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The Fatalism of the Multitude

I recently read James Bryce’s The American Commonwealth for the first time. Bryce was British and, in the style of Alexis de Tocqueville, wrote a book in the late 19th century about his visits to America. One of Bryce’s fascinating ideas was “The Fatalism of the Multitude,” by which he meant that a danger in a democracy was that the minority would submit quietly to the will of the majority. In essence, the minority may conclude at some point that it will never be a majority and could not influence the majority. This acquiescence, Bryce thought, was a problem partly because it would allow the majority’s errors to go on uncorrected.

This phrase strikes me as an excellent description of excessive political polarization. The risk posed by polarized public opinion is that one side (or maybe both) will conclude that their efforts at persuasion are futile because the other side will not listen to what they have to say. I’m not saying that we are at that point, but you can certainly hear some people who sound exasperated in that sense.

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UCLA Law Review Vol. 64, Issue 6

Volume 64, Issue 6 (December 2017)
Articles

Inner-City Anti-Poverty Campaigns Anthony V. Alfieri 1374
Movement Lawyers in the Fight for Immigrant Rights Sameer M. Ashar 1464
From Stop and Frisk to Shoot and Kill: Terry v. Ohio’s Pathway to Police Violence Devon W. Carbado 1508
The Puzzle of Social Movements in American Legal Theory Scott L. Cummings 1554
Varieties of Constitutional Experience: Democracy and the Marriage Equality Campaign Nan D. Hunter 1662
Community in Conflict: Same-Sex Marriage and Backlash Reva B. Siegel 1728

 

Comments

Rebellious Social Movement Lawyering Against Traffic Court Debt Veryl Pow 1770
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City of Boerne v. Flores and the Bill of Rights

I taught Boerne yesterday and noticed something new. Look at this passage in the Court’s opinion:

The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self-executing prohibitions on governmental action, and this Court has had primary authority to interpret those prohibitions. The Bingham draft, some thought, departed from that tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, “Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States.” While this separation-of-powers aspect did not occasion the widespread resistance which was caused by the proposal’s threat to the federal balance, it nonetheless attracted the attention of various Members. As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing. (citations omitted and emphasis added)

Read closely, this sounds like a statement that the first eight amendments (not the first ten) are the Bill of Rights. The first eight amendments are described as self-executing. Then the Fourteenth and “the Bill of Rights” are called self-executing. Does it not follow that the first eight amendments are the Bill of Rights?

I doubt this is what the Court intended. Probably just a case of imprecise writing. Still, though, there is a rich tradition of calling the first eight amendments the Bill of Rights, as I explain in my book. Maybe this should be seen as the most recent one.

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FAN 178 (First Amendment News) On Hate Speech — Dershowitz Review Draws Reply

The bigot is not a stand-in for Tom Paine. .  . . Reality is not paradoxical. Our answer to the question, does defending Nazis really strengthen the system of free speech, is . . . generally no. Sometimes, defending Nazis is simply defending Nazis. –  Delgado &  Stefancic

Last week I profiled Professor Alan Dershowitz’s Washington Post review of Professors Richard Delgado and Jean Stefancic’s Must We Defend Nazis?: : Why the First Amendment Should Not Protect Hate Speech and White Supremacy. In the spirit of a robust exchange of views, I invited some replies to that review.

Professor Shannon Gilreath kindly accepted my invitation. Gilreath is a Professor of Law and Professor of Women’s, Gender, and Sexuality Studies at Wake Forest University. He is the author of The End of Straight Supremacy  (2011), in which he argues that anti-equality propaganda is incompatible with the right to equality enshrined in the Fourteenth Amendment. His reply is set out below (an invitation has been extended to Professor Dershowitz to respond).

               ______ REPLY ______

Must We Defend Nazis? is a timely update to Richard Delgado and Jean Stefancic’s now classic theory on equality and freedom of expression. Their theory has influenced a generation of lawyers to reconceptualize so-called hate speech, not for the ideas it expresses but for the injury—the discrimination—it effectuates. Once this perspective is understood, the old canard that we must “protect the ideas we hate” falls apart.

Delgado and Stefancic do not advocate the suppression of ideas or viewpoints, but rather the responsible regulation of certain types of speech as action—as actually doing the material discrimination they are designed to do. Their theory is not designed to shut down civil dialogue or to safeguard fragile feelings. It is about inequality and the role a narrowly-defined class of speech plays in creating and perpetuating inequality.

Professor Shannon Gilreath

In his review, Professor Alan Dershowitz instead worries about majoritarian condemnation of some ideas as “evil” and what perils to democracy might follow. None of the examples he offers is even remotely related to the kind of equality practice in speech that Delgado and Stefancic propose.

The case for “reasonable regulations”

First, he suggests that Delgado and Stefancic’s theory may support the silencing of activists who argue for Israel’s right to exist. But nothing in the book supports a heckler’s veto on political discourse. And there is definitely no support for anti-Semitic harangue dressed up as anti-Zionist critique. This is not to say that such things aren’t happening on some campuses. It is merely to point out that Delgado and Stefancic in no way support it or condone it. In fact, Professor Delgado and I collaborated on a symposium to address contemporary problems in free speech, and one of the issues included at Delgado’s suggestion was “the new anti-Semitism,” as Kenneth Marcus calls it, that is overtaking some campuses in the name of free expression.

Professor Jean Stefancic

In reality, Delgado and Stefancic offer a First Amendment theory that actually would allow reasonable regulation of anti-Semitic speech in ways that promote the equality interests of American Jews. The ACLU’s absolutist position instead prioritizes Nazis—a fact Dershowitz admits by his insistence that Nazi speech is at the core of the First Amendment. For Delgado and Stefancic, a commitment to equality lies at the core of a First Amendment utilized to operationalize the equality that, thanks to the Fourteenth Amendment, is at the heart of the Constitution itself.

When “neutral” is not neutral

Dershowitz prefers “neutral” speech regulations, dismissing the authors’ warning that such principles do little for the vulnerable in a system that pretends majority and minority start from the same position. He cites “time, place, and manner” restrictions. Such limitations may work if the question really was one of “hurt feelings,” as in regulations on funeral picketing, for example. They do nothing to deal with speech that produces discrimination at a systematic level. For example, a poster demanding that “Blacks Go Back to Africa” permitted in the common area of a dorm but prohibited to be nailed to the door of a black student’s dorm room is an absurd distinction. The discrimination happens regardless.

Professor Richard Delgado

Contrary to the ACLU position of “more speech,” this kind of message isn’t designed to encourage a civil political discussion on race relations. It is designed to frighten and silence. Similarly, a burning cross that is confined to the private property of a white supremacist, as in Virginia v. Black, still produces the inherent injury of discrimination through fear and intimidation, and those who are disposed to enact the harms it represents are buoyed in their desires by the display. The Court’s refusal to see the systemic meaning of such a display was farcical.

The difference in approach from Europe is, I think, explained by the fact that a majority of Americans, unlike Europeans, have never had to grapple first-hand with the kind of violence and misery anti-equality speech can produce. Public displays of anti-Semitic “news” and cartoons (Stürmerkasten) in Nazi Germany served both to cow Jews and to recruit perpetrators. It cannot happen here is too easy an attitude to take up. In fact, since Donald Trump took office, crimes of physical violence against racial minorities and gays and lesbians have risen sharply—over 400% for gays and lesbians alone (see here also). The sharpest spike in university campus crimes has been against Jewish students.

Dr. King & the Klan

Finally, Dershowitz supposes that the triumphs of Martin Luther King would have been impossible in a system other than the absolutist one he defends. This particular jab seems especially dishonest, since Brandenburg v. Ohio, establishing our recent, Klan-friendly theory of free speech, wasn’t decided until a year after King’s death. Suppressed in Dershowitz’s evenhanded treatment of the speech of Nazis and Martin King is the reality that Nazis promote inequality for minorities and King was promoting equality. This is no small detail for Delgado and Stefancic who underscore that ours is a constitutional system decidedly not neutral on equality. They offer us a theory of speech that prioritizes equality as a substantive right. And the guidance they provide may be more critical today than ever before.

* Related *

Symposium, “Equality-Based Perspectives on the Free Speech Norm — Twenty-First Century Considerations,” Wake Forest Law Review (2009) (introduction here)

→ Gilreath, ”Tell Your Faggot Friend He Owes Me $500 for My Broken Hand’: Thoughts on a Substantive Equality Theory of Free Speech,'” Wake Forest Law Review (2009)

→ Delgado & Stefanic, “Four Observations About Hate Speech,” Wake Forest Law Review (2009)

“Polish President signs controversial Holocaust bill into law”

The bill’s backers say talking about Polish complicity in Nazi genocide is a form of group defamation.

President Andrzej Duda (credit Janek Skarzynski/AFP/Getty Images)

This from James Masters over at CNN: “Polish President Andrzej Duda signed Poland’s controversial new Holocaust bill late Tuesday ahead of it being assessed by the country’s Constitutional Tribunal. The law would make it illegal to accuse the nation of complicity in crimes committed by Nazi Germany, including the Holocaust. It would also ban the use of terms such as “Polish death camps” in relation to Auschwitz and other such camps located in Nazi-occupied Poland….”

This from Jacob Sullum writing in Reason: “In Poland, as in several other European countries, it is a crime to deny the Holocaust. Soon, thanks to [the new law . . . will make it] a crime to discuss the Holocaust too frankly.”

“The . . . ban on references to Polish complicity in Nazi genocide, which has provoked outrage in Israel and around the world, may seem inconsistent with the ban on Holocaust denial. But the two taboos are of a piece with each other and with Poland’s prohibition of ethnic insults—a fact that should give pause to American fans of European-style speech regulation.”

“The Polish [law] makes it a crime, punishable by fines and up to three years in prison, to accuse ‘the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich.’ The legislation was motivated largely by anger at the common use of phrases like ‘Polish death camps,’ which could be read to mean that the war crimes committed by Germans in occupied Poland were a project of the Polish government.”

“‘German Nazi crimes are attributed to Poles,” Deputy Justice Minister Patryk Jaki complained . . . . ‘And so far the Polish state has not been able to effectively fight these types of insults to the Polish nation.'”

“Some of these ‘insults’ happen to be true, since part of ‘the Polish nation’ was “complicit in the Nazi crimes.’ Poles saved Jews, but Poles also murdered Jews, under Nazi instruction and on their own initiative. . . .”

→  Atika Shubert & Antonia Mortensen, Polish Holocaust law sows ‘distortions,’ Poland’s chief rabbi says, CNN, Feb. 9, 2018 (includes video feed)

→  JTA, Poland isn’t the only country censoring speech about the Holocaust, The Jerusalem Post, Feb. 7, 2018

“New Slate Of Commissioners Should Elevate FTC’s Consideration of  First Amendment” Read More

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Coming Soon: “The Warren Buffett Shareholder”

Why do 40,000 shareholders regularly go to Omaha, Nebraska, for the Annual Meeting of Berkshire Hathaway, the company Warren Buffett built? We asked 45 famous recurring visitors to ponder this question and compiled their responsive essays into a book.

The Warren Buffett Shareholder: Stories from Inside the Berkshire Hathaway Annual Meeting,” due out April 20, is the result.

Never before have the shareholders of a public company undertaken to write a book about their experience, notes famed investor Mario Gabelli. But, then, Berkshire and Buffett are famous for being sui generis.

Featured authors include Jason Zweig, Jack Bogle, Robert Hagstrom, Bob Miles, Tom Gayner, Si Lorne, Prem Jain, Bob Denham, Tom Russo, and other best-selling authors, renowned investors, and sage advisers.  [Full by-lines below.]

In the book, these astute observers discern what bonds Berkshire shareholders together, a combination of economic rationality and intellectual community, and delineate the values.

“Smart and engaging” is how the book is described by legendary financial journalist Carol Loomis, which we’d say is just like the shareholders it describes.

Having published 15 books, 60 research articles, and 200 shorter pieces, and edited scores of other works, it is a joy to say I have never had so much fun working on a publication as I have on this book.

I am looking forward to sharing these insights come April 20.  Thanks to all our wonderful contributors, a “Who’s Who” in corporate life:

Contributors

Charles T. Akre is the Managing Member, Chief Executive Officer, and Chief Investment Officer of Akre Capital Management, LLC in Middleburg, Virginia.

Keith Ashworth-Lord is Managing Director of Sanford DeLand, an asset management firm based in Manchester, England.  Keith is the author of Invest in the Best.

Phil & Beth Black are co-owners and operators of The Bookworm, Omaha, Nebraska, which they founded in 1986.

John C. Bogle is the Founder of Vanguard, based in Valley Forge, Pennsylvania. Jack is the author of many books, including The Little Book of Common Sense Investing.

Patrick T. Brennan, CFA, is the Founder and Portfolio Manager of Brennan Asset Management, LLC, a concentrated value investing firm based in Napa, California.

Randy Cepuch is the author of A Weekend with Warren Buffett and Other Shareholder Meeting Adventures.

Stephanie Cuba is a real estate consultant based in New York City, and serves on the board of Brooklyn Excelsior Charter School and the advisory council of the Montefiore Medical Center/Einstein College of Medicine.

Lawrence A. Cunningham is a Professor at George Washington University, Founding Faculty Director of GW in New York, and a Director of Constellation Software Inc. Larry is the author of many books, including Berkshire Beyond Buffett.

Robert E. Denham is a Partner in the Los Angeles office of Munger, Tolles & Olson, LLP, a law firm which frequently represents Berkshire Hathaway. Bob is also a member of the boards of directors of Chevron Corporation; The New York Times Company; FEMSA; and Oaktree Capital Group.

Thomas S. Gayner is a Director and Co-Chief Executive Officer of Markel Corporation in Richmond, Virginia. Tom is a Director of Cable One, Colfax, and Graham Holdings; and Chairman of Davis Funds.

Joel Greenblatt is the Founder, Managing Principal, and Co-Chief Investment Officer of Gotham Capital, New York City, and a Director of Pzena Investment Management, Inc. Joel is the author of several books, including The Little Book that Beats the Market.

Robert G. Hagstrom, CFA, is the Senior Portfolio Manager of the Global Leaders Portfolio at Equity Compass Strategies, an asset management affiliate of Stifel Financial Corporation. Robert is the author of The Warren Buffett Way.

Raymond Buck Hartzell is the Director of Investor Learning and Operations at The Motley Fool, based in Alexandria, Virginia.

Ingrid R. Hendershot, CFA, is the Founder, President, and Chief Executive Officer of Hendershot Investments, Inc., Bristow, Virginia. She is the Editor of Hendershot Investments, a quarterly newsletter for long-term investors.

Mark Hughes is the Director of Equity Research at Lafayette Investments in Ashton, Maryland.

Prem C. Jain is the Elsa Carlson McDonough Chair of Accounting and Finance at the McDonough School of Business, Georgetown University, Washington DC. Prem is the author of Buffett Beyond Value.

Thomas Johansen is a Professor in the Department of Economics, Finance, and Accounting, Fort Hays State University, Hays, Kansas.

Steve Jordon is a Business Reporter for the Omaha World Herald, where he has worked since 1967.

David Kass is a Clinical Professor in the Department of Finance at the Robert H. Smith School of Business, University of Maryland.

Vitaliy Katsenelson is the Chief Executive Officer and Chief Investment Officer of Investment Management Associates, Inc., a value investment firm based in Denver, Colorado. Vitaliy is the author of The Little Book of Sideways Markets.

Karen Linder is President and Chief Executive Officer of Tethon 3D, a 3D printing company, and Principal of Linseed Capital, a private investment firm. Karen is the author of The Women of Berkshire Hathaway.

Simon Lorne is Vice Chairman and Chief Legal Officer of Millennium Partners, New York City. A former partner of Munger, Tolles & Olson, Si also serves as chairman of the Alternative Investment Management Association.

Thomas J. Manenti retired in 2018 as the Chairman and Chief Executive Officer of MiTek Inc., a Berkshire Hathaway company based in St. Loui, where he had worked since 1977.

Jeff Matthews retired in 2017 as the General Partner of Ram Partners LP, where he had served since 1993. Jeff is the author of several books, including Pilgrimage to Warren Buffett’s Omaha.  

Tim Medley is a Partner at Medley & Brown, a financial advisory firm in Jackson, Mississippi, and a Director of the Sequoia Fund, Inc.

Robert P. Miles is an Executive in Residence at the College of Business Administration, University of Nebraska Omaha. Bob is the author of several books, including The Warren Buffett CEO.

Olza M. (Tony) Nicely is the Chairman and Chief Executive Officer of GEICO, a Berkshire Hathaway company, where he has worked since 1961.

Shane Parrish operates the farnamstreetblog.com.

Daniel Pecaut  is the Chief Executive Officer of Pecaut & Company, an investment firm based in Sioux City, Iowa. Daniel is the co-author, with Corey Wrenn, of The University of Berkshire Hathaway.

John Petry is the Founder and Managing Member of Sessa Capital LLP. He serves on the board of the Success Academy Charter Network.

Laura J. Rittenhouse is the Chief Executive Officer of Rittenhouse Rankings, Inc., an investor communications and coaching firm, and author of several books, including Investing Between the Lines.

Francois Rochon is the Founder, President and Portfolio Manager of Giverny Capital based in Montreal, Canada.

Jim Ross is the Manager of the Hudson Booksellers store at Eppley Field in Omaha.

Thomas A. Russo is the Managing Member of Gardner Russo & Gardner LLC, serving also as General Partner of Semper Vic partnerships.

Andrew Steginsky, CFA, is the ‎Founder and Managing Director of ‎Steginsky Capital LLC in New York.

Macrae “Mac” Sykes is Senior Research Analyst, Gabelli & Company in Rye, New York.

Phil Terry is the Founder and Chief Executive Officer of Collaborative Gain, Inc., which runs leadership programs, and of Reading Odyssey, a lifelong learning nonprofit organization.

Charlie Tian is the Founder and Chief Executive Officer of GuruFocus.com.  He is the author of Invest Like a Guru.

Whitney Tilson is the Founder and Chief Executive Officer of Kase Learning, through which he teaches seminars on value investing, entrepreneurship and worldly wisdom. He was a contributor to Poor Charlie’s Almanack.

Bruce N. Whitman is the Chairman, President, and Chief Executive Officer of FlightSafety International, a Berkshire Hathaway company, where he has worked since 1961.

John R. Wingender is a Professor and Chairman of the Department of Economics and Finance at the Heider College of Business, Creighton University.

Jason Zweig writes The Intelligent Investor column for The Wall Street Journal. He is the editor of the contemporary edition of Benjamin Graham’s classic book, The Intelligent Investor.

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FAN 177 (First Amendment News) “Make No Law” First Amendment Podcast Series Launched

Over at Popehat a new First Amendment podcast series has been launched; it’s titled “Make No Law” and is hosted on the Legal Talk Network. The podcasts are conducted by Kenneth P. White, a criminal defense and First Amendment lawyer at Brown White & Osborn.

“In the podcast, we explore the background, personalities, and social and historical context of some of America’s most important First Amendment cases. What made Walter Chaplinsky so angry that he uttered his famous “fighting words” in New Hampshire, and why was a crowd so angry at him? Why did Mary Beth Tinker decide to wear a black armband to school? What made Richard Ceballos’ supervisors retaliate against him for raising concerns about police misconduct, and how did he fight back? Who gets to decide whether a trademark like “The Slants” is offensive to a group — members of the group, or the government?”

Kenneth P. White

“Through interviews of some of the participants, historians, and experts, primary documents read by voice actors, and commentary, Ken White will explain both what these cases mean for your rights today, and what they meant to the real people who fought for their rights to produce these decisions. Every episode will be accompanied by a post here at Popehat with links to supporting materials: cases, oral argument recordings, historical materials, and so on. As the series progresses, we hope that you will send in your First Amendment questions and your suggestions for cases to cover.

“You can get the episodes on iTunes or Google Play, Soundcloud, or at the Legal Talk Network, or listen to them through a link right here on the blog. There’s also the RSS feed.”

First two episodes: Chaplinsky & Tinker 

(In this inaugural episode White explores the Chaplinsky v. New Hampshire case and the ensuing “fighting words” doctrine, which is often cited in disputes over free speech in the United States.)

(White dives into the Tinker v. Des Moines case and how it has impacted freedom of speech for students on campuses today.)

Forthcoming episodes: Ceballos Matal v. Tam 

  • Episode Three: “On The Job”:  How do the courts balance the free speech rights of government employees with the need to maintain discipline in government workplaces?  I interview Richard Ceballos, a Deputy District Attorney who faced retaliation for questioning a search warrant, and whose case articulated a troubling rule for government employees.
  • Episode Four, “Disparagement, Contempt, and Disrepute”:  I interview Simon Tam of the band The Slants about his recent Supreme Court victory and the trademark process that, despite what he and his fans thought, told him his band’s name was racist and unacceptable.

California Superior Court Upholds First Amendment Claim in Same-Sex Wedding Cake Case Read More

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Supreme Court Siblings

I have a question about a stylistic convention in Supreme Court opinions. Back when all of the Justices were male, some of them would refer to each other as “Brother.” “My Brother Black,” “My Brother Frankfurter,” etc. After Justice O’Connor joined the Court, though, this usage disappeared.

Why didn’t the usage become broader instead? In other words, why couldn’t they say “My Sister Ginsburg” or “My Sister Kagan” as well as “My Brother Kennedy?” I am not sure there is a gender neutral term for “Brethren,” but they could have stopped using that while retaining the individual terms.

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Constitutional Avoidance in the Travel Ban Case

The Ninth Circuit’s per curiam opinion in the travel ban case, which will be reviewed by the Supreme Court this Spring, found the President’s Executive Order unlawful on statutory grounds. When the Court granted certiorari, though, the following question was added: “Whether the proclamation [in other words, the Executive Order] violates the Establishment Clause of the Constitution.” Why was that done?

Here’s one idea. The Chief Justice’s bread-and-butter play in some difficult cases is to argue that a statute must be read in a certain way to avoid constitutional issues. By putting the constitutional question on the table, the Court forces the parties and amici to spend time on that question. This sets up an opinion that says that the Act must be interpreted as the Ninth Circuit did because to do otherwise and say that the Executive Order is lawful would present serious constitutional concerns.