Category: General Law

2010 State of the Union Address
2010 State of the Union Address
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FAN 44 (First Amendment News) Citizens United: it was 5 years ago today — 13 First Amendment lawyers & scholars offer differing views

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” [President Obama] said of the Citizens United v. Federal Election Commission decision, which allowed corporations to donate to political candidates. Justice Samuel Alito then shook his head and whispered, “not true.” — Tessa Berenson, Time (2015)

On this day five years ago the Supreme Court, by a 5-4 vote, handed down its decision in Citizens United v. Federal Election Commission (transcripts here and here & audio file — argument and re-argumament —  here).

As you will see, the comments below span a wide rhetorical range. On the one hand, some view Citizens United as “one of the worst decisions in the history of the United States Supreme Court” (Geof Stone), while others argue that the Court in Citizens United “reaffirmed and applied core First Amendment principles” (Joel Gora). See below for the full spectrum of views.   

Speaking of money and speech, the Court now has before it a First Amendment challenge to a panhandling law — Thayer v. City of Worcester (distributed for Conference of Jan. 9, 2015).

Before proceeding to the comments, I thought it might be useful to provide a few hyperlinked historical facts about the case. 

The documentary that prompted the litigation

Hillary: The Movie

The Petitioner

The Lawyer for the Petitioner in the District Court

Three-Judge District Court per curiam opinion here

The Lawyers who argued the case in the Supreme Court 

  1. Theodore B. Olson (argued the cause for the Appellant)
  2. Floyd Abrams (on behalf of Senator Mitch McConnell, as amicus curiae, in support of the Appellant)
  3. Malcolm L. Stewart (Deputy S.G., Department of Justice, argued the cause for the Appellee)
  4. Elena Kagan (Solicitor General, Department of Justice, reargued the cause for the Appellee)
  5. Seth P. Waxman (on behalf of Senators John McCain et al. as amici curiae in support of the Appellee)

Five Years Later — Lawyers & Scholars Offer Comments 

Floyd Abrams: “Academics, it seems fair to say, are overwhelmingly critical of the Citizens United ruling. If they were irate about  Buckley v. Valeo (1976) — formerly their consensus choice as the worst Supreme Court ruling since Dred Scott (1856) — they are apoplectic about Citizens United.  At the core of the both rulings is the now familiar proposition first uttered by the Supreme Court in Buckley  and repeated with approval in Citizens United that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” If one accepts that notion, as I do, the ruling in Citizens United follows naturally and a documentary-like movie that castigated Hillary Clinton when she last sought the presidency must be protected by the First Amendment. If one does not, one naturally enough can join the four Citizens United dissenters in concluding that it is constitutional to impose criminal penalties for the airing of that film on television. For me, that was not a difficult choice five years ago and it is not one today.”

See here re brief filed by Mr. Abrams in Citizens United; see also his “Citizens United and Its Critics,” Yale L.J. Online (2010)

Mr. Jan W. Baran

Mr. Jan W. Baran

Jan W. Baran: “The Court was correct to protect political speech by all citizens and groups, including corporations and unions. Current so-called reform efforts, including proposals to amend the Constitution, prove that the First Amendment is all that stands between political freedom and government control of speech. Contrary to President Obama’s dire predictions, corporations are not distorting political debate and foreign money (which is illegal) has not flooded campaigns. It is the Obama re-election committee that became the first campaign to raise and spend $1 billion.  So much for campaign money distorting the system.”

 See here re brief filed by Mr. Baran in Citizens United.

Robert Corn-Revere: “Citizens United is like a political Rorschach Test. But when divorced from its many critics’ policy preferences, it is a pretty straightforward First Amendment case that concludes there are constitutional difficulties with making political speech a federal crime.  And, along the way, the Court reached a number of important (and usually overlooked) constitutional findings. One key conclusion is that “[w]e must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” The Court observed that “[t]he Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.” This fundamental constitutional principle is increasingly important as we witness seismic changes in the global media environment. And it is just one of several important pillars of the case.”

Number of articles about Citizens United in the 27 months following the decision 

New York Times         1100

Washington Post        327

USA Today                  220

Wall Street Journal    195

 This count includes columns and opinion pieces but not blog posts.

 Source: Douglas Spencer & Abby Wood, Indiana L. J. (2014)

Allen Dickerson: “Citizens United has become a symbol onto which politicians and commentators project their own hopes, agendas, and insecurities. But cutting through the rhetoric, the case asked a simple question: on what principled basis could the government ban a nonprofit’s documentary while permitting corporate newspaper endorsements? The Court, correctly, said ‘none.’ Nevertheless, legislatures and regulators continue to draw distinctions between different types of speech, and different types of speakers, and the result is a level of bureaucratic complexity average Americans cannot hope to navigate. Five years after Citizens United showed us our error, burdened by a national debate that yields more heat than light, we continue to avoid the difficult task of reforming that troubling approach to political engagement.”

Professor Joel Gora

Professor Joel Gora

Joel Gora: “The Supreme Court’s Citizens United decision was a landmark of political freedom. By striking down government bans on political speech by labor unions, corporations and non-profit organizations, the Court reaffirmed and applied core First Amendment principles. These include the concepts that protecting political speech against government censorship is at the core of the First Amendment’s mission, that the government cannot be empowered to decide which people or groups can speak about government and politics, what they can say, or how much they can say, and that democracy requires as much information as possible from diverse and antagonistic sources.”

“Embodying these principles, the Citizens United decision has had a number of salutary consequences. It has provided doctrinal support for further easing of campaign finance limits on political speech and association.  Second, the rejection of such limits has turned attention properly to more positive efforts to address our admitted campaign finance system difficulties. Finally, although the predicted tsunami of corporate spending “drowning our democracy” never materialized, the Court’s decision has helped spark an increase in overall political funding which has helped make our elections more competitive and the electorate better informed. All in all, I submit, a good day’s work for political freedom and democracy.”

 See here re brief coauthored by Professor Gora in Citizens United.

Richard Hasen: “After five years, it has become clear that Citizens United is only part of the problem. If the Court reversed it tomorrow (something I am not expecting), we would still have Super PACs funded by very wealthy individuals, loads of undisclosed money coming through 501(c)(4)’s and other organizations, and an increased ability for those with economic power to transform it into political power. It is time to rethink first principles — which is my current book project. Stay tuned.”

→ See Professor Hasen’s Legislation, Statutory Interpretation, and Election Law (ch. 13, 2014) re his comments on Citizens United

Forthcoming Book

Elizabeth Price Foley, Defending Citizens United: How Campaign Finance Laws Restrict Free Speech (Praeger, Oct. 31, 2015)

Alan Morrison: “The fight with the Court over Citizens United should not be over whether corporations have rights to make political expenditures, but whether the Court’s ruling in Buckley v. Valeo (1976) that there can be no limits on independent expenditures and that there are no constitutional or other values that can even be considered in assessing that ruling. Here are some examples.  The pre-Buckley decision in United States v. O’Brien (1968), recognized that the right to political protest could be overcome by the Government’s interest in enforcing its selective service laws. In Burson v. Freeman (1992), the Court upheld a law prohibiting the core political activities of soliciting votes and distributing of campaign materials within 100 feet of a polling place.  And cases like Ward v. Rock Against Racism (1989), would surely support an ordinance that banned sound trucks from blaring at more than 100 decibels at midnight.  Post Citizens United, the Court summarily upheld the law that bans all contributions and independent expenditures solely because the plaintiffs were neither U.S. citizens nor permanent resident aliens.  Bluman v. FEC (2012). (See also here.)”

 See here re brief coauthored by Mr. Morrison in Citizens United.

Professor Tamara Piety

Professor Tamara Piety

Tamara Piety: “Citizens United legitimated the notion that corporations (and capital) are embattled, “disfavored” speakers entitled to the special solicitude of the courts’ counter-majoritarian power, as if they were a discrete and insular minority which lacked access to the political process, rather than a force that is very nearly constituent of it. It relies on an implied (and specious) syllogism: if discrimination against people is bad, and corporations are people, then “discriminating” between corporations and natural persons, or between types of corporations, is likewise bad. This reasoning animates Hobby Lobby (2014) and is echoed in Sorrell v. IMS Health (2011), with “marketing” standing in for “corporation” and “speech” for “people.” This line of argument has destabilized much corporate and regulatory law.  For its proponents, Citizens United has been fabulously successful; but that success has come at some political cost. Citizens United has tarnished the Court’s public image. It seems likely that the decision will be cut back, but how and from which direction is difficult to predict.”

→ See Professor Piety’s Brandishing the First Amendment (2012) re her comments on Citizens United

Ilya Shapiro: “Citizens United is one of the most misunderstood high-profile cases ever and it’s both more and less important than you might think. It’s more important because it revealed the unworkability of our current system of campaign regulation. It’s less important because it doesn’t stand for half of what many people say it does. By removing limits on independent associational speech—spending on political advertising by people unconnected to candidates and parties—it weakened the government’s control of who can speak, how much, and on what subject. That’s a good thing. After all, people don’t lose their rights when they get together, whether it be in unions, non-profit advocacy groups, private clubs, for-profit enterprises, or any other form.”

 See here re brief coauthored by Mr. Shapiro in Citizens United; see also his op-ed “Citizens United Misunderstood, USA Today, Jan. 20, 2015

Professor Geoffrey Stone

Professor Geoffrey Stone

Geoffrey Stone: “Citizens United may well turn out to be one of the worst decisions in the history of the United States Supreme Court. As Oliver Wendell Holmes recognized almost a century ago, the American political system depends upon the reasonable functioning of the “marketplace of ideas.” It has always been clear that that “marketplace” is imperfect. But until now, it was generally able to reflect the views of the majority of the American people. With its decision in Citizens United, the Supreme Court has unleashed forces that seriously threaten to corrupt and distort that “marketplace” in ways that stand the First Amendment on its head and endanger the future of American democracy.”

See Professor Stone’s article “Citizens United & Conservative Judicial Activism,” U. Ill. L. Rev. (2012)

Nadine Strossen: “From President Obama,  in his  State of the Union Address the following week, to major media outlets, the vast majority of Citizens United’s critics misstate its holdings. Almost never mentioned are the crucial facts that it protects the rights of non-profit corporations and unions to spend their own money on their own messages; too often asserted is the falsehood that it permits wealthy for-profit corporations (or anyone, for that matter) to make unlimited contributions to candidates’ campaigns.”

See here re Professor Strossen’s comments on Citizens United

Fred Wertheimer: “The ideologically driven Citizens United decision has left the nation’s campaign finance and political system in shambles. It is one of the worst Supreme Court decisions ever made. The Court ignored the country’s history, its own jurisprudence and the need to protect America’s system of representative government against corruption – a need recognized by the Founding Fathers. Citizens United will not stand the test of time. It will end up in the dustbin of history.”

 See here re brief coauthored by Mr. Wertheimer in Citizens United.

Larry Tribe on Citizens United

Forthcoming: The working title is “Dividing Citizens United: The Case v. The Controversy.” The piece will appear in Constitutional Commentary.

Adam Winkler: “Citizens United is one of the most controversial Supreme Court decisions in a generation. Yet the decision is widely misunderstood by the public. From Occupy Wall Street to the White House, Citizens United has inspired critics who insist that corporations are not people. Yet the Supreme Court did not rely on corporate personhood in Citizens United. Justice Anthony Kennedy’s majority opinion never refers to corporations as people and nothing in the reasoning of the opinion turns on personhood. Justice Kennedy instead insists corporations are “associations of citizens” whose rights derive from the natural people who make up the firm. This is a problematic formulation that hides the corporation and allows the Court to avoid asking hard questions about what rights corporations as such should have. Justice Kennedy’s approach equates a business corporation with a voluntary membership organization like the NAACP, both equally entitled to assert the rights of its members.”

“Corporations are people under corporate law. That was their original purpose. And corporations must have some constitutional rights, such as the right to property and due process. Yet they shouldn’t have all the same rights as people, such as the right to vote or hold office. Constitutional doctrine would be improved if instead of hiding the corporation, we recognized that corporations are indeed people — and then asked which rights these corporate people ought to have.”

See here re Professor Winkler’s “Three Misconceptions in Citizens United

__________________

Event: Citizens United v. FEC after Five Years Read More

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Martin Luther King and Copyright

92px-Martin_Luther_King_Jr_with_medallion_NYWTSThe new movie about Selma is generating controversy for its portrayal of Lyndon Johnson, but the copyright issues surrounding the movie also point to Martin Luther King Jr’s unique role in our political life.  MLK’s children did not grant permission for the film to use Dr. King’s actual words at Selma (“How Long?  Not Long!”).  While I think that the film’s producers would have won in copyright infringement suit by asserting fair use, maybe they would have lost, and there was no way to get that resolved in time to release the movie for the 50th anniversary of the Voting Rights Act.

Why doesn’t this problem arise for other great American political leaders?  Part of the answer is that public officials cannot copyright their public statements made in an official capacity.  Supreme Court Justices do not own their opinions.  Presidents do not own their State of the Union Speeches.  And so on.  These documents are in the public domain from the moment that they are released.  MLK, though, is the only (or most) consequential political figure who never served in an official role.  Thus, he could copyright his speeches and writings.  Congress could buy the copyrights from MLK’s children, but this would be unprecedented.

I suspect that if MLK were still alive (he would be younger than Jimmy Carter or Bush 41), he would not be enforcing his copyrights in the way that his estate does.  But then again, much more might be different today if MLK were still with us.

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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.

 __________________

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
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Benjamin Harrison on Voting Rights

84px-Benjamin_Harrison_PortraitIn reading through the presidential Annual Messages, I was most surprised by President Benjamin Harrison’s communications to Congress.  Harrison was the last president until the 1960s to seek a strong voting rights bill, and his rhetoric on race belies the myth that Republicans stopped caring about African-Americans in the South after 1876.  Consider this passage from Harrison’s 1889 Annual Message:

The colored people did not intrude themselves upon us. They were brought here in chains and held in the communities where they are now chiefly found by a cruel slave code. Happily for both races, they are now free. They have from a standpoint of ignorance and poverty–which was our shame, not theirs–made remarkable advances in education and in the acquisition of property. They have as a people shown themselves to be friendly and faithful toward the white race under temptations of tremendous strength. They have their representatives in the national cemeteries, where a grateful Government has gathered the ashes of those who died in its defense. They have furnished to our Regular Army regiments that have won high praise from their commanding officers for courage and soldierly qualities and for fidelity to the enlistment oath. In civil life they are now the toilers of their communities, making their full contribution to the widening streams of prosperity which these communities are receiving. Their sudden withdrawal would stop production and bring disorder into the household as well as the shop. Generally they do not desire to quit their homes, and their employers resent the interference of the emigration agents who seek to stimulate such a desire.

But notwithstanding all this, in many parts of our country where the colored population is large the people of that race are by various devices deprived of any effective exercise of their political rights and of many of their civil rights. The wrong does not expend itself upon those whose votes are suppressed. Every constituency in the Union is wronged.

It has been the hope of every patriot that a sense of justice and of respect for the law would work a gradual cure of these flagrant evils. Surely no one supposes that the present can be accepted as a permanent condition. If it is said that these communities must work out this problem for themselves, we have a right to ask whether they are at work upon it. Do they suggest any solution? When and under what conditions is the black man to have a free ballot? When is he in fact to have those full civil rights which have so long been his in law? When is that equality of influence which our form of government was intended to secure to the electors to be restored? This generation should courageously face these grave questions, and not leave them as a heritage of woe to the next. The consultation should proceed with candor, calmness, and great patience, upon the lines of justice and humanity, not of prejudice and cruelty. No question in our country can be at rest except upon the firm base of justice and of the law.

I earnestly invoke the attention of Congress to the consideration of such measures within its well-defined constitutional powers as will secure to all our people a free exercise of the right of suffrage and every other civil right under the Constitution and laws of the United States. No evil, however deplorable, can justify the assumption either on the part of the Executive or of Congress of powers not granted, but both will be highly blamable if all the powers granted are not wisely but firmly used to correct these evils. The power to take the whole direction and control of the election of members of the House of Representatives is clearly given to the General Government. A partial and qualified supervision of these elections is now provided for by law, and in my opinion this law may be so strengthened and extended as to secure on the whole better results than can be attained by a law taking all the processes of such election into Federal control. The colored man should be protected in all of his relations to the Federal Government, whether as litigant, juror, or witness in our courts, as an elector for members of Congress, or as a peaceful traveler upon our interstate railways.

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Tribute: A Liberal in the House of Harry Jaffa (1918-2015)

Harry Jaffa (credit: Ohio State University)

Harry Jaffa (credit: Ohio State University)

1-14-15: 1:03 a.m. My mind races. How does one pay tribute to someone with whom one disagreed on several important issues? – issues about life and law and other things that matter. That question confronts me as I sit down to pay tribute to Harry Jaffa, someone who taught me much and always treated me kindly.

It’s rather late. I page through my tattered copy of Crisis of the House Divided: An Interpretation of the Lincoln Douglas Debates (1959). I first read it in 1968 or thereabouts. It’s by Harry V. Jaffa, the noted conservative political philosopher. He died recently. I found out by way of a New York Times obit by Robert McFadden. (Jaffa died on the same day as Walter Berns, another political theorist.)

I stare at the black-and-white pic of the young Jaffa taken years before I met him. I peer into his distant eyes. What was he thinking at that moment in 1959 / in that bookstore / next to his newly released book / finely clad / grinning confidently / with a book of the poet C.C. Cummings lingering behind his left shoulder?

* *  * *

“Since the first and most successful enterprise of the Fathers was to produce disobedience to an ancient established order, it would have been peculiarly difficult for them to inculcate reverence.”

Screen Shot 2015-01-14 at 3.35.05 AMI marked that passage – one from a chapter titled “The Teaching Concerning Political Moderation.” It is one of many such markings.

I think more and more about Professor Jaffa as I glance at the row of books in my library bearing his name. Formally speaking, I never studied under him, though I did know him. We met in the 1970s at Claremont College where he taught with the noted constitutional historian Leonard W. Levy (1923-2006). I read Levy’s books, too, though I was never one of his students. But I knew both men rather well. Levy was quite liberal (my stripes), Jaffa was quite conservative. Both strong personality types and both friends (as far as I know).

The Students of Strauss

When I first encountered Professor Jaffa, the philosopher Leo Strauss had recently visited Claremont. Back in those days Jaffa was friendly with many of his colleagues who, like him, had been students of Strauss. There was, for example, Martin Diamond and Allan Bloom. Of them he wrote this in his Crisis book: “I owe much to the enthusiastic interest of Professors Allan Bloom . . . and Martin Diamond . . . .”

That was in the days before the name “Strauss” became politicized. It was also before Jaffa parted company (sometimes fiercely) with so many of his former friends and colleagues, including Diamond and Bloom. There was still peace in that valley, that intellectual oasis where so many young students like myself came to learn how to read and appreciate the great works of Western political thought.

I studied under other students of Strauss (Michael Ormond and Thomas S. Schrock) and thereby came to read many works by the famed University of Chicago scholar – works such as Strauss’ Persecution and the Art of Writing (1952), Natural Right and History (1953), On Tyranny (1963), and The City and Man (1964), among other books.

photoOf course, one of the mainstays of my liberal education back then was History of Political Philosophy (1963), a collection of thoughtful and carefully crafted essays on noted political philosophers from Plato to Dewey. Strauss and Joseph Cropsey edited the volume. There was a long essay in it on Aristotle written by Jaffa (removed in the 3rd edition at H.J.’s insistence, I believe). I studied that essay and learned much from it, so much that I set out to read more by him. In time I came to Crisis of the House Divided, which I spent many an hour savoring . . . but never as required reading.

Somehow I came to meet Professor Jaffa personally, though I do not quite remember how. By 1974 I knew him well enough to solicit something from him to publish in my law school’s law review. It was titled “Equality as a Conservative Principle,” 8 Loyola, Los Angeles, Law Review 471 (1975), reprinted in Jaffa’s How to Think About the American Revolution (1978).

Our Dialogues

In the years and decades that followed, from time to time I visited Professor Jaffa at his home with his wife Marjorie. They were routinely gracious. The talk: almost always about Plato or Aristotle or Machiavelli or Hobbes or De Tocqueville or Lincoln or Churchill or Strauss or the Declaration or the Constitution. I steered away from partisan politics. Why? Well, because what I admired about him, what was most important to me, were his talents as a teacher, someone who had carefully studied the great thinkers and was committed to teaching others how to appreciate their words and thoughts. Ideas mattered more to me than ideologies, so I veered away from Republican-Democrat talk, though I listened nonetheless when Jaffa ventured off into those worlds. Sometimes even that talk gave me pause, made me rethink a few of my own views. Then again, sometimes not.

If you would know the Harry Jaffa I knew as a mentor and a friend, read his Crisis or his Thomism and Aristotelianism: A Study of the Commentary by Thomas Aquinas on the Nicomachean Ethics (1952) or his book with Allan Bloom, Shakespeare’s Politics (1964), or his essay “The Case for a Stronger National Government,” in A Nation of States: Essays on the American Federal System (1963) edited by Robert A. Goldwin.  There is, to be sure, more, but I will lay my cards there.

∇ ∇ ∇

In these ideologically torn and tormenting times, it is ever more difficult to be objective and open-minded. Friends flee. Few wish to be Socratic, open-minded, and receptive to reconsidering their gospels. Such one-directional thinking wars with the basic tenets of philosophy, properly understood. But if the ideal of liberal education still means something, and if our commitment to being an open society still stands, then it is only just to be fair — even if it means cracking open the doors of our partisan minds enough to see what we would not otherwise see. There is, after all, no truth in blind denial.

I hope I have answered the question with which I began. However that may be, kindly permit me to close with a few words by Leo Strauss, from his Liberalism: Ancient & Modern (1968):

“Liberal education, which consists in the constant intercourse with the greatest minds, is a training in the highest form of modesty, not to say of humility.”

Indeed.

5

My Next Book

I’m happy to announce that my next book, tentatively titled The Heart of the Constitution:  How the Bill of Rights Became the Bill of Rights, will be published by Oxford University Press.  Check back with me in two or three years when it’s done.

9

Vanderbilt Law Review En Banc Roundtable: Williams-Yulee v. The Florida Bar

Vanderbilt Law Review En Banc, the online companion to the Vanderbilt Law Review, recently published its Roundtable on the upcoming case, Williams-Yulee v. The Florida Bar, set to be argued before the Supreme Court on January 20, 2015. In Williams-Yulee, the Court considers whether a rule of judicial conduct that bans judicial candidates from directly soliciting campaign funds violates the First Amendment. The case has important implications, as currently thirty-nine states elect at least some of their judges and at least twenty have adopted rules of judicial conduct that prohibit candidates for judicial office from personally soliciting campaign funds. Beyond an obvious split among both federal and state appellate courts, Williams-Yulee presents a conflict between the scope of protection afforded by the First Amendment of political speech and the need for judicial impartiality and integrity. Authors Robert O’Neil, Ruthann Robson, Chris Bonneau, Shane Redman, David Earley, Matthew Menendez, Stephen Ware, Charles Geyh, Burt Neuborne, Michael DeBow, and Brannon Denning tackle these questions and more in their contributions.

Roundtable: Williams-Yulee v. The Florida Bar

Screen Shot 2015-01-11 at 1.12.09 AM
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FAN 43 (First Amendment News) The ACLU making (more) First Amendment news

If you venture to San Francisco’s famed City Lights Bookstore you will see a big notice in the window; it is the same one you see above. Why this notice? Because more than all the rest Albert Bendich came to the First Amendment rescue of Lawrence Ferlinghetti (the noted poet, publisher & bookseller) a half-centuryor so ago. Sure there were others — namely Jake Ehrlich and  Lawrence Speiser — but the one who made the biggest difference was a young Boalt Hall graduate and ACLU lawyer, Al Bendich.

Lawrence Ferlinghetti

Lawrence Ferlinghetti

The history of HOWL (that great Beat poem) and the right to publish and sell it were very much shaped by the work Bendich did when a case involving the poem went to trial in 1957. The verdict in this obscenity case was a grand victory for poetry and publishing. And it was a proud moment for the ACLU in its successful defense of political poetry — that rebellious kind of verse that knocks the jambs off the doors of outmoded mores.

Later this week Ferlinghetti will post a statement on the City Lights blog to honor his former lawyer and longtime friend. And today the New York Times has an obituary by Margalit Fox about the remarkable life of this remarkable man — a skilled lawyer, a thoughtful scholar, and a man with a philosopher’s eye for the longview of life and law. Ferlinghetti is quoted in that obit. And one more thing: Al was a kind and generous man who was secure enough to be quite humble.

If we as citizens don’t know what our government is doing, how can we have an opinion of it and how can we call ourselves self-governing? What is the appropriate relationship for us as citizens and the people we elect as our government? Are they our servants or are we their servants? The First Amendment says Congress shall make no law abridging the freedom of speech. There’s a reason for that absolute. — Al Bendich (2014)

In ACLU offices across the country the name “Bendich” is now being explained to a new generation of civil liberties activists. Long may it be remembered.

Al Bendich’s ACLU work on free speech, privacy, and equality may be fifty years old, but it laid the foundation for the rights we have now.Abdi Soltani (Jan. 12, 2015)

See also Sam Whiting, “Albert Bendich, attorney and defender of free speech, dies,” SF Gate, Jan. 13, 2015

ACLU’s Laura Murphy leaving

Laura W. Murphy, First Amendment freedom fighter.

Laura W. Murphy

The American Civil Liberties Union has announced that “Laura W. Murphy will step down as director of its Washington legislative office effective January 31, 2015. After serving 17 years as the director of that office, Murphy plans to reestablish her private consulting business, Laura Murphy & Associates. She will also return to school to as a student at Georgetown University’s Institute for Transformational Leadership.”

Commenting on Murphy’s leave, ACLU Executive Director Anthony D. Romero said: “Laura’s tremendous work on the First Amendment, national security, racial justice, and criminal justice reform has earned her a reputation as one of the most tenacious and effective advocates for civil liberties in the nation. . . .”

Indeed, Laura has been a stalwart defender of free speech freedoms, which is never easy, especially in these highly charged ideological times. May her replacement continue that proud ACLU tradition with that same kind of passionate commitment that was her calling card. Meanwhile, may some of the best of Laura’s life ride be yet to come. Ride on!

Oregon ACLU’s Dave Fidanque to step down 

“In his 20 years as Executive Director of the ACLU of Oregon, and his 31 years on the ACLU staff, he has been instrumental in protecting and advancing freedom in this state and nationwide.” Candace Morgan (2013)

David Fidanque has served as the director of the American Civil Liberties Union of Oregon since 1993. He joined the ACLU in 1982. Prior to that he worked as a reporter for KEZI in Eugene and before that for Congressman Jim Weaver from 1977-1981. As noted in a Bend Bulletin news story, Fidanque will step down as director on March 31, 2015.

David Fidanque

David Fidanque

For those who know him, Fidanque has long led the charge on everything from gay rights to the rights of the criminally accused. In March 2013, he received the ACLU of Oregon’s highest honor, the E.B. MacNaughton Civil Liberties Award, this in commemoration of his 20th anniversary as Executive Director.

Like Laura Murphy, Fidanque is a staunch defender of free speech freedom and has worked hard to champion free expression rights not only under the First Amendment but also under the Oregon Constitution (see e.g. State v. Robertson).

In 1986 the Oregon ACLU, under Fidanque’s direction, challenged the state’s obscenity law as applied to the owner of an adult bookstore. The claim was brought under Article I, section 8 of the Oregon Constitution. After hearing the case, the Oregon Supreme Court unanimously ruled that the law challenged violated the state constitution. Consistent with the ACLU arguments advanced in the case, the Court ruled: “In this state any person can write, print, read, say, show or sell anything to a consenting adult even though that expression may be generally or universally ‘obscene.'” The case was State v. Henry (1987).

Thereafter, in 1994 and 1995 there were proposed ballot measures to reverse Henry and other rulings. Fidanque and the Oregon ACLU successfully fought back those measures.

Still, an array of civil liberties issues continue to keep its director and the Oregon ACLU quite busy. Is Oregon the land of progressive promise? “That all depends on the issue,” Fidanque commented in a recent interview. That said, he welcomes the challenge and returns time and again to the ring to fight another day like a determined Rocky Balboa. I wish him well in all his future bouts.

 See also Anna Staver, “Longtime director of Oregon ACLU to retire,” Statesman Journal, Jan. 12, 2015

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What Al Bendich did as a young ACLU lawyer representing howling poets and publishers like Ferlinghetti and Ginsberg continues to serve as a model and inspiration for our current advocates, a model embraced by our tried and true First Amendment champions Laura Murphy and David Fidanque. Defending the freedom of speech of rebel poets and other free spirits will always be part of the ACLU’s core mission. Moving into the future, we will remember Al as we carry on with his work. – Susan Herman, President, ACLU

ACLU Lawsuit: PA Law to Silence Offenders’ Speech Violates First Amendment 

The Pennsylvania ACLU has gone to federal court to contest the state’s Revictimization Relief Act, which authorizes crime victims and prosecutors seeks a civil injunction to prevent speech that a could cause “a temporary or permanent state of mental anguish” to the victim or otherwise “perpetuate the continuing effect of the crime” on the victim.

The law came in response to a recorded commencement speech given by Mumia Abu-Jamal, who was sentenced to life in prison for murdering Philadelphia police officer Daniel Faulkner.

ACLU Complaint

ACLU Motion for Preliminary Injunction

The ACLU of Pennsylvania complaint was filed “on behalf of journalists, news outlets, advocacy organizations, and community leaders who were formerly incarcerated, seeking to block enforcement of a recently passed state law that stifles the free speech rights of thousands of individuals and organizations.”

→ Counsel for Plaintiffs: The plaintiffs are represented by Witold Walczak and Sara Rose of the ACLU-PA, Amy Ginensky and Eli Segal of Pepper Hamilton’s Philadelphia office, Tom Schmidt and Tucker Hull of Pepper’s Harrisburg office, and Seth Kreimer of the University of Pennsylvania Law School. Prison Legal News is also represented by Lance Weber and Sabarish Neelakanta of the Human Rights Defense Center.

ACLU files amicus brief in judicial campaign solicitation case — some “past leaders” file opposing brief

The battle between the current ACLU counsel and some its past luminaries continues.

On the one hand, the National ACLU has weighed in on Williams-Yulee v. The Florida Bar by filing an amicus brief in the case. Robert Corn-Revere of Davis Wright Tremain is the counsel of record.

On the other hand, and as in some past campaign finance cases (see my book with David Skover, When Money Speaks), an amicus brief has been filed on the other side by Norman Dorsen, Aryeh Neier, Burt Neuborne, and John Shattuck. In that brief they list themselves as “Past Leaders of the American Civil Liberties Union.” Burt Neuborne (of the Brennan Center, which also filed its own amicus brief on behalf of the Respondent, see below) is counsel of record.

 An amicus brief in support of the Petitioner was also filed by the Thomas Jefferson Center for the Protection of Free Expression.

 Briefs filed in support of Respondent Florida State Bar were filed by, among others, the following groups: The American Bar Association, the Conference of Chief JusticesPublic Citizen, Professors of Law, Economics, and Political Science (including Prof. Lee Epstein), and Professor Jed Shugerman (author of The People’s Courts: Pursuing Judicial Independence in America ).

 The Brennan Center for Justice also filed an amicus brief in support of the Respondent on behalf of the following groups: Common Cause, the Center for Media and Democracy, Lamda Legal Defense & Education Fund, Justice at Stake, the Campaign Legal Center, and Demos.

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Oral arguments in sign ordinance case Read More

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A National University

One proposal that was in many early Annual Messages was that Congress should create a National University in the District of Columbia.  George Washington, James Madison, and John Quincy Adams endorsed this idea, but nothing happened.  (Locating the University within the District would have satisfied concerns about the constitutional power of Congress to create a university.)

I wonder how higher education in the United States would have been different if Congress had acted.  A National University would have wielded a great deal of influence over higher education (you would think) and might have led to a more centralized approach to education more generally.  Whether this would have been a good thing is hard to say.  One could argue that higher education in the United States is strong precisely because it is not dominated by one or two places (I’m talking to you–Oxford and Cambridge), but critics of our system (especially of its cost) might argue otherwise.

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Call for Papers–Unamendable Constitutional Provisions

The link is here.  Here is the Abstract of the conference, to be held on June 9th in Istanbul:

Modern constitutions today commonly entrench at least one unamendable constitutional provision. An unamendable provision is impervious to the formal amendment rules that authorize alterations to the constitutional text. The Afghan Constitution (2004), for example, makes Islamic Republicanism unamendable, as does the Tunisian Constitution (2014). The Brazilian Constitution (1988) and German Basic Law (1949) both make federalism unamendable. Under the Portuguese Constitution (1976), political pluralism is unamendable, and the same is true of secularism in the Turkish Constitution (1982).

Are unamendable constitutional provisions undemocratic or do they reflect a deep respect for the true democratic foundations of constitutionalism? What are the functions, limits, uses and abuses of such provisions in modern constitutions? What are the optimal conditions under which they achieve the intent of their designers? What circumstances frustrate their intended purposes? This workshop invites abstracts for papers examining any issue related to unamendability, including both formal and informal forms.