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UCLA Law Review Vol. 64, Issue 5

Volume 64, Issue 5 (August 2017)
Articles

Melville B. Memorial Lecture: Fair Use by Design Nina Elkin-Koren 1082
Copyright’s Framing Problem Margot E. Kaminski & Guy A. Rub 1102
The Constitution of Police Violence Alice Ristroph 1182
The Golden Leash and the Fiduciary Duty of Loyalty Gregory H. Shill 1246

 

Comments

Westernized Women? The Construction of Muslim Women’s Dissent in U.S. Asylum Law Taylor Markey 1302
Retaliatory Arrests and First Amendment: The Chilling Effects of Hartman vs. Moore on the Freedom of Speech in the Age of Civilian Vigilance Linda Zhang 1328
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Corfield v. Coryell

No book about Bushrod Washington would be complete without a thorough discussion of his most famous opinion. In Corfield, the Justice offered up this dictum about the privileges and immunities of citizens under the Constitution.

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”

There is no shortage of literature on Corfield, so I’ll have to work though that in developing my own thoughts.  But here is a tentative observation that, I think, is original.

Corfield is that first significant legal authority to stress the importance of the right to vote. If you look at the Founding era, you would be hard-pressed to find anything that talked about that right for individuals.  The Framers certainly cared about popular sovereignty, but they said little about voting rights. The Constitution, of course, left the definition of voting rights to the states. Justice Washington was thus far ahead of his time.  Even Section One of the Fourteenth Amendment and the Civil Rights Act of 1866, which some members of Congress read against the backdrop of Corfield, refused to embrace the radical idea that voting was a right.

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FAN 161 (First Amendment News) Nadine Strossen’s Next Book — “Hate: Why We Should Resist it With Free Speech, Not Censorship”

In a forthcoming book, New York Law School Professor Nadine Strossen returns to a topic she explored 27 years ago in an insightful Duke Law Journal article titled “Regulating Racist Speech on Campus: A Modest Proposal?” This spring, Oxford University Press will publish her latest book:  Hate: Why We Should Resist it With Free Speech, Not Censorship. (This book is part of the “Inalienable Rights” Series, of which University of Chicago Law Professor Geoffrey Stone is editor.)

Dedication: The book is dedicated to “Norman Dorsen and Aryeh Neier, key leaders of the ACLU during the Skokie controversy, inspiring human rights champions, and revered mentors.”

I read an advance version of the manuscript and will say this: Strossen has accomplished something remarkable in this slim book — she has ventured into a complex and heavily examined field and produced a book that is original, insightful, and clear-headed. My guess: this book will become the go-to work in the field.   

Prof. Nadine Strossen

Abstract: One of Donald Trump’s signal successes in the 2016 election campaign was his unrelenting attack on ‘political correctness.’ While the phenomenon of political correctness is certainly very polarizing, it is also a capacious and somewhat amorphous concept. At root, though, it centers on speech and expression-the idea that since certain words and arguments are hurtful to those less powerful, they should therefore be viewed with suspicion and even opprobrium.

As the eminent scholar and activist Nadine Strossen shows, this is not a new idea. Long before anyone had heard of political correctness, the term ‘hate speech’ was in broad circulation. Indeed many of the controversies swirling around alleged political correctness are really claims and counterclaims about hate speech. Some say that Black Lives Matter engages in hate speech against cops. Some say evangelicals engage in hate speech against the LGBT community. The list of aggrieved populations is long, which begs a question: when is speech truly ‘hate speech’ or, alternatively, simply a cherished right protected by the Constitution?

In this book Strossen dispels the many misunderstandings that have clouded the perpetual debates about this topic, including the equally erroneous assertions that it is either absolutely unprotected or absolutely protected. She explains the more nuanced approach that U.S. law actually embodies: allowing hateful or discriminatory speech to be outlawed in many situations, including when it directly causes specific imminent serious harm; but not empowering government to punish such speech solely because its message is disfavored, disturbing, or feared to possibly contribute to some harm.

Prof. Geoffery Stone (series editor)

Strossen shows that such principles have been especially important for sheltering dissenting views, minority speakers, and advocates of equal rights causes. Conversely, she shows that the “hate speech” laws in many other countries, including those comparable to the U.S., have punished and chilled vital speech about public issues, leading many human rights activists in those countries and in international agencies to criticize those laws and to advocate the U.S. approach: counterspeech and other non-censorial alternatives, including strong enforcement of anti-discrimination laws. Beyond the constitutional arguments, Strossen makes a compelling, evidence-rich case that the “more speech” approach is more effective than censorship in countering the harms that “hate speech” is feared to cause: discrimination, violence, and psychic injuries.

→  This from Professor Stone’s Introduction:In this work, Strossen stakes out a bold and important claim about how best to protect both equality and freedom. Anyone who wants to advocate for ‘hate speech’ laws and policies in the future now has the “Devil’s Advocate” right at hand. No one can address this issue in the foreseeable future without taking on this formidable and compelling analysis. It lays the foundation for all debates on this issue for years to come.”

TABLE OF CONTENTS

Acknowledgements

Editor’s Note

Essential Concepts 

Introduction

Chapter 1: Overview

Chapter 2: “Hate Speech” Laws Violate Fundamental Free Speech and Equality Principles

Chapter 3: When “Hate Speech” is Protected and When it is Punishable

Chapter 4: Because of Their Intractable Vagueness and Overbreadth, “Hate Speech” Laws Undermine Free Speech and Equality

Chapter 5: Is it Possible to Draft a “Hate Speech” Law That is Not Unduly Vague or Overbroad?

Chapter 6: Does Constitutionally Protected “Hate Speech” Actually Cause the Feared Harms?

Chapter 7: “Hate Speech” Laws Are at Best Ineffective and at Worst Counterproductive

Chapter 8: Non-Censorial Methods Effectively Curb the Potential Harms of  Constitutionally Protected “Hate Speech”

Chapter 9: Conclusion: Looking Back – and Forward

Corn-Revere files Amicus Brief in Masterpiece Cakeshop Read More

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FAN 160.1 (First Amendment News) Ballard Spahr and Levine Sullivan Koch & Schulz to Merge

Press ReleaseAm Law 100 firm Ballard Spahr and Levine Sullivan Koch & Schulz (LSKS)—the preeminent First Amendment and media law boutique in the United States—announced today that they have agreed to merge effective October 1, 2017. The powerhouse combination, which will retain the name Ballard Spahr, brings together two nationally renowned media law practices and creates a team that represents the biggest and most prominent names in the industry.

All 25 of LSKS’s lawyers, including all four of its name partners—Lee Levine, Michael D. Sullivan, Elizabeth C. Koch, and David A. Schulz—will join Ballard Spahr in its Washington, D.C., New York, Philadelphia, and Denver offices. LSKS is well known for its deep bench of top-tier First Amendment attorneys. Its lawyers, including Mr. Levine—who has been described in Chambers USA as “the greatest First Amendment attorney in the United States”—have argued landmark cases before the U.S. Supreme Court and in state and federal courts across the country.

Mark S. Stewart (Ballard Spahr) 

“We have made one outstanding addition after another to our Media and Entertainment Law Group—including Practice Leaders David Bodney and Chuck Tobin, who are recognized as among the very best in the business,” said Ballard Spahr Chair Mark Stewart. “With the arrival of LSKS, we will have one of the largest practices of its kind in the country. The LSKS lawyers are terrific people whose dedication to this critically important work mirrors ours. It is an exciting development for both firms.”

Media attorneys at Ballard Spahr and LSKS represent and counsel clients across platforms and industry sectors—news, entertainment, sports, publishing, advertising, and advocacy. They defend media clients in defamation, privacy, and First Amendment litigation; prosecute actions to secure open government and public access; defend journalists against civil, criminal, and grand jury subpoenas; advise reporters in their newsgathering; provide prepublication and prebroadcast counseling to a wide array of media; and help clients protect their intellectual property rights.

Jay Ward Brown (LSKS)

LSKS has been at the vanguard in representing the media in many of its most significant and consequential First Amendment cases in recent years. Last month, the firm achieved dismissal in federal court of a defamation suit brought against The New York Times by former vice presidential candidate Sarah Palin. LSKS also helped the Associated Press obtain the release of sealed documents in the Bill Cosby sexual assault cases; successfully defended NBCUniversal in a defamation suit brought by George Zimmerman, the man acquitted in the fatal shooting of Trayvon Martin; and succeeded in reversing a jury verdict against the estate of famed Navy SEAL Chris Kyle in a case brought by Jesse Ventura following the publication of Kyle’s best-selling book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History.

“We are more committed than ever to providing our clients with the strongest, most comprehensive representation possible,” said LSKS Managing Partner Jay Ward Brown. “We saw that same commitment in Ballard Spahr, and we knew that Ballard—with its practice depth and national platform —would support and strengthen our work. We share many of the same clients, and those clients have the highest regard for Ballard Spahr. Together, this team is second to none.”

‡ ‡ ‡ ‡  

 As with Levine Sullivan Koch & Schulz, Ballard Spahr will continue to host and support The First Amendment Salon.

‡ ‡ ‡ ‡ 

Ballard Spahr welcomes the following attorneys from LSKS:

  • Lee Levine
  • Michael D. Sullivan
  • Elizabeth C. Koch
  • David A. Schulz
  • Thomas B. Kelley
  • Celeste Phillips
  • Robert Penchina
  • Seth D. Berlin
  • Jay Ward Brown
  • Steven D. Zansberg
  • Michael Berry
  • Chad R. Bowman
  • Cameron Stracher
  • Ashley I. Kissinger
  • Alia L. Smith
  • Paul J. Safier
  • Elizabeth Seidlin Bernstein
  • Mara J. Gassmann
  • Dana R. Green
  • Matthew E. Kelley
  • Jeremy A. Kutner
  • Max Mishkin
  • Thomas B. Sullivan
  • Al-Amyn Sumar
  • Alexander I. Ziccardi

The LSKS merger is the second to be announced by Ballard Spahr. Last week, Ballard Spahr announced that it will join with Lindquist & Vennum—a Minneapolis-based law firm known as a leader in middle-market M&A and private equity dealmaking—effective January 1, 2018. The combination will extend Ballard Spahr’s national footprint into the Midwest, giving the firm offices in Minneapolis and Sioux Falls, SD, and an expanded presence in Denver. When the mergers are completed, Ballard Spahr will have more than 675 lawyers in 15 offices across the country.

About Ballard SpahrBallard Spahr LLP, an Am Law 100 law firm with more than 500 lawyers in 13 offices in the United States, provides a range of services in litigation, business and finance, real estate, intellectual property, and public finance. Our clients include Fortune 500 companies, financial institutions, life sciences and technology companies, health systems, investors and developers, government agencies, media companies, educational institutions, and nonprofit organizations. The firm combines a national scope of practice with strong regional market knowledge. For more information, please visit www.ballardspahr.com.

About LSKSLevine Sullivan Koch & Schulz is a national law firm dedicated to serving the legal needs of creators and providers of virtually every type of content in virtually every kind of media, both traditional and new. Its practice focuses exclusively on the field of media law, specializing in First Amendment, entertainment, and intellectual property law. With offices in Washington, D.C., New York, Philadelphia, and Denver, the firm provides counsel nationwide on defamation and privacy, access and freedom of information, content regulation, subpoena matters, and intellectual property rights.


 

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The Twenty-Seventh Amendment Precedent

In 1992, the Office of Legal Counsel (OLC) gave an opinion concluding that the Twenty-Seventh Amendment was valid notwithstanding the two century gap between its proposal and ratification. A footnote in that opinion said the following:

It is conceivable that the goal of consensus, if there is one, could be defeated where the last State to ratify harbors an entirely different intent or purpose in approving the amendment than did the first ratifying States or the proposing Congress. Thus, for example, the meaning of the words of an amendment chosen by the proposing Congress could conceivably change dramatically with the passage of time. If there is a substantive consensus requirement beyond the procedural formalities of Article V, this hypothetical case might be taken to violate that substantive meaning. That, however, is plainly not the case with the Congressional Pay Amendment. The intent and purpose behind this amendment have been consistent from its proposal by Madison to its recent ratification. We, therefore, express no opinion on any hypothetical scenario that may present a more fundamental challenge to the notion of consensus. We conclude only that consensus itself does not necessarily require contemporaneity.

The ERA will present this hypothetical scenario if enough states (under a plausible count) ratify. For now, I think that I am done posting on this subject. I’ll start drafting a paper on the issues raised by the “reboot” of the ERA and post when I have more to say (or if another state does something).

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More on Interpreting the ERA

In Dillon v. Gloss, the Supreme Court stated in dicta that the ratification of a constitutional amendment must “sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which, of course, ratification scattered through a long series of years would not do.” The Twenty-Seventh Amendment violates this principle, but Dillon does highlight an important assumption of originalism.

Simply put, originalism works for a constitutional above a very basic level only if the condition expressed in Gloss is met. This does not present a problem for any existing part of the text. No provision was ratified over an extended period before the 27th Amendment, and that one is basic enough to avoid an issue.

Not so the ERA if it gets ratified. This is an argument that could be used by Congress to deny ratification. In effect, can there be a portion of the Constitution where originalism fails? If there can, then originalism is arguably not a comprehensive theory of interpretation? Originalist theory will need to adapt to the ERA in some fashion if Congress chooses ratification if and when the time comes.

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The Blue Slip Policy

The next fight over judicial nominations will involve the custom that the Senate does not take up a district or circuit nominee if one home state senator objects. Declining to return the so-called “blue slip” is a way of blocking a nominee and asserting a senator’s right to be consulted by the White House. Senator Al Franken, for instance, is refusing to return his blue slip on David Stras, a nominee from Minnesota for the Eighth Circuit.

Maybe this is simplistic, but it strikes me that the blue slip policy makes more sense only if both home state senators object to somebody.  If only one does, that gives an individual senator too much power to block a nomination (basically, a total veto). If both senators from the relevant state object, though, then I think there is a federalism interest that other senators should respect, though of course it’s their call.

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Originalism and the ERA

I want to continue my posts about the ERA, as there are many fascinating questions raised by the possibility (whatever it is) that more states will join Nevada and ratify this year.

Here’s an example of why I say that ascertaining the original meaning of the ERA will be almost impossible given the long span between its proposal and ratification. During the ratification debates of the 1970s, a major bone of contention was whether the ERA would protect gay rights, including same-sex marriage. Since most people opposed those ideas then, supporters of the ERA denied that legal distinctions on “account of sex” included sexual orientation.

Today, though, there is litigation arguing that employment discrimination based on sex under the Civil Rights Act of 1964 does include sexual orientation discrimination. The Seventh Circuit accepted this logic, and the Supreme Court will probably weigh in next year. Suppose that the Court affirms the 7th Circuit. The states that ratify the ERA after that will be doing so against that backdrop. Under a usual way of interpreting original public meaning, we would say that those states were endorsing that new view of sex equality.

Extending the hypothetical, which original understanding should control–the one from the 1970s or the one from the 2010s? Is sexual orientation in or out?

In the next post, I’ll talk about how this sort of problem poses a challenge to constitutional theory.

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America’s Greatest Contemporary Jurist: Posner Stepping Down

This from the Chicago Tribune:

“Judge Richard A. Posner, one of the nation’s leading appellate judges, whose acerbic wit attracted an almost cultlike following within legal circles, is retiring after more than three decades with the 7th U.S. Circuit Court of Appeals in Chicago.

Posner, 78, is stepping down effective Saturday, according to a news release Friday from the 7th Circuit. He was appointed to the court by President Ronald Reagan in 1981 and served as its chief judge from 1993 to 2000.

Posner said in a statement he has written more than 3,300 opinions in his time on the bench and is “proud to have promoted a pragmatic approach to judging” as well has his view that “judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case.”

→ The Complete Posner on Posner Series (2015)