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Justice Hugo Black’s KKK Speech

Given the commentary about Judge Kavanaugh’s testimony last week, I thought I might compare that performance to Justice Hugo L. Black’s 1937 radio address answering the charge that he had once been a member of the Ku Klux Klan. Justice Black, unlike Judge Kavanaugh, had already been confirmed by the Senate when the national press revealed that he had once been in the KKK. There were calls for Black to resign or be impeached, so he took to the radio to respond.

In his speech, Black stated: “During my recent absence on a short vacation abroad, a planned and concerted campaign was begun which fans the flames of prejudice and is calculated to create racial and religious hatred.” This was nonsense, but note that every Justice or would-be Justice who gets into trouble (such as Justice Black, Justice Thomas during his hearings, or Judge Kavanaugh) tends to reach for conspiratorial language.

Justice Black then summarized his Klan participation this way: “The insinuations of racial and religious intolerance made against me are based on the fact that I joined the Ku Klux Klan about fifteen years ago. I did join the Klan. I later resigned. I never rejoined. What appeared then, or appears now, on the records the organization, I do not know. I never have considered and I do not now consider the unsolicited card given to me shortly after my nomination to the Senate as a membership of any kind in the Ku Klux Klan. I never used it. I did not keep it. Before becoming a Senator I dropped the Klan. I have had nothing whatever to do with it.” This was not candid  given Justice Black’s Klan membership and the role that the group played in his election to the Senate in 1926. Granted, Justice Black was not testifying under oath about these issues, but it’s hard to say that he told the truth. In private, he thought this this nothing more than an effort by FDR’s enemies to destroy his reputation.

And yet Black became one of the greatest Justices in the history of the Court. Food for thought.

3

Recusal Practice in the Supreme Court

Whether Judge Kavanaugh is confirmed or not, I think it’s fair to say that he’ll be getting a lot more recusal motions based on his Senate testimony responding to the allegations against him. This raises a question, which is whether the Supreme Court should formulate clearer standards for recusals. As of now, there are none. Each Justice gets to decide for himself or herself when to recuse, and when they do they do not explain why.

To some extent, this lack of transparency makes sense. If people know that a Justice will recuse in a particular circumstance, then they can try to game the system. Nonetheless, I think when a Justice declines to recuse when a motion is brought, an explanation should be required. (Justice Scalia, for instance, did so when challenged in case involving Vice President Cheney because they went duck hunting together.) No doubt Judge Kavanaugh would prefer to reject recusal motions based on his testimony without comment, but I hope the Court develops a contrary norm.

4

The Syllabus in a Supreme Court Opinion

With the Court’s new Term underway, here’s a question that I’ve wondered about for a long time. Supreme Court opinions are prefaced by a syllabus (not prepared by the Justice writing the opinion) summarizing the decision qualified by the statement that the syllabus is not authority. Does anyone bother reading these anymore?  I don’t. I just read the opinions. Or I look at commentary on the opinions. Or the Westlaw notes. Perhaps, though, practitioners find these summaries useful. If not, though, the Court is probably wasting resources and delaying opinion releases unnecessarily by sill doing them.

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Constructing Early Case Reports

My draft paper on Corfield discusses Justice Washington’s original notes without explaining why he kept these notes. When I do a revision, I will rectify that by showing that he kept the notes so that an official report could be written later. In those days, there was no official reporting system for circuit cases. Washington’s correspondence indicates that he shared his notes with different individuals to create these reports (and not all of his colleagues did the same).

In those letters, Washington was careful to say that his jury charges or opinions should be published verbatim (whether they were correct or not on the law) but the arguments of counsel should be edited to look better. A kind of professional courtesy, I suppose.

1

Electric Scooters

I thought I would do some counter programming given the hearing today and talk about electric scooters. Suddenly they have sprung up in cities across America, including mine. This is a great publicity coup for their manufacturer, a startup called Bird. There have, though, already been some fatal accidents involving these devices, which could be attributed to car drivers being unfamiliar with them, inexperienced riders of the scooters, or the lack of any proper regulation.

The question of whether to allow (or how to regulate) these scooters is an interesting one that almost every state or city must consider. Here’s my question though. Does Bird face significant liability for, in essence, springing this as a surprise on people, which in turn can be said to have caused accidents? Was that negligence?

4

Justice Kennedy Really Screwed Up

First, he waited until the last day of the Term to announce his retirement. This shortened the timeframe for deliberating on a Supreme Court nomination and for vetting a nominee.

Second, he retired effective July 31, 2018. Thus, we now again face the prospect of a shorthanded Supreme Court, maybe for two years or more.

Alas.

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FAN 200 (First Amendment News) Special 200th Issue: 15 Women & Their Views on Free Speech

To commemorate the 200th issue of First Amendment News, I invited women from various professions (lawyers, law professors, and a journalism professor) to draft original essays on any aspect of free speech law. Why only women? Fair question. My answer has to do with the fact, as I perceive it, that by-and-large those who receive the most attention in the First Amendment arena are men. I leave it to others to explain if and why that might be so — some of the contributors to this symposium do just that. However that may be, of this I can say with a good measure of certainty: the essays that follow are diverse, thoughtful, somtimes provocative, original, and often mind-opening.  I extend my thanks to the 15 contributors for their sympsoium essays and to Kellye Testy for kindly agreeing to write the Foreword.  

→ Related: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018 (Aug. 7, 2018)      

→ With this issue First Amendment News ends its long and rewarding affiliation with Concurring Opinions. I want to thank my colleagues here for their valuable and generous support. I especially want to thank Professor Dan Solove who years ago dared to invite me to be a part of his team. Happily, Dan and his colleagues have agreed to allow me to continue to contribute to Concurring Opinions.

Starting sometime in October, FAN’s new host will be the Foundation for Individual Rights in Education (FIRE). Among other things, you can expect more news along with a variety of digital improvements. From time to time, FAN will also host or co-host live and online symposia and may even conduct a study or two. One thing will, however, remain constant: my commitment to being a fair broker of content. So stay tuned — some of the best is yet to come. — RKLC    

_______Symposium_______

Foreword

Kellye Testy, “Prior Restraint: Women’s Voices and the First Amendment

15 Contributors  

Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder

Mary Anne Franks, “The Free Speech Fraternity

Sarah C. Haan, “Facebook and the Identity Business

Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech

Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”

Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place

Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories

Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency

Helen Norton, “Taking Listeners’ First Amendment Interests Seriously

Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra

Ruthann Robson, “The Cyber Company Town

Kelli Sager& Selina MacLaren, First Amendment Rights of Access

Sonja West, “President Trump and the Press Clause: A Cautionary Tale

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FAN 200 (First Amendment News) Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”

Helen Norton is Professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law at the University of Colorado Law School. Professor Norton’s scholarly and teaching interests include constitutional law, civil rights, and employment discrimination.  Two of her more recent publications are: “The Government’s Manufacture of Doubt,” 16 First Am. L. Rev. 342 (2018) and “The Government’s Lies and the Press Clause,” 89 U. Colo. L. Rev. 453 (2018).

___________________

Let’s say you’ve learned that you’re 10 weeks pregnant.

Professor Helen Norton

You may have several children already, or none. You may be a teenager or you may be in your 40s. You may have a job–or maybe you just lost one. You may or may not be married. You may have health insurance; you may not. You may know that you don’t want an abortion. You may know that you do. You may be unsure. In any event, you are now considering your next steps.

Turns out that many folks have something to say to you about what you should do next. What do you want from those speakers? If you’re like many (if not most), you want accurate information that informs, but does not coerce, your decision-making. You don’t want to be lied to, you don’t want relevant information withheld from you, and you don’t want to be bullied. Here, then, you probably want to know the risks and benefits of your options, their costs, and the qualifications of the folks offering to serve you. You probably want to know what services are available from other sources, and at what cost.

For these reasons, California, like a number of other jurisdictions, required facilities that seek to serve pregnant women to disclose certain information to those women. First, it required those facilities licensed under state law to provide women with notice that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” This tells women about additional options, and their cost. Second, the state required unlicensed facilities to notify women that “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” This tells women about the qualifications of those seeking to serve them.

But last June a 5-4 Supreme Court preliminarily enjoined California’s law, holding that it likely violated the free speech rights of crisis pregnancy centers, organizations often affiliated with or operated by those opposing abortion. Most, if not all, of these centers do not offer referrals or any other services related to birth control or abortion, and many have no professional health care providers on staff. In so holding, the Court ignored what women as listeners would find helpful in making important decisions about their health and lives. Focusing instead on the centers as speakersand what they do and don’t want to say to the pregnant women they seek to influence, the Court demonstrated its continuing failure to protect listeners’ autonomy, enlightenment, and self-governance interests – values at the heart of the Free Speech Clause.

As I explain in more detail in a forthcoming essay, the Court need not, and should not, have done so. In certain settings, law sometimes puts listenersfirst when their First Amendment interests collide with those of speakers. And collide they often do. Sometimes speakers prefer to tell lies when their listeners long for the truth. Sometimes listeners hope that speakers will reveal their secrets, while speakers resist disclosure. And at other times, speakers seek to address certain listeners when listeners wish simply to be left alone. When speakers’ and listeners’ First Amendment interests conflict, whose should prevail?

(credit: Gavin Ortlund)

A “listener-centered” approach to certain free speech problems outside of public discourse understands the First Amendment to permit the government to regulate the speech of comparatively knowledgeable or powerful speakers when that expression frustrates their listeners’ interests. (“Public discourse” involves the universe of speech key to democratic self-governance like campaign and other political speech, where courts have historically privileged speakers’ autonomy interests in saying what they want to say.)

Why put listeners first in environments of expressive inequality? When speakers enjoy certain advantages of information or power over their listeners, they can mislead or muscle their listeners in ways that strike us as unfair and sometimes dangerous. When we take seriously the First Amendment interests of listeners who suffer disadvantages of information or power in these relationships, we improve the quality of the communicative discourse. We also recognize listeners as ends in themselves–rather than as mere means through which speakers seek to achieve their own ends.

And a listener-centered approach still leaves those speakers free to make a wide range of expressive choices: it does not force speakers to mouth opinions that they don’t hold, nor does it prohibit them from sharing their opinions or additional accurate information of their choosing in non-coercive settings

Consider the following clashes between speakers’ and listeners’ First Amendment interests:

Lies often advance the speaker’s autonomy interests in saying what he wants to say at the expense of his listeners’ interests in receiving accurate information to inform their decision-making. A listener-centered resolution of this conflict understands the First Amendment to allow the government to require comparatively knowledgeable or powerful speakers to tell the truth when they choose to speak on certain matters even if they would prefer to dissemble. For this reason, law generally requires commercial actors to speak accurately when they extol their products’ attributes to consumers, professionals to accurately list the risks of their recommended course of action, to their patients and clients, and a corporation’s leaders to portray its economic situation truthfully when describing its prospects to shareholders.

A knowledgeable speaker’s secrets and non-disclosures can also threaten listeners’ interests while enhancing his own. A listener-centered approach understands the First Amendment to permit the government to require comparatively knowledgeable and powerful speakers to make accurate disclosures about issues material to listeners’ decision-making, even if those speakers would prefer not to. Think, for example, of the government’s requirements that commercial speakers affirmatively disclose the health or safety dangers posed by their products.

The Supreme Court’s traditional commercial speech doctrine long exemplified a listener-centered approach. In a setting where commercial actors hold more information about their goods and services than their consumers, the Court interpreted the First Amendment to permit the government to regulate commercial speech that frustrates listeners’ interests while protectingcommercial speech that serves them. The Court thus treats commercial speech that is false, misleading, or related to illegal activity (like advertisements for illegal drugs) as entirely unprotected because listeners have no constitutionally protected interest in receiving that information. At the same time, the Court generally protects truthful and non-misleading commercial speech from government regulation because that expression can provide great value to consumers’ decisionmaking. For instance, the Court has applied intermediate scrutiny to strike down laws prohibiting sellers from publishing accurate information about legal products or services, like the price of prescription drugs or the alcohol strength of beer.

The professional speech setting also shows how law can serve listeners’ First Amendment interests sometimes by protecting expression from the government’s regulation, and at other times by regulating it to ensure its trustworthiness and thus its value to listeners. We support listeners’ interests in quality professional advice when we interpret the First Amendment to protect lawyers’ and doctors’ speech from governmental restrictions that are inconsistent with professional standards – like the federal law that forbade federally-funded legal services lawyers from representing clients challenging welfare law even though professional standards generally require lawyers vigorously to pursue their client’s plausible claims.

Then there is the Florida law that banned doctors’ discussions of gun safety with their patients even when professional standards encourage such conversations to prevent accidental injuries. At the same time, we also promote listeners’ interests in quality professional advice when we understand the First Amendment to permit the government to regulate professionals’ speech to ensure its trustworthiness. Examples include professional responsibility rules that regulate professionals’ speech to protect clients’ interests, such as those that require lawyers to disclose potential conflicts of interest and that prohibit lawyers from knowingly making false statements of material fact or law.

Here I’ve discussed the value of a listener-centered approach to certain free speech problems in several settings: commercial, professional, and reproductive health care (and elsewhere I’ve also explored a listener-centered approach to workplace speech). All involve offers or exchanges outside of public discourse where the speaker has more information (and sometimes power) than his listeners. In each of them, the speaker seeks to shape his listeners’ choices in his preferred direction: to persuade them to buy what he’s selling; to settle rather than sue or to wait rather than operate (or vice versa); or to continue a pregnancy. All involve the speaker’s delivery of information that is objectively verifiable: the attributes of a particular product; the professional consensus about a course of medical treatment or legal action; and the existence and extent of available reproductive health care services. And all involve listeners who are making decisions (often life-shaping decisions) about their own property or health. When we take the side of listeners in these relationships, we promote their First Amendment interests by enabling them to receive accurate information that informs, but does not coerce, their decision-making.