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FAN 56.1 (First Amendment News) Constitutional & Criminal Law Experts File Brief Defending Gov. Rick Perry — First Amend. & Other Defenses Raised

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This morning an amicus brief was filed in the case of Ex Parte James Richard “Rick Perry” (App. Ct., 3rd Jud. Dist.); this is how it opens:

Amici are an ideologically diverse coalition of experts in the fields of constitutional and criminal law—including former judges, solicitors general, prosecutors, criminal defense lawyers, constitutional litigators, and professors on both sides of the aisle. They represent virtually the entire political spectrum and have no personal or political stake in this case. They submit this brief for one simple reason: They are committed to the rule of law, and do not wish to see the law tarnished or distorted for purely partisan political purposes.

Gov. Rick Perry

Gov. Rick Perry

The case, recall, involves Texas Governor Rick Perry and his threat to veto a bill if a state political official did not do what he asked. He then vetoed the bill. A grand jury thereafter indicted the Governor and charged him with two felonies.

One count alleged that the Governor violated Texas law when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office.

The other count alleged that the Governor violated Texas law by “threatening” to use his veto powers if a government official did not resign her post (this in connection with his call  for the resignation of Travis County D.A. Rosemary Lehmberg, a Democrat, who had been convicted of drunk driving).

 See here re video of Gov. Perry’s Aug. 16, 2014 press conference

See here re Feb. 23, 2015 Defense’s objections to bill of particulars & amended indictment

Counsel for Gov. Perry on appeal: Tony BuzbeeDavid Botsford & Thomas R. Phillips (Appellant’s brief here)

Now, 18 noted constitutional and criminal law experts are rallying to Gov. Perry’s defense in an amicus brief filed  in a Texas appellate court by James C. Ho, Prerak Shah, Bradley G. Hubbard and Eugene Volokh. The brief in support of an application for a writ of habeas corpus makes two basic arguments:

  1. “Count I of the Indictment Should Be Dismissed, Because it is Both Unconstitutional and Barred by Legislative Immunity,”
  2. “Count II of the Indictment Should Be Dismissed, Because it Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.”

The 18 who signed onto the amicus brief are:

  • Floyd Abrams (First Amendment lawyer)
  • Michael Barone (Resident Fellow at the American Enterprise Institute)
  • Ashutosh Bhagwat (UC Davis law professor)
  • Jeff Blackburn (Founder and Chief Counsel of the Innocence Project of Texas)
  • Paul Coggins (former U.S. Attorney for the Northern District of Texas)
  • Alan Dershowitz (Harvard law professor)
  • Raul A. Gonzalez (Former Justice, Texas Supreme Court)
  • James C. Ho (Former Texas Solicitor General & former Chief Counsel to U.S. Senate Subcommittee on the Constitution)
  • Daniel Lowenstein (Emeritus UCLA law professor)
  • Michael W. McConnell (Stanford law professor)
  • John T. Montford (Former District Attorney for Lubbock County, TX)
  • Michael Mukasey (Former U.S. Attorney General & former federal court judge)
  • Theodore B. Olson (Former Solicitor General of the United States)
  • Harriet O’Neill (Former Justice, Texas Supreme Court)
  • Nathaniel Persily (Stanford law professor)
  • Kenneth W. Starr (Former U.S. Solicitor General & former federal court appellate judge)
  • Johnny Sutton (Former U.S. Attorney for the Western District of Texas), and
  • Eugene Volokh (UCLA law professor)

The two statutes under which Gov. Perry was indicted are reminiscent of the old Soviet Union — you know, abuse of authority. The idea of indicting him because he threatened to veto spending unless a district attorney who was caught drinking and driving resigned, that’s not anything for a criminal indictment. That’s a political issue. – Alan Dershowitz (Aug. 18, 2014)

Free Speech Claims

James C. Ho (lead counsel)

James C. Ho (lead counsel)

The amicus brief argues that Count II of the indictment — that Gov.Perry violated the law by “threatening” to use his veto powers if a government official did not resign — violates his free speech rights under the Texas and U.S. Constitutions.  “[H]e has every right to do just that,” they contend.

Core Political Speech: “A political official,” they add, “has the right to threaten to perform an official act in order to persuade another government official to engage in some other official act. That is not a crime—it is core political speech. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (‘What is a threat must be distinguished from what is constitutionally protected speech.’).”

Parade of Horribles: “The consequences of allowing Governor Perry to be prosecuted under this law would be both far-reaching and devastating. The prosecution’s theory of the case would criminalize a vast swath of constitutionally protected—and exceedingly common—political speech.”

Facially Invalid: “The vast amount of protected speech that would be deemed criminal under the prosecution’s theory reveals another fundamental problem with this Count: the statute is unconstitutionally overbroad and therefore facially invalid.”

Government Speech?: “[T]he speech of elected officials at issue here is simply not government speech as defined by the Garcetti line of cases. Indeed, common sense demands that it not be government speech. Does the special prosecutor truly believe that the Legislature could, with a veto-proof majority, prevent the Governor from saying anything at all on particular topics? Of course not—yet that is precisely what the Legislature could do if Governor Perry’s speech were deemed government speech.”

 After offering various other free speech challenges, the authors of the amicus brief point out that

Last year, President Obama threatened to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. . . . The President later followed through on that threat. To be sure, those executive actions are highly controversial and are currently the subject of litigation. But no one could seriously argue that President Obama’s political statements regarding those actions are unprotected by the First Amendment and subject to potential criminal prosecution. So too here.

Mincing no words, the brief urges: “This Court should announce—right now—that it is unconstitutional to prosecute Governor Perry for his protected political speech.”

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ROUNDUP: Law and Humanities 04.16.15

New Books

New books of interest to law and humanities folks include Robert P. Burns’  Kafka’s Law: “The Trial” and American Criminal Justice (University of Chicago Press, 2014).  Here’s a description from the publisher’s website.

The Trial is actually closer to reality than fantasy as far as the client’s perception of the system. It’s supposed to be a fantastic allegory, but it’s reality. It’s very important that lawyers read it and understand this.” Justice Anthony Kennedy famously offered this assessment of the Kafkaesque character of the American criminal justice system in 1993. While Kafka’s vision of the “Law” in The Trial appears at first glance to be the antithesis of modern American legal practice, might the characteristics of this strange and arbitrary system allow us to identify features of our own system that show signs of becoming similarly nightmarish?
If you’d like to keep up on new books in the legal area, check out the New Books in Law twitter feed: https://twitter.com/NewBooksLaw.

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The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury

d011337rFor Americans, both Magna Carta and trial by jury are enveloped in almost sacred myths. The myths of Magna Carta and jury trial are the more powerful for being deeply intertwined. These and similar myths encouraged Americans to accomplish great things, including independence from Britain and the successful establishment of a republic. The myths also have a dark side.

At the time of independence, many Americans believed they possessed and were in danger of losing an English inheritance that was unchanging and from ancient times, from “time immemorial.” The body of this inheritance was the fundamental laws of England, especially as expressed in Magna Carta.

To early Americans, Magna Carta not only symbolized the general idea of a government constrained by a formal charter, it described specific rights. The right Americans most often invoked in connection with the Great Charter was the right to trial by jury. Magna Carta and trial by jury became linked as part of the construction of an elaborate political view. The barons at Runnymede certainly did not intend to enshrine common-law trial by jury, which did not exist for criminal cases in 1215 and hardly for civil cases. In the language of Chapter 39 concerning “judgment of his peers,” the barons were trying to ensure that they would be tried by other barons, not by royal judges or ordinary juries. The link between Magna Carta and jury trial began in England in the late sixteenth century. During that era, antiquarians began to try to trace what they thought of as the ancient constitution of England, including institutions such as the jury, back to the Anglo-Saxon period or even earlier. In the view of antiquarians, Magna Carta was intended to preserve an ancient right to trial by jury. Edward Coke and other lawyers in the seventeenth century celebrated this invented link between Magna Carta and jury trial in their struggles against royal prerogative.

Americans of the colonial and revolutionary era also exalted the jury, as a means of furthering self-governance and nullifying despised British laws. In their enthusiasm for the jury, Americans put the translated words of Chapter 39 of Magna Carta directly into many of their new constitutions.

Over time, trial by jury proved to be a troublesome inheritance. After Americans had created representative republics, the self-governing and law-nullifying functions of the jury came to seem unnecessary at best and often harmful. Increasingly through the nineteenth century and beyond, American judges and legislators criticized the jury for its expense, delay, and unpredictability.

The story of the jury changing from a prized right of the people to a nuisance suggests the hazards of enshrining specific legal procedures in constitutions. England, without a written constitution specifying trial by jury, was able effectively to abolish the civil jury and to substitute a form of adjudication more suited to a commercial age: bench trial. The United States, hampered by jury rights in the federal and state constitutions, has had to resort to various inefficient manoeuvers to circumvent jury trial. Americans continue to pay for their invented inheritance.

Note:  The image is a four-dollar bill from Maryland, printed in July 1775, depicting the figure of “Liberty” handing a petition to “Britannia,” who is restrained by King George III, shown trampling Magna Carta (and, for good measure, setting fire to the port of Annapolis).

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Governing the District of Columbia

A quick thought that occurred to me recently is that someone could probably write an interesting article on how Congress governed the District of Columbia from its creation in 1800 until Home Rule was established in the 1970s.  The District (along with the territories) was one place where Congress did possess a police power.  How was that power exercised?  Were certain regulations justified as fine in the District but not elsewhere based on the police power distinction?  In going through the Annual Messages of the Presidents, I noticed that they often talked about issues in the District as deserving of Congress’s attention.  Anyway, I may post more about this in the coming weeks.

UPDATE:  Consider that Marbury v. MadisonBolling v. SharpeAdkins, and Heller were all cases arising out of municipal regulations in the the District.  I’m trying to think of other examples.

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Happy 790th, Magna Carta!

Tom McSweeney is an Assistant Professor of Law at William & Mary.

If you were to ask William Shakespeare, or one of his contemporaries, when Magna Carta was issued, he would likely tell you that it was issued in the ninth year of King Henry III, or 1225. In fact, for most of Magna Carta’s history people have associated it with the year 1225, not 1215. In 1215, no one had yet thought to call the charter that the barons had forced John to issue at Runnymede “Magna Carta,” and few people would have thought it had a bright future ahead of it. Within a few months of its issuance in June of 1215, King John had repudiated his charter of liberties with the blessing of Pope Innocent III. By September of the same year, John was at war with his barons.

The charter only became important because it was reissued several times over the course of the thirteenth century. When John died a little over a year into the civil war—leaving as king his 9-year-old son, Henry III—his side was losing the war. As a show of good faith to the rebels, Henry’s guardians hastily issue a revised version of the charter in November of 1216. When peace was finally reestablished in 1217, they reissued a second revised version of the charter of liberties along with a second charter, called the Charter of the Forest. The first known use of the term “Magna Carta” refers to the 1217 reissue, but the charter was not called Magna Carta because it was considered a great document. In 1218, a chancery clerk drafted a writ ordering that these charters be read out in the counties. In that writ he referred to the Charter of the Forest and, apparently not quite sure what to call the other one, the “bigger charter” (maiori carta). When another clerk copied that clerk’s roll, he changed “bigger charter” to “big charter” (magna carta).

Magna Carta did not settle into its final form until Henry III issued a third revised version in February of 1225. It was this 1225 text, not the 1215 charter, that people thought of as Magna Carta for many centuries. The 1225 texts of Magna Carta and the Charter of the Forest came to be regarded as England’s oldest statutes, parts of which are still on the books in England and the United States. When Sir Edward Coke wrote his line-by-line commentary on Magna Carta in the early seventeenth century, it was therefore on the 1225 text. It was really not until 1759, when Sir William Blackstone made an edition that noted the differences between the texts of 1215 and 1225, that the 1215 text became commonly available.
This is not to say that 1215 is unimportant in the history of Magna Carta, but the text agreed to at Runnymede was merely a first draft of the text that would come to be known and revered as Magna Carta. So Happy 790th, Magna Carta!

 

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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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Posner Mania — Two New Books Coming this January: One by Posner, the other on Posner

Can one ever have his or her fill of Richard Posner? Perhaps, perhaps not. However that may be, the maverick jurist will be in the limelight once again by way of two forthcoming books — yet another book by him, and biography about him (the first of its kind).

On New Years day of next year, Oxford University Press will release Richard Posner by William Domnarski. The book is slated to be 336 pages long and will sell for $29.95 in hardcover. Here is the publisher’s blurb on the book:

Unknown“Judge Richard Posner is one of the great legal minds of our age, on par with such generation-defining judges as Holmes, Hand, and Friendly. A judge on the U.S. Court of Appeals for the Seventh Circuit and the principal exponent of the enormously influential law and economics movement, he writes provocative books as a public intellectual, receives frequent media attention, and has been at the center of some very high-profile legal spats. He is also a member of an increasingly rare breed-judges who write their own opinions rather than delegating the work to clerks-and therefore we have unusually direct access to the workings of his mind and judicial philosophy.”

“Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. The list includes among others members of the Harvard Law Review, colleagues at the University of Chicago, former law clerks over Posner’s more than thirty years on the United States Court of Appeals for the Seventh Circuit, and even other judges from that court.”

“Richard Posner is a comprehensive and accessible account of a unique judge who, despite never having sat on the Supreme Court, has nevertheless dominated the way law is understood in contemporary America.”

 → See The Promethean Posner – An Interview with the Judge’s Biographer, Concurring Opinions (Dec. 29, 2014)

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Three days after the release of the Oxford biography, Harvard University Press will release Divergent Paths: The Academy and the Judiciary by Judge Posner.  The 350-page book (he has done some 40 or so of them) will also sell for $29.95 in hardcover. Here is the publisher’s blurb on the book:

Unknown“Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges—at the risk of intellectual stagnation—to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.”

“The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.”

“Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.”

℘ ℘ ℘

  For more on Posner, see The Complete Posner on Posner SeriesConcurring Opinions (12 postings, Nov. 24, 2014 – Jan. 5, 2015)

Europe Steps Up to the Challenge of Digital Competition Law

Two years ago U.S. authorities abandoned a critical case in digital antitrust. The EC now appears ready to fill the void:

The European Commission is said to be planning to charge Google with using its dominant position in online search to favor the company’s own services over others, in what would be one of the biggest antitrust cases here since regulators went after Microsoft. . . . If Europe is successful in making its case, the American tech giant could face a huge fine and be forced to alter its business practices to give smaller competitors like Yelp greater prominence in its search queries.

I applaud this move. As I’ve argued in The Black Box Society, antitrust law flirts with irrelevance if it fails to grapple with the dominance of massive digital firms. Europe has no legal or moral obligation to allow global multinationals to control critical information sources. Someone needs to be able to “look under the hood” and understand what is going on when competitors of Google’s many acquired firms plunge in general Google search results.

Google argues that its vast database of information and queries reveals user intentions and thus makes its search services demonstrably better than those of its rivals. But in doing so, it neutralizes the magic charm it has used for years to fend off regulators. “Competition is one click away,” chant the Silicon Valley antitrust lawyers when someone calls out a behemoth firm for unfair or misleading business practices. It’s not so. Alternatives are demonstrably worse, and likely to remain so as long as the dominant firms’ self-reinforcing data advantage grows. If EU authorities address that dynamic, they’ll be doing the entire world a service.

PS: For those interested in further reading about competition online:
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The Rights of Donor-Conceived Offspring

Today’s Washington Post prints an interesting article on regulation and the fertility industry.   One issue that it addresses is the rights of donor-conceived offspring to learn the identity of their egg and sperm donors. As I’ve written in numerous articles and books, it is a fundamentally important right for all donor-conceived offspring to learn the identity of their donors (the strength of my advocacy on this issue may not be clear from the Post article).

Other academics disagree with this position, believing it important to protect the identity of gamete donors for a variety of reasons.  I disagree, and I think the  law has a critical role to play in ensuring respect for the rights of donor-conceived people.   Parents can make the legal choice never to find out the identity of their donor.  By contrast, donor-conceived offspring have no such legal right in the United States: unless their parents opted into a known donor program, they are unable to learn the identity of their donors.  While their parents’ choices affect them as children, donor-conceived children grow up, and many become curious about their origins. Yet the law’s tight focus on the parent-child relationship excludes legal questions relating to donor-conceived adults.

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