Tagged: Supreme Court

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FAN 56 (First Amendment News) Floyd Abrams Signs Contract to do Third Book on Free Speech

Floyd Abrams

Floyd Abrams

If only he didn’t so much enjoy the lawyering life, Floyd Abrams might have been a law professor. For he surely savors publishing books and articles. Witness his Speaking Freely: Trials of the First Amendment (Penguin, 2006), followed by his Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013) — this in addition to numerous law review articles and op-eds (see here).

Now, only a little more than a year since his last book was published, Mr. Abrams has signed a contract to do yet another book on free speech. Its title: Why the First Amendment Matters. The book will be a part of the “Why X Matters” series published by Yale University Press. Other works in that series include Mark Tushnet’s Why the Constitution Matters (2011) and Louis Begley’s Why the Dreyfus Affair Matters (2010).

The work will be in the 30,000-40,000 words range with a submission date of November 15, 2015. Steve Wasserman is Abrams’ editor. Mr. Wasserman is the former editor of the Los Angeles Times Book Review and served as the editorial director of Times Books and publisher of Hill & Wang, an imprint of Farrar, Straus & Giroux. He is a past partner of the Kneerim & Williams Literary Agency and is currently the executive editor at large for Yale University Press (he specializes in trade publications).

The 78-year-old Abrams shows no signs of retiring anytime soon and continues to manage a full workload (and then some) as a practicing lawyer. That said, he still has a ways to go to top the publishing record of another First Amendment lawyer, Theodore Schroeder (1864-1953) — the co-founder of the Free Speech League (the precursor to the ACLU) and the author of several books on free speech.  To be fair, however, Schroeder was more of a writer and activist than a litigator, so he did not have to worry about the demands of being a full-time practitioner.

 See also Floyd Abrams, “Libert is Liberty” (March 16, 2015 speech at Temple University Law School)

Go here for a list of practicing lawyers who have written books on free speech.

 Forthcoming Event: Floyd Abrams Institute: Freedom of Expression Scholars Conference # 3 (Saturday, May 2, 2015 – 8:15 a.m. to Sunday, May 3, 2015 – 5:15 p.m.) (Mr. Abrams will be in attendance)

Hillary Clinton: ‘I would consider’ anti-Citizens United amendment

The movie that gave rise to the Citizens United case

The movie that gave rise to the Citizens United case

This from an MSNBC news report: “Taking questions from Facebook users at the social media giant’s California headquarters Monday evening, Clinton expressed some interest in the idea. ‘I would consider supporting an amendment among these lines that would prevent the abuse of our political system by excessive amounts of money if there is no other way to deal with the Citizen’s United decision,’ she said in response to a question on the measure.”

“Taking questions from Facebook users at the social media giant’s California headquarters Monday evening, Clinton expressed some interest in the idea. “I would consider supporting an amendment among these lines that would prevent the abuse of our political system by excessive amounts of money if there is no other way to deal with the Citizen’s United decision,” she said in response to a question on the measure.”

→ See also YouTube video clip here.

Garry Trudeau Takes Aim at Charlie Hebdo — Critics Fire Back  Read More

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FAN 55 (First Amendment News) Another Sign Case Comes to the Court

The “necessity and wisdom of using eminent domain” are “matters of legitimate public debate.” — Justice John Paul Stevens, Kelo v. City of New London (2005)

Screen Shot 2015-04-06 at 11.17.08 PMThe Court currently has a sign case before it, one that was argued on January 12th. That case is Reed v. Town of Gilbert. Now it has another one just presented to it: Central Radio Co., Inc. v. City of NorfolkHere is how the petition opens:

“Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.”

The two issues presented to the Court are:

  1. Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Central Radio’s protest banner?
  2. Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?

B y a 2-1 margin, the Fourth Circuit Court of Appeals answered both of those questions “yes” and thus denied the First Amendment claim. Judge Barbara M. Keenan wrote the majority opinion which was joined in by Judge G. Steven Agee with Judge Roger Gregory dissenting in part.

Among other things, in her majority opinion Judge Keenan observed: “It is undisputed here that the plaintiffs’ 375-square-foot banner would comport with the City’s sign code if the banner were reduced to a size of 60 square feet. We recently have deemed such an alternative to be adequate upon comparable facts.’ And also this: “Even assuming, without deciding, that the City’s past refusal to enforce strictly the sign code constituted evidence of discriminatory effect, dismissal of the plaintiffs’ selective enforcement claim was proper because there was insufficient evidence that the City was motivated by a discriminatory intent.”

Michael E. Bindas

Michael E. Bindas

Judge Gregory took exception to the majority’s content-discrimination analysis: “Why is it that the symbols and text of a government flag,” he argued, “do not affect aesthetics or traffic safety and escape regulation, whereas a picture of a flag does negatively affect these interests and must be subjected to size and location restrictions? I see no reason in such a distinction.” And also this: “This case implicates some of the most important values at the heart of our democracy: political speech challenging the government’s seizure of private property – exactly the kind of taking that our Fifth Amendment protects against. If a citizen cannot speak out against the king taking her land, I fear we abandon a core protection of our Constitution’s First Amendment. Here, Central Radio spoke out against the king and won.”

From Petitioner’s Brief

     This Court’s review is needed to resolve a longstanding, deep division among the courts of appeals over an important and recurring question of First Amendment law: whether a sign code that, on its face, draws content-based distinctions is nevertheless content-neutral simply because the government disclaims a censorial motive or proffers a content- neutral justification for the code. That question has confounded the lower courts ever since this Court’s sharply fractured decision in Metromedia, Inc. v. City of San Diego (1981), failed to yield an answer. As early as 1994, then-Judge Alito noted this confusion and the need for “the Supreme Court [to] provide[] further guidance.” Rappa v. New Castle Cnty. (3d Cir. 1994) (Alito, J., concurring). Then-Professor Kagan similarly observed that this issue is “calling for acknowledgment by the Court and an effort to devise a uniform approach.” Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Sup. Ct. Rev. 29, 77 (1992).

     If this Court resolves this issue in Reed v. Town of Gilbert and does so in a way that calls into question the Ninth Circuit’s approach to assessing content neutrality – the same approach the Fourth Circuit followed in this case – then an order granting certiorari, vacating the Fourth Circuit’s decision, and remanding this case will be warranted. If, on the other hand, this Court does not resolve the issue in Reed, it should grant certiorari to resolve it now.

 Counsel for Petitioner: Michael E. Bindas

→ Randy Barnett, “Can a city suppress speech protesting eminent domain?,” Volokh Conspiracy, April 2, 2015

 Press Conference re filing of lawsuit (May 10, 2012) (YouTube)

Howard Kurtz on “Intolerance” Read More

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FAN 53 (First Amendment News) Justice Sotomayor joins in discussion of Burt Neuborne’s New Book (“Madison’s Music”)

[My colleague Anthony Kennedy’s] approach to [the First Amendment], unlike some of my other colleagues,  is born on a very, very, almost fanatical belief that . . . the essence of democracy is no regulation of speech. Justice Sonia Sotomayor (March 13, 2015)

How could the pie get much sweeter? I mean, who among us is so fortunate as to have a sitting Supreme Court Justice travel to discuss a book we have just published?

Answer: Professor Burt Neuborne.

It is as rare as it is true — on March 13, 2015 Justice Sonia Sotomayor ventured to New York University Law School to join with Dean Trevor Morrison to discuss (for one hour or so) Neuborne’s Madison’s Music: On Reading the First Amendment (The New Press, 2015).  

Burt Neuborne, left, Sonia Sotomayor, & Trevor Morrison

Professor Burt Neuborne, left, Justice Sonia Sotomayor, & Dean Trevor Morrison

As it turned out, the pie did get sweeter when Justice Sotomayor first praised and then commented  on  Madison’s Music: “It’s a fun book for someone who’s not immersed in the law,” she said. “It’s so well written that I heard Burt’s voice in my head as I was reading it. I consider that the highest of compliments to an author.”

Later she asked: “You say that the focus of the First Amendment is democracy. You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”

Neuborne: “I’m sort of shocked that you asked that, because it’s clear that I define it,” he said jokingly, to audience laughter. “But Sotomayor prevailed with the wry rejoinder, ‘No, no, no, you forget, I do,’ “prompting an eruption of mirth and applause.”

“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” Neuborne added. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean — ‘Congress shall make no law abridging speech’ — and having it be sort of automatic, without even thinking about the consequences for democracy.”

When Neuborne took issue with the Roberts Court’s campaign finance line of cases, Justice Sotomayor asked: “How does a Madisonian judge strike on balance [when it comes to those] laws?” To which Neuborne replied: “Great question.” He then proceeded to discuss cases going back to Buckley v. Valeo (1976) and up to the Court’s latest rulings in this area. He took pointed exception to the Court’s “narrow, bribery, quid quo pro definition of corruption.”

Speaking in a very animated way, Neuborne was equally critical of the Court’s notion (one that “I genuinely . . . don’t understand”) that “contributions can create a risk of corruption because you give the money directly to a candidate, but the unlimited spending of money, without coordination with the candidate, doesn’t create a risk of corruption . . . .” He thought that citizens and judges alike need to ask themselves: “What kind of democracy are we trying to protect here?”

Returning more directly to his answer to Justice Sotomayor’s question, Neuborne remarked: “Everybody’s political power should be equal in a democracy, and money shouldn’t corrupt that idea. . . . I think if they adopted a Madisonian reading of the First Amendment  we would change campaign financing regulation overnight.”

Neuborne on Justice Anthony Kennedy

[Justice Kennedy is] the most important First Amendment Judge that has ever sat on the Supreme Court. . . . 

Federal Judges Get Free Book

At the outset of his remarks Professor Neuborne thanked his publisher, The New Press, “a non-profit press that remembers the responsibility of a truly free press in placing new and challenging ideas before the public, and who has helped in making the book available both to every federal judge and in donating the books outside [here today] for you.” 

There is much more, about democracy, free speech, substantive due process, the Second, Third, and Ninth Amendments, media corporations, partisan gerrymandering, and the rule of unelected judges. See video of the event here.

I will be doing a Q&A with Professor Neuborne concerning his new book, the First Amendment, and other things that matter to those in the First Amendment community (divided as it is).

On Corporations: Point – Counterpoint 

 Adam Liptak, “First Amendment, ‘Patron Saint’ of Protesters, Is Embraced by Corporations,” NYT, March 23, 2015

Damon Root, “The New York Times, a Corporation, Worries That the First Amendment Is Now ‘Embraced by Corporations,'” Reason.com, March 24, 2015

Amanda Shanor

Amanda Shanor

“Adam Smith’s First Amendment” — DC Circuit Comes Under Fire

That is the title of a new essay by Robert Post and Amanda Shanor, one that appears in the Harvard Law Review Forum. What troubles the authors is the “recent and aggressive expansion of commercial speech doctrine,” one that they argue has resulted in a “striking turn in our constitutional order.”

The essay was prompted by a decision by the Court of Appeals for the District of Columbia in a case named Edwards v. District of Columbia (2014). (Ms Shanor, a Yale PhD in law candidate and a Yale Law School graduate, is a former law clerk to Judges Judith Rogers (2012-2013) and to Cornelia T.L. Pillard (2013-2014) of the Court of Appeals for the D.C. Circuit.) Read More

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FAN 52.1 (First Amendment News) Court denies review in false political ads law case

This morning the Court released its latest order list. The Court denied cert in Arneson v. 281 Care Committee (see state’s cert. petition here). The Minnesota law challenged in the case provides:

A person is guilty of a gross misdemeanor who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material . . . with respect to the effect of a ballot question, that is designed or tends to . . . promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.

Applying a strict scrutiny standard of review, the Eight Circuit ruled that the law was not narrowly tailored to comply with First Amendment requirements, though the Eight Circuit panel also ruled that the state attorney general was immune from suit under the Eleventh Amendment.

 Tomorrow the Supreme Court will issue opinions in argued cases (see listing below) and may do so again on Wednesday.

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The next great First Amendment battleground, it turns out, is on the back of your car. — Adam Liptak (2009)

UnknownThis morning at 10:00 a.m. ET the Court is hearing oral arguments in the Texas license plate case, Walker v. Texas Division, Sons of Confederate Veterans, Inc. The case was argued by R. James George Jr. on behalf of the Respondent and by the state’s Solicitor General, Scott A. Keller. Some of the more notable amicus briefs were filed by:

See here re an earlier post re license plate cases breakdown of cases and sampling of scholarly literature.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

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

Pending Petitions

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

Review Denied

  1. Arneson v. 281 Care Committee
  2. ProtectMarriage.com-Yes on 8 v. Bowen
  3. Kagan v. City of New Orleans
  4. Clayton v. Niska
  5. Pregnancy Care Center of New York v. City of New York 
  6. City of Indianapolis, Indiana v. Annex Books, Inc.
  7. Ashley Furniture Industries, Inc. v. United States 
  8. Mehanna v. United States
  9. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  10. Vermont Right to Life Committee, et al v. Sorrell
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FAN 51 (First Amendment News) Journalists, Scholars & Others Pay Tribute to Anthony Lewis

Anthony Lewis . . . created a new approach to legal journalism. He combined sophisticated legal analysis with an unparalleled ability to write in plain, lucid English, translating the Court’s decisions, explaining their implications, and assessing their significance for a broad readership. David Cole (May 9, 2013)

Tony Lewis (credit: NYT)

Tony Lewis (credit: NYT)

Anthony Lewis (1927-2013) — reporter, columnist, educator, Pulitzer Prize-winning author, and scholar. He was all of those things and more. I grew up on Tony Lewis (he was born Joseph Anthony Lewis). He was right there, in the New York Times, which in those days you couldn’t get on the Internet – there was none. If you were outside New York you were lucky to find a hard copy at a good hotel or news- stand.  A Lewis column was a staple of one’s diet for those who followed the Court and related matters. And what a corpus of work he set his name to — some 5,600 some articles and columns and five books. That is reason enough to single out the Lewis byline.

→ See Adam Liptak, “Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85,” NYT, March 25, 2013

Happily, the Missouri Law Review recently paid tribute to Tony Lewis in a symposium issue with 13 contributors, several of whom once worked with him and were also close friends of his. (Note: The links below may not open in Safari but should open in Firefox and Chrome.)

  1. Foreword: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis, by Richard Ruben
  2. Keynote: Anthony Lewis and the First Amendment, by Adam Liptak

Articles

  1. Anthony Lewis: What He Learned at Harvard Law School, by Lincoln Caplan
  2. Anthony Lewis: Pioneer in the Court’s Pressroom, by Lyle Denniston
  3. The Rigorous Romantic: Anthony Lewis on the Supreme Court Beat, by Linda Greenhouse
  4. Press Freedom and Coverage in the U.S. and Kosovo: A Series of Comparisons and Recommendations, by Ben Holden
  5. A Tiger with No Teeth: The Case for Fee Shifting in State Public Records Law, by Heath Hooper & Charles N. Davis
  6. Anthony Lewis, by Dahlia Lithwick
  7. Legal Journalism Today: Change or Die, by Howard Mintz
  8. Institutionalizing Press Relations at the Supreme Court: The Origins of the Public Information Office, by Jonathan Peters
  9. Setting the Docket: News Media Coverage of Our Courts – Past, Present and an Uncertain Future, by Gene Policinski
  10. As Today’s Tony Lewises Disappear, Courts Fill Void, by David A. Sellers
  11. Making Judge-Speak Clear Amidst the Babel of Lawspeakers, by Michael A. Wolff

Tony Lewis’ Fantasy

You lead me to tell you my fantasy. A happy fantasy. [It is this:] our next President does the equivalent of what Jefferson did in his first inaugural when he was so hated by the Federalists and began his inaugural speech by saying, “We are all Republicans – we are all Federalists.” The next president sets out to say two things. One, there’s nobody unpatriotic here. We’re all Americans together. And two, this administration is going to be an administration of law; where law has been rolled back, we’re going to bring it to the fore again. This country is a government of laws, not men. That’s my fantasy. Will it happen? I doubt it. But I sure think it ought to. (Sept. 12, 2006 Interview, Walter Lippmann House, Cambridge, Mass.)

Go here for a C-SPAN interview I did with Tony in connection with his book Freedom for the Thought That We Hate: A Biography of the First Amendment (2001).

Media Groups Challenge Claim for Profits in the Defamation Case

Jesse Ventura

Jesse Ventura

The case is Ventura v. Kyle, which is presently before the United States Court of Appeals for the Eighth Circuit. The matter involves a defamation lawsuit brought in federal court by Jesse Ventura (former governor of Minnesota and Navy veteran) against HarperCollins concerning its publication of the book American Sniper by Chris Kyle. Last summer, a jury awarded Ventura $1.8 million from the Kyle estate. The case is now on appeal.

Yesterday Floyd Abrams joined by Susan Buckley and Merriam Mikhail filed an amicus brief on behalf of 33 media companies and organizations contesting the award. In it, the trio of lawyers advanced two main arguments:

  1. The Common Law Does Not Recognize and the Constitution Does Not Permit an Award of a Book’s Profits as a Remedy for Defamation, and
  2. The Award of Profits from American Sniper is Tantamount to an Award of Punitive Damages, Damages that Are Not Permitted Against the Estate

“[T]he law of libel,” they maintain, has “been clear that while damages could be awarded to victims of libel, the awards would be limited to the recovery of money for the injuries said to have been sustained by plaintiffs and not for amounts claimed to have been received by defendants. That proposition has rarely been questioned until this case. Indeed, we know of only one case, decided more than 65 years ago, that is directly on point: Hart v. E.P. Dutton & Co., 93 N.Y.S.2d 871 (Sup. Ct. 1949), aff’d, 98 N.Y.S.2d 773 (App. Div. 1950), appeal denied, 99 N.Y.S.2d 1014 (App. Div. 1950). Rooted in constitutional concerns and the common law relating to libel, the Hart decision holds that a claim for profits may not be asserted in the defamation context. We are aware of no case before or after Hart to the contrary.”

The briefs concludes: “Where, as here, there was no showing of evil intent sufficient to satisfy [Minnesota’s punitive damages law], where, as here, an award of profits can serve no deterrent or punitive purpose, and where, as here, the First Amendment’s abhorrence of exorbitant damage awards untethered to a plaintiff’s true injury is clearly in play, this Court should not be the first to sanction an unprecedented award of a book’s profits.”

 As noted in their amicus brief, the issue of an award of profits in defamation cases is addressed in Dan Dobbs, Law of Remedies: Damages – Equity – Restitution (2d ed.) (“One reason to deny the restitution claim is the threat it presents to free speech. Another is the difficulty of apportioning the publisher’s profit between his own effort and investment and the defamatory material.”)

Geoffrey Stone Weighs in on Oklahoma Expulsion Controversy  Read More

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FAN 49.2 (First Amendment News) Court denies cert in ballot initiative disclosure case

Earlier today the Court  released its orders from the February 27th Conference. There were no cert. grants, but the Justices did deny cert. in one case — ProtectMarriage.com-Yes on 8 v. Bowen. [HT: Rick Hasen]

Some opinions may be released next week.  

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

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

Pending Petitions

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

Review Denied

  1. ProtectMarriage.com-Yes on 8 v. Bowen
  2. Kagan v. City of New Orleans
  3. Clayton v. Niska
  4. Pregnancy Care Center of New York v. City of New York 
  5. City of Indianapolis, Indiana v. Annex Books, Inc.
  6. Ashley Furniture Industries, Inc. v. United States 
  7. Mehanna v. United States
  8. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  9. Vermont Right to Life Committee, et al v. Sorrell
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Barbara Babcock reviews new book on Ruth Bader Ginsburg

Professor Barbara Babcock

Professor Barbara Babcock

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

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

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

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

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

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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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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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On Judicial Reputation: More Questions for Judge Posner

Successful people often are insecure (though they may hide their insecurity behind a facade of bluster); it is what drives them to success. – Richard Posner (1994)

We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy.  Richard Posner (May 5, 2011)

I have never yearned for greatness!  Richard Posner (November 26, 2014)

This is the eighth 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, the fifth here, the sixth here, and the seventh one here.

In Judge Richard Posner’s The Essential Holmes, he echoed a line from Oliver Wendell Holmes concerning John Marshall. This is that line: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Holmes’s resort to the word “ganglion” (meaning a swelling, or mass of nerve cell bodies, or a nerve cell cluster) is rather opaque — his use of the term is not readily apparent. But to tease the Holmesian metaphor out a bit, part of a judge’s greatness depends on a willingness and ability to successfully affect or change the nerve center of a society. In other words, a true capacity to alter something central. The alternative Holmesian account of greatness hinges on a combination of strategy and timing (or one might say Fortuna). That is, judicial reputation depends on a special ability to seize the perfect moment and act boldly – the case of John Marshall, circa, 1803, comes immediately to mind.

Surprisingly, to talk with Richard Posner one might assume from what he says in his all-too-causal manner that he has little or no interest in greatness or judicial reputation as it pertains to him. Strange from a man who has written on book on judicial reputation (not to be confused, he tells us, with judicial greatness) and who in so many ways seems to have a will for greatness. But don’t believe it, he admonishes us emphatically: “I have never yearned for greatness!”  

According to Judge Posner, Cardozo was a highly reputed jurist and Holmes was a great jurist. But what of Posner? Silence. Apparently, he doesn’t care to discuss it. Why? Perhaps because as a maverick jurist (and he is surely that), he cannot appear to seek public approval. And yet, if one were to invoke his own criteria for measuring judicial reputation, Judge Posner would rank quite high. (See e.g., Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991, and Lawrence Cunningham, “Cardozo and Posner: A Study in Contracts,” William & Mary Law Review (1985).) Fine, he might say, brushing it off with a disinterested look. And what of his legal legacy? Of that he claims to care not: “I have absolutely no interest in my posthumous reputation,” he assures us.

So there you have him: a great jurist (or should I say a highly reputed jurist?) who really does not care a bit about being seen as great. Speaking of that subject, see Richard Posner, “The Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511, (1994).

All that said, in what follows, Judge Posner says a few things about these matters in connection with various American jurists.

Note: Some of the links used below will open in Firefox and Chrome but not in Safari.

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Max Lerner

Max Lerner

Question: In his book Nine Scorpions in a Bottle (1994), the late Max Lerner asserted: “There is no recipe for judicial greatness. Yet, if hard-pressed, I should settle for someone with a flexible mind, a compassion for the walking wounded, a refusal to be cowed by power, a capacity to live with the contradictions of life and to separate the permanent from the transient.” And then he added: “That is what I should call a passionately judicial temperament, and only a few have had it.” Before we turn to your own particular views on the subject, what is your opinion of Mr. Lerner’s recipe (albeit tentative) for judicial greatness?

Posner: [As for Lerner’s formula for greatness, I find it] a little puffed up. Forget greatness. A very good judge is a judge who is well educated and intelligent, hard working, willing to write his own opinions, curious about the real-world activities, transactions, and institutions out of which the cases he hears arise, collegial, and aware (so far as anyone can be aware) of his limitations and of the influences that play on him as a result of his upbringing, ideology, career, and temperament.

Posner on the Criteria for Judicial Greatness

For one thing the criteria of judicial greatness are contested. Some might insist that a judge’s greatness consists in the “rightness” of his decisions as judged by the test of time. I think that this is too demanding a standard. Most judicial decisions, even of the agreed-to-be-the-greatest judges, like most scientific discoveries, even of the universally acknowledged greatest scientists, usually are superseded and in that sense eventually proved “wrong.” I believe that the test of greatness for the substance of judicial decisions, therefore, should be, as in the case of science, the contribution that the decisions make to the development of legal rules and principles rather than whether the decision is a “classic” having the permanence and perfection of a work of art. . . Creativity is .  . . one possible criterion ofjudicial greatness. Another . . . . is the gift of verbal facility that enables a familiar proposition to be expressed memorably, arrestingly, thus enforcing attention, facilitating comprehension, and, often, stimulating new thought (in which case the expressive dimension of judicial greatness merges with the creative). [Source here]

Question: Almost a quarter-century ago you called on scholars to pay considerably more attention to “critical judicial study” by way of quantitative analysis of judicial reputation, influence, and achievement. Do you think that call has been heeded?

Posner: A little, not a great deal.

UnknownQuestion: The quantitative analysis you employed in Cardozo: A Study in Reputation (1990) turned largely, and understandably so, on a judge’s reputation within the legal community. But greatness surely extends beyond the confines of that domain and into the larger public realm. How is judicial reputation to be gauged at that macro level? And how does that pursuit of greatness differ, if at all, from one confined to the legal community?

Posner: No one outside the legal profession (with the intermittent exception of politicians) is interested in judges other than Supreme Court Justices. I don’t think it’s healthy for judges to worry about what lay people think of them.

Question: Most judges, you contend, “would rather be regarded as sound than as original, as appliers of the law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.” If a judge takes that creed of moderation seriously, is such a jurist likely to be heralded as great?

Posner: As I said earlier, forget greatness. The judges who adopt the pretense will be respected by many other judges and applauded by legislators, who don’t like the idea of judges making law, though judges to make a great deal of law.

Question: You have suggested that “rhetorical power may be a more important attribute of judicial excellence than analytical power.” Why? And should that be so?

Posner: The analytical issues presented by cases are rarely complex or difficult, though lawyers and judges and law professors try to make them seem so. The insights of the excellent judges tend to be the result of intuition, experience, and temperament rather than of analysis, and the rhetorical power in which they are expressed are important to the persuasiveness and reception of the insights.

None of the [current Justices] has any empirical, technical background. They’re just humanities majors. Richard Posner, Oct. 23, 2014, University of Chicago Law School remarks.

Question: In terms of his position in American law, what single trait do you think best helps to explain Chief Justice John Marshall’s revered and lasting reputation?

Posner: He had a great deal of common sense and government experience, and he wrote forcefully and lucidly.

Justice Joseph Story

Justice Joseph Story

Question: By the time he died in 1845, Justice Joseph Story published twenty-one books after his three-volume Commentaries on the Constitution of the United States, which was a major legal work for its time and long afterwards. And he authored some important opinions such as Martin v. Hunter’s Lessee (1816), Swift v. Tyson (1842), and Prigg v. Pennsylvania (1842). And yet, today the man and his work seem to be largely forgotten. Why do you suppose that is?

Posner: I don’t know. I’ve never read anything by him. Prompted by your question, I read his opinion in Swift v. Tyson. I thought it was well written, though not as well written as Marshall’s opinions.

[RC: Consider Bernard Schwartz, “Supreme Court Superstars: The Ten Greatest Justices” (1995) (ranking Story as second greatest Justice.]

Question: I was struck by how much the reputational stock of some of the judges and scholars you listed in Tables 1-4 of your Cardozo book has dropped since you published that work in 1990. Is judicial reputation thus akin, at least in some general way, to the rise-and-fall celebrity stardom of, say, the Michael Jackson variety? If so, how does a judge best secure a reputation that lasts over generational time?

Posner: The decline is experienced by almost all judges, simply because law changes as society changes, and the old cases cease to have any relevance. Well-written opinions have the best survival chances, because the quality of the writing is independent of the currency or importance of the issues.

Question: The filaments of Holmes’ thought, you maintain, included “Nietzschean vitalism.” Tell us more about that and why you think it important. Read More