Category: General Law

4

Mandatory Vaccinations

Given the recent controversy over vaccinations for children, I plan to do a couple of posts over the next week about Jacobson v. Massachusetts, the 1905 Supreme Court decision that upheld compulsory vaccination for smallpox.  Jacobson is probably best known as the case that Justice Holmes cited in his Lochner dissent for the proposition that there was no constitutional liberty of contract.  Nevertheless, Justice Harlan’s opinion in Jacobson (for a seven-to-two majority) is interesting in its own right.  Stay tuned.

0

FAN 46 (First Amendment News) The Campaign Against Campaign Finance Laws — Another Law Struck Down

James Bopp. Jr.

James Bopp. Jr.

There seems to be no stopping James Bopp, Jr. in his constitutional campaign to set aside any variety of campaign finance laws. He has been described as “the lawyer on a crusade to topple all limits on the role of money in politics.”

True? Well, just consider the fact that Mr. Bopp is the lawyer who first brought both the Citizens United case and then the McCutcheon case. And he successfully argued Randall v. Sorrell (2006) and Republican Party of Minnesota v. White (2002) in the Supreme Court, among other cases. Not surprisingly, he filed an amicus brief in the Williams-Yulee v. Florida State Bar case, which is awaiting a ruling from the High Court. Most recently, he just filed a cert petition in ProtectMarriage.com-Yes on 8 v. Bowen, a First Amendment challenge to a Calfiornia campaign-finance disclosure law.

And there’s more — Bopp’s latest’s victory came in a judgment rendered by Federal District Court Judge Charles N. Clevert of the Eastern District of Wisconsin. The case is Wisconsin Right to Life, Inc. et al v. Barland, which was handed down on January 30, 2015 (See WRTL press release here.)

 Here are a few excerpts from Judge Clevert’s order (footnotes omitted):

  1. “Wisconsin bans corporations such as WRTL from making disbursements. The court grants declaratory judgment and permanently enjoins Defendants from administering or civilly enforcing Wisconsin’s corporate-disbursement ban against any person, or criminally investigating or prosecuting (or referring for investigation or prosecution) any person under this ban, because the ban is facially unconstitutional.”
  2. “. . . Because they turn on what influences elections, Wisconsin’s statutory political-purposes definition and Wisconsin’s regulatory political-committee definition are unconstitutionally vague under Buckley v. Valeo. Therefore, to resolve this vagueness ‘[a]s applied to political speakers other than candidates, their campaign committees, and political parties, the [statutory political- purposes and regulatory political-committee] definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley’ and FEC v. Wisconsin Right to Life, Inc. As applied to such speakers, this law reaches no further than ‘express advocacy and its functional equivalent as those terms were explained in Buckley’ and WRTL-II. The court therefore grants declaratory judgment and permanently enjoins Defendants from administering or civilly enforcing Wisconsin’s statutory political- purposes definition and Wisconsin’s regulatory political-committee definition against any person, or criminally investigating or prosecuting (or referring for investigation or prosecution) any person under this law . . . .”
  3. “. . . The court . . . grants declaratory judgment and permanently enjoins Defendants from administering or civilly enforcing the statutory committee-or-political-committee definition, GAB 1.28, and GAB 1.91 against any person, or criminally investigating or prosecuting (or referring for investigation or prosecution) under these laws any person . . .”
  4. “. . . The court holds that Wisconsin’s regulatory attribution and disclaimer requirements are overbroad as applied to radio speech of thirty seconds or fewer. The court grants declaratory judgment and permanently enjoins Defendants from administering or civilly enforcing these requirements . . .”

* * *  *

“This is the latest salvo in a series of cases and controversies arising out of Wisconsin’s campaign finance law,” said election law expert Professor Richard Hasen. “It remains to be seen what the Seventh Circuit will do with this case, and ultimately how the Supreme Court might resolve some of these issues regarding coordination and political committee status.”

→ Mr. Bopp has also argued the following campaign finance cases in the Supreme Court:

  1. FEC v. Wisconsin Right to Life (2007)
  2. Wisconsin Right to Life v. FEC (2006)
  3. FEC v. Beaumont (2003)

Paul Smith Speaks @ Syracuse on Right of Publicity

The Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University hosted an event recently at which noted First Amendment lawyer Paul M. Smith spoke. The title of his remarks was: “Squaring the Right of Publicity with the First Amendment.”

Mr. Smith speaking at Syracuse University.

Mr. Smith speaking at Syracuse University.

Mr. Smith’s discussion of the tort of the right of publicity and how it intersects with the First Amendment’s was thoughtful and nuanced as was his analysis of the various cases in this area (from that of the one settled by Paris Hilton to the unsuccessful one brought by Manuel Noriega).

Here is a small excerpt: “I think the problem is that this transformative test cannot be the operative test. Ultimately, it doesn’t make any sense.  It doesn’t draw the right lines. You have things that ought to be protected being unprotected and vice versa. To take a more recent example, the movie “Selma” is one in which Martin Luther King is portrayed as accuaretly as the film makers knew how to do it [RC: Smith noted the controversy re LBJ]. . . . Under the transformative test, if his heirs brought a claim, there would clearly be no way to argue that it was transformative. That would seem to be actionable. . . . Under the transformative test, they would clearly win. This suggests that this cannot be the right way to think about it. . . . “

The full video of Mr. Smith’s remarks is available here.

See also amicus brief in Davis v. Electronic Arts, Inc. (9th Cir.) filed by 27 Intellectual Property and Constitutional Law Professors in Support of Defendant-Appellant’s Petition for Rehearing En Banc. Professors Eugene Volokh and Jennifer Rothman, attorneys for amici curiae. 

See below under “New Scholarly Articles” re right of publicity article by Professor Rebecca Tushnet (“In their eagerness to reward celebrities for the power of their ‘images,’ and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment.”)

More Campus Speech Codes come under FIRE  Read More

The Washington Independent Review of Books Annual Conference
The Washington Independent Review of Books Annual Conference
5

OUP’s Niko Pfund to Speak @ Washington Independent Review of Books’ Annual Book Festival in April

Niko Pfund

Niko Pfund

Niko Pfund is the President of Oxford University Press. If truth is a defense, it is fair to describe him as savvy, knowledgeable, creative, open-minded, and entirely likable . . . and he knows a lot about the book business, too. So it was quite a coup when the Washington Independent Review of Books got Pfund to speak at its annual book festival. (Full disclosure: I’m on the board of directors and have published a book with OUP.)

The Conference takes place on Saturday, April 25, 2015, at the Bethesda Marriott at Pook’s Hill in Bethesda, Maryland. It offers a full day of conversations and panels with professional writers, agents, and publishers, along with an opportunity for aspiring authors to present their projects to an agent during face-to-face, one-on-one pitch sessions.

Mr. Pfund will participate in a panel discussion entitled: “What Do Publishers Want?” The discussion will be moderated by Salley Shannon and will also feature Peter Osnos and Gregg Wilhelm.

→ Some 25 literary agents will be participating in the conference (see list here).

The schedule of events for the conference can be found here (click here to register for the conference).

Some of Oxford’s more recent law-related books include:

7

Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky

We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society. Erwin Chemerinsky (2014)

I am very pleased to interview Dean Erwin Chemerinsky in connection with his eighth book, The Case Against the Supreme Court (Viking, 2014) – this in addition to the 200-plus scholarly articles he has published. One of those articles was the foreword to the Harvard Law Review’s 1988 Supreme Court Term issue. His first scholarly article was published 36 years ago, this when he was associated with the D.C. firm of Dobrovir, Oakes, & Gebhardt. Today, Chemerinsky’s casebook, Constitutional Law, is one of the most widely read law textbooks in the country.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Unlike most academics, he also has a practitioner’s flare for the law, having argued five cases in the Supreme Court, among other courts. Last year, National Jurist magazine named Dean Chemerinsky as the most influential persons in legal education while the Anti Defamation League honored him for his commitment and contributions to freedom and education. And in 2007, Douglas Kmiec labeled him as “one of the finest constitutional scholars in the country.”

True to his reputation, Dean Chemerinsky’s new book invites us to think – and think hard – about some of our gospel “givens” about the Court, its members, its procedures, and its future.

Thank you Dean Chemerinsky for taking the time to answer my questions, and congratulations on the publication of your latest book.

* * * *

Question: For someone who argues cases before the Supreme Court and who writes on and teaches about the Court, yours is a rather provocative title. Why did you choose it?

Chemerinsky: The title captures the thesis of the book. As I reflect on it, I realize that the Supreme Court has often failed, often at the most important times and at its most important tasks. I think that this is a conclusion that both conservatives and liberals can agree to and need to realize. The Supreme Court’s decisions on race, its rulings in times of crisis, its decisions during the Lochner era are powerful examples where I think liberals and conservatives would agree that the Court did great harm to society. That is the foundation of the case against the Supreme Court. I want to see the Court made better and the impetus for thus must be recognizing that there is a need for reform.

Go here for Dean Chemerinsky’s oral argument in the Supreme Court in Tory v. Cochran (2005).

Question: You write: “I discovered in my own mind I have been making excuses for the Court. The Supreme Court is not the institution that I once revered.” What brought about this change of heart for you?

Carrie Buck

Carrie Buck

Chemerinsky: One semester I was teaching Buck v. Bell (1927), the Supreme Court decision that upheld Virginia’s eugenics law and where Justice Oliver Wendell Holmes infamously declared “three generations of imbeciles are enough.” After class, I realized that I had been making excuses for the Court in class. I did some research and realized that 60,000 people were involuntarily surgically sterilized as a result of the Court’s decision and the eugenics movement. As I thought about it, I realized that I often was making excuses for the Court in my teaching and writing.

Question: Like many others (both conservative and liberal), you fault Justice Holmes for his “offensive and insensitive” opinion in Buck v. Bell. Fair enough. What is often overlooked, however, is that Justice Louis Brandeis (one of the most humane defenders of civil rights and liberties) joined that opinion. Why? Does that give you any reflective pause? How do you explain that?

Chemerinsky: As always, the explanation must be complex rather than simple. It was at a time when progressives were defining themselves, in part, by urging deference to government as a way of criticizing the Lochner era decisions. It was at a time when the eugenics movement had great support in society. It was at a time when the Court had begun to protect non-textual rights concerning autonomy (e.g., Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)), but had not gone far in this direction.

Does this give me reflective pause? Buck v. Bell was tragically wrong when it was decided and it is inexcusable that the Court allowed states to surgically sterilize people who had done nothing wrong.

[Re Brandeis: For a critical take on his civil rights/civil liberties record, consider David Bernstein, “From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law,” Notre Dame Law Review (2014)]

Question: You maintain “the Supreme Court’s legitimacy is not fragile.” That cuts against the conventional wisdom, certainly the prudential wisdom. Please explain to us why you think this so.

UnknownChemerinsky: The Court’s legitimacy is the product of all that it has done over 200 years.   Over this time, it has firmly established its role.  I agree with what John Hart Ely wrote in Democracy and Distrust (1980) that the Court’s legitimacy is robust. Some such as Felix Frankfurter and Alexander Bickel argued that the Court must be restrained to preserve its fragile legitimacy. Brown v. Board of Education (1954) shows the fallacy of that position. Nothing the Court has done has been more controversial or done more to enhance its institutional legitimacy. There are virtually no instances in American history of people disobeying the Court and those that occurred, such as in defiance of desegregation orders, only enhanced the Court’s legitimacy.

No single decision (or group of decisions) will seriously affect the Court’s legitimacy. I remember after Bush v. Gore hearing people say that the decision would damage the Court’s legitimacy. I was skeptical of such claims and I was right. The Court’s approval rating was the same in June 2001, six months after the decision, as it had been in September 2000, three months before the ruling. It had gone down among Democrats and up among Republicans. It is why I strongly disagree with those who believe that Chief Justice John Roberts changed his vote to uphold the individual mandate in the Affordable Care Act case so as to preserve the Court’s credibility. He knew that whatever the Court did would please about half the country and disappoint about half the country.

Go here for a 2014 video interview with Dean Chemerinsky discussing his new book.

Question: You are critical of the Court’s unanimous ruling in Hui v. Castaneda (2010). There the Court, per Justice Sonia Sotomayor, held that public health service officers and employees could not be sued for Bivens actions for violating citizens’ constitutional rights if the violation was committed in the course of their government duties. The plaintiff can only sue the federal government, not the employees. There were no separate opinions in the case. Given the vote, how do you explain your claim that the Court got it wrong? Bias? Poorly argued? The law clerks’ fault? Or what?

Francisco Castaneda testifying before Congress

Francisco Castaneda testifying before Congress, 2007

Chemerinsky: In Hui v. Castañeda, a prisoner had a lesion on his penis. Francisco Castañeda was suffering enormously and the symptoms got worse and worse. But still the public health service workers refused to let him see a doctor. By the time they let him see a doctor the cancer had spread all over his body. His penis was amputated, but he died a short time later. It was egregious deliberate indifference. But the Court unanimously ruled that the existence of a statute protecting public health workers from suit barred a constitutional claim. This seems wrong: a statute should not bar a constitutional claim.

Why did the Court come to this conclusion? I think this case reflects a much larger trend of the Supreme Court favoring the immunity of government and government officers over remedies for injured individuals. It is reflected in the expansion of sovereign immunity, the growth of absolute and qualified immunity, and the evisceration of Bivens suits.

Go here to read Francisco Castañeda’s testimony before Congress, Oct. 4, 2007; see also Gabriel Eber, “Remembering Francisco Castañeda,” ACLU website, May 5, 2010

Question: You write of the need for scholars to look “cumulatively at the Court’s decisions” re race, civil liberties, economic regulations, school desegregation, effective counsel, labor law, consumer protection, and governmental immunity. Is it really possible to look at the Court through such a broad lens? And if so, what might it tell us that we already do not know?

Chemerinsky: My concern is that the narrower the focus, the easier it is to make excuses for the Court. Any institution will make decisions that we later regard as mistakes. Virtually everyone today believes that Dred Scott (1856) and Plessy v. Ferguson (1896) and Korematsu v. United States (1944) were tragically wrong. But focusing on each creates the view that they are isolated errors. If they are seen as part of a larger pattern, it becomes clearer that there is a strong case against the Supreme Court. It then becomes clear that there is a need for reforms.

Absent extraordinary circumstances, the docket for October Term 2014 is now complete, and it has the potential to be one of the most momentous in history. – Erwin Chemerinsky (Jan. 27, 2015)

Question: You find merit in Texas Governor Rick Perry’s idea for a proposed constitutional amendment limiting each Justice to an 18-year term. Think of it, had such a rule been in place, Holmes could not have written his is dissent in Gitlow v. New York (1925), Brennan would not have authored his majority opinion in Texas v. Johnson (1989), and we would never have read Justice Ginsburg’s dissent in Burwell v. Hobby Lobby (2014). Two questions: (1) Does that concern you? And (2) Isn’t it always an iffy matter to push for constitutional amendments concerning the Court? Read More

3

The Judiciary Dinner

Here is a curious fact that I thought I’d discuss briefly on Super Bowl Sunday.  For decades, one of the biggest events on Washington’s social calendar was the Judiciary Dinner, which was held at the White House for the Supreme Court Justices.  One of the most dramatic of these dinners occurred in January 1937 by Franklin D. Roosevelt right before he would announce his Court-packing plan.  (By all accounts, FDR enjoyed himself immensely.)

At some point this tradition ended, though I don’t know exactly when.  In general, social contacts between the Justices and the White House have declined sharply over the past fifty years.  This is still the custom that a new President pays a social call on the Supreme Court (President Obama did this in 2009), but that’s about all of the interaction that there is.

7

Originalism and Same-Sex Marriage

A while back I wrote some posts stating that one day we would see originalist justifications for the inevitable Supreme Court decision holding that same-sex marriage cannot be prohibited by a state.  Turns out those justifications have already begun to appear, as there a lively discussion on Volokh ongoing about the issue.

“Originalism” is now the legal equivalent of “organic produce.”  We know that it’s better than non-originalism and non-organic, but we have no idea what the difference between them is.

0

Andrew Sullivan

I wanted to note Andrew Sullivan’s retirement from blogging, which he announced yesterday.  I am a blogger because my CoOp colleagues gave me a chance in 2009.  I wanted to become a blogger because of Andrew Sullivan.  As a loyal reader for years and a Dish subscriber, I thank him and wish him well in whatever he does next.  Sometimes I feel burned out as a part-time blogger for six years.  He’s been doing it full-time for fifteen years, so its totally understandable that he would want to step away.

7

Prosecuting Prosecutors for Perjury? 9th Circuit panel comes down hard on lying prosecutors issue

Screen Shot 2015-01-28 at 10.09.37 AM

Updated: 1-28-15: 2:10 PM, ET

Writing in the New York Observer, Sidney Powell began her column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.” I urge readers to take a look at Sidney Powell’s column, which is both informative and powerful.

Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna.

Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly. It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury.

The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury.

Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.

UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015):

“Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.”

“Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”

“. . . [Judge] Kozinski sought to pressure the state officials to resolve the case without having a federal court decide Baca’s appeal. ‘It will look terrible when we write it up and name names,’ he predicted.”

stairway-to-heaven-1319562-m-720x340
9

45 FAN (First Amendment News) — Neuborne & Corn-Revere debate judicial campaign solicitation case

Burt Neuborne

Burt Neuborne

A libertarian and a liberal walk into a bar; the libertarian orders a shot of Kentucky Knob Creek while the liberal orders a glass of Napa Valley Merlot. True, they both like alcohol, but one prefers it with kick. If the metaphor holds true, Professor Burt Neuborne is the Merlot man and First Amendment lawyer Robert Corn-Revere is the strengthened spirits man.

The two seasoned First Amendment experts recently debated one another in a National Constitution Center podcast titled “Should elected judges be allowed to ask for donations?” Amicus briefs were submitted by both men in the Williams-Yulee v. The Florida Bar case (Neuborne et al here and Corn-Revere here). The friendly and illuminating podcast was moderated by Jeffrey Rosen, the President and CEO of the Center. Here are a few excerpts of that exchange:

This is kind of a mutual admiration society, although we are on different sides in this case.  — BN

Neuborne: “They were very careful in the White case to say that judicial elections may well be different because of the nature of what a judge does. . . . [O]nce [a] judge is elected, [he or she ] is expected to be absolutely impartial and not to tilt toward his political supporters and not to engage in the kind of behavior that we expect, and indeed want, congressional people to do. If you are elected as a congressman, you made promises to the electorate; you made pledges that you’re going to carry out certain policies. . . . Promises by a judge would make it very difficult for people who are appearing before that judge to think that the judge was in any way impartial. . . . We don’ t want the judge to lock himself or herself into a position that interferes with the mandate of judicial impartiality.”

“. . . You have to let judges raises enough money to be able to have a real campaign. . . . They have to be allowed to raise a significant amount of money and do real real elections. But the question is, how do they do it? Are they going to raise the money in a way that gives rise to an assumption . . . . that they are somehow bound to the people who gave them the money? . . . . The question is, in order to stop that from happening, can the States . . . . say that the judge can’t personally ask for money, people who support him can ask for money, but he can’t or she can’t personally ask of money, because that would threaten the integrity and impartiality of the process . . .”

Robert Corn-Revere

Robert Corn-Revere

Corn-Revere: “Once you make the choice to use popular elections certain things follow from that, and none of them are very easily addressed. . . . [When] you make judges into [political] candidates [who] are asking for people’s votes, they are not above the political fray. . . . [T]he judges . . . have to be able to talk about issues and have to be able to raise a certain amount of money. The question is whether or not having a direct fundraising appeal [actually] undermines that interest [in impartiality] . . . [In all of this, once judges run for office,]  then First Amendment [principles] override [the] kinds of restrictions the State seeks to impose [here].”

The question before the Court was: are these restrictions effective? . . . The opponents argued once you . . . allow judges to send a thank you note in response to individual contributions . . . and also to instruct their committees about who to approach, the additional ban on direct solicitations is ineffective . . . JR

Neuborne:  “. . . The argument is that the Florida statute is so honeycombed with exceptions that it doesn’t really advance the interests it is said to advance. . . . The question is: Is there something special about personal solicitation — which either puts more pressure on a lawyer [who might appear before the judge], or puts pressure on a litigant, or makes the public think that the judge would be more disappointed if you don’t respond to a personal solicitation or more grateful if you did respond to a personal solicitation — than this kind of backdoor solicitation by a proxy? I think reasonable people can differ over that. . . . I would argue that the stakes here are so high . . . that I would defer to Florida’s judgment that they want to have a risk averse prophylaxis . . . .”

Corn-Revere: “. . . . I think Burt’s summary of the problems of [with Florida’s law] was so succinct and so persuasive that I can’t believe we’re on different sides of the case. . . The difficulty is [that the Florida canon] only prohibits candidates from saying ‘please,’ it is does not prohibit them from saying ‘thank you.’ Hell, they can even host a barbecue for everyone who contributed to their campaign. If you look at the specific goals that [the Florida canon] seeks to address — first, preventing quid pro quo corruption . . .  — [and if you consider what it permits candidates for judicial election to do,] nothing in [the canon] addresses [that] quid pro quo corruption issue. The second interest — promoting impartiality and bias — again, once . . . you’re part of the political fray, you’re going to face those problems. The only issue . . . that [the canon] even attempts to address is the protection against coercion . . . . [But in this case there was no such problem with that.]”

“My view of the First Amendment is that it works in the opposite way [from what Burt suggested]; that it is the government’s burden   to demonstrate not only that there is a sufficient interest in restricting speech in any given instance, . . . but it also has to demonstrate that the means that it has chosen are narrowly tailored to address that interest and do in fact address that interest. That’s where I think [Florida’s canon] falls down.”

There is much more, and I urge everyone to hear the entire podcast, which you can find here.

 Aside: On February 3rd The New Press will release Professor Neuborne’s Madison’s Music: On Reading the First Amendment 

→ See also Jacob Gershman, “First Amendment Rights of Judges in the Spotlight,” WSJ, Jan. 27, 2015 (“In California, the state’s highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.”)

Mary Beth & John Tinker file amicus brief in Supreme Court in 1- case 

Mary Beth Tinker

Mary Beth Tinker

“The need to prevent disruption of the school environment cannot justify restricting students who engage in peaceful symbolic speech simply because others may take boisterous exception.” — Amicus brief on behalf of Mary Beth & John Tinker.

* * * *

The case is Dariano v. Morgan Hill Unified School DistrictThe issue in the case is whether the Ninth Circuit erred (opinion here) by allowing school officials to prevent students from engaging in silent, passive expression of opinion because other students might react negatively to the message, thereby incorporating a heckler’s veto into the free speech rights of students, contrary to Tinker v. Des Moines Independent Community School District (1969).

The American Freedom Law Center is representing the petitioner with Robert Jospeh Muise as counsel of record.

Mary Beth Tinker and her brother John have filed an amicus brief in the Court with Robert Corn-Revere as counsel of record. Eugene Volokh and Ronald G. London and Lisa Beth Zycherman are also listed as counsel for amici curiae.’

Adam Liptak

Adam Liptak

Liptak Speaks at Cornell Law School

New York Times Supreme Court correspondent Adam Liptak recently spoke at Cornell Law School to give the Frank Irvine Endowed Lecture. The title of his remarks was “A New Deal for the First Amendment?”

As reported in the Cornell Chronicle, “Liptak mentioned another possible consideration in applying the law: If judging is, as he phrased it, “weighing competing interests” and “putting a thumb on the scale” in favor of marginalized speech, then should a deciding factor in applying the First Amendment be the relative power of the speaker? Though Liptak did not have an answer to this question, an audience member raised the possibility that a power-based consideration could lead to influential organizations, like major newspapers, being censored.”

Liptak was also quoted as saying: “‘I practiced First Amendment law for 14 years, and I drank the Kool-Aid,” he said, describing his previous faith in the amendment. ‘Over the years, many important decisions have been made using it, including allowing protestors near funerals and decriminalizing flag burning.’ However, he added, ‘there is something troubling we should think about: economic regulations being struck down on the basis of free speech.'”

Chemerinsky reviews three new First Amendment books  Read More