Charge of the Light Brigade

If you were the lawyer given the task of defending the same-sex marriage bans in the Supreme Court, how would you approach the oral argument given that you are certain to lose?  In almost every other case there is at least the possibility (however slim) of winning.  Here, though, the Court’s treatment of the certiorari petitions and the stay requests makes the final outcome clear enough.

Do you treat the argument as a ceremony and perform your part?  Do you go down guns blazing?  Do you find some way to protest?  (It would be possible, for example, to imagine someone just saying “We stand on our brief” and sitting down.  I wonder if that’s ever happened in the Supreme Court.)  It’s an odd situation.


Chief Justice Roy Moore is a Clown

I suppose this goes without saying, but his so-called order to the probate judges of Alabama that they should not issue marriage licenses to same-sex couples is absurd.  I hope that any couple that could not marry today (as ordered by the Federal District Court and not stayed by any other federal court) sues him and the relevant probate judge for damages under Section 1983 (preferably before the same federal district judges that issued the same-sex marriage opinion).

Personally, I think that the Supreme Court should have granted certiorari in the Fall and stayed all of the lower court opinions until ruling on the merits.  At this point, though, the train has left the station.  (Go read Justice Thomas’s dissent from the stay denial today to see what that looks like.)  Why stay a ruling that you know you will affirm in June, I suppose.


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 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


The Legacy of Ruth Bader Ginsburg

Edited by esteemed civil procedure scholar Scott Dodson, the newly released book “The Legacy of Ruth Bader Ginsburg” is a significant contribution. The release is beautifully timed: the public is rightfully taken with Justice Ginsburg’s insights. Hopefully, I will have Professor Dodson back to the blog to talk about the book in detail but for now here is a description.

Ruth Bader Ginsburg is a legal icon. In more than fifty years as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. Her impact on the law cannot be overstated. Yet no book on Ginsburg’s legacy exists. This book fills that gaping void by chronicling and evaluating the remarkable achievements Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg’s career. Together, these perspectives document the impressive – and continuing – legacy of one of the most important figures in modern law.

The book’s contributors include Nina Totenberg of NPR fame, Chief Judge Robert Katzmann (Second Circuit), Reva Siegel (Yale) and Neil Siegel (Duke), Lani Guinier (Harvard), Herma Hill Kay (Berkeley), Dahlia Lithwick (Slate), Aziz Huq (Chicago), Cary Franklin (Texas), and Tom Goldstein (SCOTUSblog), among others. Jacket reviews are by Trevor Morrison (NYU) and Ginsburg’s two biographers, Wendy Williams (Georgetown) and Jane De Hart (UCSB). Readers can download a free e-copy of the Preface, Table of Contents, and Coda from SSRN.

The book’s already gotten some good press. My co-blogger and First Amendment guru Ron Collins has a write up of the book on SCOTUSblog (along with some other recommended books). Civil rights scholar Nancy Leong of Denver University School of Law has a podcast interview of Scott Dodson on the book for her inaugural episode of RightsCast. Above the Law’s David Lat has been Tweeting about it. And Justice Ginsburg herself mentioned it to a huge crowd at the AALS Conference earlier this month and said that she would make sure it was available for purchase in the Supreme Court gift shop.


Driving is Not a Right: It’s a Privilege

This is a common phrase that deserves more attention.  I don’t where the idea came from originally, though most state DMVs and driving test manuals include something like that statement.  I find the expression interesting for a couple of reasons.

1.  The terms “right” and “privilege” were used interchangeably for most of our history.  Even now, that is often the case.  Take the privilege against self-incrimination or the Privileges or Immunities Clause of the Fourteenth Amendment.  Many people, though, now think that there is a difference between those things as a result of this phrase.

2.  How is driving different from entitlements?  The state can charge drivers a fee for licenses, which is not true for a fundamental right like voting.  If states waive license fees for the indigent, though, then a driver’s license is not different from many other rights. (I don’t know how many states do this.)  Another thought, of course, is that you have to pass a written and road test to drive.  How many people never manage to pass those though?  Probably very few.  If the driver’s test was like the bar exam, that would be one thing.  Otherwise, the test does not seem like much of a practical barrier on driving.


The Arizona Redistricting Case

One disadvantage of blogging is that it occurs in real time, which can leave behind a string of contradictory posts when you change your mind about a complex issue.  (Sometimes I feel like we need a blogging version of shepardizing.)  In the upcoming Supreme Court case on Arizona’s constitutional amendment creating an independent commission to undertake congressional redistricting, my first thought was that the State Legislature’s challenge to this reform was without merit.  Then I flipped.  Then I questioned my flip-flop.

After reading the relevant briefs (especially the Brief of the United States as amicus curiae), I am now persuaded that the Act of Congress governing redistricting sanctions the new Arizona procedure.  The Act of Congress in question refers to “state law” rather than “the State Legislature” in talking about redistricting.  Since Congress clearly possesses the power under Article One, Section Four to oust state legislatures from making redistricting choices, the statute is valid.  Thus, there is no need for the Court to reach the constitutional question of what the term “Legislature” means in Article One, Section Four.  This is my final answer.


Jacobson v. Massachusetts

Let me begin with what I think will be two posts about the Supreme Court’s 1905 decision upholding compulsory smallpox vaccination by a State with a brief statement of the facts.  Massachusetts enacted a statute that gave local health boards the power to order compulsory vaccination in their community (the only exception made was for children who could not be vaccinated for health reasons).  The health board in Cambridge issued such an order, and Jacobson (an adult) was prosecuted after refusing to get the shot.  He sought to challenge the safety and effectiveness of the smallpox vaccine at trial, and here is how the Supreme Court characterized his evidence:

Looking at the propositions embodied in the defendant’s rejected offers of proof, it is clear that they are more formidable by their number than by their inherent value. Those offers, in the main, seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows, the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief and is maintained by high medical authority.

What I want to highlight here is the Court’s analysis of why the liberty of contract did not cover a freedom from vaccination:

The liberty secured by the Fourteenth Amendment, this court has said, consists, in part, in the right of a person “to live and work where he will,” Allgeyer v. Louisiana,165 U. S. 578, and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one’s body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the State, for the purpose of protecting the public collectively against such danger.

I think an interesting paper could be written about the use of the following constitutional argument:  The state can draft you, therefore it follows that it can do something less to you.  Jacobson is probably not the only case that makes this sort of move, as the briefs in NFIB v. Sebelius made this point on behalf of the individual mandate, but I don’t know enough to say for sure.


Nebraska and the Electoral College

The New York Times ran a story on Sunday that Nebraska is considering a change to the state’s method of allocating electoral votes.  Nebraska and Maine are the only two states that do not automatically award all of their electoral votes to the popular vote winner in the state.  Nebraska awards two votes to the state winner, and the rest based on who carries each congressional district.  While the state almost always votes for Republicans (LBJ was the last Democrat to win Nebraska), in 2008 President Obama won one electoral vote there by carrying one congressional district.  Now some Nebraska Republicans want to snuff out that option.

Speaking as an Admiral in the Nebraska Navy (seriously, I can show you my certificate), I hope Nebraska does not make this change for partisan reasons.  I’ve talked in other posts and in a draft article about the fact that there is a strong norm against partisan gamesmanship with respect to how states choose electoral votes.  Even though this proposed change would affect only one electoral vote, the principle still applies that one party should not unilaterally change the rules for its benefit.

I can think of two possible counterarguments.  One is that there is a difference between shifting to the rule that almost every other state has (winner-take-all) and going away from that rule.  Maybe, but I’m not convinced.  A stronger reply is that Nebraska has functioned as a winner-take-all state for decades.  As far as I know, the state had never split its electoral votes until 2008.  Perhaps many Nebraska voters did not realize they had the system they had and don’t like it now that they do know.


Mandatory Vaccinations

Given the recent controversy over vaccinations for children, I plan to do a couple of posts over the next week about Jacobson v. Massachusetts, the 1905 Supreme Court decision that upheld compulsory vaccination for smallpox.  Jacobson is probably best known as the case that Justice Holmes cited in his Lochner dissent for the proposition that there was no constitutional liberty of contract.  Nevertheless, Justice Harlan’s opinion in Jacobson (for a seven-to-two majority) is interesting in its own right.  Stay tuned.


FAN 46 (First Amendment News) The Campaign Against Campaign Finance Laws — Another Law Struck Down

James Bopp. Jr.

James Bopp. Jr.

There seems to be no stopping James Bopp, Jr. in his constitutional campaign to set aside any variety of campaign finance laws. He has been described as “the lawyer on a crusade to topple all limits on the role of money in politics.”

True? Well, just consider the fact that Mr. Bopp is the lawyer who first brought both the Citizens United case and then the McCutcheon case. And he successfully argued Randall v. Sorrell (2006) and Republican Party of Minnesota v. White (2002) in the Supreme Court, among other cases. Not surprisingly, he filed an amicus brief in the Williams-Yulee v. Florida State Bar case, which is awaiting a ruling from the High Court. Most recently, he just filed a cert petition in ProtectMarriage.com-Yes on 8 v. Bowen, a First Amendment challenge to a Calfiornia campaign-finance disclosure law.

And there’s more — Bopp’s latest’s victory came in a judgment rendered by Federal District Court Judge Charles N. Clevert of the Eastern District of Wisconsin. The case is Wisconsin Right to Life, Inc. et al v. Barland, which was handed down on January 30, 2015 (See WRTL press release here.)

 Here are a few excerpts from Judge Clevert’s order (footnotes omitted):

  1. “Wisconsin bans corporations such as WRTL from making disbursements. The court grants declaratory judgment and permanently enjoins Defendants from administering or civilly enforcing Wisconsin’s corporate-disbursement ban against any person, or criminally investigating or prosecuting (or referring for investigation or prosecution) any person under this ban, because the ban is facially unconstitutional.”
  2. “. . . Because they turn on what influences elections, Wisconsin’s statutory political-purposes definition and Wisconsin’s regulatory political-committee definition are unconstitutionally vague under Buckley v. Valeo. Therefore, to resolve this vagueness ‘[a]s applied to political speakers other than candidates, their campaign committees, and political parties, the [statutory political- purposes and regulatory political-committee] definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley’ and FEC v. Wisconsin Right to Life, Inc. As applied to such speakers, this law reaches no further than ‘express advocacy and its functional equivalent as those terms were explained in Buckley’ and WRTL-II. The court therefore grants declaratory judgment and permanently enjoins Defendants from administering or civilly enforcing Wisconsin’s statutory political- purposes definition and Wisconsin’s regulatory political-committee definition against any person, or criminally investigating or prosecuting (or referring for investigation or prosecution) any person under this law . . . .”
  3. “. . . The court . . . grants declaratory judgment and permanently enjoins Defendants from administering or civilly enforcing the statutory committee-or-political-committee definition, GAB 1.28, and GAB 1.91 against any person, or criminally investigating or prosecuting (or referring for investigation or prosecution) under these laws any person . . .”
  4. “. . . The court holds that Wisconsin’s regulatory attribution and disclaimer requirements are overbroad as applied to radio speech of thirty seconds or fewer. The court grants declaratory judgment and permanently enjoins Defendants from administering or civilly enforcing these requirements . . .”

* * *  *

“This is the latest salvo in a series of cases and controversies arising out of Wisconsin’s campaign finance law,” said election law expert Professor Richard Hasen. “It remains to be seen what the Seventh Circuit will do with this case, and ultimately how the Supreme Court might resolve some of these issues regarding coordination and political committee status.”

→ Mr. Bopp has also argued the following campaign finance cases in the Supreme Court:

  1. FEC v. Wisconsin Right to Life (2007)
  2. Wisconsin Right to Life v. FEC (2006)
  3. FEC v. Beaumont (2003)

Paul Smith Speaks @ Syracuse on Right of Publicity

The Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University hosted an event recently at which noted First Amendment lawyer Paul M. Smith spoke. The title of his remarks was: “Squaring the Right of Publicity with the First Amendment.”

Mr. Smith speaking at Syracuse University.

Mr. Smith speaking at Syracuse University.

Mr. Smith’s discussion of the tort of the right of publicity and how it intersects with the First Amendment’s was thoughtful and nuanced as was his analysis of the various cases in this area (from that of the one settled by Paris Hilton to the unsuccessful one brought by Manuel Noriega).

Here is a small excerpt: “I think the problem is that this transformative test cannot be the operative test. Ultimately, it doesn’t make any sense.  It doesn’t draw the right lines. You have things that ought to be protected being unprotected and vice versa. To take a more recent example, the movie “Selma” is one in which Martin Luther King is portrayed as accuaretly as the film makers knew how to do it [RC: Smith noted the controversy re LBJ]. . . . Under the transformative test, if his heirs brought a claim, there would clearly be no way to argue that it was transformative. That would seem to be actionable. . . . Under the transformative test, they would clearly win. This suggests that this cannot be the right way to think about it. . . . “

The full video of Mr. Smith’s remarks is available here.

See also amicus brief in Davis v. Electronic Arts, Inc. (9th Cir.) filed by 27 Intellectual Property and Constitutional Law Professors in Support of Defendant-Appellant’s Petition for Rehearing En Banc. Professors Eugene Volokh and Jennifer Rothman, attorneys for amici curiae. 

See below under “New Scholarly Articles” re right of publicity article by Professor Rebecca Tushnet (“In their eagerness to reward celebrities for the power of their ‘images,’ and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment.”)

More Campus Speech Codes come under FIRE  Read More