Category: General Law

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Robert’s Rules of Order

I’m sure most of you are familiar with the idea of Robert’s Rules of Order.  They are used by countless civic organizations for meetings.  What is surprising to me, after looking into this a bit, is that there is almost no academic writing about them.  It’s surprising because: (a) they probably wield significant influence over what many folks think about deliberative assemblies; (b) they must reflect a broader understanding about how democracy should work; and (c) I don’t know why they became the gold standard.

I raise this question in part because of something curious in the rules of the Republican National Convention.  The Convention’s default rules are from the House of Representatives.  Convention committee’s, though, use Robert’s Rules of Order.  Why are they different?  And how do those differences matter?  Hard to say, as I don’t know enough about the details of Robert’s Rules.

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Promising Official Jobs for Support

192px-Dwight_D._Eisenhower,_official_photo_portrait,_May_29,_1959During the presidential campaign there has been some discussion of a provision in federal law (18 U.S.C. § 599) that bars candidates from promising jobs to garner support. I’m not clear whether this provision applies to presidential candidates, but if it does I’m not sure why it should.

History is replete with situations where presidential candidates did exactly this to either get the nomination or win an election.  John Quincy Adams and Henry Clay in 1825 (Secretary of State), Dwight D. Eisenhower and Earl Warren in 1952 (the Supreme Court), and candidates who offered the vice-presidency to win over convention delegates for support. (Ronald Reagan, for example, in 1976). I don’t see why any of this should be a crime.

While I’m on the subject, I think it would be great if candidates would name some key Cabinet members in advance, much as you see a “shadow Cabinet” in parliamentary countries.

 

1

A Senate Executive Order

I want to try to draw an analogy between the Senate’s refusal to give Judge Garland a hearing and President Obama’s use of an executive order to implement immigration reforms.

What is the difference between an executive order and a statute? That’s pretty obvious–the former does not bind the next President while the latter does.  What is the difference between the Senate’s refusal to vote on a Supreme Court nominee and a statute that eliminates a vacant seat?  The same thing.

Here’s the next thing. One objection to President Obama’s executive order on immigration is that he lacks the statutory authority to do what he did.  (The Supreme Court will take that up later this month.)  Another complaint, though, is that the order is legal but that a President should not address such a sensitive and important question unilaterally.  He has a duty, you might say, to work with Congress. For the Senate’s inaction on Judge Garland, the argument is similar.  The Senate has the power to not act, but that on such an important matter they have a duty to work with the President by acting.

In both cases, though, the “duty” is just political.  If the President thought that taking unilateral action on illegal immigration would be politically harmful, he wouldn’t have done it.  The same is true for the Senate Republicans now.  We’ll see if they are right.

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FAN 104 (First Amendment News) Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center

 “Being bruced” means being prosecuted or harassed for speaking freely, for expressing unpopular ideas, or for breaking taboos. To be “bruced” is to be silenced for exercising one’s First Amendment rights. The expression  derives from Lenny Bruce’s free-speech encounters with the law.

Lenny Bruce, the ribald comic and free-speech hero, returns to life this evening for an 8:30 performance at the National Constitution Center in Philadelphia. Mr. Bruce, who inspired a generation of uninhibited comics, was charged with speech crimes for his comedic performances in Los Angeles, San Francisco, Chicago, and New York. In 2003, New York Governor George Pataki posthumously pardoned Mr. Bruce for his 1964 obscenity conviction.

Lenny Bruce

Lenny Bruce (1925-1966)

This evening’s performance (Can We Take a Joke?) is being supported by FIRE to celebrate “Freedom Day.”

Can We Take a Joke? is a documentary about the threats that outrage culture poses to comedy and free speech, featuring interviews with comedians such as Adam Carolla, Gilbert GottfriedLisa Lampanelli, Heather McDonaldPenn Jillette, and more.

FIRE partnered with the DKT Liberty Project and director Ted Balaker of Korchula Productions to produce Can We Take a Joke? Due for release this fall, the documentary explores many topics and cases, including the case of student Chris Lee, whose satirical play Passion of the Musical was disrupted by a group of students who had been organized by Washington State University administrators. It will also include interviews with FIRE President and CEO Greg Lukianoff, long-time FIRE friend and Brookings Institution scholar Jonathan Rauch, and Stand Up For Speech Litigation Project attorney Robert Corn-Revere, who was lead counsel in the petition to posthumously pardon Lenny Bruce.

Many of us lament the fact that college and high school students today don’t seem to appreciate freedom of speech as much as they should. This suspicion, unfortunately, pans out in recent surveys of millennials and generation Y. But rather than blaming the students, we should understand that we as a society have not been doing a very good job of educating students about the importance of freedom of speech. I try to do this in my writing, and FIRE is always trying to reach new audiences, but we realized many years ago that perhaps the best way to reach the largest possible audience is to remind students that comedy is impossible without freedom of speech. As I’ve said many times, you can either have a right not to be offended or you have good comedy, but you can’t have both. Can We Take A Joke? isn’t for everybody, but I think it will really connect with people who never really thought much about freedom of speech and how much we rely on it in every facet of our lives. — Greg Lukianoff (executive producer)

→ See Reason TV: Nick Gillespie interviews Greg Lukianoff re documentary.

If you’re a college student, there’s still time for you to apply for free exclusive screening rights to show the documentary on your campus between April 13th and April 20th. The deadline is fast approaching, however, so make sure to apply ASAP.

→ Related: Ronald Collins & David Skover, The Trials of Lenny Bruce: The Fall & Rise of an American Icon (Kindle edition, 2012) (see here also)

Full disclosure: I am a consultant to FIRE and likewise appear in the Can We Take a Joke? documentary.

* * * *

Headline: Westboro Baptist Church counter-protesters who flew American flags found guilty of picketing church Read More

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Viewpoint Discrimination in IP

Here’s a question that came up in a panel that I was on last week on some intellectual property issues. Suppose somebody makes a movie that contains completely loathsome content.  Let’s say the film seeks to justify racism, sexism, or you-name-it ism.  I would venture to say that nobody would argue that the creators of such a movie could be denied a copyright in their work.  That’s true even for child pornography, though there the copyright would be of little or no value because distribution or possession is a crime.

Why, then, does federal trademark law permit the PTO or a court to refuse or invalidate a registration on the grounds that the mark is equally offensive?  The Federal Circuit en banc recently held in In re Tam that this authority was unconstitutional, and I suspect that the Supreme Court will take this case and affirm.  But I’m curious to hear what the counterargument is? Are marks different from copyrights for purposes of First Amendment analysis?

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FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)

Abstract

51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

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Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment Read More

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One of the Best in the Business — A Q&A with Robert Weil of Liveright

As an editor you can get up in the morning and change the

world with the books that you publish.

                          — Robert Weil (2011)

He is one of the very best in the publishing business. And yet, it is more than a business to him — it is a literary calling. He is consumed by his love of writing. Whether in his office or at home, paper is his preferred medium. He is Robert Weil, editor-in-chief and publishing director of Liveright, a division of W.W. Norton & Company. He has been in the book-publishing business since 1978. Weil’s books have won the Pulitzer Prize, the National Book Award, the National Book Critics Circle Award, and the Bancroft Prize. He has also worked with seven MacArthur Fellows. His list of distinguished authors is far too long to repeat here.

I recently did a Q&A with Weil over at the Washington Independent Review of Books. If you’re interested in books and book publishing in today’s world, check out the interview.

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FAN 102.3 (First Amendment News) Court Denies Review in Campaign Finance Case

Today the Court issued its orders list in which the Justices declined to hear the case of Justice v. Hoseman.

The issue in the case was whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.

The cert. petition was filed by the Institute for Justice with Paul Avelar as counsel of record for the Petitioners.

The Center for Competitive Politics (Allen Dickerson), the Cato Institute (Ilya Shapiro), and the Independence Institute filed an amicus brief on behalf of the Petitioners.

* * * *

The Court also denied review in a First Amendment related caseStackhouse v. Colorado (see below)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Justice v. Hosemann 
  2. Electronic Arts, Inc. v. Davis
  3. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Town of Mocksville v. Hunter
  6. Miller v. Federal Election Commission
  7. Sun-Times Media, LLC v. Dahlstrom
  8. Rubin v. Padilla
  9. Hines v. Alldredge
  10. Yamada v. Snipes
  11. Center for Competitive Politics v. Harris
  12. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims):  Cert. denied

Freedom of Information Case

 The Court’s next Conference is on April 15, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

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FAN 102.2 (First Amendment News) Latest First Amendment Salon: Cyber Harassment & The First Amendment

Danielle Citron & Laura Handman

     Danielle Citron & Laura Handman

Professor Danielle Citron (author of of Hate Crimes in Cyberspace) was in fine form as she made her case to an audience (in Washington, D.C. & New York) of First Amendment experts — lawyers, journalists, and activists. Laura Handman (a noted media lawyer) responded with talk of her own cyber harassment experience and then proceeded to make a strong case for the need to develop industry guidelines to protect privacy and reputational interests. Ilya Shapiro (a Cato Institute constitutional lawyer) moderated the discussion with lively and thought-provoking questions, including one about the wisdom of the European “right to be forgotten.” All in all, it was an engaging and informative discussion — yet another between a representatives from the legal academy and the practicing bar.

Laura Handman, Ilya Shapiro & Danielle Citron

Laura Handman, Ilya Shapiro & Danielle Citron

It was the initial First Amendment Salon of 2016. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York and sometimes as well on the Yale Law School campus at the Floyd Abrams Institute for Freedom of Expression.

Selected Excerpts

Professor Citron: Unfortunately, we have “network tools used not as liberty-enhancing mechanisms, but instead as liberty-denying devices.”

Professor Citron: “I am modest in my demands of the law because I am a civil libertarian. My proposals are modest.”

Among others, probing questions and comments were offered by Ashley MessengerLisa Zycherman, Lee Levine, and Victor A. Kovner.

 YouTube video of discussion here.

 Next First Amendment Salon 

May 16, 2016, Chicago: Professor Geoffrey Stone will do a public interview with Judge Richard Posner on the topic of the First Amendment and freedom of speech.

Previous First Amendment Salons 

(Note: the early salons were not recorded)

November 2, 2015
Reed v. Gilbert & the Future of First Amendment Law

Discussants: Floyd Abrams & Robert Post
Moderator: Linda Greenhouse

August 26, 2015
The Roberts Court & the First Amendment 

Discussants: Erwin Chemerinsky & Eugene Volokh
Moderator:Kelli Sager

March 30, 2015
Is the First Amendment Being Misused as a Deregulatory Tool?

Discussants: Jack Balkin & Martin Redish
Moderator: Floyd Abrams

March 9, 2015
Hate Speech: From Parisian Cartoons to Cyberspace to Campus Speech Codes

Discussants: Christopher Wolf & Greg Lukianoff
Moderator: Lucy Dalglish

July 9, 2014
Campaign Finance Law & the First Amendment 

Discussants: Erin Murphy & Paul M. Smith
Moderator: David Skover

November 5, 2014
What’s Wrong with the First Amendment? 

Discussants: Steven Shiffrin & Robert Corn-Revere
Moderator: Ashley Messenger

April 28, 2014
Abortion Protestors & the First Amendment

Discussants: Steve Shapiro & Floyd Abrams
Moderator: Nadine Strossen

Salon Co-Chairs

  • Ronald K.L. Collins, University of Washington School of Law
  • Lee Levine, Levine Sullivan Koch & Schulz
  • David M. Skover, Seattle University, School of Law

Salon Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law
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“Hamilton” As A Derivative Work

240px-Hamilton_Alexander_Portrait_10_dollar_banknoteHere’s a question I was batting around with someone the other day:  Should the musical “Hamilton” be considered a derivative work of Ron Chernow’s biography of Hamilton?  Just to be clear, Chernow is not making this claim. But the creator of the musical, Lin-Manuel Miranda, says that he was inspired by reading Chernow’s book, and the musical makes free use of Chernow’s research.

I can think of a few reasons why you could say no.  One is that the musical is based on facts about Hamilton’s life that are in the public domain (except when Miranda uses poetic license).  This is different from a musical about a work of fiction or one that uses an author’s expression.  Second, the musical is transformative to such an extent that you might consider the production (or a subsequent movie) to not be a derivative work.

On the other hand, if you look at my contract for the Bingham biography, it refers to derivative works including “presentation in dramatic form or recitation for stage, motion pictures, film, radio, television . . .” and so on.  Maybe a musical isn’t a “dramatic form or recitation,” and of course contractual language does not control the meaning of a derivative work in the absence of contract, but this does seem to contemplate stage productions of a non-fiction book.

And if Mr. Miranda is reading CoOp, Bingham would be a great subject for a Broadway show.  Failing ticket, can you get me a ticket to “Hamilton?”  I’m dying to see it live.