Category: Supreme Court

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FAN 69 (First Amendment News) Justice Alito discusses four First Amendment cases in Kristol interview — Free-Speech Jurisprudence Comes into Sharper Focus

“[I]f we lose focus on what is at the core of the free-speech protection by concentrating on . . . peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction.” — Justice Samuel Alito

Recently, Justice Samuel Alito participated in a video-recoreded interview with Bill Kristol. In the “Conversations with Bill Kristol” program the Justice discussed his legal education and the workings of the Supreme Court. He also discussed four First Amendment free-expression cases: United States v. Stevens (2010), Snyder v. Phelps (2011), United States v. Alvarez (2012), and Citizens United v. Federal Election Commission (2010).

Below are some excerpts I transcribed from the video-recorded interview in which Justice Alito discussed the First Amendment, this in response to questions posed to him by Mr. Kristol. I have added captions to the transcript and have edited it in places as well. (There is also a transcript of the entire interview  (login required) on the “Conversations with Bill Kristol website.)    

Following the exchange between the Justice and Mr. Kristol, I added some preliminary commentaries on what Justice Alito’s remarks may suggest about his larger First Amendment jurisprudence.  

Finally, I ended with some general information about Justice Alito and his free-speech jurisprudence.  

The Stevens Case

Justice Alito on "Conversations with Bill Kristol"

Justice Alito on “Conversations with Bill Kristol”

The Justice’s discussion of Stevens — the videoing of animal cruelty case — was largely descriptive. What concerned Justice Alito about the case the fact that it was “virtually impossible to find out who was [killing the animals that were being filmed]. The physical activity could be made illegal,” he noted. “[N]o one questions that . . . you could have a law against animal cruelty. Can you have a law that prohibits the creation of these videos without which the animal cruelty would not take place?”

Because of overbreadth problems, seven Justices voted to strike down the law on First Amendment grounds while Justice Alito felt otherwise and dissented.

The Phelps Case

Here, too, much of the discussion of Phelps — the military funerals protest case — was descriptive. What concerned the Justice was the fact that in “this particular case the . . .  [protesters] had placards that said horrible things about [the soldier being buried] . . . It was very distressing to the family members, who were in attendance.”

“So they were sued under a very well-established tort that goes back to the nineteenth century — the intentional infliction of severe emotional distress. And I thought that this tort constituted a reasonable exception to the First Amendment, but my colleagues disagreed about that.”

Bill Kristol

William Kristol

Mr. Kristol: “. . . What about the obvious sort of simple argument that . . . it is a slippery slope, that you cannot curtail speech? That is kind of the argument that the majority made, in one way or  the other, I would say.”

Justice Alito: “Well I think that some members of the majority — this is not based on inside information, this is what I get from reading the opinion — I think that there are those who would support the majority decision in both those cases for exactly that reason. So if we say, even in these outrageous situations, ‘we will not tolerate any abridgment of freedom of speech,’ then when something comes along that I would regard, and I think our cases would regard as really being at the core of the free-speech protection, these decisions provide a guarantee, or they provide a wall of proaction against a bad decision in those areas. If I really believed that to be the case, I might think it was an appropriate tradeoff. I don’t think that’s the case. I think that judges who are inclined to make a bad decision, an anti-free speech decision in a case involving core political speech, will find a way of getting around these little cases.”

The Alvarez Case

Justice Alito: “So what I think has been going on in those two cases and another one where I was in dissent, this time not by myself, in United States v. Alvarez, which had to do with the constitutionality of a statute passed by Congress called ‘The Stolen Valor Act,’ [which] prohibited a false claim of having received a military medal. . . .”

Mr. Kristol: “Which was happening a lot at the time.”

Justice Alito: “It was happening a lot. People were making up, you know, claiming to have won the Congressional Medal of Honor . . . “

Reflecting on StevensPhelps and Alvarez, Justice Alito stressed that “those cases involve a diversion, I think, of attention from the core, from what is most important about the guarantee of freedom of speech.”

He then developed that point as noted below.

Protecting Core Political Speech

Justice Alito: “I think freedom of speech protects and serves many purposes, but I believe, and I think the Court has said that at the core, whatever other purposes it may serve, it is vitally important for democratic self-government. If people cannot debate public issues, if they cannot debate the relative merits of political candidates, then democracy is basically impossible. So I think that is the core of the protection. These cases involving . . . depictions of animal cruelty, the protest at military funerals, [and] falsely claiming to have won the Congressional Medal of Honor don’t involve anything like that.”

“And if we lose focus on what is at the core of the free-speech protection by concentrating on these peripheral issues, I think, there’s a real danger that our free-speech cases will go off in a bad direction. In the cases that we’ve had that I think involve core free speech. . . the chief example that I would give from my time on the Court is the Citizens United case. . . . [N[ow that [case] came out five to four . . . . Citizens United, I think, is core political speech. It is a video about a candidate for the Presidency of the United States. If that’s not protected by First Amendment free speech, by the First Amendment free speech guarantee, I don’t know what is.”

“So on things that are at the core, the Court has been shakier than it has been on these things that are at the periphery.”

Mr. Kristol: “So the argument that protecting the periphery helps protect the core doesn’t seem to hold in this case.”

Justice Alito: “I don’t think it works.”

Mr. Kristol: “You also make the argument, as I recall, in at least one or two of those three dissents, you make more of a positive argument for the virtues, for the right, for . . . the ability of the community to draw certain boundaries around civility or civilized behavior almost, mostly in the case of the soldiers’ funerals or all of them really, the animal cruelty [and the] lying [case]. Those are all things a community would have a reasonable interest in discouraging, to say the least.”

Justice Alito: “I think that’s true. And I think that’s appropriate in cases that don’t involve political speech. I would not make the same argument in a case . . . involving political speech. I thought all of them were cabined by specific rules, very reasonable rules. So in the animal cruelty case, I thought that was very similar to the rationale . . . against child pornography. Which is that you can’t produce child pornography without abusing a child and by stamping out child pornography, or trying to stamp out child pornography, you are attacking the underlying abuse – same thing [holds true] with these crush videos. You couldn’t stamp them out without preventing the creation and the circulation of the videos. . . . I think that kind of an argument is a dangerous argument when you’re talking about political speech. . . .”

The discussion ended with some brief additional comments about hate speech in Europe.

[ht: Tony Mauro]

Commentary Read More

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FAN 67 (First Amendment News) En Banc Unanimous Ruling from DC Circuit Upholds Federal Ban on Contributions by Federal Contractors

This is quite a big deal, especially in its unanimity. — Richard Hasen, Election Law Blog

Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity. — Alan Morrison, lead counsel for the Plaintiffs

On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space. Ilya Shapiro, co-counsel on amicus brief in support of the Plaintiffs.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

“In a victory for good government, the en banc D.C. Circuit Court of Appeals today unanimously — and correctly — rejected a challenge to the constitutionality of the federal ban on campaign contributions by federal contractors. The ban applies to corporations, other entities and individuals who have federal contracts.” That is how Fred Wertheimer of Democracy 21 described yesterday’s ruling in Wagner v. Federal Election CommissionDemocracy 21 joined with the Campaign Legal Center and Public Citizen to file an amicus brief in the Wagner case supporting the constitutionality of the government contractor contribution ban. (See 52 U.S.C. § 30119(a)(1))

The 62-page opinion was written by Chief Judge Merrick Garland, and there were no separate opinions. The other jurists sitting on the case were Circuit Judges Karen Henderson, Judith Rogers, David Tatel, Janice Rogers Brown, Kavanaugh, Sri Srinivasan, Patricia Millett, Nina Pillard, and Robert Wilkins.

Here are some highlights from Chief Judge Garland’s opinion:

  1. Standard of Review: “We . . . proceed to examine whether, with respect to § 30119, the government has “‘demonstrate[d] a sufficiently important interest and employ[ed] means closely drawn to avoid unnecessary abridgment of associational freedoms.’”
  2. Historical backdrop: “historical pedigree is significant. As the Court said in Beaumont, ‘[j]udicial deference is particularly warranted where, as here, we deal with a congressional judgment that has remained essentially unchanged throughout a century of ‘careful legislative adjustment.’ [citation] Moreover, . . . the lineage of the statute makes clear that its objects are the legitimate and important purposes that the Commission claims they are.”
  3. Quid pro quo corruption: “Of course, we would not expect to find — and we cannot demand — continuing evidence of large-scale quid pro quo corruption or coercion involving federal contractor contributions because such contributions have been banned since 1940. . . . [Even so, the] FEC has assembled an impressive, if dismaying, account of pay-to-play contracting scandals, not only in the above states, but also in New Mexico, Hawaii, Ohio, California, and elsewhere. [W]e think that the evidence canvassed thus far suffices to show that, in government contracting, the risk of quid pro quo corruption and its appearance, and of interference with merit-based administration, has not dissipated. Taken together, the record offers every reason to believe that, if the dam barring contributions were broken, more money in exchange for contracts would flow through the same channels already on display.”
  4. Significant change in government contracting: “[P]erhaps the most relevant change in government contracting over the past several decades has been the enormous increase in the government’s reliance on contractors to do work previously performed by employees. . . . If anything, that shift has only strengthened the original rationales for the contractor contribution ban by increasing the number of potential targets of corruption and coercion — targets who do not have the merit system protections available to government employees.”
  5. Different rules for federal employers vs contractors: “Increased reliance on individual contractors — particularly retirees such as Brown and Miller — also raises a concern that some former federal employees may unwittingly violate § 30119 because they are unaware that they have become subject to a different set of restrictions as contractors. However, as FEC counsel advised the court, there is no criminal violation unless the individual knows his or her conduct violates the law.”
  6. Corporations vs individual contractors: “The plaintiffs also question whether there is sufficient evidence of corruption or coercion specifically with respect to individual contractors, as compared to those organized as corporations or other kinds of firms. It is true that most of the examples set forth [earlier in our opinion] above involve firms. We see no reason, however, to believe that the motivations for corruption and coercion exhibited in those examples are inapplicable in the case of individual contractors.”
  7. Two justifications: “Our historical review makes clear that the two Court-approved justifications for limitations on campaign activities — to protect against quid pro quo corruption and its appearance, and to protect merit-based public administration — were the justifications that lay behind the contractor contribution statute.”
  8. “Closely drawn” requirement: “[T]he point of the ‘closely drawn’ test is that “‘[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.’” [citation] And we conclude that the ban at issue here is permissible in the circumstances that we address in this opinion: a regulation that bars only campaign contributions and that is imposed only on government contractors. . . . We do not discount the possibility that Congress could have narrowed its aim even further, targeting only certain specific kinds of government contracting or doing so only during specific periods. But as the Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”
  9. Underinclusiveness: “We conclude that the contractor contribution ban is not fatally underinclusive. There is no doubt that ‘the proffered state interest actually underlies the law,” and that it can “fairly be said” that the statute “advance[s] a[] genuinely substantial governmental interest.’ [citations] The plaintiffs may well be right that the ban would be even more effective if it swept in more potential contributors. But §30119 “aims squarely at the conduct most likely to undermine” the important interests that underlie it, and ‘[w]e will not punish [Congress] for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.'”

Additional claim: The Court also addressed and rejected the Fifth Amendment equal protection arguments raised by the Plaintiffs.

→ Mootness: “The plaintiffs advise us that both Wagner and Brown have now completed their federal contracts and hence are once again free to make campaign contributions. Brown, at least, has already done so.  Accordingly, Wagner’s and Brown’s claims are moot,” which leaves Plaintiff Jan Miller, whose “contract is ongoing” and therefore “his constitutional claims . . . remain alive.”

→ Reliance on Williams-YuleeThe Chief Judge cited to Williams-Yulee v. Florida Bar fifteen times — e.g., “But as the [Williams-Yulee] Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”

The Lawyers & Amici

  • Alan B. Morrison argued the cause for plaintiffs. With him on the briefs was Arthur B. Spitzer
  • Ilya Shapiro and Allen J. Dickerson were on the brief for amici curiae Center for Competitive Politics, et al. in support of plaintiffs.
  • Kevin Deeley, Acting Associate General Counsel, Federal Election Commission, argued the cause for defendant. With him on the briefs were Harry J. Summers, Assistant General Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys.
  • J. Gerald Hebert, Scott L. Nelson, Fred Wertheimer, and Donald J. Simon were on the brief for amici curiae Campaign Legal Center, et al. in support of defendant.

* * *  *

Alan Morrison

Alan Morrison

Liberal & libertarian lawyers challenge contractor law

Alan Morrison, a seasoned appellate advocate and law professor, is known as a liberal. In 1971, for example, he worked with Ralph Nader to cofound the Public Citizen Litigation Group, the litigation arm of the famed consumer advocacy organization. In that capacity, he was the lawyer who successfully argued Virginia Pharmacy Bd. v. Virginia Consumer Council (1976), which recognized First Amendment protection for certain kinds of commercial speech (in that case for a non-profit corporate advocacy group).

In Wagner v. FEC he was co-counsel with Arthur B. Spitzer of the ACLU in challenging a little known section of the Federal Election Campaign Act that provided: “[A]ny person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for federal office.” In their brief to the Court of Appeals  Morrison and Spitzer argued that the three plaintiffs were prevented from making their intended campaign contributions. “One of the plaintiffs,” they noted, “is a law professor who had a contract to do a study for the Administrative Conference of the United States; the other two are retired federal employees who continue to work for their former agency on a contract basis. Unlike every other U.S. citizen who does not have a federal contract, they are forbidden by [federal law] from making a contribution of even $1 to any federal candidate, political party, or political committee.” Such a law, Morrison and Spitzer maintained, violated both the equal protection component of the Fifth Amendment and the First Amendment. A lower court denied those claims, whereupon review was sought in the court of appeals. Yesterday, their hopes were dashed by a 10-0 vote.

Kevin Deeley, Acting FEC Associate General Counsel

Kevin Deeley, Acting FEC Associate General Counsel

“We are disappointed,” Morrison e-mailed me, “in the result and in the failure of the Court to appreciate the unnecessarily broad reach of the total ban on individual contractors such as these plaintiffs from making any contributions in a federal election. We were surprised at the more than dozen favorable citations to McCutcheon v. FEC, a 2014 case in which another over-broad contribution law was struck down by the Supreme Court as not being closely drawn. Even more difficult to understand were the similar number of citations to the 5-4 ruling Williams-Yulee v. Florida Bar, in which the candidate for judicial office was only precluded from making personal solicitations for campaign funds, while retaining the full ability to raise money through a separate committee.  Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity.”

Morrison and Spitzer received some help by way of an amicus brief submitted on their clients’ behalf by the Center for Competitive Politics and the Cato Institute. “This case presents an unusual question,” wrote Allen Dickerson for the Center and Institute (Cato’s Ilya Shapiro was co-counsel on the brief.)  “While suits challenging limits on political contributions are familiar, the statute at issue here completely prohibits a broad group of private, individual citizens from making any contribution. Such sweeping prohibitions are seldom enacted, and courts have rarely assessed their constitutionality. Nevertheless, the limited pronouncements made by the Supreme Court on the subject suggest that strict scrutiny is the appropriate standard of review in this instance” and that the appellants should, therefore, prevail.”  They did not.

Ilya Shapiro

Ilya Shapiro

Here is how Ilya Shapiro summed up his response to the Wagner decision: “This is a fascinating and fairly technical opinion, ultimately disappointing to those like me who supported the challenge but probably not one that will have repercussions beyond politically minded contractors. Nobody short of Justice Hugo Black has argued that the First Amendment is absolute — and while the D.C. Circuit rejected the subtle arguments made against the ban on contractor contributions, this is an argument over line-drawing rather than first principles. I still think that the ban is overbroad and that the government should have to prove that its targeted class of people is somehow too dangerous to be allowed to participate in the political process (and also that the ban applies only to that set of uniquely dangerous people). But the court disagreed — unanimously, which was the real surprise here and will alas lessen the Supreme Court’s appetite to hear the case. On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space.”

The Ramifications of Wagner: 

Over at his own blog, Lyle Denniston thinks Wagner could have important legal/political ramifications on “two other potential campaign law controversies”:

  1. “The first of those possible changes has been under study by President Obama and his White House aides for some time: a plan to issue a presidential order to force business firms doing business with the federal government to disclose publicly all of their political activity.  Although contractors are banned from making direct political contributions to candidates or campaign organizations, they may channel money into politics in other ways.” [ See Daniel I. Weiner, Lawrence Norden & Brent Ferguson, “Requiring Government Contractors to Disclose Political Spending,” Brennan Center for Justice ]
  2. “The second possible revision was a study by the Internal Revenue Service — now suspended, perhaps for an indefinite period, because of political opposition — to revise the rules on eligibility fo tax-exempt status of private groups that are active in funding federal election campaigns. Current IRS rules allow many such groups to gain tax-exempt status on the theory that they are doing ‘charitable’ work. The IRS had draft plans to severely restrict that status for such groups.”

Professor David Skover, co-author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (2014), had this to say about the Wagner ruling:

Considering the elimination of all issues involving independent expenditures, the ruling in this case is not surprising. Despite some obvious differences between the Hatch Act and the law challenged here, a First Amendment victory would have put into question the continuing viability of the Hatch Act and Letter Carriers, and that the Circuit Court judges were clearly unwilling to do.

See also: Charles Tiefer, “Today’s Wagner Decision Encourages an Obama Order on Campaign Contributions by Federal Contractors,” Forbes, July 7, 2015

Newseum Releases 2015 State of the First Amendment Report Read More

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FAN 65.1 (First Amendment News) Court vacates & remands three 1-A cases

When it issued its orders list today, the Supreme Court did the following:

  1. In Berger v. American Civil Liberties Union of North Carolina it granted the petition for certiorari; the judgment is vacated, and the case is remanded to the United States Court of of Appeals for the Fourth Circuit for further consideration in light of Walker v. Sons of Confederate Veterans (2015).
  2. In Thayer v. City of Worcester the petition certiorari was granted; the judgment is vacated, and the case is remanded to the United States Court of Appeals for the First Circuit for further consideration in light of Reed v. Town of Gilbert (2015), and
  3. In Central Radio Co., Inc. v. City of Norfolk the petition certiorari was granted;the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Reed v. Town of Gilbert (2015).

The Court’s 2014-2015 Free Expression Docket

[last updated: 6-29-15 — what remains on the docket will either be resolved at “clean up” conference this Term or dealt with in late September when the Court has a “long conference.”]

Cases Decided 

  1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
  3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
  4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

Pending Petitions*

  1. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  2. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

  1. Walker-McGill v. Stuart
  2. O’Keefe v. Chisholm
  3. King v. Christie
  4. Apel v. United States 
  5. Dariano v. Morgan Hill Unified School District
  6. The Bronx Household of Faith v. Board of Education of the City of New York 
  7. Arneson v. 281 Care Committee
  8. Kagan v. City of New Orleans
  9. ProtectMarriage.com-Yes on 8 v. Bowen
  10. Clayton v. Niska
  11. Pregnancy Care Center of New York v. City of New York 
  12. City of Indianapolis, Indiana v. Annex Books, Inc.
  13. Ashley Furniture Industries, Inc. v. United States 
  14. Mehanna v. United States
  15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  16. Vermont Right to Life Committee, et al v. Sorrell

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

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Crisis of the Dissents Divided? — Disagreement among the Obergefell Four

imagesIn the various news feeds and pundit commentaries concerning the recent same-sex marriage case, the focus has been on the divide between the majority and dissenting opinions. Some side with the majority, others with the dissenters. Putting such differences aside for the moment, what is noteworthy is that while the Justices in the majority all spoke with one voice, the same was not true for the dissenters.

Though the judgment in Obergefell v. Hodges was 5-4, none of the four separate dissents garnered more than a total of three votes:

  • 3 votes: Chief Justice Roberts’ dissent — joined by Justices Scalia and Thomas
  • 3 votes: Justice Alito’s dissent — joined by Justices Scalia and Thomas
  • 2 votes: Justice Scalia’s dissent — joined by Justice Thomas
  • 2 votes: Justice Thomas’ dissent — joined by Justice Scalia

Notably, neither the Chief Justice nor Justice Alito signed onto any of the other dissents. Why?

The Scalia Dissent: Too confrontational?

UnknownWhile the Chief Justice and Justice Alito share many of the constitutional concerns stated by Justice Scalia (e.g., the need for judicial restraint, adherence to precedent, undermining the political process, and deference to the traditional roles of the states), they tend to be uneasy with the kind of in-your-face confrontational tone Justice Scalia employed in his unrestrained dissent.

It is a tried-and-true canon of civility: Attempt to avoid confrontational terms or phrases such as “hubris,” “egotistic,” “mummeries,” and “silly extravagances.” By that creed of civility it is unnecessarily vituperative to equate another Justice’s reasoning with “mystical aphorisms of the fortune cookie” or “pop-philosophy” or to refer to that Justice’s opinion as “judicial Putsch” – even if the seriousness of the latter is “not of immense personal importance” to you.

The Thomas Dissent: Too cabined or too natural law focused?

UnknownThe Chief Justice and Justice Alito also did not sign onto Justice Thomas’ dissent. Why? Though it is more difficult to answer this question, one explanation is a possible disagreement over the contours of due process as Justice Thomas offered it up. That is, his conservative colleagues may have been uncomfortable with Thomas’ reliance on Blackstonian notions of due process – notions perhaps too cabined for their constitutional tastes. Consider in this regard Professor Michael Dorf’s observation over at SCOTUSblog: “To the extent that Justice Thomas would allow any substantive due process, it would be for the liberty of movement only, and failing that, for no more than negative liberties. Marriage, as state recognition, would not be a fundamental right for anyone.”

And then there is Justice Thomas’ invocation of natural law and natural rights. The debate over the use and relevance of natural law has been an ongoing one in conservative circles. On that score, Chief Justice Roberts’ former boss, William Rehnquist, once found himself in the crosshairs of controversy brought on by a defender of natural law. See Harry V. Jaffa, Storm over the Constitution (1999) and his Original Intent and the Framers of the Constitution: A Disputed Question (1994) and his article “Judicial Conscience and Natural Rights,” 11 U. Puget Sound L. Rev. 219 (1987).

The Alito Dissent: Reservations about the “further decay” of marriage argument?

(drawing by Arthur Lien: courtartist.com)

(drawing by Arthur Lien: courtartist.com)

While there is much similarity between the Roberts and Alito dissents on matters such as due process, equal protection, and the specter of vilifying people of faith, both nonetheless declined to affirm the other’s dissent. What might explain the Chief Justice’s unwillingness?

Did he have some reservations about the following?: “the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.”

The Roberts Dissent: Too charitable?

(credit: WSJ)

(credit: WSJ)

If you believe (as Justice Alito seems to) that same-sex marriages may contribute to the “further decay” of marriage, then you are unlikely to be as generous of spirit as the Chief Justice was when he declared: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. . . .” By the same normative token, Justice Alito is not one who would appear to be inclined to say: “Many people will rejoice at [today’s] decision, and I begrudge none their celebration.”

Or what about this Roberts’ statement?: “The opinion describes the ‘transcendent importance’ of marriage and repeatedly insists that petitioners do not seek to ‘demean,’ ‘devalue,’ ‘denigrate,’ or ‘disrespect’ the institution. . . . Nobody disputes those points.” Nobody?

Here, too, speculation is more the measure than certainty.

Crisis of the Dissents Divided?

However close my speculations are to the mark, one thing is certain: there was no unanimity of thought strong enough to convince the four dissenting Justices to lend all of their names to a single opinion. Despite their strong differences with the majority opinion, they, too, had reservations about one another’s views of law and life and how those differences should be expressed.

* * * * 

(credit: NYT)

(credit: NYT)

On a related point: What are we to make of the fact that none of the four liberal Justices who signed onto Justice Kennedy’s majority opinion in Obergefell found it necessary, or desirable, to write separate concurrences? The same was true with Justices Stevens, Ginsburg and Breyer in Romer v. Evans (1996) and Lawrence v. Texas (2003), and later with Justices Ginsburg, Breyer, Sotomayor and Kagan in United States v. Windsor (2013).

One would think that these four Justices would push for a more protective conception of equal protection concerning discrimination against gays and lesbians. No? Then again, perhaps these four think the body of law tracing back to at least Romer will suffice.  And so far it has.

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When Love’s Promises Are Fulfilled By the U.S. Supreme Court

Today, in a 5-4 decision, the United States Supreme recognized the fundamental nature of love’s promises. In Obergefell et al. v. Hodges, the Court held,  “the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”  Referring to marriage as a “keystone” of the U.S.’s “social order,” Justice Kennedy declared same-sex marriage bans unconstitutional. Importantly, the case makes clear that forcing gay couples to go across state lines to marry only to deny them the franchise after returning home undermines fundamental principles of liberty.

It’s no surprise that Professor Martha Ertman’s powerful book: Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families on which she copiously and beautifully toiled while rearing her son debuts the summer that equality in marriage becomes a fundamental right for gay men and women. Nor should anyone be surprised if the book, along with the decision itself, becomes a central text at universities and beyond. In what David Corn calls a “love letter to marriage,” from the pen of Justice Kennedy, the Court reasoned:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.“

With that, the Supreme Court overruled the prior judgement of the Court of Appeals for the Sixth Circuit and set in gear the reversal of centuries’ worth of stigma, shame and inequality, which may not erase overnight, but overtime will ease. Professor Ertman might also suggest that by the decision, the Court resituates contracts too. That is to say, if viewed from the lens of contracts, which serves as the core, theoretical foundation of Love’s Promises, this decision recognizes a fundamental right in contract for gay men and women. Further, the case expands the “contract” franchise to include gay women and men.

Some scholars approach gay marriage primarily from the constitutional liberties encapsulated in the 14th Amendment, upholding equal protection for U.S. citizens regardless of their status, others approach the issue as a matter of privacy. For Professor Ertman, contracts offer an additional lens and much to deliberate about on matters of marriage, parenting, and familial intimacy. Professor Ertman’s writings on contract (The Business of Intimacy,  What’s Wrong With a Parenthood Market?, and Reconstructing Marriage to name a few) precede the book, and presaged its birth.

Here for example, in a passage from Chapter Eight, she explains that “[i]t takes two more trips to the lawyer’s office to hammer out terms that satisfy Karen, Victor, the attorney, and me, from lawyerly technicalities to the emotional terms we call “mush.” From what started out as an addendum to Victor’s and my coparenting agreement has blossomed into a bouquet of wills and powers of attorney, alongside the amended parenting agreement.” She tells readers, “On the way downstairs, clutching documents still warm from the copying machine, Karen squeezes my hand, as if she too feels that signing all those dotted lines brought a family into being every bit as much as vows of forever that we plan to recite…” As she explains, “if you scratch the surface of marriage—straight or gay—you’ll find contracts there, too.”

Professor Ertman urges us to remember time and again that what builds relationships and sustains them are the formal and informal contracting that take place daily in marriage; they establish the foundation for marriage and what comes after. She works diligently in the book to demonstrate love too undergirds contracts. That is to say, she wants readers to reimagine contracts—not as the products of cold, calculated bargaining or business arrangements—though one must acknowledge contracts can be that too—even in marriage.  Often marriage is the product of love, intimacy, and warm innocence.  At other times, it is the product of business arrangements.  It was that too in the U.S. chattel system: contracts that gave legal sufficiency to the buying, selling, bartering, and even destroying of slaves, including children (among them the Black biological offspring of slave owners). In light of that history yet to be fully explored and appreciated in law, it is a formidable task to resituate or reintroduce contract in the space of families and intimacy. However, Professor Ertman rises to that challenge.

Like it or not, contracts pervade marriage and suffuse premarital agreements. Sometimes contracting in this regard attempts to resituate power and status expost marriage, providing the economically weaker spouse economic stability after the breakup. Martha highlights cases from that of Catherine Simeone who received a “raw deal,” to those of celebrities, including Michael Douglas and Beyonce. Who knew that Beyonce would receive $5 million for “each of their children,” if she and Shawn Carter (otherwise known as Jay-Z) divorced? Professor Ertman might argue that despite the businesslike nature of contracts, these legal arrangements and agreements make most matters clearer for everybody. Professor Ertman explains that contracts and even verbal agreements provide information, they can provide context, and they offer choice.

In Ertman’s life, it was a contract that bestowed her wife, Karen, parenthood of their child—not something biological, legislative, or derived from courts. And she offers multiple reasons for readers to consider the salience of contracts in intimacy, including voluntariness, reciprocal promises, and equal status. She offers an additional reason: love’s promises.

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FAN 65 (First Amendment News) Does Justice Thomas believe in a race-hate exception to the First Amendment?

The Ku Klx Klan marched frequently in Savannah [where Clarence Thomas grew up], and Klan members dominated the police ranks of the 1930s, ’40s, and ’50s . . . Ken Foskett, Judging Thomas: The Life & Times of Clarence Thomas (2004)

As a child in the Deep South, I’d grown up fearing the lynch mobs of the Ku Klux Klan . . . . Clarence ThomasMy Grandfather’s Son: A Memoir (2007)

One has to wonder whether his vote was not at least in some measure affected by the particular license plate at issue — displaying the Confederate flag. David Cole, quoted in the National Law Journal, June 22, 2015

If you would better understand Justice Clarence Thomas’s vote in the Confederate license-plate case handed down last week, it may be helpful to turn the clock back to December 11, 2002. That was a rare moment in the modern history of the Supreme Court. For it was one of the few times that Justice Thomas spoke up during oral arguments. The case was Virginia v. Black (audio here). As revealed in the transcript of that case involving a First Amendment challenge to a state cross-burning statute, Justice Thomas expressed himself boldly when he questioned Michael Dreeben of the Department of Justice. “Thomas spoke [i]n a deep, booming, voice, shaking with emotion”:

Justice Clarence Thomas (Randy Snyder, AP)

Justice Clarence Thomas (Randy Snyder, Associated Press)

Justice Thomas: “[I]t’s my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and . . . the Ku Klux Klan,  and this was a reign of terror and the cross was a symbol of that reign of terror. . . [Wasn’t] that significantly greater than [any] intimidation or a threat?”

Mr. Dreeben: “Well, I think they’re coextensive, because it is –“

Justice Thomas: “Well, my fear is, Mr. Dreeben, that you’re actually understating the symbolism [and] the effect of the cross, the burning cross. I indicated, I think, in the Ohio case, that the cross was I indicated, . . . that the cross was not a religious symbol and that it . . . was intended to have a virulent effect.  And . . .  I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society.”

Justice Thomas was equally forceful in his published dissent in that First Amendment case: “‘The world’s oldest, most persistent terrorist organization is not European or even Middle Eastern in origin. Fifty years before the Irish Republican Army was organized, a century before Al Fatah declared its holy war on Israel, the Ku Klux Klan was actively harassing, torturing and murdering in the United States. Today . . . its members remain fanatically committed to a course of violent opposition to social progress and racial equality in the United States.” M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia vii (1991). To me, the majority’s brief history of the Ku Klux Klan only reinforces this common understanding of the Klan as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those its dislikes, uses the most brutal of methods.”

In the News

Judge Andrew Napolitano: “NAACP’s call to prosecute hate groups violates First Amendment – hate speech is protected,Bizpac Review, June 23, 2015 (Fox News video clip)

It is true, nonetheless, that Justice Thomas signed onto Justice Antonin Scalia’s majority opinion in R.A.V. v. City of St. Paul (1992). That case involved a successful First Amendment challenge to a state law prohibiting the display of a symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” (Justice Thomas was silent during oral arguments in R.A.V.)

In his dissent in Virginia v. Black, howeverJustice Thomas sought to disassociate himself from any expansive reading of R.A.V.: “I believe that the majority errs in imputing an expressive component to the activity in question . . . (relying on one of the exceptions to the First Amendment’s prohibition on content-based discrimination outlined in R. A. V. v. St. Paul) . . . . In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means.” But there was more here than adherence to precedent; there was the matter of understanding the nature of bigotry: “In every culture,” wrote Thomas, “certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred and the profane. I believe that cross burning is the paradigmatic example of the latter.”

And then there was his vote and concurrence in Capitol Square Review & Advisory Board v. Pinette (1995), wherein he wrote: “I join the Court’s conclusion that petitioner’s exclusion of the Ku Klux Klan’s cross cannot be justified on Establishment Clause grounds. But the fact that the legal issue before us involves the Establishment Clause should not lead anyone to think that a cross erected by the Ku Klux Klan is a purely religious symbol. The erection of such a cross is a political act, not a Christian one. In Klan ceremony, the cross is a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.”

1000Admittedly, there any number of reasons (nuanced ones) that might explain Justice Thomas’s votes in R.A.V. and Pinette, his dissent in Virginia v. Black, and his vote in the 5-4 ruling in Walker v. Sons of Confederate VeteransBut in light of that vote, and mindful of Justice Samuel Alito’s compelling dissent in Walker, one wonders: Could it be that lingering beneath all of this is some sympathy for a kind of a race-hate exception to the First Amendment? I assert nothing definitive here; I am only suggesting that there may be something in Thomas’s thinking that could allow for an exception to current First Amendment doctrine. Or consider this: Might racial bigotry be an important factor in Justice Thomas’s application of judicial formulas such as the incitement test?  In that regard, one would think that Justice Thomas might well agree with a point Justice Elena Kagan (who was in the majority) made during oral arguments in Walker:

Mr. James George: “Well, the ­­ this Court’s rule ­­ law on incitement, going back to Brandenburg v. Ohio and the Ku Klux Klan rally that this Court decided was not incitement, it ­­ is pretty thin at this point in our history, because I don’t know what the rule of incitement would be today.”

Justice Kagan: “No, but Mr. George, just the worst of the worst, whether it’s the swastika or whether it’s the most offensive racial epithet that you can imagine, and if that were on a license plate where it really is provoking violence of some kind. You know, somebody is going to ram into that car . . . .”­­

Similarly, Justice Thomas might well approve of the following statement made during oral arguments by Justice Stephen Breyer (author of the majority opinion in Walker): “Now, is there something to be said for Texas? Yes. What they’re trying to do is to prevent their official imprimatur from being given to speech that offends people.” Not just any offense, but a racial offense. It is precisely that kind of racial offense that motivates the current campaign in South Carolina to remove the Confederate flag from the state capitol grounds.

While his early votes in cases such as R.A.V. and Pinette suggest that race is not a determinative factor in Justice Thomas’s First Amendment jurisprudence, since 2002 there seems to have been shift in his view. Both his dissent in Virginia v. Black and his vote in Walker may indeed be signs of that purported shift. In the earlier, pre-Black cases, Justice Thomas voted to sustain the First Amendment claim but then voiced his disapproval of the bigoted speech at issue. In the post-Black cases, however, Justice Thomas voted to deny the First Amendment claim in such cases.

Of course, there is a good dollop of speculation here, which is therefore not beyond fair challenge. That said, sometimes it is easy to be oblivious to the obvious, to that which transcends niceties and nuances. And that something may be a key factor in Justice Thomas’s constitutional take on race-hate speech and the First Amendment. Again, I do not offer this as a hard-and-fast conclusion, but rather as something to consider — think of it as a possibility waiting to be proven.

Professor Scott Gerber

Professor Scott Gerber

Given my reservations, I invited Professor Scott Gerber, author of First Principles: The Jurisprudence of Clarence Thomas (2002), to comment on my hypothesis: “I agree with your perceptive observation about Justice Thomas’s approach to race-hate speech and the First Amendment,” he told me. “Indeed, Justice Thomas has come as close as any member of the Court ever has to accepting the Critical Race Theory approach to the issue. I have long mentioned this to my students when I teach Virginia v. Black, and I made a similar observation in a symposium essay I wrote on Justice Thomas’s First Amendment jurisprudence. The Court’s recent Confederate license plate decision provides additional support for this conclusion, and it also reminds us of how sophisticated Justice Thomas’s thinking is, especially on matters of race.”

 See Garrett Epps, “Clarence Thomas Takes On a Symbol of White Supremacy,” The Atlantic, June 18, 2015

See also Adam Clymer, “About That Flag on the Judge’s Desk,” New York Times, July 19, 1991

First Amendment Opinions by Justice Thomas

The following are the First Amendment majority opinions that Justice Thomas authored during his tenure on the Roberts Court re First Amendment free expression issues and related claims:
  1. Reed v. Town of Gilbert (2015) (vote: 9-0)
  2. Reichle v. Howards (2012) (vote: 8-0)
  3. Washington State Grange Washington State Rep. Party (2008) (vote: 7-2)

Some of his more notable separate opinions during this same period include his opinions in:

  1. McCutcheon v. FEC (2014) (concurring in the judgment)
  2. Lane v. Franks (2014) (concurring)
  3. Borough of Duryea v. Guarnieri (2011) (concurring in the judgment)
  4. Citizens United v. FEC (2010) (concurring & dissenting in part)
  5. Milavetz, Gallop & Milavetz v. United States (2010) (concurring in part & concurring in the judgment)
  6. Morse v. Frederick (2007) (concurring)
Latest Commentaries on 2014-2015 First Amendment cases

Read More

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FAN 64.1 (First Amendment News) Court Hands Down License-Plate Case — 5-4 Rejects 1-A Claim

1000Earlier today the Court handed down its ruling in Walker v. Sons of Confederate VeteransThe vote was 5-4 with Justice Stephen Breyer writing for the majority and Justice Samuel Alito in dissent (joined by the Chief Justice and Justices Scalia and Kennedy). In an unusual twist, Justice Clarence Thomas voted with the Court’s liberal bloc.

The Court held that Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. Specifically, the Court ruled that

  1. When the government speaks it is not barred by the Free Speech Clause from determining the content of what it says, and
  2. The Court’s precedents regarding government speech provide the appropriate framework through which to approach the case

“The fact that private parties take part in the design and propagation of a message,” wrote Breyer, “does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider.” He added: “Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license plates does not imply that the plate designs are merely a forum for private speech.”

Writing in dissent, Justice Alito argued: “The Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing. Under our First Amendment cases, the distinction between government speech and private speech is critical. The First Amendment “does not regulate government speech,” and therefore when government speaks, it is free “to select the views that it wants to express.” Pleasant Grove City v. Summum, 555 U. S. 460, 467–468 (2009). By contrast, “[i]n the realm of private speech or expression, government regulation may not favor one speaker over another.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995).”

Later, Alito argued that the majority’s “capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all li- cense plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards be- cause the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.”

Commentary: Ilya Shapiro, Supreme Court Allows Texas to Offend the First Amendment,” Cato Institute, June 18, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 6-18-15]

Cases Decided 

  1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
  3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
  4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

Pending Petitions*

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
  3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
  5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

  1. Walker-McGill v. Stuart
  2. O’Keefe v. Chisholm
  3. King v. Christie
  4. Apel v. United States 
  5. Dariano v. Morgan Hill Unified School District
  6. The Bronx Household of Faith v. Board of Education of the City of New York 
  7. Arneson v. 281 Care Committee
  8. Kagan v. City of New Orleans
  9. ProtectMarriage.com-Yes on 8 v. Bowen
  10. Clayton v. Niska
  11. Pregnancy Care Center of New York v. City of New York 
  12. City of Indianapolis, Indiana v. Annex Books, Inc.
  13. Ashley Furniture Industries, Inc. v. United States 
  14. Mehanna v. United States
  15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  16. Vermont Right to Life Committee, et al v. Sorrell

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

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FAN 64 (First Amendment News) More on the Roberts Court & the First Amendment — the Women Justices

How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.

In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:

  • Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
  • Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
  • Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).

Now onto the tallies in First Amendment free expression cases:

Number of Majority/Plurality Opinions

  • Justice Ginsburg: 3 out of 39 [Roberts = 13 & Kennedy & Scalia 5 each during same period]
  • Justice Sotomayor: 2 out of 23 [Roberts = 9 & Kennedy = 4 during same period]
  • Justice Kagan: 0 out of 15* [Roberts = 6 & Kennedy = 3 during same period] [*EK did not participate in 2 of the 17 cases decided during her tenure]

Number of Separate Opinions

  • Justice Ginsburg: 5 out of 39 (2 dissenting opinions, 1 dissenting & concurring in part & 2 concurring opinions)
  • Justice Sotomayor: 2 out of 23 (2 concurring opinions)
  • Justice Kagan: 2 out of 15 (2 dissenting opinions) [*EK did not participate in 2 of the 17 cases decided during her tenure]

Total Number of Opinions by RBG, SS & EK

  • 14 (includes total majority & separate opinions) [By contrast: CJ Roberts alone has authored 13 majority/plurality opinions]

Justice Ginsburg’s majority opinions

  1. Christian Legal Society v. Martinez (5-4, 2010) (1-A claim denied)
  2. Golan v. Holder (6-2, 2012) (1-A claim denied)
  3. Wood v Moss (9-0, 2014) (1-A claim denied)

Justice Sotomayor’s majority opinions

  1. Milavetz, Gallop, & Milavetz v. United States (9-0, 2010) (1-A claim denied)
  2. Lane v. Franks (9-0, 2014) (1-A claim sustained)

Thus, in the 15 such cases in which all the women Justices participated, they authored only one majority opinion (Lane v. Franks). (Justices Ginsburg and Sotomayor participated in 17 such cases during the same period and the number of majority remained the same.)

Record re 5-4 Majority/Plurality Opinions: Of the eleven 5-4 Roberts Court majority or plurality opinions in First Amendment free expression cases, only one was authored by any of the Court’s female members (Justice Ginsburg). There were six 5-4 judgments during Justice Sotomayor’s tenure, and four such judgments during Justice Kagan’s tenure.

(CJ Roberts leads in this area with 5 such opinions followed by Justices Kennedy and Alito with two apiece.)

Justice Ginsburg’s separate opinions Read More

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FAN 63.3 (First Amendment News) Court denies cert in abortion ultrasound case despite circuit split — Balkanization of 1-A rights?

Twenty-four states now require an ultrasound to be performed or offered to a woman prior to the performance of an abortion. Five states have enacted essentially the same display-and-describe requirement at issue in this case, and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request. — Cert. Petition of Attorney General of North Carolina

This past Monday the Court denied cert. in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial. The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First and Fourteenth Amendment rights of the provider.

In his cert. petition, the attorney general of North Carolina argued that the ruling in the Fourth Circuit sustaining the First Amendment claim ran counter to those in the Fifth and Eighth Circuits.

In their reply brief, the counsel for the Respondents refuted that claim. “There is no circuit conflict warranting this Court’s review,” they argued, “because no court has ever considered, let alone upheld, a law imposing as ‘unprecedented’ of a ‘burden on the right of professional speech’ as the [North Carolina] Requirement does. . . . And all courts—including the Fifth and Eighth Circuits—agree that a state regulation compelling physicians to engage in ideological speech [– as contrasted with truthful, non-misleading information relevant to a patient’s decision to have an abortion –] is subject to searching First Amendment scrutiny.”

Moreover, they argued that “the regulations approved by the Fifth and Eighth Circuits—which both courts found to be non-ideological and subject only to rationality review — are fundamentally different from the Requirement in ways that bear directly on the appropriate level of scrutiny. No court has upheld a physician-speech regulation as uniquely intrusive as the Requirement” contained in the North Carolina law.”

Consider in this regard what Judge Harvey Wilkinson stated in his opinion for his Fourth Circuit panel: “Insofar as our decision on the applicable standard of review differs from the positions taken by the Fifth and Eighth Circuits in cases examining the constitutionality of abortion regulations under the First Amendment, we respectfully disagree. . . . With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.”

Will a majority of the Court be as quick to sustain a First Amendment claim in “pro-choice” abortion case as it was in McCullen v. Coakley (2014), a “pro-life” abortion case?

Too fine a distinction? 

Is the distinction proffered by the counsel for the Respondents too fine or too nuanced to be of any meaningful import in future cases? If so, does the cert. denial in Walker-McGill v. Stuart point to a balkanization of constitutional rights in this area? In other words, is the ideological warring we have witnessed in the abortion context now spreading to First Amendment law? Can we now expect speech related to abortion to be dragged into this ideological morass replete with all the confusion that comes with that?

Fewer than four votes

David Horowitz

David Horowitz

However that may be, the Court’s cert. denial seemed somewhat surprising. As David Horowitz, the executive director of the Media Coalition, observed: “I’m very surprised that this was a case that no one could find four votes for. I would’ve thought one side or the other could have done that. The failure to do so suggests, at least, that Chief Justice Roberts and Justice Kennedy do not want to take the case, or one of those two and one of the liberal Justices felt likewise.”

See also Adam Liptak, “Supreme Court Rejects North Carolina’s Appeal on Pre-Abortion Ultrasounds,” New York Times, June 5, 2015, and “Supreme Court Won’t Revive North Carolina Abortion Law,” Associated Press, June 15, 2015

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FAN 63.2 (First Amendment News) — Court denies review in compelled ultrasound image abortion case — First Amendment claim stands

Today the Court released its orders list. The Justices denied review in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial.

The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First Amendment rights of the provider.

The Fourth Circuit stuck down the law (see here) on First Amendment grounds. The lower court opinion was authored by Circuit Judge J. Harvey Wilkinson.