Category: Jurisprudence

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FAC 6 (First Amendment Conversations) The Law & Politics of Money: A Q & A with Richard Hasen – Part I

Professor Richard Hasen

Professor Richard Hasen

Richard Hasen is the Chancellor’s Professor of Law and Political Science at the University of California at Irvine. I am pleased to do FAC Q&A interview with him in connection with his new book:

Two of Professor Hasen’s previous books in this same area of study are:

  1. The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2013), and
  2. The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003).

{99A7FD02-1A3C-40A1-888E-748696B03D3B}Img400He has been writing in this field for over two decades (see 14 Cardozo L. Rev. 1311 (1993)). Today, Professor Hasen is one of as the nation’s leading authorities on election law and is the publisher of the much-noticed and highly regarded Election Law Blog. He is also the co-author of a leading election law casebook, author of a book on statutory interpretation, and author of numerous scholarly articles, including a review essay published in the Harvard Law Review.

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Collins: Thank you Rick for agreeing to do this interview and congratulations on the publication of your latest book, which is getting quite a lot of favorable attention, including a four-part video interview on SCOTUSblog.

Hasen: Ron, let me thank you for the opportunity to answer your questions and engage in this dialogue. It is too rare these days for there to be serious discussion on these contentious First Amendment issues. Even among academics, much of what we read on blogs etc. is little more than talking points.

NB: A hyperlinked list of previous FAC interviews can be found at the end of this Q&A.

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Can the System be Fixed? / Need it Be?

UnknownCollins: Four years ago you wrote: “Fixing Washington’s money problems may have to await widespread scandal, and fixing its broader problems likely will have to await a societal shift that alleviates the partisanship currently gripping national politics.” Do you still hold to that?

Hasen: I do stand by this statement. Even though many voters—Democrats, Republicans, and independents—believe that the Supreme Court’s decision in Citizens United v. FEC was wrong, and that more reasonable campaign finance laws are necessary, there is now a deep partisan divide on this issue among elites in Washington. More than ever, this is seen as a Democratic/Republican issue. As I argue in Plutocrats United, the John McCains of the Republican Party have gone silent on this issue, and the Mitch McConnells, who used to argue for no limits and full and instant disclosure, now argue even against effective disclosure.

I do expect that we will see continued attempts to improve campaign finance laws on the state and local levels, especially in those places with voter initiatives (which can bypass self-interested legislatures). Some of these laws may raise constitutional questions, which could lead a new progressive Supreme Court (if one arrives) to reconsider the First Amendment balancing in the campaign finance arena.

Collins: Does money translate to political power and advantage? Consider this news item (2-22-06) from the New York Times: “When Jeb Bush formally entered the presidential campaign in June, there was already more money behind him than every other Republican candidate combined. When he suspended his campaign on Saturday night in South Carolina, Mr. Bush had burned through the vast majority of that cash without winning a single state.” What do you make of this?

Hasen: I begin my book by urging progressives to reject facile campaign finance arguments such as “all politicians are corrupt” or money buys elections. A little while ago, I had a prebuttal to the Jeb Bush point in the Washington Post which pointed out that Money Can’t Buy Jeb Bush the White House, But It Still Skews Politics. I argued there:

“But this overly simplistic analysis misses the key role of money in contemporary American politics. In spite of the rhetoric of some campaign reformers, money doesn’t buy elections. Instead, it increases the odds of electoral victory and of getting one’s way on policies, tax breaks and government contracts. And the presidential race is the place we are least likely to see money’s effects. Looking to Congress and the states, though, we can see that the era of big money unleashed by the Supreme Court is hurtling us toward a plutocracy in which the people with the greatest economic power can wield great political power through campaign donations and lobbying….”

“And yet a single donor’s influence in presidential contests is tempered by other factors. With billions of dollars sloshing around on all sides, so much free media attention (especially to outlandish candidacies like Trump’s) and widespread public interest, mega-donors are only one part of a larger picture.”

“Money can matter more to the outcomes of congressional and state races because of relative scale. Millions of dollars spent in these contests can swamp the competition and help swing close elections, especially by influencing low-information voters. Merely the threat of such spending gets the attention of candidates, who worry about the next super PAC to line up against them.”

And there is more at stake here as I pointed out in my Washington Post piece:

“Even more significant, big money skews public policy in the direction of the wealthiest donors. In Illinois, a handful of the super-rich, including hedge-fund billionaire Kenneth C. Griffin, played a key role in getting Republican Bruce Rauner elected governor with an agenda to slash government spending, impose term limits and weaken employee unions. Hedge funds have used campaign to block a potential bankruptcy declaration by Puerto Rico that could help its people but hurt bondholders’ interests.”

“We’re supposed to be in a post-earmark era, yet Congress’s recent must-pass omnibus bill to fund the government was full of special interest deals backed by big spenders. The New York Times reported that “as congressional leaders were hastily braiding together a tax and spending bill of more than 2,000 pages, lobbyists swooped in to add 54 words that temporarily preserved a loophole sought by the hotel, restaurant and gambling industries, along with billionaire Wall Street investors, that allowed them to put real estate in trusts and avoid taxes.” Senate Minority Leader Harry Reid supported the language, and the company of one of Reid’s top donors admitted to being among those “involved in the discussions with congressional staff members.”

The Crisis of Liberalism Divided

Collins: As you well know, the campaign finance controversy has divided the liberal civil liberties community. In that regard, I understand that your aim in Plutocrats “is to start a dialogue among progressives.” Even if that dialogue might point to some common ground “among progressives,” there are still conservative Americans. What, if anything, is there in Plutocrats United for conservatives?

Hasen: There is a conservative case for campaign finance reform. I would point readers to Richard Painter’s new book, Taxation Only with Representation (2016). Painter was President George W. Bush’s ethics czar. My book has a different purpose: it is to talk among progressives and moderates about what the real problems of money in politics are and how to fix them. I say that the main problem is a system in which we allow ever increasing economic inequality to be translated into political inequalities, which distort our elections and politics. I then advocate conducting the First Amendment balance by considering not only anti-corruption arguments, but also political equality arguments, on the government interests side.

(credit: AP Photo-- J. Scott Applewhite)

(credit: AP Photo– J. Scott Applewhite)

Collins: The death of Justice Antonin Scalia has placed the entire nomination and confirmation process in bold ideological relief – and you have commented on the that very point. Mindful of that, Vice President Joseph Biden has suggested that the President nominate a “centrist.” In that regard,

  1. would you consider someone like Justice Potter Stewart or Justice Lewis Powell to be such a “centrist,”
  2. and would you support such a nomination as a compromise of sorts?

Hasen:

  1. It is hard to evaluate how the equivalent of a Justice Stewart or Powell would decide things today. The fact is that on the current Supreme Court all of the conservatives have been appointed by Republican presidents and all the liberals by Democratic ones. It is not that these Justices are deciding cases to help their party. It is that they are chosen because of how they would be likely to vote given their jurisprudential commitments on issues each of the parties cares about the most. This is not how things were even a few years ago. So what would we mean by a “centrist” today? Some conservatives consider Justice Kennedy a centrist (or a vacillator). On election-related issues, Justice Kennedy was in the majority in both Citizens United and the 2013 Shelby County v. Holder case, striking down a key portion of the Voting Rights Act. So he is no centrist on issues I care about.
  2. No, I see the Supreme Court today as essentially a political institution and the battle over confirmation essentially a political one. Why should the Left include a compromise candidate, especially when there is no reason to believe the Right would do so? The compromise I support would be to eliminate life tenure, and to move to 18-year non-renewable terms. This would ensure orderly turnover and that over time the Court reflects more of the public’s views on these issues. It is an idea supported by strong conservatives such as the Federalist Society’s Steven Calabresi.
Professor Lawrence Lessig

Professor Lawrence Lessig

Collins: Professor Lawrence Lessig took issue with you for discounting corruption (see here) as a viable reason for squelching First Amendment rights in the context of campaign financing. He writes: “I have had the pleasure of reading [Professor Hasen’s] . . . Plutocrats United, a book that will certainly mark him as the dean of this field—I think that he has presented us with a false dichotomy. It is not either corruption or equality. It is both. Our current system for funding campaigns is corrupt, but it is corrupt precisely because it violates a certain kind of equality. The violation is not an equality of speech, but an equality of citizenship. . . . We should not, as scholars, be fighting about which flaw our Republic reveals — inequality or corruption. We should be united — let us say, not citizens or plutocrats, but scholars, united—in the view that our Republic is both unequal and corrupt.”

Is Lessig right? Is there some troublesome division in the progressive ranks here? Is this a case of Progressives Disunited?

Hasen: I love the “Progressive Disunited” label! (Isn’t that always true?) I don’t think there is a large gap between Larry and me anymore. We went back and forth on what the problem is with money in politics in law reviews and blog posts, and in the end I think what is left is primarily a semantic difference. There is much value for an activist to labeling reform in anticorruption terms. Larry is an activist and wants to harness voter anger on this issue. I’m not. But in the end, we both think that the problem is that those with the greatest economic power are able to translate that power into political power, by influencing both who is taken seriously as a candidate for election, and by influencing the public policy that our elected officials pursue.

→ This FAN 6 Q&A will continue tomorrow with Part II.←  

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Previous First Amendment Conversations

FAC #1: Larry Tribe on Free Expression

FAC #2Bruce Johnson on Press Access to Prisons

FAC #3Martin Redish on Free Speech, the Roberts Court, & the Liberal Academy

FAC #4Steve Shiffrin, the Dissenter at the First Amendment Table

FAC #5Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book

Other Interviews 

  1. On Legal Scholarship: Questions for Judge Harry T. Edwards (Journal of Legal Education)
  2. The Complete Posner on Posner Series
  3. Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky
  4. Ask the author: Chief Judge Katzmann on statutory interpretation*
  5. Ask the author: Garrett Epps on clashing visions on the Court*
  6. Ask the author: Three decades of Court watching – a political scientist’s take on the Court*
  7. Ask the authors: Conflict in the Court — an inside look at New York Times v. Sullivan and its progeny*
  8. Ask the author: Floyd Abrams & his fighting faith*
  9. Ask the author: Marcia Coyle on the Roberts Court*
  10. Ask the author: Kathryn Watts on the workings of the Supreme Court*
  11. Ask the author: Alex Wohl on Tom and Ramsey Clark and the Constitution*
  12. Ask the author: Jeffrey Toobin on The Oath*

* Published on SCOTUSblog

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FAN 99 (First Amendment News) Welcome to the Marketplace of Ideologies — Where Ideas go to Die

One of the prerogatives of publishing First Amendment News is that I am free to express an editorial opinion from time to time. Thus the one that follows . . . along with some news items, of course. — RKLC

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One fact has come into bold relief following the death of Justice Antonin Scalia: Ours is a more a marketplace of ideologies than one of ideas. Let me say it again: Ours is a marketplace of ideologies. In this marketplace ideas do not count for much unless they can be tapped to further some political or religious ideology. So, too, facts are of no moment if they conflict with ideology. Even the constitutional process of governing can be put on hold if it cannot be squared with ideology. And the noble pursuit of truth must take a back seat to ideology. In all of this, conservatives and liberals alike push their respective ideologies into the marketplace. We are, after all, at war — a culture war (or a “kulturkampf” as Justice Scalia tagged in in Romer v. Evans).

→ I  D  E  O  L  O  G  Y ← 

Say goodbye to John Milton and his claims in Areopagitica (1644): “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

Farewell to Harold Laski’s hope expressed in Authority in the Modern State (1919): It “is in the clash of ideas that we shall find the means of truth. There is no other safeguard of progress.”

Au revoir to Holmes’s dissent in Abrams: “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

And adios to the “marketplace of ideas,” the one coined by Justice William O. Douglas in his concurrence in  United States v. Rumely (1953): “Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.”

Bunk, all bunk! And why? The answer is because too often we no longer trade in ideas when they conflict with our ideologies; too frequently we no longer concern ourselves with having our thoughts accepted in the competition of the market if those thoughts cannot serve our ideologies; and who, pray tell, gives a Holmesian hoot about truth when it cannot be squared with our ideologies?

Politicians make up facts; they deny truths; they evade tough questions; and they now say anything, no matter how bizarre or hypocritical, to appeal to our ideologies. While Supreme Court Justices are not yet entirely in that league, time and again their rulings in controversial cases cut along ideological lines. In that clash, ideas have value only insofar as they advance this or that ideological end.

So scrap the old Enlightenment ideal; forget the quest for Truth; discard all that Meiklejohnian idealism about free speech and an informed electorate; chuck all that aspirational Brennan-talk about the importance of the “unfettered interchange of ideas” as a way of “bringing about of political and social changes desired by the people”; and dump all that highfalutin free speech theory preached from the pulpits of the legal academy.

Can we speak frankly? Can we talk openly about what we all know privately? Can we bring some realism into the room? If so, perhaps we will stop conflating ideas with ideologies.

Dogmatism is ideology’s calling card. Where ideology reigns supreme, an open mind poses a clear and present danger to its stability. There is no trade in ideas with ideologues, there is only the demand that all opposing views surrender to the preferred creed.

Ideology is akin to groupthink, which is to say it does not involve individual thought. It is more a reaction than a reason, more influenced by opinion than fact, and more beholden to outcomes than premises. An idea is a thought whereas ideology is an orientation. The two are very different. Whereas an idea can be tested, an ideology cannot, if only because its measure is not truth. Ideology cares not about science or logic or history or facts unless they are harnessed in its name. I D E O L O G Y trumps all.

My fear: The idea of our faith in ideas has passed. We have abdicated; we have moved on; today we trade in the marketplace of ideologies — the very place where ideas go to die.

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Brooklyn Law School to Host Yet Another First Amendment Event  Read More

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Journal of Legal Education: Volume 65, # 3, Spring 2016

Unknown4

From the Editors

By Thomas D. Cobb & Kate O’Neill

Articles

           By Adam Chodorow & Philip Hackney

           By Lynn M. LoPucki

           By Justin McCrary, Joy Milligan, & James Phillips

           By Elaine Campbell

          By John C. Kleefeld & Katelyn Rattray

At the Lectern

           By Beth Hirschfelder Wilensky

Interview

           By Ronald K.L. Collins

Book Reviews

           By Duncan Farthing-Nichol

           By Michael Robertson

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The Tragedy & Lost Legacy of James M. Landis — Book Review by Duncan Farthing-Nichol

The current issue of the Journal of Legal Education has a fascinating book review by Duncan Farthing-Nichol of Justin O’Brien’s The Triumph, Tragedy and Lost Legacy of James M Landis: A Life on Fire (Oxford: Hart Publishing, 2014, pp. 187, $52.00 (cloth). Here is how the review opens:

Dean James Landis (1889-1964)

Dean James Landis (1889-1964)

In The Triumph, Tragedy and Lost Legacy of James M Landis, Justin O’Brien asks why Harvard Law School has so far neglected to hang its portrait of James M. Landis (11). The library’s walls bow under the weight of history; Harvard’s twentieth-century deans gaze down en masse from the south end. But Landis, dean from 1937 to 1946, is not among them.1 Professor O’Brien traces the omission to Landis’ 1963 conviction for tax avoidance, a crime for which Landis was sentenced to thirty days in jail. The school, according to O’Brien, has let the conviction overshadow Landis’ vital role in shaping law and government. O’Brien reminds readers that Landis wrote and administered the Securities Act of 1933 and the Securities Exchange Act of 1934—the first serious efforts at federal securities regulation—and, in 1938, developed the most persuasive contemporary theory of government by administrative agency. The University of New South Wales professor also contends that Landis introduced social responsibility to legal education, an achievement that elevated law from a mere technical discipline to a means of seeking justice. Harvard, O’Brien concludes, should hang its Landis portrait.

I agree, but on somewhat different grounds. O’Brien lays a compelling case for Landis’ impact on administrative thought and practice. He moves too quickly, however, in naming Landis a transformative figure in legal education. Landis spoke in ambitious terms: He aimed for a legal education that transcended technique, reflected the rise of public law, and respected the new experts (economists, sociologists, and other specialists). He sought to instill a desire for justice in his students. Yet Landis did relatively little to institutionalize that vision, acting more as a caretaker than a reformer. If Harvard should hang Landis’ portrait, it is for his ideas and his story, rather than his deeds. . . . [read more here]

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Using Secret Materials for Interpretation

Greetings from the AALS! I wanted to post about something that I’m thinking about in relation to a paper idea.

Many Supreme Court opinions are ambiguous or susceptible to different readings.  The Justices discuss the issues in confidence until the decision comes down, and then decades later the papers from those deliberations become available.  What a wonderful resource, you would think, in understanding what a particular opinion is supposed to mean.

Except courts don’t use those materials.  In other words, it is seen as inappropriate to cite the “work product” of the Court to ascertain the meaning of a decision.  This, of course, is unlike the interpretation of statutes, which often look to legislative history.  Ah, you might say, legislation is different.  Those discussions are public, and that makes them fair game in a way that confidential deliberations are not.

Except that when courts interpret the Constitution, they do use the secret deliberations of the Framers in construing that text.  Why is that appropriate when citing the Court’s work product is not?  (I’m talking about lawyers and courts.  Historians can cite anything they want.)  What is the principled distinction between these two?

Granted, the work product of the Court may often be unhelpful in shedding light on a decision.  But right now you can’t use them even if they were helpful.  Do decisions always speak for themselves?

Two last thoughts.  One is that the first case that extensively cited the deliberations of the convention was Dred Scott, which suggests that perhaps that practice should be reexamined.  Second, there is one case where the Justices do cite extrinsic materials to construe a case–Brown.  The Court has cited the briefs in Brown to determine what Brown, which tells you something about Brown’s place in the constitutional canon.

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China, the Internet, and Sovereignty

China’s World Internet Conference is, according to its organizers, about:

“An Interconnected World Shared and Governed by All—Building a Cyberspace Community of Shared Destiny”. This year’s Conference will further facilitate strategic-level discussions on global Internet governance, cyber security, the Internet industry as the engine of economic growth and social development, technological innovation and philosophy of the Internet. It is expected that 1200 leading figures from governments, international organizations, enterprises, science & technology communities, and civil societies all around the world will participate the Conference.

As the Economist points out, “The grand title is misleading: the gathering will not celebrate the joys of a borderless internet but promote “internet sovereignty”, a web made up of sovereign fiefs, gagged by official censors. Political leaders attending are from such bastions of freedom as Russia, Pakistan, Kazakhstan, Kyrgyzstan and Tajikistan.”

One of the great things about being at GA Tech is the community of scholars from a wide range of backgrounds. This year colleagues in Public Policy hired Milton Mueller, a leader in telecommunication and Internet policy. I have known his work for some time, but it has been great getting to hang out and talk with Milton. Not surprising, but Milton has a take on the idea of sovereignty and the Internet. I can’t share it, as it is in the works. But as a teaser, keep your eye out for it.

As a general matter, it seems to me that sovereignty will be a keyword in coming Internet governance debates across all sectors. Whether the term works from a political science perspective or others should be interesting. Thinking of jurisdiction, privacy, surveillance, telecommunication, cyberwar, and intellectual property, I can see sovereignty being asserted, perverted, and converted to serve a range of interests. Revisiting the core international relations theories to be clear about what sovereignty is and should be seems a good project for a law scholar or student as these areas evolve.

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Can We Tolerate Tolerance?  

This is the third in a series of occasional short essays about free speech in America. Earlier installments can be found here and here.

We live in a tolerant society. Of course, that is an exaggeration. But when it comes to so many flashpoint issues – ranging from blasphemy to race-hate speech – we are far more tolerant than almost all other nations, so much so that we are routinely criticized for being too tolerant. It is our badge of honor . . . and dishonor.

Professor Mark Lilla

Professor Mark Lilla

Mindful of the events in France and Denmark earlier this year, I wonder: Will we continue to tolerate toleration if our world takes a terrible turn? My question has less to do with what is being tagged as the “terrorist’s veto” than with a more complex problem, and one therefore even more difficult to resolve. This problem occurred to me when I first read an eye-opening essay by Mark Lilla in the New York Review of Books, an essay entitled “France on Fire.” Here is a very brief excerpt:

“For the past quarter-century a political and intellectual culture war over the place of Islam in French society has been bubbling along, and every few years some event — a student wears a burka to school, riots erupt in a poor neighborhood, a mosque is attacked, the National Front wins a local election — renews hostilities.”

I want to extrapolate from that essay (at once insightful and provocative) in order to outline a phenomenon that may be hurling our way, a phenomenon related to toleration and dissident speech.

Before I do, however, let turn to the glorious side of the toleration equation by way of a well-known case, West Virginia State Board of Education v. Barnette (1943). Recall the Jehovah’s Witnesses’ flag-salute case, the one with that liberty-inspiring majority opinion by Justice Robert Jackson. In words that should be fixed in every lawmaker’s consciousness, Jackson declared: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” The judgment in that case affirming First Amendment freedom is all the more amazing given that it was rendered in wartime and involved a religious sect that was then very much hated in various quarters of American society. (See Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000).)

The (Hypothetical) Problem

Against that backdrop, imagine the following scenario. Assume that the editors of a respectable libertarian magazine elected to publish several satirical cartoons of the Prophet Muhammad in order to make a First Amendment point and to take a stand against the “terrorist’s veto.” Assume thereafter that the Charlie Hebdo incident replayed itself in Cincinnati (the headquarters of my hypothetical magazine). Ten people who work for the magazine are murdered and two Muslim extremists take credit. Both of the terrorists are later killed in a shootout with police that also results in the deaths of two local police officers.

Here is where I begin to extrapolate from Professor Lilla’s essay. Now assume the following additional scenarios, replete with a few quotations from the Lilla essay”

  1. The Governor of Ohio calls for a moment of mourning with heads bowed on the day following the tragedy (say, the time is 11:00 a.m.);
  2. A “noticeable number” of Muslim public high school students in Cincinnati refuse, on religious and political grounds, to bow their heads;
  3. “And not only that. Some [tell] their teachers that the victims got what they deserved because no one should be allowed to mock the Prophet”;
  4. “Others celebrate the killers on social media, and circulate rumors that the entire crisis was manufactured by the government and/or Zionist agents”; and
  5. The parents (some of whom work for state and local governments) of some of these Muslim-American students speak openly (though not at work) to defend their children and endorse the positions they took.

Note that the Muslim-Americans in the above scenarios were otherwise peaceful and law abiding. And some Muslim-American leaders sought to counteract the messages of the violent extremists among them. That said, let me stir the pot a bit more with a few more scenarios and related questions:

  1. So far as government entities are involved, how far are we willing to go to accommodate (culturally, statutorily, and constitutionally) the religious views of the more observant and separatist Muslim-Americans who harbor what we would see as extreme views concerning homosexuality, female purity, and Jews and Israel?
  2. Finally, let me again from quote Professor Lilla to raise a final question: Some “students and their parents demand separate swimming hours or refuse to let their children go on school trips where the sexes might mix. . . . There are fathers who won’t shake hands with female teachers, or let their wives speak alone to male teachers. There are cases of children refusing to sing, or dance, or learn an instrument, or draw a face, or use a mathematical symbol that resembles a cross. The question of dress and social mixing has led to the abandonment of gym classes in many places. Children also feel emboldened to refuse to read authors or books that they find religiously unacceptable: Rousseau, Molière, and Madame Bovary. Certain subjects are taboo: evolution, sex ed, the Shoah. As one father told a teacher, ‘I forbid you to mention Jesus to my son.’” Does our commitment to religious freedom extend that far so as to accommodate the genuine religious views of those who hold them?

Let me be clear: I do not mean to demean Muslim-Americans as a class, nor do I wish to be understood as saying the above scenarios mirror the sentiments of most Muslim-Americans . I trust they are not. Then again, I may disagree with some of them, and sometimes vigorously, on several of the issues flagged above. But I also believe in toleration, and the ever-present need to be sensitive to the plight of minorities of all ideological, political, and religious stripes.

So where does that leave us?

Testing Our Tolerance Read More

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Justice Breyer and International Copyright

Justice Breyer has a new book out that discusses the importance of international and comparative law to the Court’s work. I find this ironic given Justice Breyer’s position in several of the Court’s major copyright decisions.  In Eldred v. Ashcroft (2003), Golan v. Holder (2012), and Kirtsaeng v. Wiley (2013), Breyer’s analysis consistently discounted international or comparative factors in either assessing the constitutionality of a copyright statute or interpreting such a statute.  To wit:

In Eldred, Justice Breyer dissented and argued that Congress’s extension of the copyright term for existing works was invalid.  He took this view in spite of the fact that Congress took this step (in part) to match a decision by the European Union on the appropriate length of copyrights.

In Golan, Justice Breyer dissented and argued that Congress could not constitutionally remove works from the public domain.  He took that position in spite of the fact that Congress took this step to bring the United States into compliance with the Berne Convention.

Finally, in Kirtseang Justice Breyer authoring the Court’s opinion construing the Copyright Act as providing that the first sale doctrine applied to copies of a copyrighted work made abroad.  He did this in spite of the assertion (made in dissent by Justice Ginsburg) that the Court’s interpretation contradicted the United States’s position in global copyright negotiations on “international exhaustion.”

Now all of these positions might be perfectly justified.  (Indeed, I think that Breyer was right in Golan, though wrong in Eldred.) I just think it shows that “taking certain considerations into account” says little about how cases should be resolved.

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What does it mean to vindicate a First Amendment right of free expression?

The following short essay is substituting for this week’s issue of First Amendment News, which will resume next week.

* * * *

In times past if you wanted to get a real sense of the Supreme Court’s record on civil liberties you prepared charts indicating the Justices’ voting record in sustaining a claim of right. Take, for example, C. Herman Pritchett’s The Roosevelt Court: A Study in Judicial Politics and Values (1948). In chapter 9 of that book (p. 254, table 23) he calculated the percentage of times each Justice voted “pro” in civil liberties cases. Likewise in Civil Liberties and the Vinson Court (1954), he did something of the same. In chapter 10 of that book (p. 225, table 10), he calculated the percentage of times each Justice voted to “support . . . libertarian claims.” Justices Frank Murphy and Wiley Rutledge were at the top with a 100% record, while Chief Justice Fred Vinson and Justice Stanley Reed were well below at the bottom.

imagesHelpful as such studies were in past times, I wonder about their value in today’s tug-and-pull First Amendment world of free expression cases. Consider, for example, the record of the Roberts Court in the 41 such cases its has decided since 2006. It has upheld a First Amendment claim of right in 17 of 41 cases (in one case, a per curiam, the Court vacated and remanded the matter). That is a 41% record. But is it a 41% record of vindicating such First Amendment rights?

In one sense, the answer is simple: yes. The parties raised a First Amendment claim and a majority of the Court sustained it. End of story. Or is it?

To raise this question is to raise a more puzzling one. What exactly does it mean to vindicate a First Amendment freedom of expression claim? In today’s volatile atmosphere of supercharged liberalism and fortified conservatism, it can mean almost anything depending on which side of the ideological fence one stands. If you have a collective or “democratic” political-theory view of the Amendment — e.g. like that of Justice Stephen Breyer or Dean Robert Post or Professor Burt Neuborne — then that very much informs your constitutional calculus as to whether a First Amendment right has been vindicated or violated. By that collective constitutional measure, the “fairness doctrine” and he “net neutrality” one are formulas for vindicating First Amendment rights. But that view is radically different from, say, an atomistic understanding of the First Amendment like the one championed by Chief Justice John Roberts, Justice Anthony Kennedy, Floyd Abrams, and the Cato Institute.

Perhaps this is a modern-day version of an old debate. Merely consider the thinking displayed by Justice Byron White in his dissent in Gertz v. Welch (1974): “It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head.” Likewise, analyzing the relationship between the First Amendment and copyright law created a sharp division in the Court in Harper & Row v. Nation Enterprises (1985) owing to the similar problem of a constitutional guaranty at war with itself. What makes such “constitutional tension unusual, as Professor Eugene Volokh once tagged it in a slightly different context,” is the conflict between opposing views of the First Amendment as to what it means to vindicate that right. After all, the tension here is not between the First Amendment and other rights (such as equal protection or a right to a fair trial), but between the First Amendment and itself.

To return to the free-speech mindsets of Breyer, Post , Neuborne and company, cases such as McCutcheon v. FEC (2014) and Citizens United v. FEC (2010) — both of which sustained rights claims — cannot be listed in the “pro” First Amendment column. Worse still, they are listed as “anti” First Amendment rulings. Much the same could be said of Harris v. Quinn (2014) where the Court divided 5-4 along conservative-liberal lines and struck down a compulsory collection of union fees provision. By the same new liberal norm, a case such as Williams-Yulee v. The Florida Bar (2015) (denying a claim of right) might be seen as a “pro” First Amendment case.

Phrased another way, one First Amendment “right” is being swapped out for another but in the same case. Of course, this may seem strange because one thinks of rights on one side and the government on the other. And remember: rights runs against the government. So how can there be any swapping since the government does not have rights? — it has only constitutionally authorized powers.

This riddle might be “solved” in two ways: (1) by the government siding with one conception of First Amendment rights (e.g., with labor unions in compulsory support cases), or (2) by a third party entering a suit to assert its own version of a First Amendment right (e.g., invoking an argument in line with Breyer’s dissent in McCutcheon). To be sure, such moves might, among other things, implicate Article III standing issues. There is also the peculiar specter of the government siding with one conception of First Amendment in order to defeat another. In the old world, the government could abridge a First Amendment right, whereas in the new world it “vindicates” a right (depending on which side of the constitutional divide one is on).

In all of this there is more at work than dethroning a once-recognized constitutional right (as in the case of the demise of economic due process). There is, I think, a move to both defeat certain tenets of First Amendment law (e.g., campaign finance) and to erect others (net neutrality). In the case of the latter, the goal is to develop new notions of First Amendment law (e.g., in the compulsory support of unions line of cases and in the fairness doctrine area).

The old paradigm: Liberals demanded the vindication of First Amendment claims while conservatives tendered reasons why societal interests should trump such claims.

The new paradigm: Conservatives demand the vindication of certain First Amendment claims while liberals tender reasons why societal interests should override such claims.

The result: Conflicting norms of First Amendment rights. In this new constitutional environment, the conflict-of-rights dilemma of the Religion Clauses (Establishment vs Free Exercise) is destined to become the rights-in-conflict dilemma of the Free Speech and Press Clauses.

imagesOf course, this remove-and-restructure constitutional mindset is still in its theoretical phase and has yet to garner any formal recognition by a majority of the current Court. But now that this cat is out of its conceptual bag, might it begin to influence the way lawyers litigate free expression First Amendment cases? (Something of that very thing has already occurred, though not in entirely explicit way, in an amicus brief filed on behalf of Norman Dorsen, Aryeh Neier, Burt Neuborne and John Shattuck (“Past leaders” of the ACLU) in the Williams-Yulee case.)

What are we to make of this new way of considering whether a First Amendment right has been upheld or not? How are we to gauge whether our rights are being vindicated or violated? Will First Amendment law begin to change, both jurisprudentially and operationally?

While you ponder such questions, step back and ask yourself one more question: Have we entered some postmodern maze in which we have lost our constitutional bearing . . . or we are struggling to find our way out in the hope of discovering a new one?

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A sequel to this essay appears in the Boston University Law Review Annex symposium and is titled “The Liberal Divide & the Future of Free Speech” (commentary on Danielle Citron’s Hate Crimes in Cyberspace).

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

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

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

It was a remarkable late-afternoon program last month as the First Amendment Salon went on the road for the first time with an event held at the Los Angeles office of Davis Wright Tremaine. There was a live feed to DWT’s offices in New York City and Washington, D.C. Those participating in the Salon (the sixth) were UC Irvine Dean Erwin Chemerinsky and UCLA Law Professor Eugene Volokh with DWT lawyer Kelli Sager moderating the exchange between the two. The Salons are conducted in association with the law firm of Levine Sullivan Koch & Schulz and the Floyd Abrams Institute for Free Expression at Yale Law School. (Chemerinsky and Volokh are on the Salon’s advisory board). Lee Levine introduced the program. The topic of discussion for the 90-minute exchange, replete with questions from the audience, was “The Roberts Court and the First Amendment.”

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

A list of the topics covered can be found here.

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

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

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