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FAN 166 (First Amendment News) Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy

[Earlier this month]  a representative from the American Civil Liberties Union saw her chance to speak about the First Amendment squashed by students chagrined by the actions of her employer.Virginia Gazette, Oct. 6, 2017 The website of the ACLU of Virginia contains a statement by Claire Guthrie Gastañaga, its Executive Director. That statement pertains to the recent controversy at William and Mary. Below are portions of that statement, including passages in red that were apparently contained in the original version but no longer exist in the current one.

Claire Guthrie Gastañaga

“The ACLU of Virginia was invited by the College of William & Mary Alma Mater Productions to speak to students on Sept. 27 about their First Amendment rights, and, particularly, their rights at protests and demonstrations. We were pleased to accept the invitation and looked forward to making the presentation and answering questions on a wide range of topics. We were disappointed that we didn’t get the chance to provide the information that the students asked us to present nor to answer the tough questions we expected the student organizers and audience members to ask. . . .”

“The ACLU of Virginia supports unequivocally the freedom of professors, students and administrators to teach, learn, discuss and debate or to express ideas, opinions or feelings in classroom, public or private discourse.”

“We also support the goals espoused by the demonstrators (ending white supremacy, achieving racial justice, elevating those who have been oppressed). It is more than disappointing, however, when the robust debate that should be the hallmark of the culture of inquiry on a college campus is disrupted by those who seek with their own voices or actions simply to silence others who took actions or hold views based on principles with which they disagree.”

 “Disruption that prevents a speaker from speaking, and audience members from hearing the speaker, is not constitutionally protected speech even on a public college campus subject to the First Amendment; it is a classic example of a heckler’s veto, and, appropriately, can be prohibited by a college student code of conduct as it is at William and Mary. As a government entity, a public college like William and Mary has an obligation to protect the freedom of the speaker to speak and not to allow one group of people to shout down or seek to intimidate other speakers or members of the audience who wish to hear the speaker from exercising their own free speech rights. This is true regardless of what individuals or groups are speaking, protesting or counter-protesting.” [This passage survives in a blog post by Sam Harris.] “The ACLU of Virginia has been and will continue to be unwavering in its commitment to campus free speech. We are equally committed to ensuring that all universities take appropriate steps to ensure that the environment on their campuses fosters tolerance and mutual respect among members of the campus community, and an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination. . . . ” “What happened at William and Mary on Sept. 27 is a part of a larger national trend that is challenging campus leaders across the country to find the right formula for assuring that critical community conversations can take place in a culture of inquiry consistent with a true learning environment. Actions that bully, intimidate or disrupt must not be without consequences in any such formula.” [This passage survives in an Inside Higher Ed story by Jeremy Bauer-Wolf. Though that story contained a link to the passage in red quoted above, the contents of that link have apparently been changed since it no longer contains the lines quoted above.]

Bill Farrar of the VA ACLU

Deleted passages: By all accounts, the passages in red were contained in an earlier version of the ACLU’s statement but do not appear in the current version.

VA ACLU Responds: When asked about the above, Bill Farrar, Director of Strategic Communications, responded: “We revised our statement based on internal feeedback from our colleagues.” He agreed that the deleted passages no longer reflect the Virginia ACLU’s current position. When asked if the National ACLU was consulted, Mr. Farrar said it was not.

Hecklers shout down California attorney general 

This from Adam Steinbaugh over at FIRE: “Last week, Whittier College — my alma mater — hosted California’s Attorney General, Xavier Becerra, in a question-and-answer session organized by Ian Calderon, the Majority Leader of the California State Assembly.”

“They tried to, anyway. The event ended early after pro-Trump hecklers, upset about Becerra’s lawsuit against the Trump administration over DACA, continuously shouted slogans and insults at Becerra and Calderon. A group affiliated with the hecklers later boasted that the speakers were ‘SHOUTED DOWN BY FED-UP CALIFORNIANS” and that the “meeting became so raucous that it ended about a half hour early.'”

“The event, held in Whittier College’s Shannon Center theater, was free and open to members of the community, and featured introductions from both Whittier’s president and student body president. Becerra and Calderon were to have an hour-long question-and-answer session using audience questions randomly selected from a basket. As soon as they began the discussion, however, hecklers decked in ‘Make America Great Again’ hats began a continuous and persistent chorus of boos, slogans, and insults.”

“Video captured by an alumnus captures the difficulty of hearing the discussion”:

“Video uploaded by two of the hecklers, Arthur C. Schaper and Harim Uzziel, captures the entirety of the affair, complete with chanted slogans and insults, such as ‘lock him up,’ ‘build that wall,’ ‘obey the law,’ ‘respect our president,’ ‘Americans first,’ and ‘You must respect our president!’ It also captures audience members repeatedly asking the hecklers to stop, and campus security officials approaching the group. Another video posted by “We the People Rising” also captured much of the disruption”:

“Calderon asked the audience to hold applause or booing, remarking: ‘It’s important that we have a productive conversation here.’ Becerra said that he thought the First Amendment to be a “precious thing,” but said he doubted the audience could hear him speak. The event, scheduled for an hour, concluded after about 34 minutes.”

“Schaper, a conservative columnist, is known for leading disruptions targeting Democratic officials, and was recently charged with disrupting a public meeting. For example, he disrupted a congresswoman’s ‘Know Your Rights’ forum, intended to give information to undocumented immigrants. ‘It was offensive,’ Schaper told the San Gabriel Valley Tribune. ‘[The congresswoman] took an oath to uphold [the] Constitution, and now she’s sponsoring a town hall that teaches illegal aliens about rights they don’t have.’ . . . “

Coming Soon: The First Amendment in the Regulatory State — Research Roundtable Read More

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Singular vs. Plural

Let me tell you about another juicy detail from Bushrod Washington’s “lost” journal. The journal contains his draft opinion in Green v. Biddle, in which the Court invalidated two state statutes from Kentucky that dealt with property rights. At the close of an opinion on this hotly contested issue, he wrote:

“[W]e hold ourselves answerable to God, our consciences, and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may.”

In the draft opinion, here’s how this passage reads:

“I hold myself answerable to God, my conscience, and my country, to decide this question according to the dictates of my best judgment, be the consequences of the decision what they may.”

What does this difference mean? Was the draft opinion originally only for Washington (as a concurrence or dissent)? Did he just write drafts in the singular person until he received enough joins to make a majority? I’ll keep digging to find out.

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Our Tour Begins

Welcome to our virtual gallery tour of “Law’s Picture Books” at the Grolier Club, which we introduced in yesterday’s post. Our gallery consists of ten cases, each of which features images that serve a particular function or goal in legal publishing.

Today we’d like to show you the first case, “Symbolizing the Law.” It features books that contain allegorical images of law. What do law’s images do? For one, they represent law’s abstract ideals—indeed, images often convey those ideals much more effectively than can words alone.

You could talk to someone all day long about how law is no respecter of persons, or about the importance of its being applied with neutrality. Or you could just show them an image of Lady Justice. Allegorical images are central to the history of law book publishing—and, in the case of Lady Justice, to its brand identity.

Viewed collectively, the images of Lady Justice in this case illustrate a number of trends. You can see her transformation from an allegorical image to a trademark, much like the barber’s striped pole. In her early incarnations, Lady Justice is often appropriated to legitimate the power of the state or the sovereign, as in the statutes of Venice and Genoa that we have on display. Later, she’s used as a polemical device in the literature of law reform and social protest, as in the pamphlet we feature calling on the governor of California to pardon the radical labor leader Tom Mooney.

There are a number of curious things to recognize about the images in this case.

Read More

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Law’s Picture Books

As the Wall Street Journal reported a few weeks back (along with the New Yorker and the Frankfurter Allgemeine), the two of us recently opened an exciting exhibition in New York about the history of illustrated law books.

The exhibit is called “Law’s Picture Books: The Yale Law Library Collection,” and it includes over 140 items drawn from Yale’s unique collection in the field—which Mike developed. The exhibit is accompanied by a 220-page, full-color exhibition catalogue, as well as a companion exhibit at Yale Law School.

Here are a few snaps from the gallery at the Grolier Club, near the corner of Park and 60th, where the exhibit is on display until November 18:

Over the next ten posts, we’d like to share some images from the exhibit with the readers of Concurring Opinions, and we’d like to reflect a bit on their meaning. We think they’re fascinating, mysterious, beautiful, and intriguing—and that they can teach us a lot about law.

Read More

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FAN 165.2 (First Amendment News) Masses Publishing Co. v. Patten court documents now posted on First Amendment Library

Judge Learned Hand’s order granting the temporary injunction against the postmaster and ordering the magazine transmitted through the mails “without delay” was dated July 26, two days after the decision became known. During that brief period, the company pulled back the copies sent to the Post Office so the edition could be delivered by alternate means. On the same day the order was issued, U.S. Attorney Francis G. Caffey filed an Assignment of Error listing grounds on which he would rely in his appeal from Hand’s decree. In all, there were seven alleged errors, although essentially all of them went directly to the bottom line: Hand was wrong in finding for the magazine under every provision of the Espionage Act raised by government and wrong in granting the injunction.   — Eric Easton, Defending the Masses (Jan. 2018) 

* * * *

‘Tis the year of The Masses. This year marks the 100th anniversary of Judge Learned Hand’s seminal free-speech opinion in Masses Publishing Co. v. PattenAs previously reported here, two major events have been organized to celebrate the occasion.

New York Univeristy School of Law and the Sandra Day O’Connor College of Law at Arizona State University are hosting an all-day conference in New York on October 20th.

Gilbert E. Roe (lawyer for The Masses)

 Not long thereafter, on November 6th, the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Patten. Floyd Abrams will appear on behalf of Postmaster Patten and Kathleen M. Sullivan will appear on behalf of Masses Publishing Co. The case will be argued before a panel of three judges:

  • Circuit Judge Reena Raggi,
  • Circuit Judge Pierre N. Leval, and
  • Circuit Judge Robert D. Sack

Original court documents posted for first time

In light of all of the above, the folks over at the First Amendment Library (led by Jackie Farmer) have uploaded 18 never before posted documents relating to the appeal in The Masses case. Among other things, this compilation includes the complaint, various affidavits filed in the case, transcript of the record, the order staying Judge Hand’s injunction, and much more.

Adriana Mark, head of research and education for the Second Circuit Library, unearthed these documents for the First Amendment Library. The librarians at the Gallagher Library of the University of Washington School of Law also provided additional research.

As the editor of the Library, I wrote the Introduction to the collection of The Masses documents.

Professor Eric Easton, author of Defending the Masses: A Progressive Lawyer’s Battles for Free Speech University of Wisconsin Press (Jan. 2018), kindly agreed to allow us to post a chapter from his forthcoming book, this to provide additional context for the documents posted.

            Judge Hand’s signature in Masses case

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Subsidies Under the Affordable Care Act

I would be curious to hear opinions from people who know more about health law than I do. I can think of three ways to understand the President’s decision to stop certain subsidies to participants in the insurance exchanges.

  1. The subsidies are illegal because there was no appropriation for them. This is the position of the House Republicans in litigation pending before the DC Circuit.
  2. The Act gives the President discretion to give subsidies.
  3. The Act gives the President no discretion (or not enough) and thus any cancellation of the subsidies is an unlawful impoundment of funds.

Which one is correct? Or is there a fourth option?

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Privileges and Immunities in Corfield

I thought that I would provide a full transcript of the money quote in Justice Washington’s notes on Corfield.

“As to the 4th article second section of the Constitution, ‘the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’ Is the right which a citizen has to enjoy the common property belonging to the citizens of the state a privilege or immunity? See infra A

A. I am inclined to think that it is a privilege within the meaning of this article of the Constitution. If it be not, then the rights to navigate the waters would not be, because they also are common property, and yet it would seem to violate this article to make a law forbidding citizens of their state to navigate the waters of that state. I am inclined to the opinion of the Court in Livingston v. Van Ingen, that the ___ of this article is that the citizen of each state shall within every other state have equal privileges or rights as the citizens of such state have, the words all privileges of citizens being equivalent to equal privileges.”

[There is one word I can’t quite make out.]

Other portions of the Corfield notes include summaries of the relevant cases, which is interesting from the standpoint of seeing how Washington made decisions. There is also a section on the Commerce Clause issue in the case, which I need to think about further in light of what was decided in Gibbons v. Ogden.  More tidbits to come.

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Some Thoughts from George Washington

In reading this letter by our first President about Bushrod Washington, I couldn’t help but think of the current President:

“With great pleasure I received the information respecting the commencement of my Nephew’s political course. I hope he will not be so buoyed up by the favorable impression it has made as to become a babbler.”

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FAN 165.1 (First Amendment News) New FIRE Report — Majority of college students self-censor & support disinvitations

This from a just-released report from the Foundation for Individual Rights in Education (FIRE):

PHILADELPHIA, Oct. 11, 2017 — A new report from the Foundation for Individual Rights in Education finds a majority of students on college campuses self-censor in class, support disinviting some guest speakers with whom they disagree, and don’t know that hate speech is protected by the First Amendment. The study also finds that Republican and Democratic students have different opinions on campus protests, disinvitations, and hate speech protections.
In the most comprehensive survey on students’ attitudes about free speech to date, FIRE measured student responses to questions about self expression, reactions to expression of other students, guest speakers, and hate speech. Some key findings include:
  • 46 percent of students recognize that hate speech is protected by the First Amendment, and 48 percent of students think the First Amendment should not protect hate speech.
  • Most students (56 percent) support disinviting some guest speakers. Democratic students are 19 percentage points more likely than their Republican peers to agree that there are times a speaker should be disinvited.
  • 58 percent of college students think it’s important to be part of a campus community where they are not exposed to intolerant or offensive ideas.
  • Very few students report that they would participate in actions that would prevent a guest speaker event from taking place (2 percent). Even fewer said they would use violence to disrupt an event (1 percent).
  • In open-ended questions, almost half of students (45 percent) identify speech with a racist component as hate speech, and 13 percent of students associate hate speech with violence.
  • In class, 30 percent of students have self-censored because they thought their words would be offensive to others. A majority of students (54 percent) report self-censoring in the classroom at some point since the beginning of college.

FIRE’s survey also found ideological differences in how students feel about free expression, both inside and outside the classroom. Very liberal students are 14 percentage points more likely than their very conservative peers to feel comfortable expressing their opinions in the classroom. Additionally, 60 percent of Republican students think they should not have to walk past a protest on campus, while only 28 percent of Democratic students think the same.

Robert Shibley

“There is clearly a partisan divide in how students perceive free speech on college campuses,” said FIRE Executive Director Robert Shibley. “This further solidifies the importance of FIRE’s mission. Free expression is too important to become a partisan issue in higher education.”

Additionally, FIRE’s survey found that a majority of students want their schools to invite a variety of guest speakers to campus (93 percent), and 64 percent report changing an attitude or opinion after listening to a guest speaker.

FIRE contracted with YouGov (California), a nonpartisan polling and research firm, to survey 1,250 American undergraduate students between May 25 and June 8. YouGov calculated weights for each response based on the respondent’s gender, race, and age. A copy of the full report, an FAQ, and the toplines and tabulations from YouGov can be accessed here.

The survey project was made possible by a grant from the John Templeton Foundation to conduct polling on campus attitudes, engage in legal and social science research, and mobilize a wider audience on and off campus in the fight for student and faculty rights.

ContactWilliam Rickards, Communications Coordinator, FIRE
215-717-3473; media@thefire.org
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Annotating Section Two of the Fourteenth Amendment

Last week I participated in a workshop organized by the ABA to assist civics teachers who want to teach their students about the Fourteenth Amendment. As part of that program, the ABA gave each of us a pocket constitution.  You are all familiar with these. But the ABA version is annotated to some extent. At the end of Section Two of the Fourteenth Amendment, a note says “Section Two age requirements superseded by the 26th Amendment and ‘male’ restrictions superseded by the 19th Amendment.”

Now I think this is the correct reading, as I explain in my forthcoming paper about Section 2 and the reapportionment process. On the other hand, no case says this, which raises the question of why the annotators think that this is true and are telling people it is true. (This is the only annotation for the amendments in the ABA pocket constitution.)