, non-misleading information about its prescription drug Vascepa®, and four doctors who want to receive that information, as they determine when and whether to prescribe that drug. If Amarin provides that information, however, it is at high risk of criminal and civil sanctions being sought against it by the United States.”

→ Government’s Claim: “Plaintiffs seek a court order that would allow Amarin to distribute its drug Vascepa under circumstances which could establish that Amarin intends an unapproved new use for Vascepa, i.e., a use for which FDA has not determined that the drug is safe and effective. But Plaintiffs’ legal arguments strike at the very heart of the new drug approval process, and a court decision in Plaintiffs’ favor has the potential to establish precedent that would return the country to the pre-1962 era when companies were not required to prove that their drugs were safe and effective for each of their intended uses.”

→ District Court Holding

The Court has held that Amarin’s proposed communications, as modified herein, are presently truthful and non-misleading. But the dynamic nature of science and medicine is that knowledge is ever-advancing. A statement that is fair and balanced today may become incomplete or otherwise misleading in the future as new studies are done and new data is acquired. The Court’s approval today of these communications is based on the present record. Amarin bears the responsibility, going forward, of assuring that its communications to doctors regarding off-label use of Vascepa remain truthful and non-misleading.

→ District Court’s order:

The Court grants Amarin’s application for preliminary relief. Specifically, the Court declares that:

(1.)  Amarin may engage in truthful and non-misleading speech promoting the off-label use of Vascepa, i.e., to treat patients with persistently high triglycerides, and under Coronia, such speech may not form the basis of a prosecution for misbranding; and

(2) Based on the information presently known, the combination of statements and disclosures that Amarin proposes to make to doctors relating to the use of Vascepa to treat persons with persistently high triglycerides, as such communications have been modified herein,* is truthful and non-misleading.

See alsoCourt Approves Amarin (AMRN) to Tell Doctors About Off-Label Vascepa Usage,” StreetInsider.com, Aug. 7, 2015 (listing approved statements).