FAN 20 (First Amendment News) — New Book, New Legislation, New Study & More News

No First Amendment cases from the Supreme Court today. Most likely tomorrow (perhaps Monday?).

→ What’s left? The only First Amendment free expression cases left to be decided this Term are:

  1. McCullen v. Coakley
  2. Harris v. Quinn

New Book — Tribe & Matz on Roberts Court & Free Speech 

Laurence Tribe

Laurence Tribe

In May of 2013 I profiled a forthcoming book, which has just been released. “Forty-five years after the publication of his first book (Technology: Process of Assessment and Choice), Laurence Tribe is preparing to release another book, tentatively titled Uncertain Justice (2014).” I wrote that in SCOTUSblog. “This forthcoming offering,” I added, “will come out six years after Tribe’s last book (The Invisible Constitution). The book will be the Harvard Law professor’s sixteenth. Like a few of his other works, Uncertain Justice will be co-authored – this time Joshua Matz is his literary partner on this work on the Roberts Court.” Well, wait no more; here it is: Uncertain Justice: The Roberts Court & The Constitution (Henry Holt, 2014). Mr. Matz is a Harvard law graduate who clerked for Judge Stephen Reinhardt and will soon clerk for Justice Anthony Kennedy.

Joshua Matz

Joshua Matz

While Uncertain Justice has received some early favorable reviews, my focus here is on only two chapters in the book: Chapter 3 (“Campaign Finance: Follow the Money”) and Chapter 4  (“Freedom of Speech: Sex, Lies & Video Games”). Together, these chapters consume 165 of the book’s 320 pages of text.

↓→ Campaign Finance

“The truth is somewhere in the middle.”

In a galvanized world of frenzied litmus-test beliefs over the role of money in our electoral system, Tribe and Matz (T&M) can be refreshingly open-minded: “It is easy to lose sight of the fact that Citizens United posed incredibly difficult questions about free speech, popular sovereignty, and political equality,” they write. “Deciding when Congress can ban certain disfavored speakers from the marketplace of ideas or limit how much they can speak is no easy task. It certainly isn’t outlandish to conclude, as the Court did, that free speech rights must prevail over hard-to-document fears that corporate wealth will distort public discourse or corrupt politicians.”

Then again, they do speak of the “Roberts Court’s broader agenda of deregulating campaign finance” reforms.  On that score, they maintain that by “reshaping the architecture of money, influence, and political organization, the Roberts Court is transforming how America conducts — and funds — politics.” In an endnote (p. 342, n. 64) they state: “While we do not purport to identify specific instances in which electoral outcomes shifted because of trends triggered by Citizens United, it seems to us highly likely that this has occurred in at least some races.”

While the authors freely offer the views of the “many critics of Citizens United,” they also concede that “Citizens United was a hard case because the Court faced a choice among evils.” With welcome objectivity and nuance, they add: “it’s extremely hard to determine whether any given campaign finance rule has a big enough impact to survive judicial scrutiny.  Judges have long implemented the First Amendment by requiring — among other things — that  restrictions on speech demonstrably achieve a legitimate goal. The causes of political corruption in America,” they stress, “and the reasons why politicians act the way they do . . . are many and complex.  Money in politics is only part of that story . . . .”

On the one hand, T&M understand how the Roberts Court’s narrow definition of corruption might be viewed as necessary in order to foster a “workable” body of First Amendment law sensitive to the concerns of free speech. On the other hand, they think that the Citizens United Court might have resorted to a “more modest” course of action that would “have left more room for politicians to use campaign finance laws, carefully reviewed by courts, as one tool among many in their efforts to restore public confidence in government integrity.” In other words, they tread cautiously in this ideological minefield.

So what should reformers do? In an endnote, Professor Tribe discloses that he “assisted Representative Adam Schiff of California in drafting a proposed [constitutional] amendment that was introduced in the 112th Congress.” That said, no defense of such radical constitutional surgery is offered in the book. In fact, the authors skip quickly past calls for constitutional amendments. Instead, they counsel that “critics of Citizens United would be well served to move past issues like corporate personhood and money’s status as speech. Instead, they might aim to ensure greater transparency in our brave new world of Super PACs and 501(c) organizations.” {See DISCLOSE Act item below}

If there were ever to be a national forum on the First Amendment and campaign finance reform, the organizers would be wise to invite Messrs. Tribe and Matz, if only to add some light in an otherwise overheated universe.

Note: Since Uncertain Justice was completed in “early 2014,” the Court’s April 2014 ruling in McCutcheon v. FEC (2014) is not discussed.

 Sex, Lies & Video Games

“There is more to the Roberts Courts First Amendment cases than meets the eye.”

T&M do, nonetheless, have some conceptual bones to pick with the Roberts Court (or at least with the conservative wing of that Court) when it comes to free speech. They argue that the Court “has rigidly adhered to categorical rules that broadly protect certain kinds of speech but occasionally undermine core First Amendment values by protecting speech that really is harmful enough to justify restrictions.” Then again, they emphasize that even as the Court “insists that these rigid rules are necessary to protect speech, it has displayed a taste for flexibility while creating new gaps in the First Amendment’s canvas.”

“The Court booms forcefully when it vindicates borderline free speech claims,” T&M maintain. “Meanwhile, much more quietly, it denies protection to some of those who most need its help . . . .” While there is merit in this claim, it is not entirely clear what makes a free speech case a “borderline” one. More importantly, and as seasoned First Amendment lawyers know, such “borderline” cases often contain important dicta that may well prove important in, if I may put it this way, “mainline” free speech cases.

Be that as it may, T&M are spot on in their critique of Holder v. Humanitarian Law Project (2010). They do their readers a service by reminding them that the government’s case was argued, and vigorously so, by none other than then S.G. Elena Kagan. (The narrative pie might have been sweeter still if they had mentioned the stellar work done by opposing counsel, Professor David Cole, who held his own during oral arguments.) In abbreviated form and in relevant part, here is how T&M assess the majority’s constitutional handiwork: “the Court [per Chief Justice John Roberts] embraced a narrow view of its role in evaluating the justifications of a speech-restrictive law.” Importantly, they add, it “did not simply defer to a questionable finding of fact by Congress or the Executive Branch about the dangers of speech; rather, it didn’t require any factual findings at all” — and all this by way of its purported use of a “strict scrutiny test! Such “super deference,” as T&M aptly put it, seems odd, to say the lest, coming from a Court that prides itself on protecting First Amendment freedoms.

Predictably, T&M take understandable aim at the 5-4 ruling in Garcetti v. Ceballos (2006), the government employee speech case. Ironically, the majority opinion was authored by Justice Anthony Kennedy, someone reputed to be quite free-speech protective. While the authors are critical of Kennedy’s opinion, some may find their critique a bit too diplomatic. (Compare Paul Scunda, “Garcetti’s Impact on the First Amendment Speech Rights of Federal Employees” (2008).) Recently, a unanimous Court, per Justice Sonia Sotomayor, appeared to temper the troubling reach of Garcetti; the case is Lane v. Franks (2014).

Equally predictable is their criticism of Morse v. Frederick (2007), the “bong hit for Jesus” student speech case.  So, too, they take issue with the Roberts Court’s ruling in Beard v. Banks (2006), a prisoner’s rights free-speech case.

Together, T&M contend, these four rulings amount to the “creation of new silos of largely unprotected speech [that] was not required by precedent.” Indeed, though in all fairness the Court has never been a friend of prisoner’s rights when it comes to free speech.

Other cases where First Amendment claims were sustained — Brown v. Entertainment Merchants Association (2011) and United States v. Stevens (2010) — “cemented a rigidly categorical approach to the First Amendment,” which T&M appear to view as both unnecessary and not as historically warranted as the authors of those opinions (Justice Antonin Scalia and Chief Justice John Roberts) would have us believe.

As for the 8-1 ruling in Snyder v. Phelps (2011), the military funerals protest case, T&M claim the opinion for the Court “reminds us that unsuspecting innocents are occasionally forced to bear the brunt of a First Amendment . . . .” In Snyder, they add, “the Court took an aggressive stand, essentially stating that the victims of this savagery must be left without protection as the price of our shared liberty. Whether one agrees or not, it is unsettling to be reminded of freedoms steep cost.” One question for the authors: So, how would you have voted in the case?

Take Note: T&M make an important point when they note that Justice “Kennedy is the only justice to have voted with the winning side every time” in a free speech case decided by the Roberts Court. While the Chief Justice has authored far more majority or plurality opinions in this area, Kennedy’s vote seems to be the one that matters most.

There is more, much more. I will, however, offer only one more statement from the authors: “the Roberts Court enjoys a strong ‘pro-speech’ reputation. Appearances deceive. A closer look reveals that the Court is deeply torn over its vision of free speech. In many ways, the Court is not as libertarian as it sometimes seems.”

While some may fairly question the T&M thesis, it is offered with enough care to provoke thoughtful debate. If that sort of thing appeals to you, then buy their book — I did.

Senator Whitehouse Re-introduces DISCLOSE Act with 49 Cosponsors 

This legislation “would ensure that voters know the identity of donors who have been secretly financing campaign expenditures in federal elections. Voters have a fundamental right to know this information. Donors funneled more than $300 million in secret contributions into the 2012 national elections through outside spending groups.”

Organizations supporting the proposed law include: Americans for Campaign Reform, the Brennan Center for Justice, the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Demos, the League of Women Voters, People For the American Way, Public Citizen and Sunlight Foundation.

Harvard Law Review Symposium (vol. 127, issue 8)

Responses (Harvard Law Review Forum)


One Third of Americans Polled Can’t Name any First Amendment Right

That’s the news from the Newseum Institute’s First Amendment Center’s latest survey about the state of the First Amendment in America. Some of the study’s key findings include the following three:

  1. When asked to name the five specific freedoms in the First Amendment, 68% of Americans name freedom of speech, followed by 29% who say the freedom of religion, 14% mention the freedom of the press, 7% mention the right to assemble, and 1% name the right to petition. Twenty-nine percent of those surveyed cannot name any of the rights guaranteed by the First Amendment.
  2. Those who could name freedom of speech and freedom of religion increased this year from 59% to 68% and 24% to 29% respectively. Meanwhile, the knowledge of right to petition and right of assembly decreased from 4% to 1% and 11% to 7% respectively. The percentage of Americans who can’t name any First Amendment rights dropped from 36% to 29%.
  3. In 2013, 34% stated that the First Amendment does go too far and 64% said it does not go too far in protecting rights. In the current survey, 38% say the First Amendment goes too far while 57% say it does not.

See here for video commentary by Gene Policinski of the Newseum Institute.

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Last Scheduled FAN Column: “Law Prof. Contests Ban on Note-Taking in Courtroom

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