Tagged: Constitutional Law

1

Barbara Babcock reviews new book on Ruth Bader Ginsburg

Professor Barbara Babcock

Professor Barbara Babcock

Over at SCOTUSblog, Standford Law Professor Emerita Barbara Babcock has a book review of Scott Dodson’s new The Legacy of Ruth Bader GinsburgCambridge University Press, 2015 (336 pp., cloth, $29.99), which he edited.

Babcock’s review is titled “Law Professor, Feminist, and Jurist” and draws on some of her own history with RBG.

As you may recall, in an earlier post on this blog Danielle Citron also wrote about Justice Ginsburg and the collection of essays in the Dodson volume.

In case you missed it, take a look at Gail Collins’ recent column in the New York Times titled “The Unsinkable R.B.G.”

(In the interest of full disclosure, I also serve as the book editor for SCOTUSblog.)

stairway-to-heaven-1319562-m-720x340
1

FAN 49 (First Amendment News) ACLU “2015 Workplan” sets out narrow range of First Amendment Activities

When the ACLU was founded in 1920, its focus was on freedom of speech. — Wikipedia 

His expansive reading of civil liberties was arguably [Roger] Baldwin’s greatest contribution to American thought and practice.  It helped to redefine American liberalism and democracy and was propounded in the very period when others subscribed to a much narrower interpretation of First Amendment rights. — Robert Cottrell, Roger Nash Baldwin & the American Civil Liberties Union (2000)

FullSizeRender

A few weeks ago I received the ACLU’s “2015 Workplan: An Urgent Plan to Protect our Rights.” The eight-page, single-spaced document was accompanied two-page letter from ACLU Executive Director Anthony Romero and a contribution form. The Workplan began: “At the beginning of each year, ACLU attorneys and advocates construct a Workplan outlining the major civil liberties battles we are facing. I am proud to share this year’s plan with you.” In that regard he added: “Your passion, energy and financial support are crucial to our ability to meet the challenges ahead and change the lives of millions whose civil liberties are in jeopardy.”

Walter Nelles was the co-founder and first chief legal counsel of the National Civil Liberties Bureau and its successor, the American Civil Liberties Union. He was an ardent defender of free speech rights. His First Amendment cases included Gitlow v. New York (1925) and Whitney v. California (1927).

Anthony Romero

Anthony Romero

As an ACLU supporter and one who has had the honor of writing several ACLU briefs over the years, I read the 2015 Workplan with great interest. As I read the eight-page document I was surprised to find nothing more than a passing reference to the First Amendment — a mainstay of the ACLU since its founding. There was no highlighted listing of free speech rights in the categories of activities to be protected. The following categories and subcategories were listed in the 2015 Workplan:

1.) Reproductive rights
2.) Discrimination Against Women (Hobby Lobby)
3.)  Anti-Choice Legislation
4.) Freedom to Marry
5.) Privacy & Due Process Rights re Technology
6.) Government Surveillance (4th Amend., Clapper v. Amnesty)*
7.) Third Party Doctrine (expectation of privacy)
8.)  Cell Phone Privacy & GPS Tracking (US v. Jones)
9.) Voter IDs
10.) Police Misconduct
11.)  Mass Incarceration
Harriet Pilpel (1911-1991), Nanette Dembitz (1913-1989), and Nancy F. Wechsler (1916-2009) — Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in New York Times, Co. v. Sullivan.
* The only reference to free speech freedoms came in connection with government surveillance: “[T]he bulk collection of American’s call records . . . [is] an infringement of the twin First Amendment liberties of free association and free expression.” (emphasis added)
Brandenburg v. Ohio (1969) — ACLU lawyer Allen Brown argued the cause for appellant. With him on the briefs were ACLU lawyers Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman.

On February 2, 2015 I sent an e-mail to Mr. Romero. I expressed my concerns re the virtual absence of any real and comprehensive commitment to securing First Amendment free expression rights in any variety of areas beyond the one stated. I just heard back from his office this past Monday, this after having sent a follow-up e-mail earlier that day. I was informed that Mr. Romero “intends to respond.”

Liberty in America is better off because of Al Bendich (1929-2015) and what he did as a lawyer for the American Civil Liberties Union. He gave free speech life to poetry and lawful voice to comedy . . . and more. (January 7, 2015)

I welcome Mr. Romero’s response, if only to explain why protecting our First Amendment freedoms did not receive greater and more expanded attention in the national ACLU’s 2015 Workplan, the one sent out for fundraising purposes. I will post his response once it arrives.

Update: See Howard Wasserman, “Declaring Victory?, PrawfsBlawg, Fe. 26, 2015.

Invitation to Anthony Romero re a Q&A on the First Amendment 

Beyond his response, I extend a cordial invitation to Anthony Romero to do Question & Answer segment with me — much like the ones I have done with everyone from Professor Laurence Tribe to Judge Richard Posner — related to the ACLU and its views on protecting free expression rights under the First Amendment. I am sure our readers would have great interest in hearing from him. 

______________________________________________________________________________

 THE COURT’S 2014-15 FREE EXPRESSION DOCKET Read More

0

FAN 48.1 (First Amendment News) Court Denies Cert in Two First Amendment Cases

 The Court’s latest order list was just made public. In it the Court denied cert. in Kagan v. City of New Orleans (re tour-guide licensing requirements) and in Clayton v. Niska (re a state statute banning false political speech).

  The Court is expected to hand down opinions tomorrow and Wednesday in one or more argued cases. 

 THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. ProtectMarriage.com-Yes on 8 v. Bowen
  7. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Kagan v. City of New Orleans
  2. Clayton v. Niska
  3. Pregnancy Care Center of New York v. City of New York 
  4. City of Indianapolis, Indiana v. Annex Books, Inc.
  5. Ashley Furniture Industries, Inc. v. United States 
  6. Mehanna v. United States
  7. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  8. Vermont Right to Life Committee, et al v. Sorrell
stairway-to-heaven-1319562-m-720x340
1

FAN 48 (First Amendment News) The Dangers and Values of Offensive Speech

 If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful. — Carsten Jensen (Danish author and political columnist)

In Mumbai, India a newspaper was shut down recently and its editor arrested for reprinting a 2006 Charlie Hebdo cartoon of the Prophet Muhammad weeping. According to a New York Times story, such “news coverage often conflicts with the government’s efforts to protect religious groups from insult and disrespect.” One of those who filed a police complaint was Nusrat Ali, a reporter. “You are free to write anything in our country, but you are not free to hurt religious sentiments,” he said. “Why would [Shirin Dalvi] print something that has caused tension and violence across the world?” he asked. “Publishing such cartoons threatens the peace and calm of our country.”

Professor Geoffrey Stone

Professor Geoffrey Stone

Legitimate concerns, real dangers. Ask yourself: what if those dangers became more likely and imminent here? How strong would our commitment to free speech be? Mindful of that, in a thoughtful Huffington Post piece  titled “Charlie Hebdo and the First Amendment,” University of Chicago Law Professor Geoffrey Stone asks:

Are there any circumstances in which the government can constitutionally silence a speaker because others threaten violence if the speaker is allowed to proceed? Consider an extreme hypothetical. Suppose ISIS threatens to behead six American hostages if anyone in the United States publishes or otherwise displays the Charlie Hebdo cartoons. Can our government, consistent with the First Amendment, make it a crime for anyone to do so? The Supreme Court has never faced such a case. What do you think?

Okay, how’s this for starters? — The proposed law seems to codify the heckler’s veto (or, more aptly put, a terrorist’s veto). Even before we venture to answer Professor Stone’s question we would have to assume that such a law would be precise and narrowly tailored, this as a constitutional threshold matter. That said, is the gravity of the threatened evil so great as to relieve the government of its constitutional obligation to, in Professor Stone’s words, “take every possible measure to prevent the violence before it may silence the speaker”? If so, would not the terrorist’s veto almost always trump the speaker’s First Amendment rights?

Terrorism is just bullying, extreme bullying. — Bill Maher (Jan. 2015)

Among other things, Professor Stone’s hypothetical invites us to think hard about just how far down the free speech road we wish to travel when that path may lead to lethal dangers. However absolutist the defenders of free speech may be, even they have their limits as Pater Holmes made clear in his Abrams dissent.

The Values of Offensive Speech 

Ilya Shapiro

Ilya Shapiro

But there is more to this free speech debate than the dangers of so-called hate speech; there is also the question of the values, if any, of such speech. And that is the question that Carsten Jensen asks us to consider in the epigraph quote above.

Thankfully, a brief recently filed in the Supreme Court by the Cato Institute speaks to precisely that question. The amicus brief was submitted by Ilya Shapiro (counsel of record) and Robert Corn-Revere in Walker v. Texas Division, Sons of Confederate Veterans, the license plate case that will be argued next month.

Here are a few excerpts from their brief, which was recently filed with the Court:

 – Offensive Speech Contributes to the Marketplace of Ideas: “The borderlands of the marketplace of ideas are inhabited by ideas that unsettle and offend. Only those ideas that people are allowed to express can be freely traded, so a “free trade in ideas” cannot exist when some ideas are relegated to the black market. . . . Indeed, because offensive speech changes the parameters of the marketplace, it is as vital to the exchange of ideas as so-called mainstream speech. Without expanding the borders of the marketplace, a society may stagnate. If no one ever offensively says ‘the Emperor has no clothes’ then a society may be condemned to dynasties of naked emperors, and that would be truly offensive.”

And they quote Salman Rushdie, “who certainly knows something about offending people: ‘What is freedom of expression? Without the freedom to offend, it ceases to exist. Without the freedom to challenge, even to satirise all orthodoxies, including religious orthodoxies, it ceases to exist.'”

 Offensive Speech Fosters Self Expression and Helps Develop Personal Autonomy: “Expressing one’s deepest thoughts, feelings, and values is vital to defining oneself as a unique and autonomous individual. Those who are restrained from self-expression are often called ‘repressed,’ and years of therapy is often the cure. . . . Even more than ‘mainstream’ speech, offensive speech helps define us. Our commonalities do less to define our personalities than our eccentricities, offensive or otherwise. If speech is squelched by the government because it ‘might be offensive to any member of the public,’ then the government has closed off an important avenue for self-expression.”

There is more, much more, to this truly insightful (dare I say inciteful?) brief. In a legal world where amicus briefs too often add little beyond formulaic case-crunching, this brief is chock-full of value added, and for that reason I commend it to you.

Meanwhile, I leave you with the closing words of the Cato brief: “It would be offensive to the First Amendment for this Court allow Texas to tell us what is offensive. After all, one man’s offensive speech is another’s exercise of social commentary or personal expression.”

Is Flower v. U.S. (1972) still good law? . .  . & why that question is important 

On remand, the United States Court of Appeals affirmed Mr. Apel’s conviction, rejecting his First Amendment argument with no mention or apparent consideration of Flower v. United States. It seemingly accepted the argument made by the United States that Flower is no longer good law. — Erwin Chemerinsky, cert. petition in Apel v. United States (2015)

Read More

1

The Terrorist’s Veto

We live in terrorist times — post-Charlie Hebdo times. In this brutish world the target of attack is liberty as we know it, the kind in which people come together to discuss “Art, Blasphemy and the Freedom of Expression.” But as recent events in Copenhagen reveal, even in that world armed guards may not be enough to turn back the barbarity at the door. What to do?

Carsten Jensen, a Danish author and political columnist, urges us to reconsider our commitment to free speech freedom: “If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful.”

Fair question, fair point. So is hate speech fruitful? Just for the sake of argument, let us say that it is – that vibrant criticism of a radical fringe of a religious group is important to the wellbeing of democratic rule. What then? I suspect the temptation to roll back freedom would be much the same. Why? Because the terrorists have terrorized us.

The terrorist’s veto is the savage cousin of the heckler’s veto. The logic of both is the same: freedom of speech is abridged in order to prevent the dangerous behavior of the reacting party. Once such veto power is granted, either formally or functionally, the hostile audience gets its way while freedom flees.

It really doesn’t matter if the speech in question is hateful or political or what have you. One only need look back in history to see how Salvation Army members, Jehovah’s Witnesses, Socialists, labor activists, racial justice activists, and political activists were silenced by the veto power. And recall that Professor Harry Kalven coined the phrase “heckler’s veto” in connection with bigoted opposition to free speech freedom in support of racial justice. (See his The Negro and the First Amendment (1965).)

It makes for a strange legal brew: once empowered, the veto renders the lawful unlawful; it turns liberty into license; and in the process reconstitutes our system of constitutional freedom in favor of ruthless anarchy. In his 1897 Introduction to the Study of the Law of the Constitution, the famed British jurist and constitutional theorist A.V. Dicey contested such legal logic:

[N]o meeting which would not otherwise be illegal becomes unlawful because it will excite opposition which is itself unlawful, and thus will indirectly lead to a breach of the peace. The plain principle is that A’s right to do a lawful act, namely walk down the High Street, cannot be diminished by X’s threat to do an unlawful act, namely to knock A down.

To develop Dicey’s point a bit, there is something profoundly disturbing about conditioning one person’s lawful free speech rights based on the degree of unlawful hostility demonstrated by the speaker’s adversaries. (See Note, “Constitutional Law — Unconstitutional Abridgement of Free Speech by Municipal Ordinance,” 24 N.Y.U. L. Rev. 891, 893 (1949).) In this regard, Professor Franklyn Haiman put it powerfully nearly a half-century ago when he countered: “Only by the firmest display of the government’s intention to use all the power at its disposal to protect the constitutional rights of dissenters will hecklers be discouraged from taking the law into their own hands.”

What is really at stake here is not so much the value of so-called hate speech as the willingness of a free society to recommit itself to freedom in the face of ferocious opposition. Having grown fat on freedom, we are use to tolerating speech with which we disagree if only because the consequences are typically of no moment. Hence, we defend the free speech principle because it’s risk-free. To borrow from old Tom Paine, we are “sunshine patriots” when it comes to defending free speech freedom. But if they bad guys ratchet up the consequences of our toleration, will we continue hold firm to our commitment?

There is no escaping it: In a democracy committed to the principle of free speech, the veto power – be it that of the heckler or the terrorist – must not be permitted to silence a society. For if you take the risks out of freedom, nothing of real value remains. In such a world, the tyranny of the veto is emboldened by the cowardice of the people.

1

FAN 47 (First Amendment News) Anniversary Issue: Returning “Home” — Looking Back on Fox v. Washington (1915)

Anniversary: It was a year ago (February 10, 2014 to be precise) that I posted my first FAN column on Concurring Opinions. Now, 46-plus posts later (there were also a number of non-scheduled posts), I think the endeavor well worth the time to spread the First Amendment word — the serious and silly, the admirable and objectionable, the high and low, the liberal and conservative, and everything in between and beyond. Thanks to Dan Solove (our blog publisher) for inviting me onboard. Dan’s respect for the integrity of the work product and his encouragement to take it to “the next level” have made the adventure all the more challenging and exciting. Thanks also to all those who so kindly directed First Amendment news my way. In the coming year I hope to improve on what works while testing out a few new ways of how to look at our free speech world. — RKLC      

Screen Shot 2015-02-05 at 12.17.49 AM

“The agitator is the mostly roundly abused and at the same time most necessary individual in society.” Jay Fox 

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Colony of Home (credit: Justin Wadland, Trying Home (2014))

Ponder this creed: HOME is where freedom resides. That ideal was as much a personal hope as it was a political ideal for some who long ago traveled through Puget Sound to a cove in the Pacific Northwest. They toiled first to buy nearby land (26 acres) and then to build on it — not just log cabins but a commune of anarchists, radical feminists, artists, and free-thinking women and men dedicated to a way of living very much counter to the conventions of late 19th century America.

It began in 1896 when a group of free-spirt types, known as “Homeites,” set out to establish the utopian colony of Home. Things started out well in this idyllic community as more and more families came and pitched in to make Home their home. As they invested more and more of their lives into that experiment in freedom, their lifestyles drew more and more attention beyond the borders of their beloved Home. And that proved to be a problem — one with realpolitik consequences.

“In 1902, after charges of violation of the Comstock Act resulting from an article advocating free-love published in the local anarchist newspaper Discontent: Mother of Progress, Home’s post office was closed by postal inspectors and moved two miles to the smaller town of Lakebay.” (Source here). But that did not stop their counter-culture ways. True to their libertine life styles, some “Homeites” took to nude sun tanning in the woods of the Key Peninsula, near Tacoma in Washington State.

It was too good to last: In short time, four individuals were arrested for indecent exposure. Incensed by their arrests, on July 11, 1911 Jay Fox (1870-1961), the editor of The Agitator, published an essay entitled “The Nudes and the Prudes.” In it Fox — an independent-minded man devoted to halting “the crimes of capitalism” — urged boycotts of the businesses of those who railed against nude bathing.

Note: “The Agitator” bold text above is a copy of the original banner of Jay Fox’s publication.

According to Washington State historian and librarian Mary M. Carr, “The Agitator made its first appearance on November 18, 1910, although in his editorial Fox proclaimed that it appeared on November 11, the 25th [sic] anniversary of the execution of the Haymarket martyrs. (Actually, he was four days late for the 23d anniversary.) In its subtitle, The Agitator defined itself as an ‘Advocate of the Modem School, Industrial Unionism, and Individual Freedom.’ Fox declared that it would ‘stand for freedom first, last and all the time,’ and would promote the right of every person to express his opinions. He hoped to popularize knowledge so that common toilers, as well as the ‘rich and privileged class’ cou1d be ‘uplifted to philosophy and science.'”

“It is only by agitation that the laws of the land are made better. It is only by agitation that reforms have been broughtabout in the world. Show me a country where there is the most tyranny and I’ll show you the country where there is no free speech. This country was settled on that right, the right of free expression.”Jay Fox (January 11, 1912)

Not surprisingly, Fox’s passionate opposition to the prudish ways of those in power did not sit well with Washington State’s bluenose establishment. Hence, he was prosecuted  under a Washington statute that prohibited printing or circulating publications that encouraged a commission of a crime. Fox was tried and convicted in 1912 and received a two month sentence, which the Washington Supreme Court declined to set aside in State v. Fox, 71 Wash. 185 (1912). Review was then sought in the United States Supreme Court.

The lawyers Read More

1

FAN 46.1 (First Amendment News) The Court’s 2014-15 Free Expression Docket & Other News

The next FAN posting (#47, this Wednesday) will be an anniversary issue dedicated entirely to an account of Fox v. Washington (1915), a First Amendment opinion authored by Justice Oliver Wendell Holmes for a unanimous Court. Given that, I thought I’d offer a few news items, including an update of the Court’s Free Expression Docket.

______________________________________________________________________________

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

The Court’s next Conference is on February 20, 2015.

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions 

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Kagan v. City of New Orleans (see Cato amicus brief  of Ilya Shapiro & Eugene Volokh)
  6. Friedrichs v. California Teachers Association, et al.
  7. ProtectMarriage.com-Yes on 8 v. Bowen

Review Denied

  1. Pregnancy Care Center of New York v. City of New York 
  2. City of Indianapolis, Indiana v. Annex Books, Inc.
  3. Ashley Furniture Industries, Inc. v. United States 
  4. Mehanna v. United States
  5. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  6. Vermont Right to Life Committee, et al v. Sorrell

New Scholarly Articles Read More

0

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

James Bopp. Jr.

James Bopp. Jr.

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

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

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

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

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

* * *  *

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

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

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

Paul Smith Speaks @ Syracuse on Right of Publicity

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

Mr. Smith speaking at Syracuse University.

Mr. Smith speaking at Syracuse University.

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

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

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

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

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

More Campus Speech Codes come under FIRE  Read More

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

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

Niko Pfund

Niko Pfund

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

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

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

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

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

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

7

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

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

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

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

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

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

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

* * * *

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

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

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

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

Carrie Buck

Carrie Buck

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

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

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

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

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

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

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

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

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

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

Francisco Castaneda testifying before Congress

Francisco Castaneda testifying before Congress, 2007

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

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

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

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

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

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

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