Tagged: Election law

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FAC 5 (First Amendment Conversations) Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book  

I have spent a lifetime fighting for a very broad First Amendment, keeping the government out of the First Amendment. But I have also said that there is a terrible price that one pays for that. — Burt  Neuborne, “The Open Mind” with Richard D. Heffner, January 16, 1997

He is not a pause-button sort of guy / he is not one to vanish into the void / he is not a fellow you forget / and he is never one to forsake a debate or turn down a chance to raise a rebellious lance. He is animated / calibrated / cultivated / complicated / and always opinionated. He is Bill Brennan on overdrive . . . and then some!

Yes, he is Burt Neuborne, the Norman Dorsen Professor of Civil Liberties at New York University Law School. And he has a new book (Madison’s Music: On Reading the First Amendment), about which I will soon say more — but first a few biographical notes, if only to set the stage for the Madisonian music to come.

* * * *

Young Neuborne, HLS 1962

Young Neuborne, HLS 1962

After graduating from Cornell University in 1961, Neuborne studied constitutional law at Harvard under Albert Sacks and had Henry Hart for federal courts. He took a seminar in English Legal History from Samuel Thorne. His Harvard Law School classmates included Michael BoudinStephen BreyerBert Rein, and Patricia Schroeder. Given his interests in the law at that time, it seemed that young Burt Neuborne was destined to be either a public-interest lawyer or a professor. As it turned out, he became both, but it didn’t start out that way.

Had Fortuna not intervened, Neuborne might have continued to be an estate-planning lawyer for the well-heeled of the Eastern corridor. That, at least, is how things looked a half-century or so ago for the young Harvard graduate: “I went to Wall Street for three years after graduation, at a small blue chip firm, Casey, Lane & Mittendorf. [From 1964-1967] I specialized in estate planning for the ultra-rich.” That brand of life-in-the-law was not, however, meant to be his calling. His life-change was the child of chance: “My big break came when a lawyer for the NYCLU transferred into my Army Reserve unit. When a job opened up at NYCLU, I went for it, although my father-in-law almost killed me.” Thankfully, his father-in-law’s homicidal tendencies abated, and with that twist of fate Burt Neuborne’s career traveled along a far different track, one in civil liberties law.

Thus did things begin. And when they did he quickly found himself working in the shadow of some of the ACLU’s brightest lights: “In those days,” he told Joseph Berger, “the NYCLU and ACLU were both located in a building in the Flatiron district honeycombed with left-wing organizations. Aryeh Neier was the NYCLU director. Ira Glasser was associate director. Ruth Bader Ginsburg was a director of the ACLU’s women’s rights project. ‘By the second day I knew this was what I was going to do,’ said Neuborne.” Between 1967 and 1973, Neuborne first worked as staff counsel for the NYCLU and thereafter as the ACLU’s assistant legal director. Later, he served as the National Legal Director of the ACLU from 1981-86.

“I verge on the obsessive,” he once said. How very true.

Burt Neuborne is a scholar / activist / teacher / author / litigator / and one-time actor . . . and rather hyper and quite self-motivated. He has done much and is committed to doing yet more. The Bronx-born lawyer has argued several Supreme Court cases, including Clark v. Community ore for Creative Non-Violence (1984) (the case of the homeless who wanted to sleep in Lafayette Park to protest their plight). Though he lost in the High Court (7-2), earlier he managed to win the Clark case by a 6-5 en banc vote in the DC Circuit, with then Judge Ruth Ginsburg casting the swing vote (though she found “the case close and difficult”).

Neuborne was the founding Legal Director of the Brennan Center, which he oversaw from 1995-2007. Much of  its focus, then and now, relates to efforts to reinforce American democracy and secure campaign finance reform. During the late 1990s, Neuborne authored Building a Better Democracy: Reflections on Money, Politics and Free Speech (Brennan Center for Justice at NYU School of Law, 1999). Consistent with that, the Center has pursued a constitutional course (see, e.g., here, herehere and here) in tune with what Neuborne argued in Nixon v. Shrink (2000) when he opposed the First Amendment claim raised in that campaign finance case. To the same effect, he filed amicus briefs in opposition to those of the ACLU in the following cases:

More recently, he filed an amicus brief in Williams-Yulee v. Florida State Bar on behalf of himself and three other “past leaders of the ACLU” — this time he was on the winning side thanks to Chief Justice John Roberts’ unexpected vote. And Neuborne has debated Floyd Abrams on the pages of The Nation (2011), this on the topic of the legitimacy of Citizens United. (See also here for  video of Intelligence Squared debate with Floyd Abrams and Nadine Strossen).

* * *  *

Screen Shot 2015-03-08 at 10.30.38 PMFebruary 17, 2015 – 6:00 p.m, New York University Law School, Vanderbilt Hall: It was one of the high points in his long and diverse career. It was the Inaugural Lecture of the Norman Dorsen Professorship in Civil Liberties, and the all-smiling Burt Neuborne was the one to give that lecture named after his long-time friend (video here). In the course of that distinguished lecture, Neuborne admitted: “I have to confess . . . , I signed the [ACLU] brief in Buckley v. Valeo” (1976). Before anyone had a chance to gasp, however, he changed gears and branded his earlier action as a mistake. And then with his characteristic bravado, he added: “Today we live under an imperial seven-word free speech clause that redoubles its deregulatory efforts long after it has lost sight of its Madisonian goals.”

There is, of course, more to the First Amendment story of this man who has been a force in our free-speech world and will likely continue to be one. But my biographical sketch ends here, save for one more comment.

Bottom line: Make of Burt Neuborne what you will — admire him or abhor him — but don’t ignore him, for his roller-coaster-of-a-life-ride has yet to run its daring and twisting course.

_____________________

See here re SCOTUSblog six-part video interview series with Neuborne.

→ See here for curriculum vitae

                           → SeeJustice Sotomayor joins in discussion of Burt Neuborne’s New Book,”                                                      First Amendment News/Concurring Opinions,  March 25, 2015

_____________________

The First Amendment is about making democracy work. — Burt Neuborne (Oct. 2014)

Question: The cover of your book has a photo of an 1816 painting of James Madison by John Vanderlyn (1775-Unknown1852). The image on your book, however, cuts off the top of Madison’s face so that his eyes are hidden. When you first saw a mockup of the jacket, did that fact catch your eye? If so, what did (or now, what do) you make of it?

Neuborne: I liked the veiled and somewhat mysterious image. It reinforces my sense of how difficult it is to recapture the past.

Question: In many ways, Madison’s Music: On Reading the First Amendment (New York University Press, 2015, 272 pp.) is unconventional, starting with its touching full-page dedication to your Father (“Odysseus the Tailor”) / to the poetic cast of the first chapter with a nod to Wallace Stevens / to the textual analysis that informs your theoretical arguments concerning democratic government / to the various historical and conceptual narratives that both challenged and inspired Madison / to the book’s ending which comes full circle with poetic nuance.

Why did you elect to approach your subject with literary and artistic flare rather than by way of a more traditional approach? Read More

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FAN 59 (First Amendment News) Williams-Yulee — The Ruling Few Expected . . . & the One Few Will Remember

Now everything will be funneled through a candidate’s committee, which everyone will understand is really just the judge or lawyer-candidate under an authorized cover. —Alan Morrison (May 4, 2015)

Let’s begin with the numbers: Williams-Yulee v. The Florida Bar  is the

  • thirty-eighth free expression opinion rendered by the Roberts Court;
  • the eighth case during the Chief Justice’s tenure involving elections and campaign funding;
  •  the ninth five-four split in a Roberts Court free expression case;
  • the sixth five-four split in a campaign-finance case; and
  • the first of four First Amendment free expression cases the Court has agreed to review this Term.

Two more facts:

  • Williams-Yulee is the thirteenth majority (plurality re Part II) opinion by the Chief Justice — he has authored more majority opinions in the First Amendment free speech area than anyone else. Justices Anthony Kennedy and Antonin Scalia are next in line with five each.
  • Finally, it bears noting that this is the second time the Chief Justice Roberts has found a compelling state interest sufficient to trump a First Amendment claim. See Holder v. Humanitarian Law Project (2010).

Okay, enough with the numbers.

Question: Just how important is the Chief’ Justice Roberts’ Williams-Yulee opinion?

Answer: Not very, for the most part, that is. Here is why I say so — aided by some of the insights offered by my friends and colleagues who participated in the SCOTUSblog symposium (see listing below) on Williams-Yulee. I also offer a few related observations.

Seven ways to think about Williams-Yulee  . . . & then forget about it: 

  1. The Good for One Time Only Holding: Yes, John Roberts jumped ship in a First Amendment case and broke ranks with the “tenacious trio” (Scalia, Thomas, and Alito). But don’t count on that happening again unless you believe in the GOD of SUPREME COURT MIRACLES. And don’t expect strict scrutiny to be so relaxed in future First Amendment cases. By the same token, don’t assume that a majority will settle for such a wide fit when it comes to applying the narrowly tailored doctrine in any other First Amendment free expression cases (national security, government employee speech, and student speech excepted).
  2. Limited to the Facts of this Case Only: For all the ink spent on safeguarding public confidence in the integrity of elections, know this: Williams-Yulee is likely to confined to the particular facts of the case — and not a comma beyond it. With that in mind, consider the fact that this was a case of a judicial candidate personally soliciting campaign funds. It was not a case of a  PAC or a corporation or a wealthy donor doing likewise in order to support that same judicial candidate. Or even hosting a fundraising event for such a judicial candidate, replete with that candidate present.  Nor was it a case of a judicial candidate making campaign promises as to how he or she would rule in a general class of cases.
  3.  A New Holding that Bows to an Old One: The rule of Republican Party of Minnesota v. White (2002) — the case that James Bopp, Jr., successfully argued and the one in which Justice Scalia wrote for the majority — will likely continue to be the First Amendment mainstay in most, if not all, other judicial election cases.
  4. The Judicial Elections Exception to the First Amendment: As evidenced by what it did in United States v. Stevens (2010) and in Brown v. Entertainment Merchants Association (2011), the Roberts Court has sometimes clung to the notion that speech is at least presumptively protected unless it falls into some category of historically unprotected expression. On that very point, Justice Scalia’s dissent (joined by Justice Thomas) took issue with the majority opinion: “Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation. (citation omitted). No such tradition looms here.” As Ilya Shapiro pointed out, we now have a new exception to the First Amendment, which brings the number to 44 exceptions depending on how you count them.
  5. The Reinvigoration of Disclosure Requirements: One ongoing question in the campaign-finance First Amendment arena is the extent to which the Roberts Court will uphold various disclosure requirements. On this important point, Justice Kennedy (writing for himself alone) noted: “Indeed, disclosure requirements offer a powerful, speech-enhancing method of deterring corruption – one that does not impose limits on how and when people can speak. He then added: “‘Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.’ Based on disclosures the voters can decide, among other matters, whether the public is well served by an elected judiciary; how each candidate defines appropriate campaign conduct (which may speak volumes about his or her judicial demeanor); and what persons and groups support or oppose a particular candidate.” Question: Will all this praise of disclosure requirements be confined to the narrow facts of Williams-Yulee? Stay tuned!
  6. More Free-Speech Protections Under State Constitutions? It is one of the cornerstones of federalism: A state Court may rely on its own constitution to provide greater rights than those guaranteed under the Federal Constitution, provided it does not violate any federal laws. By that constitutional measure, assume that, say, Arizona had a law identical to the one sustained in Williams-Yulee. Assume furthermore that the state high court in considering the constitutionality of that law under its state constitution concluded that the law was not narrowly tailored and thus struck it down. Assuming that the independent and adequate state grounds doctrine were satisfied, a state court might well take its analytical cue from the dissenters in Williams-Yulee (much as liberal state court judges once took their cue from the dissenting opinions of Justices Brennan and Marshall during the Burger and Rehnquist Court eras).
  7. Does it All Come Down to Recusals and Due Process Challenges? Given the problems that arise when judges run for election, it may be that the only road to fairness, consistent with the demands of the free speech provisions of the federal and state constitutions, are stronger recusal rules and a fortified version of the due process claim sustained in Caperton v. A.T. Massey Coal Co. (2009).  In this regard, it is important to note, as the Caperton majority did, that the objective standards of  due process do not require proof of actual bias.

A Different View of Williams-Yulee

As with anything in the First Amendment world, others have a different take on Williams-Yulee and see it as significant and even a a sign of things to come: “Roberts’ authorship of the decision was pivotal, and not just because he is chief justice. Roberts has overseen a trend during his tenure toward loosening restrictions on campaign speech and money on First Amendment grounds,” is how Tony Mauro saw it. And as Professor Rick Hasen told Mauro: ““This is a huge win for those who support reasonable limits on judicial elections, and getting [Chief Justice John] Roberts on this side of the issue is surprising, welcome, and momentous.”

Contributors to SCOTUSblog symposium on Williams-Yulee

  1. Ronald Collins, “Foreword: Are elected state judges now ‘above the political fray’?
  2. Floyd Abrams, “When strict scrutiny ceased to be strict
  3. Jessica Ring Amunson, “A rare case indeed
  4. Lawrence Baum, “The Justices’ premises about judicial elections
  5. Robert Corn-Revere, “For Judges Only
  6. Robert D. Durham, “Yes, it can hurt just to ask
  7. Joseph Grodin, “The distinctive character of judging
  8. Ilya Shapiro, “The judicial-elections exception to the First Amendment
  9. Matthew Streb, “Much ado about nothing?
  10. Josh Wheeler, ““Seem familiar?” and other random musings on Williams-Yulee

See also, Alan Morrison, “Williams-Yulee – The ruling with no real-world impact,” Concurring Opinions, May 4, 2015

Pamela Geller — Free Speech’s Controversial Defender

Screen Shot 2015-05-05 at 8.22.45 AM

 

She is an articulate defender of free speech / she is a political firebrand / she is an unabashed self-protmoter and media persona / she is a fearless blogger / she is the co-author of The Omama Administration’s War on America (2010) / she is the president of the American Freedom Defense Initiative / she actively  leads various “violent jihads” campaigns  / and she is one of the co-founders of Stop Islamization of Nations. Read More

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FAN 58.1 (First Amendment News) Alan Morrison, “Williams-Yulee – The ruling with no real-world impact”

My friend Alan Morrison recently sent me a few short observations he had concerning the new ruling in Williams-Yulle v. Florida State Bar. I thought his comments might be of some interest to FAN readers.

Alan is the Lerner Family Associate Dean for Public Interest & Public Service at George Washington Law School and has argued twenty cases in the Supreme Court, including Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976) in which he prevailed.  

* * * * *

This was a case that never should have happened. I say this for two reasons, both of which support the proposition that it will not have much impact in judicial elections.

Alan Morrison

Alan Morrison

First, one part of petitioner’s original state law defense was that she did not think that the ban on candidate solicitation applied because the Florida rule kicks in only when there are adverse candidates and the incumbent had not yet decided to run again.

Second, the ban only applied if the candidate “personally solicit[ed]” contributions, and most people would not think that a mass mailing and a posting on a website would fall under that ban, especially because the Florida solicitation Rule 4-7.18 (a)(1) expressly distinguishes in person from written communications.

Those “mistakes” are not legal excuses under the law. Nonetheless, they do show that this was not a test case because if one wanted a test case, no such defenses would have been raised. They also suggest that the Florida bar should have simply given petitioner a warning and never filed formal charges against her.

In terms of its real-world impact, the Florida law expressly allows a candidate’s committee to do what petitioner did here and much more. Thus, why would anyone who understands the breadth of the law try an end run? In other words, why take the risk that Ms. Williams-Yulee did when there is a much easier and far safer way to secure campaign cash? The more significant issue, and the one on which the majority of the amicus briefs supporting Florida focused, is whether direct in-person solicitation of contributions violated the First Amendment. Now that written mass mailings and websites from the candidate and not the committee can be proscribed, the in person solicitation ban is plainly constitutional, although one wonders if it would be applied to family members, law partners or college roommates – assuming that the Bar found out about such a case and were silly enough to bring it.

In short, Williams-Yulee is likely to be a one-off decision that will eliminate almost no solicitations that any real candidate, let alone a sitting judge, will want to make in any state with a rule like Florida’s. Thus, aside from not clearing petitioner’s reputation, the decision will not cut back on much in the way of either solicitation or other communication about judicial candidates, meaning that the practical damage to the First Amendment, if any, will be quite modest. Now everything will be funneled through a candidate’s committee, which everyone will understand is really just the judge or lawyer-candidate under an authorized cover.

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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

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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

__________________

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

3

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.

 __________________

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
Posner
8

The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, Spring, 2015) by William Domnarski.

Posner
3

On Free Expression & the First Amendment — More Questions for Judge Posner

 The American concept of freedom of speech poses a challenge to the pragmatist because, like ‘democracy,’ it is the repository of a great deal of unpragmatic rhetoric. It is at the heart of the American ‘civil religion,’ a term well chosen to convey the moralistic fervor in which free speech is celebrated. — Richard Posner (2003)

This is the sixth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, and the fifth one here.  

Here, as elsewhere, controversy is never far from the conceptual corner where Richard Posner lingers. Merely consider, for example, the following point he made in a 2001 article: “political free speech is not an unalloyed blessing.” Or consider his take on the most famous line from NYT v. Sullivan — he tags it (see below) “empty rhetoric.” Or think about his views on privacy and the First Amendment (see Glenn Greenwald’s criticisms below). Such comments are sure to raise skeptical eyebrows among the rah-rah First Amendment crowd.

Then again, that crowd happily hails the Judge for the robust defense of free speech he displayed in NAACP v. Button (1963), which he takes credit for authoring while he was a law clerk to Justice William Brennan. And then there are his opinions in cases such  American Amusement Machine Association v. Kendrick, the violent video game case. For staunch conservatives, such as Justice Clarence Thomas, protection of such expression “does not comport with the original public understanding of the First Amendment.” No matter, Posner paves his own path, sans any Hugo Black-like passion in defense of free speech or any Clarence Thomas-like zeal in defense of originalism.  

Of course, there is more to be said about Posner’s pragmatic approach to our free speech jurisprudence, and on that score some will approve and others not. In the tumble of it all, he remains a Maverick, which is how he likes it.  

Some of the Judge’s more notable writings on free expression can be found in the following works:

  1. Economic Analysis of Law (9th ed. 2014) (chapter 29)
  2. Not a Suicide Pact: The Constitution in a Time of a National Emergency (2009) (chapter 5)
  3. Law, Pragmatism and Democracy (2003) (chapter 10)
  4. Frontiers of Legal Theory (2001) (chapter 2)
  5. The Speech Market and the Legacy of Schenck,” in Lee Bollinger & Geoffrey Stone, eds., Eternally Vigilant: Free Speech in the Modern Era 121 (2002)
  6. Pragmatism versus Purposivism in First Amendment Analysis,” 54 Stanford Law Review 737 (2002)
  7. Free Speech in an Economic Perspective,” 20 Suffolk University Law Review 1 (1986)

For a sampling of his First Amendment opinions, go here and search “First Amendment.”

Below are some questions, on the topic of free expression and the First Amendment, that I posed to the Judge followed by his replies. (Note: Some links will only open in Firefox or Chrome.)

NB: A segment of this post, quoting a well-known journalist, has been temporarily omitted because of a strong objection. I will explain why in this Monday’s post.      

Question: Is speech overprotected by our courts and in our culture?

Posner: I think so. The most notorious example is expenditures on political advertising — Citizens United and its sequels.

Question: Though the Pentagon Papers Case (1971) is much celebrated in First Amendment circles, you seem to think that the Court might have gone too far. Two questions:

  1. What is your criticism of the case?
  2. Does over classification of national security information raise a a First Amendment issue?

Posner:

  1. I don’t think there is a right to read classified material. National security classification is one of many sensible exceptions to freedom of speech, along with threats, trade secrets, defamation, distribution of child pornography, lawful wiretapping and other lawful searches for communicative material, copyright infringement, and much else.
  2. It could, if there were no security justification.

Question: The so-called “war on terrorism” is unlike the Great Wars in that the enemy is ever changing and even hard to identify and the duration of the conflict is indeterminate. How does this affect the calculus of free speech “in wartime”?

Posner: I don’t see why the nature of the military conflict should make a difference.

Question: You have written that “some restrictions on speech actually promote speech.” That general idea seems to be getting some traction among egalitarian-minded liberal scholars dissatisfied with certain tenets of current free speech doctrine. Can you say more about your thinking here, especially as it might apply to the liberal defense of speech restrictions?

Posner: An obvious example is copyright protection, which restricts speech (the speech of copiers) but promotes speech overall by granting legal protection to original speech. Another obvious example is restricting the number of speakers in a political debate so that the debate won’t degenerate into an unintelligible babble of interruptions. Similarly one doesn’t want to allow the use of threats to silence people. A subtle example is the censorship of the Elizabethan theatre, which may well have promoted creativity by forcing playwrights like Shakespeare to situate contemporary problems in exotic times and places, in order to get by the censor.

Question: You pride yourself on being a “balancer,” as one who compares the social pluses and minuses of restrictions on free speech. Can you be an effective balancer absent a reliable record of the actual or even conjectural harms and benefits of speech? And what if the lawyers, as if often the case, tender no reliable empirical evidence one way or the other? Who wins, where is the conceptual default? Or must the reviewing court do its own research to resolve the question?

Posner: I don’t know how much empirical work has been done on the subject. In its absence, there is just guesswork, although the basic structure of American free speech law seems okay. Some of it strikes me as silly, notably granting rights of free speech to school kids.

[RKLC: 12-12-14: See William Baude’s commentary here.]

Question: Whatever its shortcomings, one of the benefits of a category-based approach to free speech (combined with certain tailoring tools, e.g., overbreath, etc.), is judicial efficiency. The rules are not unworkably open-ended and subjective, and are therefore relatively manageable for judges and lawyers alike.

  1. Mindful of that, how judicially efficient is your economic-based approach with its assorted variables? – e.g., taking into account and balancing the relevant benefits (B), harms (H), offensiveness (O), probability (P), the number of years between when speech occurs and when the harm is likely to materialize, and the administrative costs of a regulation (A).
  2. What about lawmakers, the focus of the First Amendment (Congress shall make no law . . . )? How likely are they to engage in such sophisticated cost-benefit analysis? Is your proposed approach a realistic test for them to employ in considering the constitutionality of proposed laws affecting speech?

Posner:

  1. One can hardly exclude offensiveness, other harms, probability of harm, remoteness of harm, etc. from consideration, any more than you can do that in an ordinary tort case.
  2. Do lawmakers ever do sophisticated cost-benefit analysis?

Question: In cases such as Holder v. Humanitarian Law Project (2010), is the purported harm so great as to preclude any meaningful balancing? It was precisely that concern that prompted Justice Stephen Breyer to complain in dissent: “I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion.”

How would you weigh in on this? By your standards, was Holder a case of failed balancing?

Judge Learned Hand

Judge Learned Hand

Posner: I haven’t read the case.

Question: You have expressed some conceptual approval of Judge Learned Hand’s opinion in United States v. Dennis (1950) in which he upheld the convictions of eleven Communist Party leaders for violating the Smith Act. Do you agree with the judgment in that case? Please say a few words about why you agree or disagree with the Dennis judgment.

Posner: Hand’s formula in Dennis is I think fine—it is a variant of the famous Hand negligence formula from his opinion in Carroll Towing. The Communist Party leaders were essentially agents of the Soviet Union, so I don’t see why their speech should be thought privileged by the First Amendment.

Question: Don’t phrases like “clear and present danger” (which, by the way, was used by the attorney Benjamin W. Shaw in 1918) invite, as Paul Freund suggested in 1949, a kind of mantra-like application devoid of the kind of realist and pragmatic balancing you endorse?

Posner:  It’s a dumb phrase. A murky remote danger could be very great.

Question: Based on what you know in light of the book you edited on Holmes, did he get the judgments right in Schenck, Frohwerk and Debs?

Posner: Probably not in Schenck or Debs; I don’t recall Frohwerk.

Question: “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . .”

Do you consider those lines from New York Times Co. v. Sullivan (1964) to be “unpragmatic rhetoric”?

Posner: Empty rhetoric.

 Question: The Rehnquist and Roberts Courts have said relatively little about textualism when it comes to free speech and press issues. Why do you suppose that is?

Posner: There is no text. “Freedom of speech” is a heading, not a test.

Chief Justice John Roberts

Chief Justice John Roberts

Question: The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amendment jurisprudence of the current Court?

Posner: Very nice for fat cats and enemies of abortion.

Question: You have long been on record as being a critic of the Court’s decision in Buckley v. Valeo (1976). You maintain that the “American system of campaign financing is extremely porous and is widely and probably correctly believed to constitute a thinly disguised system of quasi-bribes of elected officials; at the very least it tilts the playing field very steeply toward the wealthy and the well organized . . . .” Given that, how bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)?

Posner: Very bad.

Question: Do you favor some kind of constitutional amendment to remedy the problems you have identified

Posner: [The idea of a constitutional amendment is] a waste of time.

Posner on Roberts

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. [Source here]

Question: In his dissent in McCutcheon v. FEC (2014), Justice Breyer declared: “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” What is you view on this idea “collective speech” and the First Amendment?

Posner: A little high-falutin’ for my taste. I would just say that large corporations and wealthy people shouldn’t be allowed to buy elections.

Question: Despite your criticisms of Buckley and its progeny, you have also expressed serious doubts about campaign finance reform proposals. Please explain why you think such efforts are problematic.

Posner: Have I? I don’t recall

Question: In Frontiers of Legal Theory you wrote: “Individuals or groups that have more money than the average amount of money have always had more than the average ability to spend money on trying to influence public opinion. We do not consider such inequality a compelling reason for limiting free speech.” Do you still believe that?

Posner: The mere fact of inequality is not critical. And it would be very difficult for a new candidate to get launched without access to substantial donors. The problems are the concealment of the identity of big donors, the implicit quid pro quo (donor is buying influence, and donee who is not influenced is unlikely to obtain substantial future donations), and the failure to place some ceiling on the amount of donations that a particular individual should be free to make. And I doubt that companies as distinct from individuals should be permitted to make campaign contributions.

Question: As you know, the speech in question in Citizens United involved a political documentary titled Hillary: The Movie. A conservative non-profit group sought to air it within 30 days of the primary. During oral arguments in the case, the question was asked: “What if the particular movie involved here had not been distributed by Video on Demand? Suppose that people could view it for free on Netflix over the Internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.”

 How would you answer that question? Is it your position that showing that political documentary and/or publishing a book on it during an election is not protected speech under the First Amendment?

Posner: The question is the scope of protection. I don’t think the First Amendment should be interpreted to prevent government from limiting the amount of broadcasting (or equivalent, like movies) in the last few weeks before a national election.

Question: What is your view of the secondary effects doctrine as it has been applied by the Court and lower courts since its use in Renton v. Playtime Theatres, Inc. (1986) and then again in Barnes v. Glen Theatre (1991), which overruled an opinion that you authored. In 1988, your former boss, Justice William Brennan, warned that the doctrine “could set the court on a road that will lead to the evisceration of First Amendment freedoms.” Do you agree? Where do you stand on this matter?

Posner: I don’t think there’s anything wrong with it if it is supported by real evidence, though I think it was misapplied in the Barnes case because there wasn’t any evidence that nude dancing promotes crime to any significant extent.

The next installment, the seventh, in the Posner on Posner series was scheduled to be “On Judicial Reputation.” It will now be preceded by a special post on free speech and privacy.  

3

RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).