Category: General Law

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FAN 101.2 (First Amendment News) Judge Garland on the First Amendment: Opinions & Votes   

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Here is an early snapshot of some of Chief Judge Merrick Garland’s opinions and votes in First Amendment free speech cases:

Ruggiero v. Federal Communications Commission (D.C. Cir., 2003, en banc) (joined majority opinion by C.J. Ginsburg denying First Amend. challenge to  restrictions on licenses for low-power radio stations) (separate concurrences by Randolf, J., and Rogers, J., and dissent by Tatel, J.)

— Initiative & Referendum Inst. v. U.S.P.S. (D.C. Cir., 2005) (Garland, J., for the Court) (sustaining First Amendment challenge of U.S. Postal regulation prohibiting solicitation of signatures outside post offices).

— Thompson v. District of Columbia (D.C., Cir., 2005) (Tatel, J., for majority joined by Garland, J., with Edwards, J., concurring) (reinstated plaintiff’s First Amend. claim that he was fired for exercising his free-speech rights) (NB: Judge Edwards’ concurrence: “given the posture of this case, it would appear that the disposition of the First Amendment claim may dispose of the entire case.”)

Lee v. Dep’t of Justice (D.C. Cir. 2005, en banc) (per curiam,  Garland, J., dissenting from the denial of rehearing en banc) (Garland: “The only way to render the reporter’s privilege effective in the face of Privacy Act claims is to include the requirement . . . that the court “weigh[ ] the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” Zerilli, 656 F.2d at 712.”)

— Boehner v. McDermott (D.C. Cir, 2007, en banc) (Randolph, J., majority, with Sentelle, J., dissenting joined by Garland, J. & others)

Commentary:

  • Reporters Committee (2015): (“In the dissent joined by Judge Garland, Judge Sentelle wrote that “the issue is: ‘Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?’” Judge Sentelle wrote that he would answer that question “in the negative,” and that the U.S. Supreme Court decision in Bartnicki v. Vopper (2001), which was decided after the first appeal in this case, made clear that such action should not be punished.”

— National Association of Manufacturers v. Taylor (D.C. Cir., 2009) (Garland, J., unanimous: 3-0)

Commentary:

  • Richard Hasen, “Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness,” Election Law Blog, March 17, 2016 (The “NAM decision . . . carefully applies precedent, and is not reluctant to uphold disclosure requirements in the face of unsubstantiated claims of harassment. the judge also signed a 2008 decision, Shays v. FEC, which required the Federal Election Commission to craft tougher regulations to implement the campaign finance law.”)

— SpeechNow.org v. Federal Election Commission (D.C. Cir.,2010, en banc) (Sentelle, C.J., unanimous: 9-0)

(Oral arguments audio)

Commentaries:

  • HasenJudge Merrick Garland” (“my view is that a Justice Garland would be moderately liberal on election law issues, probably voting with the four more liberal Justices in most election cases.” . . . .”we should not read too much into Judge Garland’s vote in the SpeeechNow case, the case which established Super PACs. As I explained that unanimous ruling was compelled by the Supreme Court’s Citizens United decision.”)
  • Damon Root, “Merrick Garland on Citizens United, the First Amendment, and Campaign Finance Regulation” (“Notably, the D.C. Circuit rejected the FEC’s attempt to distinguish Citizens United, which struck down an expenditure limit, from the SpeechNow case, which dealt with a contribution limit. In other words, the D.C. Circuit had an opportunity to accept the federal government’s narrowing analysis of Citizens United and it rejected that narrowing analysis. Among the judges who joined the D.C. Circuit’s opinion in SpeechNow.org v. FEC was Merrick Garland, who is now President Obama’s nominee to replace Justice Antonin Scalia on the U.S. Supreme Court.”)
  • John Light, “Merrick Garland Could Mean a New Chapter in the Fight to Reverse Citizens United,” Moyers & Co., March 16, 2016 (“Garland’s decision on SpeechNow does not necessarily indicate how he would vote on a case seeking to reverse Citizens United, should one reach the bench, reformers believe. “We personally think that there’s a lot of daylight between Citizens United and SpeechNow,” said Greytak. Stephen Spaulding, senior policy counsel and legal director at Common Cause, argued that Garland’s ruling could be explained by the fact that federal appeals court judges are bound by Supreme Court precedent. The year SpeechNow came before the DC Circuit, the justices already, through Citizens United, were sending a pretty clear message about how the high court felt about super PAC spending.”)

— American Meat Institute v. U.S. Department of Agriculture (D.C. Cir., 2010, en banc) (Williams, J., Garland, C.J., joining majority, Rogers, J., concurring in part, Kavanaugh, J., concurring in judgment, & Brown, J., dissenting) (Upholding over a First Amend, challenge Ag. Dept. rule requiring labels on meat to identify where the animal was born, raised and slaughtered)

→ (Oral arguments audio)

Commentary:

— POM Wonderful v. Federal Trade Commission (D.C. Cir., 2015) (per Srinivasan, J., unanimous: 3-0) (upholding FTC decision that the juice company made deceptive claims about its drinks’ health benefits)

→ (Oral arguments audio)

Commentaries:

  • Rich Samp, “The D.C. Circuit’s POM Wonderful Decision: Not So Wonderful for FTC’s Randomized Clinical Trial Push” (2015) (“the ruling is far from the sweeping endorsement of FTC advertising-control measures that the Commission might have been hoping for. In particular, the ruling provides little, if any, support for the FTC’s recent assertions that food and dietary supplement manufacturers are largely barred from including health-related claims on product labels unless their claims are supported by randomized and controlled human clinical trials (“RCTs”). To the contrary, the appeals court made clear medical studies that do not meet RCT standards may nonetheless have considerable value, and that the FTC’s regulation of advertising is subject to strict First Amendment limitations. The decision suggests that courts may be very reluctant to uphold the FTC’s application of RCT standards to claims that a product promotes general health and nutrition, as distinct from claims that a product is effective in preventing or curing specific diseases.”)

— Wagner v. Federal Election Commission (D.C. Cir., 2015) (Garland, J., unanimous: 3-0)

→ (Oral arguments audio)

Commentary: 

  • Hasen, “Judge Merrick Garland” (“the way that Judge Garland wrote the decision indicates that he accepts Congress’s role in crafting reasonable campaign finance regulations aimed at protecting government interests. Judge Garland could have written the opinion in a reluctant way, noting that Supreme Court cases like Citizens United and McCutcheon may have undermined the constitutionality of total bans on contributions by any class of contributors.”)

Hasen on Garland & Citizens United:

“The harder question is what a Justice Garland would do, if faced on the Supreme Court with the opportunity to overturn Citizens United. On the merits, I have little doubt he would have been in the dissent in the original Citizens United case. But the question is one of stare decisis (respect for precedent) now. Would he be willing to overturn such a case, just a few years after the controversial ruling? My guess is that his would be a struggle for him, less about the merits of the case and more about the proper role of the Justice (particularly if he becomes the new swing Justice) on a Court that is ideologically and politically divided.” (Source: HasenJudge Merrick Garland“) 

Reporters Committee releases report on Judge Garland’s First Amendment and Freedom of Information decisions (2015)

 FAN 101.1:  “Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

See also Tom Goldstein, “The Potential Nomination of Merrick Garland,” SCOTUSblog, April 26, 2010

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Unequal Exposure

Towards the end of the breathless and impassioned tour through privacy, surveillance, carcerality, and desire that is Exposed, Bernard Harcourt writes that “the emphasis on what we must do as ethical selves, each and every one of us – us digital subjects – may be precisely what is necessary for us to begin to think of ourselves as we. Yes, as that we that has been haunting this book since page one” (283). The call for unity and solidarity is seductive: if “we” are all exposed and vulnerable, then “we” can all resist and demand change. But that “we” – that reassuring abstraction of humanity and human experience – is not in fact what haunts this book. That “we” – unquestioned, undifferentiated, unmarked – is taken for granted and treated as the universal subject in this book. What truly haunts this book is everything that this “we” obscures and represses. Harcourt’s “we” is remarkably undifferentiated. Nearly every point Harcourt makes about how “we” experience digital subjectivity, surveillance, and exposure would and should be contested by women, people of color, the poor, sexual minorities (and those who belong to more than one of the categories in this non-exhaustive list). It is unfair, of course, to expect any one book or any one author to capture the full complexity of human experience on any topic. One writes about what one knows, and nuance must sometimes be sacrificed for the sake of broad theory. But there is a difference between falling short of conveying the diversity of human experience and barely acknowledging the existence of differentiation. If one of Harcourt’s goals is to lead us to “think of ourselves as we,” it is vital to recognize that  “we” in the digital age are not equally represented, equally consenting or resisting, or equally exposed.

Let’s begin with Harcourt’s characterization of the digital age as a study in shallow positivity: “We do not sing hate, we sing praise. We ‘like,’ we ‘share,’ we ‘favorite.’ We ‘follow.’ We ‘connect.’ ‘We get LinkedIn.’ Ever more options to join and like and appreciate. Everything today is organized around friending, clicking, retweeting, and reposting. … We are appalled by mean comments – which are censored if they are too offensive”(41). This is a picture of the digital world that will be  unrecognizable to many people. There is no mention of online mobs, targeted harassment campaigns, career-destroying defamation, rape and death threats, doxxing, revenge porn, sex trafficking, child porn, online communities dedicated to promoting sexual violence against women, or white supremacist sites. No mention, in short, of the intense, destructive, unrelenting hatred that drives so much of the activity of our connected world. Harcourt’s vision of our digital existence as a sunny safe space where occasional “mean comments” are quickly swept from view is nothing short of extraordinary.

Next, consider Harcourt’s repeated insistence that there are no real distinctions between exposer and exposed, the watcher and the watched: “There is no clean division between those who expose and those who surveil; surveillance of others has become commonplace today, with nude pictures of celebrities circulating as ‘trading fodder’ on the more popular anonymous online message boards, users stalking other users, and videos constantly being posted about other people’s mistakes, accidents, rants, foibles, and prejudices. We tell stories about ourselves and others. We expose ourselves. We watch others” (129). There are, in fact, important divisions between exposers and the exposed. With regard to sexual exposure, it is overwhelmingly the case that women are the subjects and not the agents of exposure. The nude photos to which Harcourt refers weren’t of just any celebrities; they were with few exceptions female celebrities. The hacker in that case, as in nearly every other case of nude photo hacking, is male, as is nearly every revenge porn site owner and the majority of revenge porn consumers. The “revenge porn” phenomenon itself, more accurately described as “nonconsensual pornography,” is overwhelmingly driven by men exposing women, not the other way around. Many of Harcourt’s own examples of surveillance point to the gender imbalance at work in sexual exposure. The LOVEINT scandal, the CCTV cameras pointed into girls’ toilets and changing rooms in UK schools (229), and Edward Snowden’s revelations of how the NSA employees share naked pictures (230) primarily involve men doing the looking and women and girls being looked at. The consequences of sexual exposure are also not gender-neutral: while men and boys may suffer embarrassment and shame, girls and women suffer these and much more, including being expelled from school, fired from jobs, tormented by unwanted sexual propositions, and threatened with rape.

There are also important distinctions to be made between those who voluntarily expose themselves and those who are exposed against their will. In the passage above, Harcourt puts nude photos in the same list as videos of people’s “rants, foibles, and prejudices.” The footnote to that sentence provides two specific examples: Jennifer Lawrence’s hacked photos and video of Michael Richards (Seinfeld’s Kramer) launching into a racist tirade as he performed at a comedy club (311). That is a disturbing false equivalence. The theft of private information is very different from a public, voluntary display of racist hatred. In addition to the fact that naked photos are in no way comparable to casual references to lynching and the repeated use of racial slurs, it should matter that Jennifer Lawrence was exposed against her will and Michael Richards exposed himself.

It’s not the only time in the book that Harcourt plays a bit fast and loose with the concepts of consent and voluntariness. In many places he criticizes “us” for freely contributing to our own destruction: “There is hardy any need for illicit or surreptitious searches, and there is little need to compel, to pressure, to strong-arm, or to intimidate, because so many of us are giving all our most intimate information and whereabouts so willingly and passionately – so voluntarily” (17).  And yet Harcourt also notes that in many cases, people do not know that they are being surveilled or do not feel that they have any practical means of resistance. “The truth is,” Harcourt tells us with regard to the first, “expository power functions best when those who are seen are not entirely conscious of it, or do not always remember. The marketing works best when the targets do not know that they are being watched” (124). On the second point, Harcourt observes that “when we flinch at the disclosure, most of us nevertheless proceed, feeling that we have no choice, not knowing how not to give our information, whom we would talk to, how to get the task done without the exposure. We feel we have no other option but to disclose” (181-2). But surely if people are unaware of a practice or feel they cannot resist it, they can hardly be considered to have voluntarily consented to it.

Also, if people often do not know that they are under surveillance, this undermines one of the more compelling concerns of the book, namely, that surveillance inhibits expression. It is difficult to see how surveillance could have an inhibiting effect if the subjects are not conscious of the fact that they are being watched. Surreptitious surveillance certainly creates its own harms, but if subjects are truly unaware that they are being watched – as opposed to not knowing exactly when or where surveillance is taking place but knowing that it is taking place somewhere somehow, which no doubt does create a chilling effect – then self-censorship is not likely to be one of them.

Harcourt suggests a different kind of harm when he tells us that “[i]nformation is more accessible when the subject forgets that she is being stalked” (124). That is, we are rendered more transparent to the watchers when we falsely believe they are not watching us. That seems right. But what exactly is the harm inflicted by this transparency? Harcourt warns that we are becoming “marketized subjects – or rather subject-objects who are nothing more than watched, tracked, followed, profiled at will, and who in turn do nothing more than watch and observe others” (26). While concerns about Big Data are certainly legitimate (and have been voiced by many scholars, lawyers, policymakers, and activists), Harcourt never paints a clear picture of what he thinks the actual harm of data brokers and targeted Target advertisements really is. In one of the few personal and specific examples he offers of the harms of surveillance, Harcourt describes the experience of being photographed by a security guard before a speaking engagement. Harcourt is clearly unsettled by the experience: “I could not resist. I did not resist. I could not challenge the security protocol. I was embarrassed to challenge it, so I gave in without any resistance. But it still bothers me today. Why? Because I had no control over the dissemination of my own identity, of my face. Because I felt like I had no power to challenge, to assert myself” (222). While one sympathizes with Harcourt’s sense of disempowerment, it is hard to know what to think of it in relation to the sea of other surveillance stories: women forced to flee their homes because of death threats, parents living in fear because the names of their children and the schools they attend have been published online, or teenaged girls committing suicide because the photo of their rape is being circulated on the Internet as a form of entertainment.

Harcourt uses the term “stalk” at least eight times in this book, and none of these references are to actual stalking, the kind that involves being followed by a particular individual who knows where you live and work and means you harm, the kind that one in six women in the U.S. will experience in her lifetime, the kind that is encouraged and facilitated by an ever-expanding industry of software, gadgets, and apps that openly market themselves to angry men as tools of control over the women who have slipped their grasp. What a privilege it is to be able to treat stalking not as a fact of daily existence, but as a metaphor.

Harcourt’s criticism of what he considers to be the Supreme Court’s lack of concern for privacy adds a fascinating gloss to all of this. Harcourt takes particular aim at Justice Scalia, asserting that even when Scalia seems to be protecting privacy, he is actually disparaging it: “Even in Kyllo v. United States…. where the Court finds that the use of heat-seeking technology constitutes a search because it infringes on the intimacies of the home, Justice Scalia mocks the humanist conception of privacy and autonomy.” The proof of this assertion supposedly comes from Scalia’s observation that the technology used in that case “might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath – a detail that many would consider ‘intimate.’” Harcourt assumes that Scalia’s reference to the “lady of the house” is an ironic expression of contempt. But Scalia is not being ironic. Elsewhere in the opinion, he emphatically states that “[i]n the home… all details are intimate details,” and many of his other opinions reinforce this view. Scalia and many members of the Court are very concerned about privacy precisely when it involves the lady of the house, or the homeowner subjected to the uninvited drug-sniffing dog on the porch (Florida v. Jardines, 2013), or the federal official subjected to the indignity of a drug test (Treasury Employees v. Von Raab, 1989 (dissent)). These same members of the Court, however, are remarkably unconcerned about privacy when it involves a wrongfully arrested man subjected to a humiliating “squat and cough” cavity search (Florence v. Burlington, 2012), or a driver searched after being racially profiled (Whren v. US, 1996), a pregnant woman tricked into a drug test while seeking prenatal care (Ferguson v. Charleston, 2001 (dissent)). In other words, the problem with the Supreme Court’s views on privacy and surveillance is not that it does not care about it; it’s that it tends to care about it only when it affects interests they share or people they resemble.

The world is full of people who do not have the luxury of worrying about a growing addiction to Candy Crush or whether Target knows they need diapers before they do. They are too busy worrying that their ex-husband will hunt them down and kill them, or that they will be stopped and subjected to a humiliating pat down for the fourth time that day, or that the most private and intimate details of their life will be put on public display by strangers looking to make a buck. These people are not driven by a desire to expose themselves. Rather, they are being driven into hiding, into obscurity, into an inhibited and chilled existence, by people who are trying to expose them. If “we” want to challenge surveillance and fight for privacy, “they” must be included.

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The Fragility of Desire

In his excellent new book Exposed, Harcourt’s analysis of the role of desire in what he calls the “expository society” of the digital age is seductive. We are not characters in Orwell’s 1984, or prisoners of Bentham’s Panopticon, but rather are enthusiastic participants in a “mirrored glass pavilion” that is addictive and mesmerizing. Harcourt offers a detailed picture of this pavilion and also shows us the seamy side of our addiction to it. Recovery from this addiction, he argues, requires acts of disobedience but there lies the great dilemma and paradox of our age: revolution requires desire, not duty, but our desires are what have ensnared us.

I think that this is both a welcome contribution as well as a misleading diagnosis.

There have been many critiques of consent-based privacy regimes as enabling, rather than protecting, privacy. The underlying tenor of many of these critiques is that consent fails as a regulatory tool because it is too difficult to make it truly informed consent. Harcourt’s emphasis on desire shows why there is a deeper problem than this, that our participation in the platforms that surveil us is rooted in something deeper than misinformed choice. And this makes the “what to do?” question all the more difficult to answer. Even for those of us who see a stronger role for law than Harcourt outlines in this book (I agree with Ann Bartow’s comments on this) should pause here. Canada, for example, has strong private sector data protections laws with oversight from excellent provincial and federal privacy commissioners. And yet these laws are heavily consent-based. Such laws are able to shift practices to a stronger emphasis on things like opt-in consent, but Harcourt leaves us with a disquieting sense that this might just be just an example of a Pyrrhic victory, legitimizing surveillance through our attempts to regulate it because we still have not grappled with the more basic problem of the seduction of the mirrored glass pavilion.

The problem with Harcourt’s position is that, in exposing this aspect of the digital age in order to complicate our standard surveillance tropes, he risks ignoring other sources of complexity that are also important for both diagnosing the problem and outlining a path forward.

Desire is not always the reason that people participate in new technologies. As Ann Bartow and Olivier Sylvain point out, people do not always have a choice about their participation in the technologies that track us. The digital age is not an amusement park we can choose to go to or to boycott, but deeply integrated into our daily practices and needs, including the ways in which we work, bank, and access government services.

But even when we do actively choose to use these tools, it is not clear that desire captures the why of all such choices. If we willingly enter Harcourt’s mirrored glass pavilion, it is sometimes because of some of its very useful properties — the space- and time-bending nature of information technology. For example, Google calendar is incredibly convenient because multiple people can access shared calendars from multiple devices in multiple locations at different times making the coordination of calendars incredibly easy. This is not digital lust, but digital convenience.

These space- and time-bending properties of information technology are important for understanding the contours of the public/private nexus of surveillance that so characterizes our age. Harcourt does an excellent job at pointing out some of the salient features of this nexus, describing a “tentacular oligarchy” where private and public institutions are bound together in state-like “knots of power,” with individuals passing back and forth between these institutions. But what is strange in Harcourt’s account is that this tentacular oligarchy still appears to be bounded by the political borders of the US. It is within those borders that the state and the private sector have collapsed together.

What this account misses is the fact that information technology has helped to unleash a global private sector that is not bounded by state borders. In this emerging global private sector large multinational corporations often operate as “metanationals” or stateless entities. The commercial logic of information is that it should cross political borders with ease and be stored wherever it makes the most economic sense.

Consider some of the rhetoric surrounding the e-commerce chapter of the recent TPP agreement. The Office of the US Trade Representative indicates that one of its objectives is to keep the Internet “free and open” which it has pursued through rules that favour cross-border data flows and prevent data localization. It is easy to see how this idea of “free” might be confused with political freedom, for an activist in an oppressive regime is better off in exercising freedom of speech when that speech can cross political borders or the details of their communications can be stored in a location that is free of the reach of their state. A similar rationale has been offered by some in the current Apple encryption debate — encryption protects American business people communicating within China and we can see why that is important.

But this idea of freedom is the freedom of a participant in a global private sector with weak state control; freedom from the state control of oppressive regimes also involves freedom from the state protection of democratic regimes.

If metanationals pursue a state-free agenda, the state pursues an agenda of rights-protectionism. By rights protectionism I mean the claim that states do, and should, protect the constitutional rights of their own citizens and residents but not others. Consider, for example, a Canadian citizen who resides in Canada and uses US cloud computing. That person could be communicating entirely with other Canadians in other Canadian cities and yet have all of their data stored in the US-based cloud. If the US authorities wanted access to that data, the US constitution would not apply to regulate that access in a rights-protecting manner because the Canadian is a non-US person.

Many see result as flowing from the logic of the Verdugo-Urquidez case. Yet that case concerned a search that occurred in a foreign territory (Mexico), rather than within the US, where the law of that territory continued to apply. The Canadian constitution does not apply to acts of officials within the US. The data at issue falls into a constitutional black hole where no constitution applies (and maybe even international human rights black hole according to some US interpretations of extraterritorial obligations). States can then collect information within this black hole free of the usual liberal-democratic constraints and share it with other allies, a situation Snowden documented within the EU and likened to a “European bazaar” of surveillance.

Rights protectionism is not rights protection when information freely crosses political boundaries and state power piggybacks on top of this crossing and exploits it.

This is not a tentacular oligarchy operating within the boundaries of one state, but a series of global alliances – between allied states and between states and metanationals who exert state-like power — exploiting the weaknesses of state-bound law.

We are not in this situation simply because of a penchant for selfies. But to understand the full picture we do need to look beyond “ourselves” and get the global picture in view. We need to understand the ways in which our legal models fail to address these new realities and even help to mask and legitimize the problems of the digital age through tools and rhetoric that are no longer suitable.

Lisa Austin is an Associate Professor at the University of Toronto Faculty of Law.

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FAN 101.1 (First Amendment News) Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

Today, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to serve as an Associate Justice on the Supreme Court.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Judge Garland served as a law clerk to Second Circuit Judge Henry Friendly and thereafter as a clerk for Justice William J. Brennan. Garland’s clerkship at the Court was during the 1978-1979 Term.

During that Term the Court decided Hutchinson v. Proxmire (argued April 17, decided June 26, 1979). The vote was 8-1 with Chief Justice Warren Burger writing for the majority and Justice Brennan writing in dissent.

Facts in the Case: “In early 1975, Senator William Proxmire implemented what he called the “Golden Fleece Award of the Month.” The award was given out to governmental agencies which sponsored programs and research that Proxmire found to be a waste of tax dollars. One Golden Fleece went to federal agencies sponsoring the research of Ronald Hutchinson, a behavioral scientist. Proxmire detailed the “nonsense” of Hutchinson’s research on the floor of the Senate, in conferences with his staff, and in a newsletter sent to over 100,000 of his constituents. Hutchinson sued for libel, arguing that Proxmire’s statements defamed his character and caused him to endure financial loss.”

Issues: “The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue.”

First Amendment Ruling: Petitioner is not a “public figure” so as to make the “actual malice” standard of proof of New York Times Co. v. Sullivan applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. Nor is the concern about public expenditures sufficient to make petitioner a public figure, petitioner at no time having assumed any role of public prominence in the broad question of such concern.

Justice Brennan’s Dissent: “I disagree with the Court’s conclusion that Senator Proxmire’s newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States (1972).”

Counsel in the Supreme Court:

  • Michael E. Cavanaugh argued the cause and filed a briefs for Petitioner.
  • Alan Raywid argued the cause and filed a brief for Respondents.

Amicus Briefs:

  • Bruce J. Montgomery and John D. Lane filed a brief for the American Psychological Association et al. as amici curiae urging reversal.
  • Briefs of amici curiae urging affirmance were filed by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.
  • Chester H. Smith for Warren G. Magnuson et al. Stanley M. Brand filed a brief for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al.
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FAN 101 (First Amendment News) Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co.

Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full. — Paul M. Smith (cert. petition in Electronic Arts v. Davis)

Nothing in the Court’s opinion [in Zucchini] suggested that its analysis would have been different had the news broadcast been limited to a five- or ten- second excerpt . . . . — Brian D. Henri (brief in opposition in Electronic Arts v. Davis)

Lee Levine

Lee Levine

Lee Levine and Stephen Wermiel are at again — digging in Justices’ personal papers to reveal how the law of a First Amendment case came to be, replete with surprises and insights.

First they started with a law review article: “The Landmark that Wasn’t: A First Amendment Play in Five Acts,” Wash. L. Rev. (2013), which gave rise to several commentaries.

Then came a book: The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014). Now comes their latest work, “The Court & the Cannonball: An Inside Look,” American U. L. Rev. (forthcoming 2016).

In their latest work, Levine ( a seasoned media law lawyer & casebook author) teams up once again with Wermiel (law professor, Brennan Biographer & former WSJ reporter) to dig up the inside history of another First Amendment case — this time Zacchini v. Scripps-Howard Broadcasting Co. (1977), a 5-4 ruling.

The Facts: In 1972, Hugo Zucchini performed as a “human cannonball” at the Geauga County Fair in Burton, Ohio. In his act, Zucchini was shot out of a cannon and into a net 200 feet away. His performance lasted 15 seconds.  During one of these performances, a Scripps-Howard Broadcasting Co. freelance reporter attended the fair, replete with a movie camera. Petitioner noticed the reporter and asked him not to film the performance. Respondent honored the request that day but returned the following day and videoed the entire act. This 15-second film clip was shown on the evening news, together with favorable commentary. Petitioner brought a tort action (right of publicity) for damages and Respondent raised a First Amendment defense, among other things.

See “Zucchini: Human Cannonball” documentary trailer

Prof. Stephen Wermiel

Prof. Stephen Wermiel

The issue in the case was: Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer’s state-law right of publicity?

→ The Supreme Court Lawyers:

  • John G. Lancione argued the cause and filed a brief for Petitioner.
  • Ezra K. Bryan argued the cause for Respondent.

→ Judgment: 5-4 in favor the Petitioner. Justice Byron White wrote the majority opinion and Justices Lewis Powell and John Paul Stevens each wrote separate dissents.

→ Enter Levine & Wermiel: Here are a few excerpts from their forthcoming article:

“Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court Justices’ available papers shows that the Court did not view the case as presenting the type of claim that has become prevalent today.”

Hugo Zacchini; human cannon ball; in position for great blast off.

Hugo Zacchini; human cannon ball; in position for great blast off.

“For the Supreme Court, the internal papers indicate the case was about the right of a performer/producer to control the display of his entire act. The Court was not focused on the more contemporary claim that athletes, celebrities, and others have a right to control the use by anyone else, especially for commercial purposes, of their name or their visual image. Nor did the Court’s ruling address the First Amendment issue raised in contemporary cases when a name or likeness is used in a creative work or other public communication. . . . .”

Conclusion: “If nothing else, the record of the Court’s deliberations in Zacchini appears to support the view that that decision does not purport to speak to the viability of a First Amendment-based defense to the kind of “right of publicity” claims asserted by contemporary plaintiffs seeking compensation for the use of their name, likeness, or even their performance, in the context of a video game, sporting event, news report or other creative work produced by someone else. To the contrary, the Court’s deliberations in Zacchini suggest that, at least in contexts where the asserted “right of publicity” is not akin to a claim for common law copyright, there is no basis to depart from traditional modes of First Amendment analysis and engage instead in the kind of ad-hoc balancing of state-created and constitutional rights . . .”

Judge Srinivasan on Free Speech Read More

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National Party Conventions as Authoritative Bodies

A thought that occurred to me yesterday is that the forum most likely to decide the issue of whether Ted Cruz is a natural-born citizen eligible for the presidency is the Republican National Convention. If the convention is contested, then the Trump delegates are bound to make a motion stating that Cruz is ineligible and to force a debate on the issue.  The decision of the convention could then be cited in any future discussion or case on that provision.  I’m not sure if courts have cited convention decisions or platforms in the past, but that’s something that I’m going to explore.

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FAN 100 (First Amendment News) FIRE Spreads — Group to Launch Online First Amendment Library

UnknownThis post marks the 100th weekly issue of First Amendment News, which began on February 10, 2014. First and foremost, I want to thank our publisher, Dan Solove, who makes all this possible. Dan: it’s been a great ride, so thanks for all your encouragement. Next, I want to thank my FAN readers — liberals, conservatives, libertarians, and the politically & non-politically correct — for your input and continued support.

I try to be a fair broker in what I present and how I do so. Why? Because I  believe that diversity of views is a good thing, even if it includes diverse views about the meaning of the First Amendment itself. After all, to march in lockstep is to give up on the great free-speech experiment that is America’s unique gift to civilization. One more thing: If you agree, and if you also believe in this free-speech principle, it certainly helps to have an open mind.– RKLC

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UnknownToday, the Foundation for Individual Rights in Education (FIRE) announces a new project—the creation of an online First Amendment library, which will be free to all users. The first phase of the library is scheduled to launch this fall. I am honored to serve as the library’s editor-in-chief. The online library will include, among many other features:

  • A hyperlinked list of all First Amendment opinions handed down by the Supreme Court, with the text of cases hosted on FIRE’s own site,
  • An ever-growing list of historical and related secondary materials, and
  • Users will be able to browse cases by numerous and varied topical categories (e.g. commercial speech) and sub-categories (e.g, lawyer advertising), as well as Court era (e.g., Warren Court, Burger Court, Rehnquist Court & Roberts Court).
The online library will also include many links (organized topically) to federal campus free-speech cases, along with links to new and ongoing litigation.

In some respects, this Project pivots from one I created many years ago for the Newseum’s First Amendment Center, thanks to the energetic support of Paul McMasters and Ken Paulson. Unfortunately, times and people changed and with that the online library came down several years ago. Gladly, FIRE elected to create a new, improved, and expanded version of a First Amendment online library.

Our collective hope is that this First Amendment library will become a valuable, reliable, and resourceful asset to judges, lawyers, professors, and students along with anyone else interested in our First Amendment freedoms.

Greg Lukianoff, FIRE’s President & CEO, issued the following statement concerning the forthcoming library:

We at FIRE are very excited to work with Professor Collins in creating a new, free online First Amendment Library. Where we can take it and what we can do with it is almost limitless, but my grand hope is that it makes the great wisdom contained in First Amendment jurisprudence as accessible to high school students as it is to practicing lawyers. And most of all, we would like to thank the Stanton Foundation for the generous grant that made this new project possible.

 Internship Opening: FIRE will soon be looking for a legal intern to help curate and expand the site’s content. The internship will be open to rising second- and third-year law students, recent law school graduates, and specialists in First Amendment law. Other responsibilities will include helping compile First Amendment cases and other resources to create a model First Amendment course book. Go to FIRE website for more information.

More FIRE: Volokh Video 

(Credit: FIRE -- By Aaron Reese & Chris Maltby)

(Credit: FIRE — By Aaron Reese & Chris Maltby)

Check out this excellent 7:28 video clip of Professor Eugene Volokh speaking on free speech (excerpt below)

“Even you know you’re in the right, and you know you’re opponents are wrong, maybe not just wrong — maybe they genuinely are biogeted — sometimes the experience of talking to them, of debating this with them, will help you better understand you’re own position. . . .”

“Healthy debate at universities requires three things: First, it requires legal protection for speech. If the university can, for example, discipline students for expressing offensive views, that’s very dangerous to free-speech protections. Second, it requires a level of social tolerance. Let’s say, for example, that the university won’t discipline students for expressing certain views, but, say, if you oppose abortion rights, or if you oppose race-based affirmative action, or if you oppose same-sex marriage, and everyone calls you a racist, or sexist, or a bigot, and you start worrying that if even professor stay they’ll treat you fairly — maybe they’re not going to give you letters of recommendation or something like that — that’s also bad for public debate.  A third thing that healthy debate at universities requires is some amount of politeness. [If] people are constantly insulting each other, that’s bad for public debate, too.”

Yet More FIRE: Debate re “Hashtag Activism”

FIRE Debates Are Back! ‘Hashtag Activism’ to Take Center Stage at the University of Pennsylvania.

FIRE is has just announced that the third installment of the FIRE Debates series will take place at the University of Pennsylvania on Wednesday, March 23, at 7:00 p.m. Eastern in the Harrison Auditorium at the Penn Museum of Archaeology and Anthropology.

Debaters will argue the effectiveness of “hashtag activism.”

Go here for more information.

Court Denies Cert in Public Forum Case — Thomas & Alito Dissent  Read More

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FAN 99.6 (First Amendment News) Floyd Abrams on Campus Censorship (Then & Now) & Related Topics

On March 1, 2016, Floyd Abrams gave the Levitt Lecture at the University of Iowa School of Law. Below are a few excerpts from his remarks:

Floyd Abrams

Floyd Abrams

Years Ago: In London with Justice Scalia & Nadine Strossen (then President of the ACLU): “We started talking about some First Amendment cases, particularly Hill v. Colorado, a ruling affirming the constitutionality of significant limitations on speech in areas near facilities in which abortions were performed. All three of us agreed on how terrible the majority opinion of Justice Stevens was and how enlightened Justice Scalia’s dissent was. (In those days, although not more recently, the ACLU, which Nadine then headed, took a strong First Amendment stand against such laws.) Justice Scalia, one could tell, enjoyed the conversation, and at one point leaned back, drink in hand, cigar in mouth, and said ‘you know, I’m not really bad about the First Amendment.’”

Campus Censorship in the 1950s: Reading [about] examples [of censorship on college campuses today], I couldn’t help but compare them to the time when I entered Cornell University more — as you will undoubted be surprised to hear — than a few years ago. At that time, upon entrance into the university, all students were required to sign some sort of document agreeing that we could be suspended for saying just about anything on just about any topic of which the university disapproved. In fact, we were required to carry at all times some sort of identification card saying just that. And as I recall it, there really was very little controversial speech at all on campus — a real loss, I can say in retrospect — but very much the ethos of life in America on and off campus in the long ago 1950s.”

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Free Speech on College Campuses Today: “Just about a year ago, I gave a speech in Philadelphia at Temple University in which I maintained that the single greatest threat to freedom of speech in the country was on college campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, even disturbing. Nothing that has occurred in the last year has led me to change that view. Part of the problem stems from the behavior—misbehavior might be the better word–of college and university administrations. The indispensable organization called FIRE, which tracks the behavior of colleges and universities with respect to free speech on campus, has just published its list of the 10 worst colleges for free speech in 2016. I held my breath as I read it, wondering if your great university would make the list in time for me to comment on it in this talk.”

The New Censors: “[T]oday there are new censors who seek to place new limits on what may be said on campus. And I’m sorry to say they’re students. . . . Most campus activism in public universities is protected by First Amendment and is indispensable if society is to change for the better. But too often in recent days, students have overstepped the bounds of activism into demanding a sort of de facto censorship. And too often, those desires of those students are accommodated by all-too-compliant university administrators that are willing to bend to their demands rather than risk the turmoil or worse that could result in their not doing so.”

Mr. Trump & the First Amendment: “[I]t’s worth remembering that some of [Mr. Trump’s] rhetoric would not only be controversial in other democratic nations, as it certainly is here, but illegal. In Belgium, a member of Parliament was convicted of a crime for saying, ‘Stop the Islamification of Belgium’ and making similar statements. In England, a man was convicted for carrying a poster that said, ‘Islam out of Britain-Protect the British People.’ Whatever you think of more than one not dissimilar statement of Mr. Trump in this campaign – and, in case you’re interested, I think they are appalling – the First Amendment protects them.” (See also Abrams & Collins: “Confronting Trump — An American Debate Censorship Cannot Stop,” Concurring Opinions, Dec. 18, 2015).

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FAN 99.5 (First Amendment News) Execution secrecy bill passed by Mississippi Senate

Attorney General Jim Hood applauded the Mississippi Senate today for approving a measure intended to protect the safety of the individuals responsible for carrying out executions. Senate Bill No. 2237 would protect the identities of the state executioner and members of the execution team, and would also keep confidential the names of the local supplier or suppliers of lethal injection drugs located in the State of Mississippi. The bill was drafted by the Attorney General’s Office, and it is part of the Attorney General’s legislative agenda. — Office of Attorney General Tim Hood, March 1, 2016

Mississippi Senator Sean Tindell introduced Senate Bill No. 2237, which in relevant part provides

“The identities of all members of the execution team, a supplier of lethal injection chemicals, and the identities of those witnesses listed in Section 99-19-55(2) who attend as members of the victim’s or the condemned person’s immediate family shall at all times remain confidential, and the information is exempt from disclosure under the provisions of the Mississippi Public Records Act of 1983.”

Senator Sean Tindell

Senator Sean Tindell

“Notwithstanding any provision of law to the contrary, any portion of any record of any kind that could identify a person as being a current or former member of an execution team or a current or former supplier of lethal injection chemicals, or those witnesses listed in Section 99-19-55(2), shall be privileged and shall only be subject to discovery, subpoena, or other means of legal compulsion for disclosure by order of a court of competent jurisdiction, and the remainder of the record shall not be privileged or closed unless protected from disclosure by law.”

“A person may not knowingly disclose the identity of a current or former member of an execution team, a current or former supplier of lethal injection chemicals, or witness who wishes to remain confidential, or disclose any record of any kind knowing that it could identify a person as being a current or former member of an execution team, current or former supplier of lethal injection chemicals or confidential witness.  Any person whose identity is disclosed in violation of this section shall:

(a)  Have a civil cause of action against a person who violates this section;

(b)  Be entitled to recover from any such person:

(i)  Actual damages; and

(ii)  Punitive damages on a showing of a willful violation of this section. . . .”

The bill passed 32-18 and is currently being held in the Senate on a motion to reconsider.

Press Opposition

  • “‘If we’re going to be in the business of putting people to death, there needs to be as much openness as possible,’ said Layne Bruce, executive director of the Mississippi Press Association.”
  • “[G]overnment secrecy coupled with prior restraint — the gag of state censorship — is unacceptable. — Geoff Pender, Clarion Ledger
  • “If there is anything that should be completely transparent, it is everything related to the state’s taking the life of one of its citizens. [This bill] rightfully should send chills down the spine of every Mississippian who values the civil liberties guaranteed by a free and unfettered press. This is Mississippi, not the old Soviet Union, not some banana republic, and this cannot be allowed to stand.” — Ray Mosby, Deer Creek Pilot
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Our Precious Perversions

It’s a strange time to be a pervert in America. Donald Trump may well be elected the 45th president, running on a platform of protecting the traditional family by rolling back newly-won, sweeping marriage rights for gays and expanding the first amendment to protect outright anti-gay discrimination. At the same time, the New York Times ran a human-interest story last week about an interracial, sadomasochistic relationship involving a well-known musician and Columbia University professor, calling it, blandly, “A Composer and His Wife.”. Just a few years ago, both would have seemed equally improbable, perhaps even farcical. There’s something vertiginous about both the speed of the progress made by gay marriage advocates and the severity and far-reach of the backlash. How do we understand the simultaneous expansion of marriage regimes and the increasing public articulation of “alternative sexualities”? Are they, as many queer thinkers lament, impossible bedfellows? While public discourse about polyamory and kink is all but ubiquitous, we are still unbearably, insufferably held hostage to the marriage discourse. As Katherine Franke has so beautifully elaborated in her new book Wedlocked, marriage, particularly reproductive marriage, is increasingly the sole vehicle through which we can make space in public to talk about sex. That is one of the many unanticipated and vexing consequences of the push to legalize same-sex marriage. It used to be that marriage was “the place where sex goes to die,” but now I think marriage is just, somewhat disappointingly, where sex goes, period. But is that the end of the story?

As a “recovering” lawyer-turned-sociologist, I’ll focus here on some of the more general socio-legal claims in Franke’s book, which press us to approach the current moment with sobriety rather than celebration. As marriage expands its umbrella to shelter the dyadic, reproductive (“homonormative”) gay family, rights to marriage risk ossifying into obligations. Intermediate forms of relationship recognition, like domestic partnerships, begin to fall by the wayside, and a crag separating the legitimacy of the legal marital form for all other forms of kinship widens to a chasm.

Freedom has rules, Franke tells us, and they are not always the ones we might choose if we were in charge of our won freedom (3). History is instructive here. Attempts to force the plurality of kinship ties forged by newly freed slaves into legal, marital families required a series of arbitrary distinctions (for example, which of a succession of female partners would qualify for an emancipation or pension tied to one man’s military service). Coincident with the transfer of African American families from the “private control of owners to the public control of law” (5) was the political sentiment that any kinship tie outside of those marriages was either unimportant or the sign of social pathology. While we may think of marriage as a means of escaping the burden of social abjection (60), marriage regimes themselves produce that abjection. They are self-reinforcing. Communities with weblike, inventive kinship networks, which often serve protective functions for disadvantaged groups like racial minorities or sexual dissidents, are simultaneously invited into the dominant family form and told their existing affiliations are signposts of their unfitness.

I felt a familiar sense of hopelessness reading Wedlocked. As I’ve watched the gay movement rebrand itself from one focused on sexual and gender liberation to a “focus on the family,” I’ve wondered how we might recuperate some of the radical potential of queer kinship. And now, I’m left wondering how we might use marriage, since clearly it isn’t going anywhere, to assist in this project. In that spirit, I’d like to add a point to Franke’s “Progressive Call to Action for Married Queers,” for which I think we might take inspiration from Mollena Williams and Georg Friedrich Haas, the subjects of the Times story I described above.

It’s a rich story with a banal headline: world-famous composer and college professor finds love after three failed marriages—but this is not just any kind of love. Haas, a white Austrian, meets Williams, a black American, on a typical, bland dating site, and they commence a deep, negotiated power exchange, in which Williams submits to serving Haas, to making his life “as comfortable as possible.” Though the text of the Times story is less direct, this is a configuration familiar to those schooled in sexual diversity. Haas is a dominant; Williams is a submissive. He likely controls much of their joint life, and Williams derives satisfaction from being controlled. (This is not conjecture; Williams, a well-known sex educator, writes openly about her submission on her blog, The Perverted Negress.)

http://www.mollena.com

http://www.mollena.com

The rich layers of complexity in such a dynamic are, I’m sure, not lost on this readership: the juxtaposition of a feminist consciousness with female submission, the racialized power dynamics inherent in the configuration, the likely illegality of some of the sexual practices they admit to engaging in (when was the last time we saw the word “caning” in the New York Times?), the fact that such a relationship can also be, and indeed is, a marriage. Yet, while each of the dynamic concerns appears in a single sentence, the word marriage weaves its way through the narrative, the most dynamic portrayal being his failed previous marriages and his journey into this one.

But BDSM, a “compound acronym that connotes sexual interactions involving bondage/discipline, domination/submission, and sadism/masochism” often leans into and not away from the law. It is likely that Haas and Williams have both a marriage contract and an extra-legal bdsm contract detailing the terms of their Dominant/submissive dynamic. And perverts are not the only ones making such creative use of law. Martha Ertman’s new book, Love’s Promises, profiled in an earlier symposium on this blog, describes those used by a range of what she terms “Plan B” families to negotiate the terms of cohabitation and parenting in ways formal law fails to address.

If marriage “cleaves the sex out of homosexuality” (6), we certainly shouldn’t see marriages like this one in the popular press. But, increasingly, we do. And while gays have struggled mightily to distance ourselves from this type of depiction to preserve our standing as viable legal and political subjects, now that we have attained it, perhaps it’s time to let some of that abjection back in. In a context of legal and social exclusion, both racial minorities and non-heterosexual people form a variety of kinship structures that mediate relations of intimacy and of care and dependence. Think, for example, of the “army of ex-lovers” responsible for caring for the first sufferers of hiv/aids. What happens to forms of non-marital intimacy under a marriage regime? They risk disappearing. Perhaps one thing we might do is take a lesson from Haas and Williams and make sure we don’t lose our precious perversions to the marriage discourse.