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FAN 61 (First Amendment News) Past & Prologue — Ralph Young on the History of Dissent & David Skover on Free Speech in a Robotic Era

In this post I highlight two new works (one on dissent, the other on data, etc.) to emphasize the importance of history, on the one hand, and the challenge of new technologies to inform the way we think about the First Amendment, on the other hand.

Let me start with history: Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. The First Amendment’s greatest virtue is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists,  and even nihilists and racists.

Professor Ralph Young

Professor Ralph Young

Enter Temple University Professor Ralph F. Young and his new book, Dissent: The History of an American Idea (New York University Press, 2015). Generally speaking, this 600-page tome, which follows Young’s various volumes titled Dissent in America, does a splendid job of chronicling much of the evolution of dissent in America. His panoramic account spans much in the history of dissent from the plight of the Puritans, to the fate of Native American Indians, to the struggle of abolitionists, to the campaigns of labor activists, to the crusades of feminists, to the sit-ins of civil rights demonstrators, to the marches of war protestors, to the anti-Establishment songs of Bob Dylan, to the Stonewall riots, to the politics of the Tea Party, to the antics of the Occupy Wall Street movement, and more! It is a remarkable achievement.

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Sadly missing from this otherwise impressive survey of dissent in the United States is any mention of the likes of:

That said, there is still more than a big bundle of worthwhile and eye-opening historical reading to be found between the covers of this engaging volume.

For a philosophical account of what exactly constitutes dissent, see Collins & Skover, On Dissent: Its Meaning in America (Cambridge University Press, 2013).

Forthcoming: Stephen J. Solomon, Revolutionary Dissent (Palgrave Macmillan, January 2016)

Disclosure: Though an ad for Dissent: The History of an American Idea appears on this page, I had no involvement with it and was not otherwise influenced (positively or otherwise) by it.

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Venturing on into the future: On May 26th Seattle University Law Professor David Skover will speak at the Third Annual Governance of Emerging Technologies Conference in Scottsdale, Arizona. His remarks will be delivered at the outset of a panel discussion entitled “Robotics & Autonomous Systems.” The panel will be moderated by Wendell Wallach. The other panelists are Kate Darling and Greg Garvey.  

Professor David Skover

Professor David Skover

Professor Skover’s remarks are based on a work-in-progress, tentatively titled “Intentionless Free Speech: Robots & Receivers” (of which I am the co-author) (NB: We chose the term “intentionless” because it conveys a meaning quite different than “unintentional.”) In brief, Skover’s remarks will examine why First Amendment coverage should be assigned to robotic expression, quite apart from whether such expression merits constitutional protection when balanced against a spectrum of potential harms. The paper argues that robotic expression puts into  bold relief the view that much First Amendment speech is protected because of the experience of a user or receiver. The paper builds on, or moves beyond, or takes issue with the works of robotic free speech scholars Jane Bambauer, James Grimmelmann, Timothy Wu, and Eugene Volokh, among others. The paper began as an outgrowth of a series of conversations with Professor Ryan Calo, whose support and encouragement have been invaluable in developing our ideas in this new and largely uncharted area.

“Intentionless Free Speech” is the latest installment of the authors’ ongoing examination of the relationship between law and technology. This venture began with a 1990 article entitled “The First Amendment in an Age of Paratroopers,” and then continued with a 1992 article entitled “Paratexts” (expanded and reconstituted in “Paratexts as Praxis” in 2010), and ultimately developed into a book entitled The Death of Discourse (1996 & 2nd ed., 2005).

Headline: “NYC Censorship Event Gets Censored” — Another Mohammed Controversy  Read More

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A Presumption in Favor of Congress

I’ve posted twice about the thought that the Constitution does not make the three branches equal.  In fact, the text and the original understanding created Congress as the superior branch.  Only much later (starting with Andrew Jackson) was there a notion that the three branches were co-equal, and this did not become a widely held view until long after ratification.

Well, so what?  The answer is that when courts decide a separation-of-powers questions, there should be a presumption that Congress prevails.  In other words, Justice Jackson’s concurrence in Youngstown is wrong.  When we are in a “zone of twilight” where no legislation speaks to whether a certain power rests with Congress or the President, those claims should not be in equipoise.

Would a presumption in favor of Congress have made a difference in prior separation-of-powers cases?  That I’m less sure about, as I need to work my way through the opinions.

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The Dormant Commerce Clause

Today’s opinion in Comptroller v. Wynne produced two dissenting opinions (one from Justice Scalia and one from Justice Thomas) arguing that the Dormant Commerce Clause should be repudiated.  (Justice Scalia makes some allowance for stare decisis in that context, but not much.)

I think there is a lot to be said in favor the view that the Dormant Commerce Clause is a doctrine that rests on weak or poorly-reasoned foundations.  In practical terms, I suppose the question is would Congress adequately police state economic discrimination against other states if the Court stopped doing that?  One can think of cases where a state’s regulations might prompt federal preemption, but most of the time you would think that Congress would dismiss the issue as insubstantial.  Perhaps the power to address this could be delegated to an agency, and the same issues now addressed under the Dormant Commerce Clause would become administrative law matters subject to only “arbitrary and capricious” review in the courts.  That might be a better approach, come to think of it.

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Three Co-Equal Branches?

Now that I’m interested in this question, I’m probing to see where the idea that the three branches are equal comes from.  As far as I can tell, the first reference to that idea comes in President Andrew Jackson’s 1834 Protest to the Censure Resolution, which I spent a good deal of time discussing in my first book.  In making the case for executive power, Jackson asserted that each of the three branches “is the co-equal of the other two.”  (Congress, of course, argued at the time that this was not the case.)

The first clear reference to co-equal branches by the Supreme Court is in Field v. Clark, an 1892 case holding that the Court must defer to Congress’s assertion that a law was duly enacted (in other words, the Court will not look behind the existence of an enrolled bill).  In that case, the Court stated:  “The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.”  The result in Field, though, is just as consistent with a claim of congressional superiority.  There is also language from some taxpayer standing cases (until Flast v. Cohen), saying there is no such standing and thus the Court cannot review appropriations by a “co-equal” branch, but again co-equal does no work for that analysis.

From what I see, the idea that there are three co-equal branches really did not take hold until Watergate.  The Court mentions the point in United States v. Nixon, and President Ford made the same observation in his speech to Congress immediately following Nixon’s resignation. At this point, though, coequality was a device to limit the Executive Branch rather than enhance it.

Why does this matter?  I’ll tell you next week.

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The First Branch

In this post I want to start a discussion of an observation made about twenty years ago by Garry Wills.  Wills is one of my favorite authors, and a significant portion of his scholarship is devoted to the Constitution.  Here is the claim:  The three branches are not co-equal.  As a textual and as an original matter, Congress is the preeminent branch.  How do we know this?

1.  Congress is discussed first (Article I).

2.  Article I is the longest and most detailed of the articles.

3.  Congress wields the power of impeachment over the other two branches.  The other two branches cannot, by contrast, remove a member of Congress.

4.  Congress controls (albeit with some limitations) the salaries and staff of the other two branches.  They, though, cannot control Congress’s pay and staff.

5.  Congress can override a presidential veto.  He has no recourse if that happens.

These are just some of Wills’ examples.  Now the obvious response is that many of these points are formalistic.  In practice, the President or the Supreme Court is more powerful because Congress does not wield many of its weapons, can’t act in a unified way, and so on.  True enough, but how relevant is that for a court addressing a separation-of-powers question such as Zitovsky?  If you start with the premise that the constitutional text made Congress the leading branch, then shouldn’t that usually outweigh subsequent practice if you’re an originalist or a structuralist?

Anyway, I’ll have more to say about this next week.

 

 

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Vanderbilt Law Review, Volume 68, Number 4

The Vanderbilt Law Review is pleased to announce the publication of our May 2015 issue:

ARTICLES

Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997 (2015).

Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055 (2015).

W. Kip Viscusi, Pricing Lives for Corporate Risk Decisions, 68 Vand. L. Rev. 1117 (2015).

NOTES

Jeremy Johnston, Putting an End to False Claims Act Hush Money: An Agency-Approval Approach to Qui Tam Prefiling Releases, 68 Vand. L. Rev. 1163 (2015).

Leading the World with Free Trade

As debate heats up on the Trans-Pacific Partnership trade deal, journalists should keep a few key points in mind. First, the deal is in essence deregulatory, shifting enormous power to multinational corporations to challenge basic legal protections of consumers and citizens. Second, the US has a history of using its power in the global trading system to promote fundamentally unsafe products and services to other nations. Consider this snippet from a story on lead paint:

By the 1920s, it was known that one common cause of childhood lead poisoning was the consumption of lead paint chips. . . . In 1922, the League of Nations proposed a worldwide lead paint ban, but at the time, the US was the largest lead producer in the world, and consumed 170,000 tons of white lead paint each year. The Lead Industries Association had grown into a powerful political force, and the pro-business, America-first Harding administration vetoed the ban. Products containing lead continued to be marketed to American families well into the 1970s, and by midcentury lead was everywhere: in plumbing and lighting fixtures, painted toys and cribs, the foil on candy wrappers, and even cake decorations. . . .

Lead paint was the most insidious danger of all because it can cause brain damage even if it isn’t peeling. Lead dust drifts off walls, year after year, even if you paint over it. It’s also almost impossible to get rid of. Removal of lead paint with electric sanders and torches creates clouds of dust that may rain down on the floor for months afterward, and many children have been poisoned during the process of lead paint removal itself. Even cleaning lead-painted walls with a rag can create enough dust to poison a child.

Of course, at this stage in the development of globalization, toxic financial products are a greater concern than toxic chemicals.  We’ve also advanced toward more subtle ways of assuring their proliferation. But the core mission of “free trade” law in this, as in so many areas, is relatively clear: to open yet another venue where corporations, far from being held accountable for their actions, can instead undermine crumbling extant legal protections for consumers.

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The Wright Brothers and the Patent System

240px-Kitty_hawk_grossI just finished David McCullough’s new book on the Wright Brothers.  While McCullough is a wonderful storyteller, he does tend to paint a rosy picture of his biographical subjects.  John Adams, in particular, came off much better than he looks if you read the accounts of his contemporaries.

I think that the same is true in this book.  The narrative ends in 1909 with the Wright Brothers winning acclaim around the world.  There is an Epilogue that describes what happened afterwards, but what that leaves out is the fact that the Wrights (and then only Orville after Wilbur died in 1912) spent the next several years engaged in patent litigation.  From the secondary literature on that part of the story, one gets the impression that the Wrights were prickly about asserting their originality in achieving flight and were not that open to collaboration.  This helps explain why the United States fell behind Europe in aeronautics, which the government addressed in 1917 by creating (or coercing) a patent pool for airplanes.  It’s a cautionary tale for patents and their relationship to innovation.

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DuPont Victory Good Sign for Buffett’s Berkshire

aaaaaYou know the activists have made an impact when the prospects of targeting Berkshire Hathaway are taken seriously enough to warrant a question on the subject to Warren Buffett at the company’s famous annual meeting.  Buffett scoffed at the idea by stressing a combination of performance and size—but there is a bit more to say, and now is a good time to say it, in light of yesterday’s stinging rebuke of the notorious activist Nelson Peltz by shareholders of DuPont. (No, greed is not good.)

Berkshire is among the largest, most diversified and profitable corporations in American history. It owns nine subsidiaries that, if they stood alone, would each be a Fortune 500 company, and boasts scores of diverse companies generating revenue from $1 billion to $8 billion apiece. At present, no sensible activist would target the firm, since Warren Buffett built, runs, and controls it by owning 34% of the voting power.

But just as the 84-year old conglomerate builder plans for Berkshire’s fate beyond his lifetime, no doubt activists are planning too. After all, despite a whopping market capitalization of nearly $400 billion, most analysts agree that Berkshire is worth more—that the sum of the parts is greater than the whole.

Citing criticisms of the conglomerate business model, activists will urge management to sell Berkshire’s struggling units, spin-off the mediocre, and install new managers at any failing to meet publicized performance standards.  In the process, they would call for distributing the cash to shareholders. They would explain how what they offer is worth more than Berkshire shares alone: cash plus shares in spun-off subsidiaries along with the continuing Berkshire shares.

The counterargument, familiar to Berkshire’s stalwart shareholders, will stress the value Berkshire has created from its unique business model. It pledges to business sellers that it will hold them indefinitely and give managers autonomy. Such commitments have great economic value not necessarily reflected in either today’s stock price or the valuations of individual business units.  The only way to preserve that premium is sustaining the conglomerate. The value is amplified by the capacity to relocate capital across subsidiaries without taxes, interest, covenants or hassle. Keeping the whole together reinforces the economic value of these and other intangibles, including a culture of trust, thrift, and teamwork. Read More

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FAN 60 (First Amendment News) — Mohammed-Cartoon Controversy Continues — Liberals Divided

We defend the First Amendment for everybody because there is no other way to defend it for ourselves.Ira Glasser (December 1977)

Intolerance is a human tragedy and must be addressed. But if there’s one cardinal rule in America, it’s that we err on the side of counter-speech, not censorship, when we hear things we don’t like but that don’t directly hurt us. — Gabe Rottman (August 12, 2013)

It’s axiomatic: Give it enough time and any irksome First Amendment issue will resurrect, albeit in new cultural garb but similar enough to be more than a distant cousin. The Mohammed-cartoon controversy is only the latest example of an old issue remerging to once again test the steel of our commitment to free speech. And with a firebrand like Pamela Geller — the  who promoted the “Draw the Prophet” contest in Texas — fanning the flames, some find the need to back away from the speech-protective tradition of the First Amendment. Predictably, rationalizations are tendered and excuses offered while exaggerations are served up in bountiful plenty. Why? Simple: Whenever speech really offends us (particularly when the speaker is over-the-top provocative), there is a strong tendency to default to a censorial mindset. Then again, the true greatness of our First Amendment is our constitutional commitment to default in a different direction — to ratchet  towards freedom.

Frank Collin demonstrating in Chicago

Frank Collin demonstrating in Chicago (1978)

You hear the words a lot these days in the news: hate speech / incendiary speech / fighting words / and much more as the battles lines draw around the Texas controversy. If you turn the free-speech clock back 38 years and situate the First Amendment in Illinois, you will soon enough discover a similar conflict with people throwing around similar epithets. Remember Skokie? Remember the Nazi campaign to march there, in that predominately Jewish community with many Holocaust survivors? (See YouTube clips here and here — see also here)

Before and after the matter was resolved in 5-4 in a per curiam opinion by the Supreme Court (with liberals siding with the claims of the National Sociality Party) and later in a cert. denial in 1978, there was considerable and heated debate among liberals. And nowhere was that debate more heated than in the ranks of the American Civil Liberties Union, which through its Illinois affiliate defended the First Amendment claims of Frank Collin — the lead party in the suit to permit the Nazis to march in Skokie.

The story of this contentious moment in our free-speech history is ably set out in Philippa Strum’s When the Nazis Came to Skokie: Freedom for Speech we Hate (1999). Part of that history is the enormous price the ACLU paid to defend the First Amendment even if it meant risking the group’s own financial survival. (In those days, the New York Times editorial board stood with the ACLU in its time  of peril.) Years later, that sacrifice came to be seen by many as a badge of honor. In some ways there was even a Shakespearean quality to the fight fought back then by the ACLU:

This day is call’d the feast of Crispian. He that outlives this day, and comes safe home,Will stand a tip-toe when this day is nam’d, And rouse him at the name of Crispian. He that shall live this day, and see old age, Will yearly on the vigil feast his neighbors  And say “To-morrow is Saint Crispian.”Then will he strip his sleeve and show his scars, And say “These wounds I had on Crispin’s day.”

National ACLU Weighs in on Cartoon Controversy

Lee Rowland

Lee Rowland

Meanwhile, a new fight emerges as liberals once again battle over how much free-speech freedom they can tolerate. Though up to now the national ACLU has not been very vocal on the cartoon controversy, when I inquired I received the following reply from Lee Rowland, the Staff Attorney for the Speech, Privacy & Technology Project: “I just wanted to let you know that the ACLU unequivocally believes that Ms. Geller and AFDI’s speech was protected, and that frankly, it’s not even a tough question. Our First Amendment protections mean nothing if they do not extend to speech that many find objectionable and provocative.”

The Draw-MohammedCartoon Controversy — Seven Views

 Real Time with Bill Maher: In Defense of Free Speech (HBO): “This is America. Do we not have the right to draw whatever we want? . . . Do we have to accept that Muslims are unable to control themselves the way we would ask everyone else in the world?  To me that’s bigotry; that’s the soft bigotry of low expectations.”

Bret Stephens

Bret Stephens

Bret Stephens, “In Defense of Pamela Geller,” Wall Street Journal, May 11, 2015: Ms. Geller is hammering home the point, whether wittingly or not, that the free speech most worth defending is the speech we agree with least. That’s especially important when the enemies of free speech—in this case, Muslim fanatics—are invoking the pretext of moral injury to inflict bodily harm. A society that rejects the notion of a heckler’s veto cannot accept the idea of a murderer’s veto simply because the murderer is prepared to go to greater extremes to silence his opponents.”

Editorial, “Free Speech vs. Hate Speech,” NYT, May 6, 2015: “the Muhammad Art Exhibit and Contest in Garland, Tex., was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom.”

Eugene Volokh, “No, there’s no ‘hate speech’ exception to the First Amendment,” Volokh Conspiracy, May 7, 2015: “there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.”

 Kathleen Parker, “Use and abuse of First Amendment,” Yakima Herald, May 10, 2015: “I take a back seat to no one when it comes to defending free speech — even that of the worst sorts. We let neo-Nazis and the Ku Klux Klan march and protest because the true test of free speech is that unpopular speech is tolerated.That said, we needn’t embrace or celebrate people like Geller, who intentionally try to provoke a confrontation.She’s welcome to sponsor a cartoon contest, but we don’t have to attend. If Geller wants to stand on street corners and shout her views, no one has to listen.”

 John Costa, “Testing the First Amendment,” The Bulletin, May 10, 2015: “The question for those of us who value the First Amendment is easy to state but painfully difficult to answer. Are there limits we should impose on ourselves?In fact, newspapers that have standards of publication do it every day, which I know doesn’t answer the question of whether to publish the images of Charlie Hebdo or the cartoonists in Texas. I wholly support their right to their choice, but for me the answer is a resounding, ‘It would depend.'”

Stuart Anderson, “Have Mormons Become America’s Best Advocates For Freedom Of Speech?,” Forbes, May 7, 2015:”A worldwide debate has emerged over religion and freedom of speech. And who, by example, has become America’s best advocate for free speech? The surprising answer may be the Church of Jesus Christ of Latter-day Saints.”

Yale Law Professors see Blueprint for Campaign Reform in Williams-Yulee Read More