stairway-to-heaven-1319562-m-720x340
2

FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)

Abstract

51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

Unknown-1

Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment Read More

3

Federal Trade Secret Protection

Yesterday the Senate unanimously passed a statute creating a federal cause of action for the violation of trade secret.  I do not know what the prospects are for this legislation in the House, but I want to express my opposition to the bill.

In general, I take a dim view of federal statutes that seek to take over regulation traditionally handled by the state common law.  There are situations where that is warranted, but this is not one of them.  Trade secret protection is in place in every state, and there is no reason to think that this system is inadequate.

Naturally, companies often prefer one national standard to many state standards, but in my view that does not justify federal action.  An article from Reuters commenting on the bill stated that trade secret cases are currently “relegated to state courts,” which is not the way I would describe federalism but does accurately describe the attitude behind the statute from Republicans and Democrats.

I hope the House decides not to take up this legislation.

 

1

One of the Best in the Business — A Q&A with Robert Weil of Liveright

As an editor you can get up in the morning and change the

world with the books that you publish.

                          — Robert Weil (2011)

He is one of the very best in the publishing business. And yet, it is more than a business to him — it is a literary calling. He is consumed by his love of writing. Whether in his office or at home, paper is his preferred medium. He is Robert Weil, editor-in-chief and publishing director of Liveright, a division of W.W. Norton & Company. He has been in the book-publishing business since 1978. Weil’s books have won the Pulitzer Prize, the National Book Award, the National Book Critics Circle Award, and the Bancroft Prize. He has also worked with seven MacArthur Fellows. His list of distinguished authors is far too long to repeat here.

I recently did a Q&A with Weil over at the Washington Independent Review of Books. If you’re interested in books and book publishing in today’s world, check out the interview.

7

FAN 102.3 (First Amendment News) Court Denies Review in Campaign Finance Case

Today the Court issued its orders list in which the Justices declined to hear the case of Justice v. Hoseman.

The issue in the case was whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.

The cert. petition was filed by the Institute for Justice with Paul Avelar as counsel of record for the Petitioners.

The Center for Competitive Politics (Allen Dickerson), the Cato Institute (Ilya Shapiro), and the Independence Institute filed an amicus brief on behalf of the Petitioners.

* * * *

The Court also denied review in a First Amendment related caseStackhouse v. Colorado (see below)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Justice v. Hosemann 
  2. Electronic Arts, Inc. v. Davis
  3. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Town of Mocksville v. Hunter
  6. Miller v. Federal Election Commission
  7. Sun-Times Media, LLC v. Dahlstrom
  8. Rubin v. Padilla
  9. Hines v. Alldredge
  10. Yamada v. Snipes
  11. Center for Competitive Politics v. Harris
  12. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims):  Cert. denied

Freedom of Information Case

 The Court’s next Conference is on April 15, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

2

Patent Pending

Here’s a question that occurred to me when I was browsing the other day. What is the point of putting “patent pending” on an item for consumers? This gives notice that if a patent is granted then infringement liability may relate back to the use of the item in question, but that is irrelevant to the average consumer.  Is the point of “patent pending” to mislead some consumers into thinking this means “a patent will be granted?”  Does patent pending just sound better than not saying anything about that?  It seems like a fact that only investors would care about.

0

FAN 102.2 (First Amendment News) Latest First Amendment Salon: Cyber Harassment & The First Amendment

Danielle Citron & Laura Handman

     Danielle Citron & Laura Handman

Professor Danielle Citron (author of of Hate Crimes in Cyberspace) was in fine form as she made her case to an audience (in Washington, D.C. & New York) of First Amendment experts — lawyers, journalists, and activists. Laura Handman (a noted media lawyer) responded with talk of her own cyber harassment experience and then proceeded to make a strong case for the need to develop industry guidelines to protect privacy and reputational interests. Ilya Shapiro (a Cato Institute constitutional lawyer) moderated the discussion with lively and thought-provoking questions, including one about the wisdom of the European “right to be forgotten.” All in all, it was an engaging and informative discussion — yet another between a representatives from the legal academy and the practicing bar.

Laura Handman, Ilya Shapiro & Danielle Citron

Laura Handman, Ilya Shapiro & Danielle Citron

It was the initial First Amendment Salon of 2016. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York and sometimes as well on the Yale Law School campus at the Floyd Abrams Institute for Freedom of Expression.

Selected Excerpts

Professor Citron: Unfortunately, we have “network tools used not as liberty-enhancing mechanisms, but instead as liberty-denying devices.”

Professor Citron: “I am modest in my demands of the law because I am a civil libertarian. My proposals are modest.”

Among others, probing questions and comments were offered by Ashley MessengerLisa Zycherman, Lee Levine, and Victor A. Kovner.

 YouTube video of discussion here.

 Next First Amendment Salon 

May 16, 2016, Chicago: Professor Geoffrey Stone will do a public interview with Judge Richard Posner on the topic of the First Amendment and freedom of speech.

Previous First Amendment Salons 

(Note: the early salons were not recorded)

November 2, 2015
Reed v. Gilbert & the Future of First Amendment Law

Discussants: Floyd Abrams & Robert Post
Moderator: Linda Greenhouse

August 26, 2015
The Roberts Court & the First Amendment 

Discussants: Erwin Chemerinsky & Eugene Volokh
Moderator:Kelli Sager

March 30, 2015
Is the First Amendment Being Misused as a Deregulatory Tool?

Discussants: Jack Balkin & Martin Redish
Moderator: Floyd Abrams

March 9, 2015
Hate Speech: From Parisian Cartoons to Cyberspace to Campus Speech Codes

Discussants: Christopher Wolf & Greg Lukianoff
Moderator: Lucy Dalglish

July 9, 2014
Campaign Finance Law & the First Amendment 

Discussants: Erin Murphy & Paul M. Smith
Moderator: David Skover

November 5, 2014
What’s Wrong with the First Amendment? 

Discussants: Steven Shiffrin & Robert Corn-Revere
Moderator: Ashley Messenger

April 28, 2014
Abortion Protestors & the First Amendment

Discussants: Steve Shapiro & Floyd Abrams
Moderator: Nadine Strossen

Salon Co-Chairs

  • Ronald K.L. Collins, University of Washington School of Law
  • Lee Levine, Levine Sullivan Koch & Schulz
  • David M. Skover, Seattle University, School of Law

Salon Advisory Board

  • Floyd Abrams, Cahill Gordon & Reindel
  • Erwin Chemerinsky, University of California at Irvine, School of Law
  • Robert Corn-Revere, Davis Wright Tremaine
  • Robert Post, Yale Law School
  • David Schulz, Floyd Abrams Institute for Freedom of Expression
  • Paul M. Smith, Jenner & Block
  • Geoffrey Stone, University of Chicago, School of Law
  • Nadine Strossen, New York Law School
  • Eugene Volokh, UCLA School of Law
3

“Hamilton” As A Derivative Work

240px-Hamilton_Alexander_Portrait_10_dollar_banknoteHere’s a question I was batting around with someone the other day:  Should the musical “Hamilton” be considered a derivative work of Ron Chernow’s biography of Hamilton?  Just to be clear, Chernow is not making this claim. But the creator of the musical, Lin-Manuel Miranda, says that he was inspired by reading Chernow’s book, and the musical makes free use of Chernow’s research.

I can think of a few reasons why you could say no.  One is that the musical is based on facts about Hamilton’s life that are in the public domain (except when Miranda uses poetic license).  This is different from a musical about a work of fiction or one that uses an author’s expression.  Second, the musical is transformative to such an extent that you might consider the production (or a subsequent movie) to not be a derivative work.

On the other hand, if you look at my contract for the Bingham biography, it refers to derivative works including “presentation in dramatic form or recitation for stage, motion pictures, film, radio, television . . .” and so on.  Maybe a musical isn’t a “dramatic form or recitation,” and of course contractual language does not control the meaning of a derivative work in the absence of contract, but this does seem to contemplate stage productions of a non-fiction book.

And if Mr. Miranda is reading CoOp, Bingham would be a great subject for a Broadway show.  Failing ticket, can you get me a ticket to “Hamilton?”  I’m dying to see it live.

0

Upcoming Event in Philadelphia

In May, I’ll be participating in a panel at the National Constitution Center to mark the 150th Anniversary of the adoption of the Fourteenth Amendment by Congress.  This event is open to the public and will include several notable names.  If you’re interested in attending, here is the link.

0

Vanderbilt Law Review, Volume 69, Number 2

The Vanderbilt Law Review is pleased to announce the publication of our March 2016 issue:

ARTICLES

Zachary D. Clopton, Redundant Public Private-Enforcement, 69 Vand. L. Rev. 285 (2016)

Adam N. Steinmam, The Rise and Fall of Plausibility Pleading?, 69 Vand. L. Rev. 333 (2016)

Matthew T. Wansley, Regulation of Emerging Risks, 69 Vand. L. Rev. 401 (2016)

ESSAY

Mitu Gulati & Richard Posner , The Management of Staff by Federal Court of Appeals Judges, 69 Vand. L. Rev. 479 (2016)

NOTES

Laura Ezell, Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking Violations, 69 Vand. L. Rev. 499 (2016)

Alexander Vey, No Clean Hands in a Dirty Business: Firing Squads and the Euphemism of “Evolving Standards of Decency”, 69 Vand. L. Rev. 545 (2016)

2

The End of the Swing Justice

240px-IngamozgasThis is an idea that I’m going to do a series of posts on because I’m thinking about the topic for an article.  Let’s start with this question:  Suppose Judge Garland is confirmed to the Supreme Court.  Who would then be the swing justice in ideological cases?  The answer, I submit, is nobody.  In any given case it could be Garland, Breyer, Ginsburg, Kagan, or Sotomayor.  And I think this will be a good thing.

We have lived for a generation in a world where there was clearly a swing justice. For the past ten years it’s been Justice Kennedy.  Before that it was Justice O’Connor and sometimes Justice Kennedy.  Before that it was Justice Powell.  You’d have to go back to the mid-1970s to find a time where there wasn’t a single person who played this pivotal.

The rise of the swing Justice did considerable damage to constitutional law.  First, it gave too much power to that one person. Second, briefs and opinions were unduly influenced by the idiosyncratic views of that person rather than by the doctrine.  (Obergefell is a good example.) Both of these effects undermined the rule of law within the Court.

Moreover, the notion of a swing Justice is a distinctly modern one.  Until the 1930s, nobody would have understood that idea because the Court operated much more by consensus.  Indeed, my research suggests that the term was even used until the 1960s.  More on that another time.