Tagged: Constitutional Law

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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      

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“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

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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

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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
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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:

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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

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45 FAN (First Amendment News) — Neuborne & Corn-Revere debate judicial campaign solicitation case

Burt Neuborne

Burt Neuborne

A libertarian and a liberal walk into a bar; the libertarian orders a shot of Kentucky Knob Creek while the liberal orders a glass of Napa Valley Merlot. True, they both like alcohol, but one prefers it with kick. If the metaphor holds true, Professor Burt Neuborne is the Merlot man and First Amendment lawyer Robert Corn-Revere is the strengthened spirits man.

The two seasoned First Amendment experts recently debated one another in a National Constitution Center podcast titled “Should elected judges be allowed to ask for donations?” Amicus briefs were submitted by both men in the Williams-Yulee v. The Florida Bar case (Neuborne et al here and Corn-Revere here). The friendly and illuminating podcast was moderated by Jeffrey Rosen, the President and CEO of the Center. Here are a few excerpts of that exchange:

This is kind of a mutual admiration society, although we are on different sides in this case.  — BN

Neuborne: “They were very careful in the White case to say that judicial elections may well be different because of the nature of what a judge does. . . . [O]nce [a] judge is elected, [he or she ] is expected to be absolutely impartial and not to tilt toward his political supporters and not to engage in the kind of behavior that we expect, and indeed want, congressional people to do. If you are elected as a congressman, you made promises to the electorate; you made pledges that you’re going to carry out certain policies. . . . Promises by a judge would make it very difficult for people who are appearing before that judge to think that the judge was in any way impartial. . . . We don’ t want the judge to lock himself or herself into a position that interferes with the mandate of judicial impartiality.”

“. . . You have to let judges raises enough money to be able to have a real campaign. . . . They have to be allowed to raise a significant amount of money and do real real elections. But the question is, how do they do it? Are they going to raise the money in a way that gives rise to an assumption . . . . that they are somehow bound to the people who gave them the money? . . . . The question is, in order to stop that from happening, can the States . . . . say that the judge can’t personally ask for money, people who support him can ask for money, but he can’t or she can’t personally ask of money, because that would threaten the integrity and impartiality of the process . . .”

Robert Corn-Revere

Robert Corn-Revere

Corn-Revere: “Once you make the choice to use popular elections certain things follow from that, and none of them are very easily addressed. . . . [When] you make judges into [political] candidates [who] are asking for people’s votes, they are not above the political fray. . . . [T]he judges . . . have to be able to talk about issues and have to be able to raise a certain amount of money. The question is whether or not having a direct fundraising appeal [actually] undermines that interest [in impartiality] . . . [In all of this, once judges run for office,]  then First Amendment [principles] override [the] kinds of restrictions the State seeks to impose [here].”

The question before the Court was: are these restrictions effective? . . . The opponents argued once you . . . allow judges to send a thank you note in response to individual contributions . . . and also to instruct their committees about who to approach, the additional ban on direct solicitations is ineffective . . . JR

Neuborne:  “. . . The argument is that the Florida statute is so honeycombed with exceptions that it doesn’t really advance the interests it is said to advance. . . . The question is: Is there something special about personal solicitation — which either puts more pressure on a lawyer [who might appear before the judge], or puts pressure on a litigant, or makes the public think that the judge would be more disappointed if you don’t respond to a personal solicitation or more grateful if you did respond to a personal solicitation — than this kind of backdoor solicitation by a proxy? I think reasonable people can differ over that. . . . I would argue that the stakes here are so high . . . that I would defer to Florida’s judgment that they want to have a risk averse prophylaxis . . . .”

Corn-Revere: “. . . . I think Burt’s summary of the problems of [with Florida’s law] was so succinct and so persuasive that I can’t believe we’re on different sides of the case. . . The difficulty is [that the Florida canon] only prohibits candidates from saying ‘please,’ it is does not prohibit them from saying ‘thank you.’ Hell, they can even host a barbecue for everyone who contributed to their campaign. If you look at the specific goals that [the Florida canon] seeks to address — first, preventing quid pro quo corruption . . .  — [and if you consider what it permits candidates for judicial election to do,] nothing in [the canon] addresses [that] quid pro quo corruption issue. The second interest — promoting impartiality and bias — again, once . . . you’re part of the political fray, you’re going to face those problems. The only issue . . . that [the canon] even attempts to address is the protection against coercion . . . . [But in this case there was no such problem with that.]”

“My view of the First Amendment is that it works in the opposite way [from what Burt suggested]; that it is the government’s burden   to demonstrate not only that there is a sufficient interest in restricting speech in any given instance, . . . but it also has to demonstrate that the means that it has chosen are narrowly tailored to address that interest and do in fact address that interest. That’s where I think [Florida’s canon] falls down.”

There is much more, and I urge everyone to hear the entire podcast, which you can find here.

 Aside: On February 3rd The New Press will release Professor Neuborne’s Madison’s Music: On Reading the First Amendment 

→ See also Jacob Gershman, “First Amendment Rights of Judges in the Spotlight,” WSJ, Jan. 27, 2015 (“In California, the state’s highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.”)

Mary Beth & John Tinker file amicus brief in Supreme Court in 1- case 

Mary Beth Tinker

Mary Beth Tinker

“The need to prevent disruption of the school environment cannot justify restricting students who engage in peaceful symbolic speech simply because others may take boisterous exception.” — Amicus brief on behalf of Mary Beth & John Tinker.

* * * *

The case is Dariano v. Morgan Hill Unified School DistrictThe issue in the case is whether the Ninth Circuit erred (opinion here) by allowing school officials to prevent students from engaging in silent, passive expression of opinion because other students might react negatively to the message, thereby incorporating a heckler’s veto into the free speech rights of students, contrary to Tinker v. Des Moines Independent Community School District (1969).

The American Freedom Law Center is representing the petitioner with Robert Jospeh Muise as counsel of record.

Mary Beth Tinker and her brother John have filed an amicus brief in the Court with Robert Corn-Revere as counsel of record. Eugene Volokh and Ronald G. London and Lisa Beth Zycherman are also listed as counsel for amici curiae.’

Adam Liptak

Adam Liptak

Liptak Speaks at Cornell Law School

New York Times Supreme Court correspondent Adam Liptak recently spoke at Cornell Law School to give the Frank Irvine Endowed Lecture. The title of his remarks was “A New Deal for the First Amendment?”

As reported in the Cornell Chronicle, “Liptak mentioned another possible consideration in applying the law: If judging is, as he phrased it, “weighing competing interests” and “putting a thumb on the scale” in favor of marginalized speech, then should a deciding factor in applying the First Amendment be the relative power of the speaker? Though Liptak did not have an answer to this question, an audience member raised the possibility that a power-based consideration could lead to influential organizations, like major newspapers, being censored.”

Liptak was also quoted as saying: “‘I practiced First Amendment law for 14 years, and I drank the Kool-Aid,” he said, describing his previous faith in the amendment. ‘Over the years, many important decisions have been made using it, including allowing protestors near funerals and decriminalizing flag burning.’ However, he added, ‘there is something troubling we should think about: economic regulations being struck down on the basis of free speech.'”

Chemerinsky reviews three new First Amendment books  Read More

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FAN 44.1 (First Amendment News) — Professor William Van Alstyne weighs in on Citizens United

UnknownIn yesterday’s FAN column I posted the comments of thirteen noted First Amendment lawyers and scholars concerning their views of Citizens United, this on the occasion of the fifth anniversary of the case. One of those who read that column was Professor William Van Alstyne, Perkins Professor of Law, Emeritus, Duke Law School and currently emeritus at the William and Mary School of Law.

As many know, Professor Van Alstyne’s writings on constitutional law and First Amendment have been widely cited by judges and scholars alike. In the free speech area his numerous works include The American First Amendment in the Twenty-First Century (with Kurt Lash, 5th ed., 2014) and his Interpretations of the First Amendment (1990). His scholarly articles in this field include: “Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review,” Law & Contemporary Problems (1990), “First Amendment Limitations on Recovery from the Press — An Extended Comment on the Anderson Solution,” William & Mary L. Rev. (1983), “First Amendment and the Suppression of Warmongering Propoganda in the United States,” Law & Contemporary Problems (1966), and “The Judicial Trend Toward Student Academic Freedom,” University of Florida L. Rev(1967).

Though unsolicited, I was happy to receive Professor Van Alstyne’s comments on Citizens United; those comments are set out below:  

Professor Nadine Strossen’s comments assuredly had by far the more straightforward, compelling and convincing observations re the First Amendment importance and consistency of Citizens United than many  earnest but mistaken critics of the case. No doubt there will continue to be lamentations regarding Citizens United, but it is also correct that there has been no seismic (or even significant) adverse consequences from the Court’s well-articulated explanation of its First Amendment explanation in the case.

Indeed, from a sobering review of the case and of all that one might well consider in thinking about our distinguished First Amendment (the oldest and also the strongest in the entire world), I believe that many (perhaps even most) who favor the opposite outcome will eventually come to regret their support for upholding a government’s dictate restricting what citizens may spend of their own funds to convey their view of a law or of a candidate.

“Levelling down” in this fashion was devastatingly dealt with decades ago by Kurt Vonnegut (a staunch defender of civil liberties) in his five-page wonderful short story, “Harrison Bergeron.” I commend it to the premature, immature, and First Amendment misguided critics of Citizens United.  I hope that some, at least, will take a few moments to read the opinion before joining in the polemics of those who are (like all us in one or another particular way) sometimes unable to see the very special importance of our very special First Amendment. Why? Because they view law from the mote of an obscuring political zeal, blissfully unaware of  a deadly hurricane virtually blotting out the azure blue of freedom’s sky.

2010 State of the Union Address
2010 State of the Union Address
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FAN 44 (First Amendment News) Citizens United: it was 5 years ago today — 13 First Amendment lawyers & scholars offer differing views

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” [President Obama] said of the Citizens United v. Federal Election Commission decision, which allowed corporations to donate to political candidates. Justice Samuel Alito then shook his head and whispered, “not true.” — Tessa Berenson, Time (2015)

On this day five years ago the Supreme Court, by a 5-4 vote, handed down its decision in Citizens United v. Federal Election Commission (transcripts here and here & audio file — argument and re-argumament —  here).

As you will see, the comments below span a wide rhetorical range. On the one hand, some view Citizens United as “one of the worst decisions in the history of the United States Supreme Court” (Geof Stone), while others argue that the Court in Citizens United “reaffirmed and applied core First Amendment principles” (Joel Gora). See below for the full spectrum of views.   

Speaking of money and speech, the Court now has before it a First Amendment challenge to a panhandling law — Thayer v. City of Worcester (distributed for Conference of Jan. 9, 2015).

Before proceeding to the comments, I thought it might be useful to provide a few hyperlinked historical facts about the case. 

The documentary that prompted the litigation

Hillary: The Movie

The Petitioner

The Lawyer for the Petitioner in the District Court

Three-Judge District Court per curiam opinion here

The Lawyers who argued the case in the Supreme Court 

  1. Theodore B. Olson (argued the cause for the Appellant)
  2. Floyd Abrams (on behalf of Senator Mitch McConnell, as amicus curiae, in support of the Appellant)
  3. Malcolm L. Stewart (Deputy S.G., Department of Justice, argued the cause for the Appellee)
  4. Elena Kagan (Solicitor General, Department of Justice, reargued the cause for the Appellee)
  5. Seth P. Waxman (on behalf of Senators John McCain et al. as amici curiae in support of the Appellee)

Five Years Later — Lawyers & Scholars Offer Comments 

Floyd Abrams: “Academics, it seems fair to say, are overwhelmingly critical of the Citizens United ruling. If they were irate about  Buckley v. Valeo (1976) — formerly their consensus choice as the worst Supreme Court ruling since Dred Scott (1856) — they are apoplectic about Citizens United.  At the core of the both rulings is the now familiar proposition first uttered by the Supreme Court in Buckley  and repeated with approval in Citizens United that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” If one accepts that notion, as I do, the ruling in Citizens United follows naturally and a documentary-like movie that castigated Hillary Clinton when she last sought the presidency must be protected by the First Amendment. If one does not, one naturally enough can join the four Citizens United dissenters in concluding that it is constitutional to impose criminal penalties for the airing of that film on television. For me, that was not a difficult choice five years ago and it is not one today.”

See here re brief filed by Mr. Abrams in Citizens United; see also his “Citizens United and Its Critics,” Yale L.J. Online (2010)

Mr. Jan W. Baran

Mr. Jan W. Baran

Jan W. Baran: “The Court was correct to protect political speech by all citizens and groups, including corporations and unions. Current so-called reform efforts, including proposals to amend the Constitution, prove that the First Amendment is all that stands between political freedom and government control of speech. Contrary to President Obama’s dire predictions, corporations are not distorting political debate and foreign money (which is illegal) has not flooded campaigns. It is the Obama re-election committee that became the first campaign to raise and spend $1 billion.  So much for campaign money distorting the system.”

 See here re brief filed by Mr. Baran in Citizens United.

Robert Corn-Revere: “Citizens United is like a political Rorschach Test. But when divorced from its many critics’ policy preferences, it is a pretty straightforward First Amendment case that concludes there are constitutional difficulties with making political speech a federal crime.  And, along the way, the Court reached a number of important (and usually overlooked) constitutional findings. One key conclusion is that “[w]e must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” The Court observed that “[t]he Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.” This fundamental constitutional principle is increasingly important as we witness seismic changes in the global media environment. And it is just one of several important pillars of the case.”

Number of articles about Citizens United in the 27 months following the decision 

New York Times         1100

Washington Post        327

USA Today                  220

Wall Street Journal    195

 This count includes columns and opinion pieces but not blog posts.

 Source: Douglas Spencer & Abby Wood, Indiana L. J. (2014)

Allen Dickerson: “Citizens United has become a symbol onto which politicians and commentators project their own hopes, agendas, and insecurities. But cutting through the rhetoric, the case asked a simple question: on what principled basis could the government ban a nonprofit’s documentary while permitting corporate newspaper endorsements? The Court, correctly, said ‘none.’ Nevertheless, legislatures and regulators continue to draw distinctions between different types of speech, and different types of speakers, and the result is a level of bureaucratic complexity average Americans cannot hope to navigate. Five years after Citizens United showed us our error, burdened by a national debate that yields more heat than light, we continue to avoid the difficult task of reforming that troubling approach to political engagement.”

Professor Joel Gora

Professor Joel Gora

Joel Gora: “The Supreme Court’s Citizens United decision was a landmark of political freedom. By striking down government bans on political speech by labor unions, corporations and non-profit organizations, the Court reaffirmed and applied core First Amendment principles. These include the concepts that protecting political speech against government censorship is at the core of the First Amendment’s mission, that the government cannot be empowered to decide which people or groups can speak about government and politics, what they can say, or how much they can say, and that democracy requires as much information as possible from diverse and antagonistic sources.”

“Embodying these principles, the Citizens United decision has had a number of salutary consequences. It has provided doctrinal support for further easing of campaign finance limits on political speech and association.  Second, the rejection of such limits has turned attention properly to more positive efforts to address our admitted campaign finance system difficulties. Finally, although the predicted tsunami of corporate spending “drowning our democracy” never materialized, the Court’s decision has helped spark an increase in overall political funding which has helped make our elections more competitive and the electorate better informed. All in all, I submit, a good day’s work for political freedom and democracy.”

 See here re brief coauthored by Professor Gora in Citizens United.

Richard Hasen: “After five years, it has become clear that Citizens United is only part of the problem. If the Court reversed it tomorrow (something I am not expecting), we would still have Super PACs funded by very wealthy individuals, loads of undisclosed money coming through 501(c)(4)’s and other organizations, and an increased ability for those with economic power to transform it into political power. It is time to rethink first principles — which is my current book project. Stay tuned.”

→ See Professor Hasen’s Legislation, Statutory Interpretation, and Election Law (ch. 13, 2014) re his comments on Citizens United

Forthcoming Book

Elizabeth Price Foley, Defending Citizens United: How Campaign Finance Laws Restrict Free Speech (Praeger, Oct. 31, 2015)

Alan Morrison: “The fight with the Court over Citizens United should not be over whether corporations have rights to make political expenditures, but whether the Court’s ruling in Buckley v. Valeo (1976) that there can be no limits on independent expenditures and that there are no constitutional or other values that can even be considered in assessing that ruling. Here are some examples.  The pre-Buckley decision in United States v. O’Brien (1968), recognized that the right to political protest could be overcome by the Government’s interest in enforcing its selective service laws. In Burson v. Freeman (1992), the Court upheld a law prohibiting the core political activities of soliciting votes and distributing of campaign materials within 100 feet of a polling place.  And cases like Ward v. Rock Against Racism (1989), would surely support an ordinance that banned sound trucks from blaring at more than 100 decibels at midnight.  Post Citizens United, the Court summarily upheld the law that bans all contributions and independent expenditures solely because the plaintiffs were neither U.S. citizens nor permanent resident aliens.  Bluman v. FEC (2012). (See also here.)”

 See here re brief coauthored by Mr. Morrison in Citizens United.

Professor Tamara Piety

Professor Tamara Piety

Tamara Piety: “Citizens United legitimated the notion that corporations (and capital) are embattled, “disfavored” speakers entitled to the special solicitude of the courts’ counter-majoritarian power, as if they were a discrete and insular minority which lacked access to the political process, rather than a force that is very nearly constituent of it. It relies on an implied (and specious) syllogism: if discrimination against people is bad, and corporations are people, then “discriminating” between corporations and natural persons, or between types of corporations, is likewise bad. This reasoning animates Hobby Lobby (2014) and is echoed in Sorrell v. IMS Health (2011), with “marketing” standing in for “corporation” and “speech” for “people.” This line of argument has destabilized much corporate and regulatory law.  For its proponents, Citizens United has been fabulously successful; but that success has come at some political cost. Citizens United has tarnished the Court’s public image. It seems likely that the decision will be cut back, but how and from which direction is difficult to predict.”

→ See Professor Piety’s Brandishing the First Amendment (2012) re her comments on Citizens United

Ilya Shapiro: “Citizens United is one of the most misunderstood high-profile cases ever and it’s both more and less important than you might think. It’s more important because it revealed the unworkability of our current system of campaign regulation. It’s less important because it doesn’t stand for half of what many people say it does. By removing limits on independent associational speech—spending on political advertising by people unconnected to candidates and parties—it weakened the government’s control of who can speak, how much, and on what subject. That’s a good thing. After all, people don’t lose their rights when they get together, whether it be in unions, non-profit advocacy groups, private clubs, for-profit enterprises, or any other form.”

 See here re brief coauthored by Mr. Shapiro in Citizens United; see also his op-ed “Citizens United Misunderstood, USA Today, Jan. 20, 2015

Professor Geoffrey Stone

Professor Geoffrey Stone

Geoffrey Stone: “Citizens United may well turn out to be one of the worst decisions in the history of the United States Supreme Court. As Oliver Wendell Holmes recognized almost a century ago, the American political system depends upon the reasonable functioning of the “marketplace of ideas.” It has always been clear that that “marketplace” is imperfect. But until now, it was generally able to reflect the views of the majority of the American people. With its decision in Citizens United, the Supreme Court has unleashed forces that seriously threaten to corrupt and distort that “marketplace” in ways that stand the First Amendment on its head and endanger the future of American democracy.”

See Professor Stone’s article “Citizens United & Conservative Judicial Activism,” U. Ill. L. Rev. (2012)

Nadine Strossen: “From President Obama,  in his  State of the Union Address the following week, to major media outlets, the vast majority of Citizens United’s critics misstate its holdings. Almost never mentioned are the crucial facts that it protects the rights of non-profit corporations and unions to spend their own money on their own messages; too often asserted is the falsehood that it permits wealthy for-profit corporations (or anyone, for that matter) to make unlimited contributions to candidates’ campaigns.”

See here re Professor Strossen’s comments on Citizens United

Fred Wertheimer: “The ideologically driven Citizens United decision has left the nation’s campaign finance and political system in shambles. It is one of the worst Supreme Court decisions ever made. The Court ignored the country’s history, its own jurisprudence and the need to protect America’s system of representative government against corruption – a need recognized by the Founding Fathers. Citizens United will not stand the test of time. It will end up in the dustbin of history.”

 See here re brief coauthored by Mr. Wertheimer in Citizens United.

Larry Tribe on Citizens United

Forthcoming: The working title is “Dividing Citizens United: The Case v. The Controversy.” The piece will appear in Constitutional Commentary.

Adam Winkler: “Citizens United is one of the most controversial Supreme Court decisions in a generation. Yet the decision is widely misunderstood by the public. From Occupy Wall Street to the White House, Citizens United has inspired critics who insist that corporations are not people. Yet the Supreme Court did not rely on corporate personhood in Citizens United. Justice Anthony Kennedy’s majority opinion never refers to corporations as people and nothing in the reasoning of the opinion turns on personhood. Justice Kennedy instead insists corporations are “associations of citizens” whose rights derive from the natural people who make up the firm. This is a problematic formulation that hides the corporation and allows the Court to avoid asking hard questions about what rights corporations as such should have. Justice Kennedy’s approach equates a business corporation with a voluntary membership organization like the NAACP, both equally entitled to assert the rights of its members.”

“Corporations are people under corporate law. That was their original purpose. And corporations must have some constitutional rights, such as the right to property and due process. Yet they shouldn’t have all the same rights as people, such as the right to vote or hold office. Constitutional doctrine would be improved if instead of hiding the corporation, we recognized that corporations are indeed people — and then asked which rights these corporate people ought to have.”

See here re Professor Winkler’s “Three Misconceptions in Citizens United

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Event: Citizens United v. FEC after Five Years Read More

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FAN 43.1 (First Amendment News) Two Upcoming Events on First Amendment & Elections

This week there will be two events in Washington, D.C. concerning elections and the First Amendment. One is on the Williams-Yule judicial elections case, and the other is on the Citizens United case.

Speaking of Citizens United, my FAN post for this Wednesday will be devoted to the case, this on the occasion of its fifth anniversary. Among other things, the post will contain comments on the case from noted First Amendment scholars and lawyers.  

Heritage to host event on judicial campaign solicitation case

Tomorrow the Heritage Foundation in Washington, D.C. will host an event titled “Judicial Elections and the First Amendment — Williams-Yulee v. The Florida Bar.” (The Williams-Yulee case will be argued tomorrow.)

The event will feature:

Hans A. von Spakovsky,  a Senior Legal Fellow at Heritage, will host and moderate the event.

Here is a description of the upcoming event:

On January 20, the U.S. Supreme Court will be hearing oral arguments in Lanell Williams-Yulee v. The Florida Bar. At issue is whether a ban on solicitation of campaign donations by judicial candidates in state elections in Florida violates the First Amendment rights of the candidates. Does Florida have a compelling interest in imposing such a ban to preserve the appearance of impartiality of its judges? Is it necessary to ensure judicial independence and maintain public confidence in the judicial system? Does this ban on solicitation violate the First Amendment rights of candidates to engage in political speech and political activity? Does the soliciting of campaign donations involve core political speech? In a post-argument briefing, two First Amendment experts who filed amicus briefs in the case, along with the former Chief Justice of the Indiana Supreme Court, will discuss these issues as well as the oral arguments conducted that morning before the Supreme Court. Moderating the panel will be a former FEC commissioner.

→ For more information, go here.

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Event: Citizens United v. FEC after Five Years

This coming Wednesday the Center for Competitive Politics is sponsoring a conference on Citizens United.

LocationCato Institute


Agenda

9:00 AM: The Story Behind the Lawsuit

  • Michael Boos, General Counsel, Citizens United
Interviewer: TBA

9:20 AM: The Impact on Parties in the age of Citizens United: Are changes needed?

  • Joel Gora, Professor of Law, Brooklyn Law School
  • Neil Reiff, Founding partner, Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.
  • Peter J. Wallison, Arthur F. Burns Fellow, American Enterprise Institute

10:20 AM: Should liberals support Citizens United?

Interviewer:
 Stuart Taylor, Jr.Author, freelance writer and a Brookings Institution nonresident senior fellow

  • Ira Glasser, former Executive Director, ACLU
  • Gabe Rottman, legislative counsel, ACLU
  • Wendy Kaminer, Author, lawyer, social critic and contributing editor of The Atlantic

11:20 AM: Beyond Citizens United: the future of campaign finance jurisprudence

  • Bobby R. Burchfield, Partner, McDermott Will & Emery LLP
  • Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Bradley A. Smith, Chairman and Founder, Center for Competitive Politics, Judge John T. Copenhaver Visiting Endowed Chair of Law at the West Virginia University, former FEC Chairman
Interviewer:
  • Matea GoldThe Washington Post
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FAN 42.1 (First Amendment News) High Court denies cert in 2 campaign finance cases

Earlier today the Supreme Court issued its orders. Those orders included a denial of cert. in Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission and in Vermont Right to Life Committee, et al v. Sorrell [ht: Ilya Shapiro]

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 (to be argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Berger v. American Civil Liberties Union of North Carolina (license plate case) (no date set for OA)
  5. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (no date set for OA)

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