Category: General Law


FAN 77 (First Amendment News) NPR & Other Press Groups Oppose Pentagon’s New “Law of War” Manual

Screen Shot 2015-09-14 at 11.55.14 PMThe report is titled Department of Defense War Manual, which was relased last June. The 1,176 page, 297 footnoted document is dense and stocked full of military jargon. But Michael Oreskes, the senior vice president for news and editorial director at National Public Radio, has plowed through it and took strong exception to some of its claims. In an August 19, 2015 letter to Secretary of Defense Ashton B. Carter, Mr. Oreskes began by stating: “A country that protects its journalists, protects the truth. The Department of Defense’s recently issued Law of War Manual fails to do that.” Among other things, Mr. Oreskes complained that:

  • “The document creates dangerous ambiguity around the collection of information for use in reporting.”
  • “The Manual does not explain the distinction between newsgathering and spying except to note vaguely that journalists should “act openlyand with the permission of relevant authorities” and that they should present “identification documents” to prove they are journalists.”
  • “The Manual, as it is currently drafted, might be read to empower governments to judge for themselves whether a U.S. journalist’s work is spying, and to punish the journalist accordingly.”

In a story by Benjamin Mullin, writing in Poynter, it was also repaired that “several other news organizations, including The New York Times, The Associated Press and ABC News, expressed disapproval of certain things in the Manual. “Writing for The New York Times, editorial board member Ernesto Londono said a possible Pentagon decision to revise the manual “can’t happen quickly enough.” In that regard, Mr. Londo noted:

Allowing this document to stand as guidance for commanders, government lawyers and officials of other nations would do severe damage to press freedoms. Authoritarian leaders around the world could point to it to show that their despotic treatment of journalists — including Americans — is broadly in line with the standards set by the United States government. . . .

Even more disturbing is the document’s broad assertion that journalists’ work may need to be censored lest it reveal sensitive information to the enemy. This unqualified statement seems to contravene American constitutional and case law, and offers other countries that routinely censor the press a handy reference point. . . . 

A spokesman for the National Security Council declined to say whether White House officials contributed to or signed off on the manual. Astonishingly, the official pointed to a line in the preface, which says it does not necessarily reflect the views of the “U.S. government as a whole.”

See also “U.S. Department of Defense manual allows some journalists to be held as ‘belligerents’,” Associated Press, August 25, 2o15 (“‘I’m troubled by the label ‘unprivileged belligerents,’ which seems particularly hostile,’ said Kathleen Carroll, AP’s executive editor. ‘It sounds much too easy to slap that label on a journalist if you don’t like their work, a convenient tool for those who want to fight wars without any outside scrutiny.'”)

[hat tip: Ashley Messenger]

FCC Defends Implementation of Net Neutrality Rules

76582a77da3d81000ca6d19ea20e5924This from Jon Brodkin at ArsTechnica: “The Federal Communications Commission yesterday said it did not violate the First Amendment rights of Internet service providers when it voted to implement net neutrality rules.”

“Broadband providers who sued to overturn the rules claim their constitutional rights are being violated, but the FCC disputed that and other arguments in a filing in the US Court of Appeals for the District of Columbia Circuit. . . .”

“‘Nobody understands broadband providers to be sending a message or endorsing speech when transmitting the Internet content that a user has requested,’ the FCC wrote. ‘When a user directs her browser to the New York Times or Wall Street Journal editorial page, she has no reason to think that the views expressed there are those of her broadband provider.'”

“First Amendment objections have been briefly raised by AT&T, CenturyLink, CTIA-The Wireless Association, and the United States Telecom Association. The argument that net neutrality rules violate broadband providers’ First Amendment rights was also made by Verizon back in 2012.”

“In the current case, the First Amendment objections have been made most forcefully by Alamo Broadband, a small provider in Texas. Alamo argued that ISPs ‘exercise the same editorial discretion as cable television operators in deciding which speech to transmit.'”

See here re FCC’s Net Neutrality order.

Jonathan Keane, “Net neutrality doesn’t violate ISPs’ first amendment rights says FCC,” Digital Trends, Sept. 15, 2015

Arkansas AG Calls on Court to Overrule Abood Read More


Declarations vs. Bills of Rights

There are many famous Declarations of Rights.  The Universal Declaration of Human Rights of 1948, the French Declaration of the Rights of Man of 1789, the Virginia Declaration of Rights of 1776, and the English Declaration of Rights in 1689.  Other canonical texts, most notably the first set of constitutional amendments, are described as bills of rights.  What is the difference?

In the modern era the answer seems to be that declarations of rights are aspirational (at least in significant part) while bills of rights are concrete.  In 1991, President Bush stated during the bicentennial of the Bill of Rights that the Framers were practical men who “gave us not a declaration but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government.” And Mary Ann Glendon’s book on the drafting of the Universal Declaration explains that the authors of that document tended to refer to their work as an “international bill of rights” until they started adding aspirational language, at which point they began calling the draft a “declaration.”

Now this was not the basis of the original distinction between a Declaration and a Bill of Rights.  In 1689, the English Declaration was given that title because that text was the product of a illegal Parliament (sitting without a King). The Bill of Rights of that same year was a duly enacted statute (after William was crowned).

By the Founding-era, though, this distinction was irrelevant.  People used the two terms interchangeably, and some states called its list a “declaration of rights” while some said “bill of rights” even though they looked the same.  This rhetoric continued into the late 19th century, but by 1900 “bill of rights” became the favored term.

Why was that?  I’m not sure, but the answer may be that the Declaration of Independence became THE Declaration for Americans such that calling anything else a Declaration of Rights would have seemed strange.  The Declaration of Independence, of course, was aspirational, which may have led people to view other declarations in that way.

Anyway, food for thought.


The First Congress on How To Amend

I’ve posted previously about the fact that the First Congress debated whether the first set of amendments should be interwoven into the document or listed at the end.  I’ve been reading that discussion as part of writing the new book, and I thought I’d say more about it.

Madison and the other proponents of revising the 1787 text directly made the argument that this would make the Constitution easier to understand.  As Madison said, to do otherwise would mean that the text could only be divined by a comparison of the two instruments, “which will be a very considerable embarrassment.”  It was also noted that the state ratifying conventions that wanted amendments desired that they be written into the text directly.

What were the arguments on the other side?  One was that statutory enactments (whether in the states or in England) typically were just supplements to what was enacted previously.  Sometimes a law did repeal or revise the text of a prior enactment, but often they did not. The response to this was that these practices were irrelevant for a written constitution, and the state constitutions were so new that they had never been amended (just entirely rewritten).

Other arguments for supplementation included: (1) the Constitution was ratified by state conventions, while the amendments would be ratified by state legislatures (though others disputed that this made any difference); (2) incorporating the amendments directly would confuse people by suggesting that the delegates in Philadelphia signed the amended constitution; (3) Article Five only authorized amendments rather than the writing of a new constitution.

We do not know why the House of Representatives made its choice.  The motion to list the amendments as a Supplement was voted down initially, but later passed because (according to a letter by Madison) that was necessary to secure a few votes for the two-thirds needed to pass the entire package.  More on the consequences later.




FAN 76.1 (First Amendment News) Chemerinsky & Volokh discuss the Roberts Court & The First Amendment (video posted)

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

UPDATE: Access to the video link below is now available to the public.   

It was a remarkable late-afternoon program last month 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 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.”

The video link to the discussion can be found here. (Circuit Judge Alex Kozinski was present and asked a question.)

A list of the topics covered can be found here.

 Again, thanks to the fine folks at Davis Wright Tremaine for hosting the Los Angeles Salon.

NEXT SALON: November 2, 2015: Floyd Abrams and Robert Post will discuss the ramifications of Reed v. Town of Gilbert (2015) with Linda Greenhouse moderating.

EARLIER SALON: “Is the First Amendment Being Misused as a Deregulatory Tool?” — Professors Jack Balkin and Martin Redish with Floyd Abrams moderating. (video here)


Teaching First Amendment Law in Reality-Friendly Ways — Thoughts on Ferguson & Free Speech

Let me start with some provocative panache: Too much First Amendment law is taught in ways divorced from reality. Obsessed with Supreme Court decisional law, First Amendment courses provide the average law student with little or nothing in the way of addressing issues prior to some free speech violation. I was reminded of this when I read a report recently issued by the U.S. Department of Justice. Yesterday I blogged about the questions raised in that report concerning the First Amendment and the police handling of demonstrations in Ferguson. Reading that report reminded me, yet again, of the great disconnect between how law is taught and how it might be taught in ways more consistent with the realities of law and life “on the ground.”

imagesTo illustrate my concern: Assume you are a city attorney who provides legal counsel to local officials and to the police. You have just read this Ferguson report and want to take some proactive steps to better ensure both public safety and faithful compliance with all laws (local, state and federal) designed to protect freedom of religion, speech, press, assembly and petition rights. And you hope to do so by way of proposed ordinances, official policies, training programs, and community outreach efforts.

Is there anything meaningful in our First Amendment casebooks and courses that would have helped this city attorney prepare for such a task? I wonder.

Let us say you want to do the following, among other things, and duly mindful of all pertinent federal and state laws and regulations:

  1. Establish police training programs more sensitive to First Amendment rights. (What would such programs look like?)
  2. Draft a police policy or guidelines to protect First Amendment rights to protest. (What would be the letter and scope of such guidelines?  How would they be enforced?)
  3. Draft police guidelines and/or a city ordinance to safeguard press and blogger rights during demonstrations. (This could be complicated.)
  4. Draft effective police protocols for reacting to protestors. (Where would you begin?)
  5. Draft police guidelines and/or a city ordinance to safeguard the right of the public to video record police activities. (Where would you draw the line?)
  6. Draft police guidelines and/or a city ordinance concerning the use and abuse of police body cameras. (What would the penalty be for noncompliance?)
  7. Draft a city ordinance to process and preserve citizen complaints against police. (Operationally and technologically, how would that work?)
  8. Draft a city ordinance to provide for the timely release of public information. (What would constitute good cause for not releasing such information?)
  9. Create a police-community outreach program designed to improve relations and preserve First Amendment rights. (Would you invite the ACLU and police union groups, among others?)

If a conscientious public official had read the Ferguson report, he or she would be sensitive to such concerns and others. He or she would want to take action. But how? How does he or she advisedraft, and communicate in ways intended to secure First Amendment rights? That is, how would such an official protect First Amendment rights before they were violated, before there was an Article III case or controversy, and before there was any appellate court ruling?

We need meaningful “skills learning” in how we teach First Amendment law. Instead of diverting such training to statutory drafting or to clinical courses, such education needs to be incorporated within our First Amendment casebooks and classroom teaching. Since it is now done in contracts classes, why not in First Amendment classes? Of course, that would mean teaching in ways not dependent entirely on the case method and on casebooks.

UnknownThere is another related point to consider, namely, teaching a segment of a First Amendment course attentive to the relationship between race and peaceful protests. Such a course (and/or course materials) could build on an idea Harry Kalven had a half-century ago in his seminal book The Negro and the First Amendment (1965). The only difference is that today we do not need a string of Supreme Court cases — we have, among other things, a major Department of Justice report.

Mind you, I am all for teaching decisional law and am also a big fan of teaching free-speech theory. But that is not enough if we are to take the First Amendment seriously. We need more realism in the educational mix. One way to begin to do that is to invite prominent civil rights litigators — the likes of William H. “Billy” Murphy, Jr., etcetera —  to speak at a conference of First Amendment law professors. In other words, bring the world of practicing lawyers into the world of legal academia.   

One final point: As the text of the First Amendment tells us (and as Justice Hans Linde has long emphasized), the main purpose of the guaranty was to safeguard such rights before they were violated by lawmakers and other government officials. My fear is that too many First Amendment professors and lawyers have lost sight of that great Madisonian insight.


FAN 76 (First Amendment News) Federal Report on Ferguson Identifies First Amendment Concerns

53ee71fd731e9.imageIn a report recently issued by the U.S. Department of Justice (see press release here), questions were raised concerning the First Amendment and the police handling of demonstrations in Ferguson, Missouri. Among other things, the 162-page Report stated:

  1. [Discretionary application of sanctions]: “[A]s the ‘keep moving’ order was put into effect, protected First Amendment activity was swept up by prohibition of such activity and threat of (or actual) arrest. Discretionary application of sanctions by law enforcement is always a concern. The exposure to potential arrest for exercising one’s right to peacefully assemble and protest was problematic.”
  2. [“Keep Moving” Orders & Right to Assembly]: “Unified command created a vague and arbitrary derivative of the Missouri failure to disperse statute—the ‘keep moving’ order, or ‘five-second rule,’ which violated citizens’ right to assembly and free speech, as determined by a U.S. federal court injunction.”
  3. [Police Discouraged Protests]: “Unified command failed to establish a clearly marked First Amendment free speech zone until August 19, 2014. This delay, coupled with the ‘keep moving’ order, had an overall effect of discouraging protesters from exercising their First Amendment rights.”
  4. [Police Removal of Badges]: “During the law enforcement response to the protests, some officers removed their nameplates. This behavior defeated an essential level of on-scene accountability that is fundamental to the perception of procedural justice and legitimacy.”
  5. [Suspicious Lack of Citizen Complaints]: “[G]iven the size and scope of the protest and the findings outlined within this report, the limited number of filed complaints is misleading. Other factors that made it difficult or impossible to lodge complaints— or a lack of confidence in the complaint process— likely deterred citizens from filing complaints about police behavior.”
  6. [Press Arrests]: “Controversy over police tactics also heightened on August 13, when two news reporters from The Washington Post and The Huffington Post were arrested in a restaurant near the protests. The visibility of these arrests drew more negative attention toward police practices. Allegations of the police abusing their authority and violating citizens’ civil rights were common.”
  7. [The Need for Effective Protocols]: “[T]here were no effective protocols in place to handle an event like this; if such protocols had been in place, they would have identified the appropriate police resources and procedures for the event to accompany the mutual aid agreements.”
  8. [The Need for Planning]: “Even with the best planning for a police response to a protest, the nature and evolution of a protest, factors collaterally related to the protest, and the effectiveness of tactics and strategies must be constantly monitored and changed to reflect the changing protest management environment.”
  9. [Reasonable Accommodations for Protests]: “As a statement of principle to ensure procedural justice, law enforcement should provide all lawful and reasonable accommodation and support to facilitate the First Amendment expressive activity of citizens. Great restraint of police powers should be used to protect the rights of lawful demonstrators, while at the same time protecting the safety and rights of citizens whose persons and property are contiguous to the demonstration. In cases when the safety and rights of others are in jeopardy from the demonstration activities, law enforcement should propose alternate accommodations to protesters.”
  10. [Free Speech Zones] “A First Amendment free speech zone set up by authorities as an area where groups could congregate to demonstrate should be clearly established, allowing for reason- able accessibility to the media. Free speech zones such as the “protester assembly zone” (also called the “approved assembly area”) established by police in Ferguson pursuant to the Abdullah case are designated zones in public areas set aside by authorities in which people may exercise their First Amendment rights. Use of zones requires government to strike an appropriate balance between public safety concerns and First Amendment freedoms, because First Amendment activity is permitted only in the designated zone.”
  11. [Need for Constitutionally Sensitive Police Policies] “It is essential that law enforcement establish and apply procedures that comply with statutory and constitutional requirements. Legal counsel should be consulted and involved when establishing policies, procedures, and tactics that could infringe on or impact constitutional protections.”
  12. [Balancing Public Safety with Right to Protest]: “While law enforcement must meet its duty to protect people and property during mass demonstrations and protests, it can never do so at the expense of upholding the Constitution and First Amendment-protected rights.”
  13. [Need for Police Training: Lawful vs Unlawful Assembly]: “Officers should have been educated or reminded of the difference between a violation of Missouri’s unlawful assembly, riot, and failure to disperse laws versus lawful assembly and the protections of the First Amendment that could make an order to disperse to be in and of itself illegal. Law enforcement should have been more aware of how its response had a chilling effect on the protesters exercising their First Amendment rights.”
  14. [Need for Police Training: First Amendment Education]: “Agencies should train all officers on the nature of the First Amendment and the protections it affords, including what is a lawful protest, how law enforcement should deal with lawful protests, and what are best practices for policing crowds.”
  15. [Methods for Processing Citizen Complaints]: “Law enforcement agencies should establish multiple methods for submitting complaints/commendations (in person, by phone, online, etc.) that are easily accessible, efficient, effective, and not intimidating to the public to ensure that citizen complaints are received, fairly investigated, and adjudicated. Agencies should review these methods periodically to stay current with technology and generational changes.”
  16. [Communicating with Protestors]: “Law enforcement must reach out to protest leaders to understand the protesters’ issues and establish an understanding of police responsibilities for managing the safety and security of protesters and the community.”
  17. [Improving Lines of Communication]: “Lines of communication between law enforcement and protest leaders should remain open and consistent not only throughout the protest but also after the protest to ensure effective communications to prepare for future protests and to ensure a relevant ongoing dialogue between the protesters and the police occurs.”
  18. [Timely Release of Public Information]: “Law enforcement should establish a practice to release all information law- fully permitted as soon as possible and on a continuing basis, unless there is a compelling investigatory or public safety reason not to release the information. A ‘compelling reason’ should be narrowly defined and limited in scope. Had law enforcement released information on the officer-involved shooting in a timely manner and continued the information flow as it became available, community distrust and media skepticism would most likely have been lessened.”
  19. [Cell Phone Photography & Accountability] “Social media—from video streams to cell phone videos to photographs— can be a strong accountability tool when used to document the behavior of not only police officers but also demonstrators.”

In light of the above, tomorrow I will post a piece entitled “Teaching First Amendment Law in Reality-Friendly Ways.”

Bookstore Owner & Free-Speech Defender Joyce Meskis to be Honored Read More


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.


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!

* * *  *

 (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


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.


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