Category: Supreme Court

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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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Scalia and The Sherlock Holmes Canon: Canine Silence

Justice Scalia Speaking at GW

Justice Scalia Speaking at GW

While Justice Antonin Scalia‘s life is celebrated in a Catholic Mass of Christian Burial tomorrow in Washington by family and close friends, his legacy is being elaborated by the wider circle of former clerks, lawyers, and judges who knew him, including by many of my GW colleagues who clerked for him or other Justices.  Agree or disagree with the famously feisty jurist and scholar, his life and legacy are monumental.

Coincidentally, a new article, “The Sherlock Holmes Canon,” brought to my attention on the very eve of Justice Scalia’s untimely passing, is very timely. In this article, being published in the GW Law Review, Professor Anita S. Krishnakumar of St. John’s University explores one of the late Justice’s interpretive theories, which he called “The Canon of Canine Silence.” Scalia used it to capture what he explained was a “phenomenon under which courts may refuse to believe Congress’s own words unless they can see the lips of others moving in unison.”

To steal a line from the redoubtable Larry Solum, download this while it is hot.  Following are some highlights of the piece the Editors of GW Law Review offered in their press release:

In the famous Sherlock Holmes story Silver Blaze, Mr. Holmes and Dr. Watson solve the case of a missing racehorse, based in part on the “curious incident of the dog in the night-time.” That is, Mr. Holmes infers that the thief must have been someone with whom the stables watchdog was familiar, because the dog did not bark as the horse was stolen. Mr. Holmes reasons: when an unfamiliar person enters the stables, the watchdog barks; the watchdog did not bark; thus, no unfamiliar person entered the stables.

Courts have applied Mr. Holmes’s “dog that did not bark” logic when construing the meaning of statutes. The interpretive presumption holds: if a new law or statutory amendment would significantly change the existing legal landscape (i.e., introduce something unfamiliar), Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend a change in the law.

… Professor Krishnakumar critically examines the “dog that did not bark” canon, evaluating its normative and theoretical implications. She finds:

  • In recent years, the Supreme Court has applied the canon with increasing frequency.
  • Yet there is little study of the Court’s practice of inferring meaning from Congress’s failure to comment.
  • In most cases, it is dubious to infer that Congress could not have intended to make a substantial change without notation in the legislative record.
  • The canon is actually a “clear statement” rule in disguise. It assumes a baseline state of the law, and requires that changes from that baseline be accompanied by explicit legislative acknowledgment.
  • Professor Krishnakumar concludes that although Justices view attentiveness to congressional silence as part of
    their duty as faithful agents , they often end up using the canon to guard against changes they find normatively problematic.
  • In the wake of, and leading up to, highly divisive Supreme Court decisions, The Sherlock Holmes Canon is fascinating to anyone with an interest in law, politics, or the intersection of the two. The next application of the canon could have a significant impact on all of us.To repeat: .

This piece is likely to stay hot, so download anytime.

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FAN 98 (First Amendment News) The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive?

Justice Scalia’s passing is a huge eventIlya Shapiro

America today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. — George Will 

It might be that . . . determined campaign finance reformers like me just got the opening [we] need. — Richard Hasen

Last week I listed Justice Antonin Scalia’s First Amendment free-expression opinions — majority, concurring, and dissenting. In light of the Justice’s passing, renewed attention is certain to focus on those First Amendment rulings in which the Roberts Court was divided by a 5-4 margin and in which Justice Scalia cast the deciding vote. Below is a list of the Court’s 5-4 rulings in which Justice Scalia was in the majority:

  1. Garcetti v. Ceballos (2006)
  2. E.C. v. Wisconsin Right to Life, Inc. (2007)
  3. Morse et al. v. Frederick (2007)
  4. Davis v. Federal Election Commission (2008)
  5. Citizens United v. Federal Election Commission (2010)
  6. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
  7. Harris v. Quinn (2014)
  8. McCutcheon v. Federal Election Commission (2014)

Hence, depending on the future makeup of the Court, the following categories of speech cases could be in doctrinal flux: government employee speech, student speech and various forms of campaign finance speech.

Though Holder v. Humanitarian Law Project (2010) was a 6-3 ruling (with Justice Scalia in the majority), Justice Stevens joined the conservative bloc. Since then he has been replaced by Justice Elena Kagan. If Justice Kagan were to join the dissenters in the case (Justices Ginsburg, Breyer & Sotomayor), that would leave a 4-4 split. Here, too, a new Justice could tilt the outcome in a future case.

The Public Employees Union-Fee Case & the Future of Abood

And then there is Friedrichs v. California Teachers Association, et al., which was argued last month. Recall the two issues raised in that case:

  1. Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and
  2. Whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
Justice Scalia

Justice Antonin Scalia

After oral arguments in the case, Adam Liptak noted that the “Supreme Court seemed poised on . . . to deliver a severe blow to organized labor. . . . [T]he court’s conservative majority seemed ready to say that forcing public workers to support unions they have declined to join violates the First Amendment. . . . The best hope for a victory for the unions had rested with Justice Antonin Scalia, who has written and said things sympathetic to their position. But he was consistently hostile” during oral arguments in Friedrichs:

Here are some of Justice Scalia’s comments from those oral arguments:

  • “Mr. Carvin, is ­­ is it okay to force somebody to contribute to a cause that he does believe in?”
  • “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”
  • “Why do you think that the union would survive without these ­­ these fees charged to nonmembers of the union? Federal employee unions do not charge agency fees to nonmembers, and they to survive; indeed, they prosper. Why ­­ why is California different?”

In light of the likely 4-4 divide on the Court following Justice Scalia’s death, Friedrichs may either be summarily affirmed on rescheduled for oral argument at some unknown date.

The Future of the Roberts Court’s Campaign Finance Rulings

Professor Richard Hasen

Professor Richard Hasen

Writing in Politico, Professor Richard Hasen noted that “[a] lmost all of the important campaign finance decisions for a generation have been decided by a 5-4 majority on the Supreme Court. In some periods, the Court has been narrowly in favor of limits. More recently, the pendulum has swung to an absolutist view of the First Amendment, which sees most limits on money in politics as obstructions of free speech and thus unconstitutional.”

“His opposition to limits began in 1990,”Hasen continued,” when Scalia dissented from a Supreme Court decisionAustin v. Michigan Chamber of Commerce, allowing limits on how corporations can spend money in elections. He called the decision requiring corporations to use a political action committee for election ads “Orwellian,” and for the next 25 years he dissented and fought against Supreme Court decisions that allowed sensible limits on money in politics. Scalia finally got his way in the 2010 Citizens United case, which overturned Austin in a 5-4 decision and ushered in our current era . . .”

→ In another post, Professor Hasen also notes that “[o]ne of the first ways that Justice Scalia’s absence will be felt in Court decisions is on emergency motions and stay request which make its way to the Supreme Court on an expedited basis, what Prof. Will Baude calls the Supreme court’s ‘shadow docket.‘”

Student Speech After Morse v. Frederick

Greg Lukianoff

Greg Lukianoff

Shortly after the Court handed down its 5-4 ruling in Morse v. Frederick (2007), FIRE’s Greg Lukianoff wrote: “Even days after the opinion was handed down, it is difficult to know where to begin in dissecting the potential harm of the Morse v. Frederick opinion. One thing is clear to me, however: there is a word missing from the opinion that could have helped re-focus and clarify the case and might have helped convince the Court to avoid its risky adventure into new viewpoint-based restrictions on speech. That word is ‘joke.'” (June 29, 2017)

In light of Justice Scalia’s passing, Lukianoff has now “come to believe that even if it were decided last week, ​Fredrick would have prevailed on his free speech claim (not the QI claim, though) if only because of Robert’s evolution on freedom of speech. But now with Justice Scalia gone, I tend to think a future Court would simply ignore the opinion and if a case like it came up again they would be inclined to take the strong free speech position. But that, of course, depends on who replaces Scalia.”

Quote of the Month: Jeb Bush on Citizens United  

Despite being backed by the monumental Right to Rise super PAC, Jeb Bush said Monday he would “eliminate” the Supreme Court decision that paved the way for super PACs.”If I could do it all again I’d eliminate the Supreme Court ruling” Citizens United, Bush told CNN’s Dana Bash. “This is a ridiculous system we have now where you have campaigns that struggle to raise money directly and they can’t be held accountable for the spending of the super PAC that’s their affiliate.” — CNN, Feb. 8, 2016

Two Bills Introduced in N.H. to Protect Academic Freedom & Whistleblowers   Read More

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Justice Scalia’s Papers

When I wrote to each of the Justices last year to ask how and when they planned to make their papers available to future researchers, Justice Scalia did not respond.  I hope that he did make some sort of arrangement about this before he died.

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FAN 97.1 (First Amendment News) — Justice Scalia Dies — Free-Speech Legacy

Justice Scalia (1936-2016)

Justice Scalia (1936-2016)

Updated: 2/14/16: 6:50 a.m.

Justice Antonin Scalia died in Texas yesterday. Those of us who follow the Court are shaken by the news and extend our condolences to the Justice’s family. Chief Justice John Roberts described Justice Scalia as “an extraordinary individual and jurist, admired and treasured by his colleagues.”

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During the Term of the Roberts Court, Justice Scalia wrote five majority opinions in First Amendment free-expression cases. Those opinions and the vote in them are set out below:

  1. Davenport v. Washington Educ. Association (2007) (9-0)
  2. United States v. Williams (2008) (7-2)
  3. New York State Bd. of Elections v. Lopez Torres (2008) (9-0)
  4. Brown v. Entertainment Merchants Association (2011) (7-2)
  5. Nevada Commission on Ethics v. Carrigan (2011) (9-0)

During that same Court era, Justice Scalia wrote dissents in the following cases First Amendment free-expression cases:

  1. Washington State Grange v. Washington State Rep. Party (2008) (7-2)
  2. Borough of Duryea v. Guarneri (2011) (concurring & dissenting in part) (8-1)
  3. Agency for International Development v. Alliance for Open Society International, Inc (2013) (6-2)

During that same Court era, Justice Scalia wrote concurrences in the following cases First Amendment free-expression cases:

  1. McCullen v. Coakley (2014) (9-0)
  2. Doe v. Reed (2010) (8-1)
  3. Pleasant Grove City, UT, et al v. Summum (2009) (9-0)
  4. Citizens United v. Federal Election Commission (2010) (5-4)

During the Roberts Court era, Justice Scalia did not author any First Amendment free-expression majority opinions in cases where the vote 5-4.

Justice Scalia’s Pre-Roberts Court Era Opinions

Some of Justice Scalia’sFirst Amendment free-expression opinions in the pre-Roberts Court era include:

Majority Opinions

  1. Republican Party v. White (2002)
  2. Thomas v. Chicago Park Dist. (2002)
  3. Capitol Square Review & Advisory Bd. v. Pinette (1995)
  4. Lebron v. Nat’l R.R. Passenger Corp. (1995)
  5. R.A.V. v City of St. Paul (1992)
  6. Board of Trustees of State University of New York v. Fox (1989)

Separate Opinions

  1. City of Los Angeles v. Alameda Books, Inc. (2002) (concurring)
  2. Watchtower Bible & Tract Soc’y v. Stratton (2002) (concurring)
  3. Good News Club v. Milford Central School (2001) (concurring)
  4. Legal Service Corp. v. Velazquez (2001) (dissenting)
  5. United States v. Playboy Entertainment Group, Inc. (2000) (dissenting)
  6. City of Erie v. Pap’s A.M. (2000) (concurring)
  7. L.A. Police Dep’t. v. United Reporting Publ’g. Corp. (1999) (concurring)
  8. NEA v. Finley (1998) (concurring)
  9. Schenck v. Pro-Choice Network (1997) (concurring in part & dissenting in part)
  10. Bd. of County Comm’rs v. Umbehr (1996) (dissenting)
  11. 44 Liquormart, Inc. v. Rhode Island (1996) (concurring)
  12. Morse v. Republican Party of Virginia (1996) (dissenting)
  13. United States v. Aguilar (1995) (concurring & dissenting in part)
  14. McIntyre v. Ohio Elections Comm’n (1995) (dissenting)
  15. United States v. X Citement Video, Inc. (1994) (dissenting)
  16. Madsen v. Womens Health Center (1993) (concurring in the judgment in part & dissenting in part)
  17. Barnes v Glen Theatre, Inc (1991) (concurring)
  18. Austin v. Michigan Chamber of Commerce (1990) (dissenting)
  19. Rankin v. McPherson (1987) (dissenting)

 See also: Ollman v. Evans (D.C. Cir., 1984) (dissenting in part) and Community for Creative Non-Violence v. Watt (D.C. Cir. 1983) (dissenting).

 See also: FAN.7 — “Justice Scalia & the First Amendment” (March 19, 2014)

David Savage, “Scalia criticizes historic Supreme Court ruling on freedom of the press,” Los Angeles Times, April 18, 2014

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Staying Alive

I’ve made a related point before, but I think it’s misguided for the Court to issue a stay on an issue as important as the regulations to implement the climate change agreement without an explanation.

While the Justices cannot be expected to write on every motion that comes before them, on matters on great importance they should not hide behind the fig leaf that a stay is not a decision on the merits and thus requires no opinion. The four dissenters on the climate change stay are equally in the wrong–they should also have explained their reasons or contested what the majority did.

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FAN 97 (First Amendment News) Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern?

The ACLU’s timidity in protecting speech looks more and more like complicity in censoring it. 

                                 — Wendy Kaminer (Feb. 8, 2016)

It is that time of year again when those of us who have supported and continue to support the American Civil Liberties Union get out our checkbooks. Why? Because this is the time when we receive an annual fundraising letter from the group’s Executive Director. The letter is accompanied by an annual National ACLU Workplan. The latter “lays out [the ACLU’s] plans for the year ahead [and] always addresses the most critical civil liberties challenges facing our country” (emphasis added).

So begins a January 29, 2016 fundraising letter for Anthony D. Romero. Surprisingly, protecting free-speech freedoms is not listed as one of this year’s “critical civil liberties” issues. Neither of the documents contains any mention of the First Amendment.

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The 2016 letter and Workplan cover a “broad spectrum” of “wide-ranging assaults on liberty.” In that regard, five areas of government wrong doing are identified where “fundamental freedoms are on the line.” Free speech is not flagged as one of those endangered “fundamental freedoms.”

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Workplans, Priorities & Fundraising

Last year, when a similar omission in the ACLU’s 2015 Workplan (see FAN 49) was pointed out, Mr. Romero replied (see FAN 50) by noting the many areas in which both the national ACLU and its state affiliates continue to defend a variety of free-speech rights. Hence, the ACLU had not abandoned this field (see two news items below). Still, insofar as the workplans are any indication of the group’s priorities, protecting free speech does not appear to be one of them, at least not for fundraising purposes.

 Contrast Ohio 2016 Workplan (listing “protecting the right to dissent” as a top priority — “The ACLU of Ohio has a longstanding history of being the foremost guardian of the freedom of speech and assembly. Our work has never been more important as we are now preparing for the Republican National Convention.”)

Some Dissension in the ACLU ranks

Wendy Kaminer

Wendy Kaminer

Wendy Kaminer is an ardent free-speech advocate; she is currently a member of the advisory board of the Foundation for Individual Rights in Education (FIRE). Ms. Kaminer Kaminer was a member of the board of the ACLU of Massachusetts from the early 1990s until June 2009. She was also a national board member of the ACLU from 1999 until her term expired in June 2006. As to the omission of any reference to protecting First Amendment free-speech freedoms in the 2016 Workplan, she stated:

I’m not at all surprised that the ACLU’s 2016 work plan doesn’t include an explicit commitment to protecting freedom of speech. At the national level, ACLU has been exercising its right to remain silent on key free speech issues for years, in apparent deference to progressive support for restricting  speech deemed racist, sexist, homophobic or otherwise exclusionary. Still, while it’s unsurprising, the ACLU’s withdrawal from free speech battles that could eventually lead the U.S. to adopt a Western European approach to regulating “hate speech” is indeed alarming. As threats to free speech intensify — on campus (thanks partly to arguably unconstitutional federal mandates) and in the remarkable tendency of some liberals to blame the victims of violence for giving offense to their murderers (remember Charlie Hebdo) — the ACLU’s timidity in protecting speech looks more and more like complicity in censoring it. 

Harvey Silverglate

Harvey Silverglate

Here is how Harvey A. Silverglate, co-founder of FIRE and a former member of the Board President of the ACLU of Massachusetts, replied:

Sadly, it comes as no surprise that the national ACLU Board and Staff are nowhere to be seen in the increasingly difficult battle to protect First Amendment freedom of expression rights. This is especially so in areas where the ACLU, more and more, pursues a political or social agenda where the overriding importance of the goal transcends, in the eyes of ACLU’s leadership, the needed vitality of free speech principles neutrally and apolitically applied. Fortunately, some ACLU state affiliates still carry the free speech battle flag, but they are a diminishing army in a war that is getting more and more difficult, even though more and more important, to wage.  

Does the New ACLU Still Support the First Amendment Positions of the Old ACLU?  

Consider the following cases — would the national ACLU still defend the First Amendment claims it once defended in all of the cases listed below?

  1. Brandenburg v. Ohio (1969) (KKK hate speech) (Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton & Bernard A. Berkman)
  2. Buckley v. Valeo (1976) (campaign finance) (Joel M. Gora & Melvin Wulf)
  3. National Socialist Party of America v. Village of Skokie (1977) (Nazi hate speech)  (Burt Joseph in 7th Cir.)
  4. R.A.V. v. St. Paul (1992) (race hate speech) (Steven R. Shapiro, John A. Powell & Mark R. Anfinson)
  5. Lorillard Tobacco Company v. Reilly (2000) (tobacco advertising) (Steven R. Shapiro)
  6. Hill v. Colorado (2000) (abortion clinic protests) (Stephen R. Shapiro) {contrast ACLU amicus brief filed in McCullen v. Coakley (2014) (Steven R. Shapiro)}
  7. Citizens United v. FEC (2010) (campaign finance) (Steven R. Shapiro)

The 2014 & 2015 Terms: The ACLU & First Amendment Free-Expression Cases 

 In the 2015-2016 Term, thus far the ACLU has not filed a brief in either of the two First Amendment cases concurrently under review by the Supreme Court — Heffernan v. City of Patterson and Friedrichs, et al. v. California Teachers Association, et al.

In the 2014-2015 Term, the ACLU did not file a brief in Reed v. Gilbert, though it did file briefs supporting the First Amendment free-expression claims in Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Williams-Yulee v. Florida Bar

Open Invitation to Reply 

As in the past, Mr. Romero is invited to reply, both to the Workplan issue and to the question concerning the ACLU’s continued commitment to protecting First Amendment rights in the seven cases listed above. Better still, and to reiterate my request from last year, I welcome the chance to do a Q & A with Mr. Romero on the ACLU and the First Amendment.

A Hyperlinked History of the Controversy:  ACLU & the First Amendment 

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What Citizens United Did & Did Not Do  Read More

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FAN 96 (First Amendment News) Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture

Upcoming: FAC 7 (First Amendment Conversations) — Richard Hasen discusses his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (2016) . . . and more.  Stay tuned.

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Plaintiffs have a continuing right of access under the First Amendment . . . to view the bison culling activiies that occur on public land, including Yellowstone National Park. — Complaint in Ketcham v. U.S. National Park Service (Jan. 26, 2016)

Last week Jamie M. Woolsey, Professor Alan. K. Chen, and Stefanie Wilson filed a complaint in a Wyoming federal district court on “behalf of journalist Christopher Ketcham and wild bison advocate Stephany Seay, who are seeking access to Yellowstone Park’s controversial bison trapping operations that lead to the slaughter of hundreds of bison. The lawsuit argues that the First Amendment guarantees citizens and journalists reasonable, non-disruptive access to the publicly funded national park.”

This is how their complaint seeking injunctive and declaratory relief begins:

I love this land and the buffalo and will not part with it . . .  These soldiers cut down my timber, they kill my buffalo and when I see that, my heart feels like bursting. —  Satanta-Kiowa Chief

According to an Animal Legal Defense Fund press release, “the National Park Service is scheduled to capture and facilitate the killing of up to 900 bison inside Yellowstone Park starting on February 15, 2016. During the capture and kill operation, the Park Service closes parts of the park to public access. ‘It’s ironic that to benefit Montana ranchers grazing their cattle—an invasive species—Yellowstone Park has agreed to facilitate the capture and killing of 900 American bison, an iconic, native species,’ said law professor and ALDF attorney Justin Marceau. . . .”

bison2“‘If the First Amendment right of access is to mean anything,’ Marceau went on to say, ‘it means that citizens and journalists should have reasonable, non-disruptive access to their publicly-funded national park to observe and memorialize one of the most controversial uses of national park land imaginable.'”

“‘Denying access to the park during this controversial publicly-funded wildlife slaughter campaign is very similar to the intent of Ag-Gag laws,’ said ALDF Executive Director Stephen Wells. ‘Such laws ‘gag’ would-be whistleblowers, journalists and activists by making it illegal to record and disseminate photos or footage taken in agricultural operations. ALDF has successfully proven Ag-Gag laws are unconstitutional under the First Amendment and we are confident we will do the same in this case.’ . . .”

The complaint alleges that “from the late 1990s until 2006, Defendants regularly allowed the public and the media to view the herding, trapping, sorting, and shipping of bison from the catwalks over the pens withint the [National Park].”

Jamie Woolsey, lead counsel for Plaintiffs

Jamie Woolsey, lead counsel for Plaintiffs

According to an Associated Press story, “Yellowstone spokeswoman Sandra Snell-Dobert said the restrictions are meant to protect park workers and the public. Moving and sorting bison can be dangerous, particularly within the narrow confines of the corrals, Snell-Dobert said. The lawsuit says such safety claims are exaggerated and that access to the corrals was routinely allowed until 2006, with no reports of anyone being injured.”

“‘It’s about public safety, but also about trying to reduce stress on the animal,’ Snell-Dobert said in a statement, adding that a large exclusion zone is necessary so that bison will feel comfortable enough to wander toward capture pens as they graze.”

→ Nature World News reports that the “driving force behind the large-scale bison cull is to reduce potential conflicts between the park and Montana landowners, as bison often travel outside of the park for food during the winter. Unfortunately, the arrival of bison instills fear in landowners that the bison will transmit a highly-infectious disease known as brucellosis to their cattle – even though there have been no such recorded instances to date.”

→ Hearing: February 3, 2016, District Court in Casper, Wyoming before Judge Scott Skavdahl. Professor Alan Chen will argue on behalf of the Plaintiffs in support of their motion for a preliminary injunction.

→ Related item: Steven Schwinn, “Park Service Inauguration Regs Don’t Violate Free Speech,” Constitutional Law Prof Blog, Jan. 28, 2016

NY Post Attacks Commission’s Ethics Rule Read More

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FAC 6 (First Amendment Conversations) Powell Law Clerk David O. Stewart Discusses the Origins of Central Hudson’s 4-Prong Test

[T]he Central Hudson test is susceptible to a wide variety of interpretations . . . . Martin Redish (2001)

After a period of much controversy, the Court in 1980 in Central Hudson articulated a general test for determining the constitutionality of regulations of commercial speech. Although the test has subsequently been interpreted from radically different perspectives, and although it has been attacked by numerous Justices, it has nevertheless remained the dominant test. — Robert Post (2000)

Before Sorrell v. IMS Health Inc. (2011) and 44 Liquormart, Inc. v. Rhode Island (1996), there was Central Hudson Gas & Electric v. Public Service Commission (1980).

When it comes to commercial speech and the First Amendment, Central Hudson was the coin of the realm in its day. Recall, the vote was 8-1 with Justice Lewis Powell writing the majority opinion (joined by Justices Stewart, White, Marshall, and Chief Justice Burger), with separate concurrences by Justice Brennan, Blackmun, and Stevens. Justice William Rehnquist wrote a lone dissent.

David O. Stewart, former Powell law clerk

David O. Stewart

Recall as well that Telford Taylor (counsel for the prosecution at the Nuremberg Trials) argued the case on behalf of the Appellants and Burt Neuborne filed an amicus brief on behalf of the Long Island Lighting Co. supporting the Appellants.

Justice Powell was virtually silent during oral arguments. Justices Byron White, John Paul Stevens, Potter Stewart, William Rehnquist, and Harry Blackmun asked the lion’s share of the questions. Even so, the Chief Justice assigned the opinion to Justice Powell.

Central Hudson was the case where the famed four-prong test was announced. Recently, I had occasion to look through the Powell papers archived at the Washington and Lee School of Law library. In browsing through those papers, I came upon a batch of memos and draft opinions concerning the Central Hudson case.

Much to my surprise, a good friend of mine, David O. Stewart, played a major role as the law clerk responsible for drafting Justice Powell’s Central Hudson majority opinion. In that regard, I asked David if he would answer a few questions about the case and his involvement in it. He kindly agreed; his responses are set out below. Read More