45 FAN (First Amendment News) — Neuborne & Corn-Revere debate judicial campaign solicitation case

Burt Neuborne

Burt Neuborne

A libertarian and a liberal walk into a bar; the libertarian orders a shot of Kentucky Knob Creek while the liberal orders a glass of Napa Valley Merlot. True, they both like alcohol, but one prefers it with kick. If the metaphor holds true, Professor Burt Neuborne is the Merlot man and First Amendment lawyer Robert Corn-Revere is the strengthened spirits man.

The two seasoned First Amendment experts recently debated one another in a National Constitution Center podcast titled “Should elected judges be allowed to ask for donations?” Amicus briefs were submitted by both men in the Williams-Yulee v. The Florida Bar case (Neuborne et al here and Corn-Revere here). The friendly and illuminating podcast was moderated by Jeffrey Rosen, the President and CEO of the Center. Here are a few excerpts of that exchange:

This is kind of a mutual admiration society, although we are on different sides in this case.  — BN

Neuborne: “They were very careful in the White case to say that judicial elections may well be different because of the nature of what a judge does. . . . [O]nce [a] judge is elected, [he or she ] is expected to be absolutely impartial and not to tilt toward his political supporters and not to engage in the kind of behavior that we expect, and indeed want, congressional people to do. If you are elected as a congressman, you made promises to the electorate; you made pledges that you’re going to carry out certain policies. . . . Promises by a judge would make it very difficult for people who are appearing before that judge to think that the judge was in any way impartial. . . . We don’ t want the judge to lock himself or herself into a position that interferes with the mandate of judicial impartiality.”

“. . . You have to let judges raises enough money to be able to have a real campaign. . . . They have to be allowed to raise a significant amount of money and do real real elections. But the question is, how do they do it? Are they going to raise the money in a way that gives rise to an assumption . . . . that they are somehow bound to the people who gave them the money? . . . . The question is, in order to stop that from happening, can the States . . . . say that the judge can’t personally ask for money, people who support him can ask for money, but he can’t or she can’t personally ask of money, because that would threaten the integrity and impartiality of the process . . .”

Robert Corn-Revere

Robert Corn-Revere

Corn-Revere: “Once you make the choice to use popular elections certain things follow from that, and none of them are very easily addressed. . . . [When] you make judges into [political] candidates [who] are asking for people’s votes, they are not above the political fray. . . . [T]he judges . . . have to be able to talk about issues and have to be able to raise a certain amount of money. The question is whether or not having a direct fundraising appeal [actually] undermines that interest [in impartiality] . . . [In all of this, once judges run for office,]  then First Amendment [principles] override [the] kinds of restrictions the State seeks to impose [here].”

The question before the Court was: are these restrictions effective? . . . The opponents argued once you . . . allow judges to send a thank you note in response to individual contributions . . . and also to instruct their committees about who to approach, the additional ban on direct solicitations is ineffective . . . JR

Neuborne:  “. . . The argument is that the Florida statute is so honeycombed with exceptions that it doesn’t really advance the interests it is said to advance. . . . The question is: Is there something special about personal solicitation — which either puts more pressure on a lawyer [who might appear before the judge], or puts pressure on a litigant, or makes the public think that the judge would be more disappointed if you don’t respond to a personal solicitation or more grateful if you did respond to a personal solicitation — than this kind of backdoor solicitation by a proxy? I think reasonable people can differ over that. . . . I would argue that the stakes here are so high . . . that I would defer to Florida’s judgment that they want to have a risk averse prophylaxis . . . .”

Corn-Revere: “. . . . I think Burt’s summary of the problems of [with Florida’s law] was so succinct and so persuasive that I can’t believe we’re on different sides of the case. . . The difficulty is [that the Florida canon] only prohibits candidates from saying ‘please,’ it is does not prohibit them from saying ‘thank you.’ Hell, they can even host a barbecue for everyone who contributed to their campaign. If you look at the specific goals that [the Florida canon] seeks to address — first, preventing quid pro quo corruption . . .  — [and if you consider what it permits candidates for judicial election to do,] nothing in [the canon] addresses [that] quid pro quo corruption issue. The second interest — promoting impartiality and bias — again, once . . . you’re part of the political fray, you’re going to face those problems. The only issue . . . that [the canon] even attempts to address is the protection against coercion . . . . [But in this case there was no such problem with that.]”

“My view of the First Amendment is that it works in the opposite way [from what Burt suggested]; that it is the government’s burden   to demonstrate not only that there is a sufficient interest in restricting speech in any given instance, . . . but it also has to demonstrate that the means that it has chosen are narrowly tailored to address that interest and do in fact address that interest. That’s where I think [Florida’s canon] falls down.”

There is much more, and I urge everyone to hear the entire podcast, which you can find here.

 Aside: On February 3rd The New Press will release Professor Neuborne’s Madison’s Music: On Reading the First Amendment 

→ See also Jacob Gershman, “First Amendment Rights of Judges in the Spotlight,” WSJ, Jan. 27, 2015 (“In California, the state’s highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.”)

Mary Beth & John Tinker file amicus brief in Supreme Court in 1- case 

Mary Beth Tinker

Mary Beth Tinker

“The need to prevent disruption of the school environment cannot justify restricting students who engage in peaceful symbolic speech simply because others may take boisterous exception.” — Amicus brief on behalf of Mary Beth & John Tinker.

* * * *

The case is Dariano v. Morgan Hill Unified School DistrictThe issue in the case is whether the Ninth Circuit erred (opinion here) by allowing school officials to prevent students from engaging in silent, passive expression of opinion because other students might react negatively to the message, thereby incorporating a heckler’s veto into the free speech rights of students, contrary to Tinker v. Des Moines Independent Community School District (1969).

The American Freedom Law Center is representing the petitioner with Robert Jospeh Muise as counsel of record.

Mary Beth Tinker and her brother John have filed an amicus brief in the Court with Robert Corn-Revere as counsel of record. Eugene Volokh and Ronald G. London and Lisa Beth Zycherman are also listed as counsel for amici curiae.’

Adam Liptak

Adam Liptak

Liptak Speaks at Cornell Law School

New York Times Supreme Court correspondent Adam Liptak recently spoke at Cornell Law School to give the Frank Irvine Endowed Lecture. The title of his remarks was “A New Deal for the First Amendment?”

As reported in the Cornell Chronicle, “Liptak mentioned another possible consideration in applying the law: If judging is, as he phrased it, “weighing competing interests” and “putting a thumb on the scale” in favor of marginalized speech, then should a deciding factor in applying the First Amendment be the relative power of the speaker? Though Liptak did not have an answer to this question, an audience member raised the possibility that a power-based consideration could lead to influential organizations, like major newspapers, being censored.”

Liptak was also quoted as saying: “‘I practiced First Amendment law for 14 years, and I drank the Kool-Aid,” he said, describing his previous faith in the amendment. ‘Over the years, many important decisions have been made using it, including allowing protestors near funerals and decriminalizing flag burning.’ However, he added, ‘there is something troubling we should think about: economic regulations being struck down on the basis of free speech.'”

Chemerinsky reviews three new First Amendment books 

UC Irvine Law School Dean Erwin Chemerinsky has just published a review essay in the Chronicle of Higher Education. The essay focuses on three new books:

  1. Danielle Keats Citron’s Hate Crimes in Cyberspace
  2. Amy Gajda’s The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press
  3. Burt Neuborne’s Madison’s Music: On Reading the First Amendment

Here are a few excerpts:

[Professor Citron] cites surveys that show that 60 to 70 percent of cyberstalking victims are women, and she details cases in which women have been targeted, defamed, and threatened with rape and murder.

. . . . On the web, anonymity emboldens people to say things they wouldn’t otherwise express. In the absence of physical and time restraints, cybermobs form quickly. “Networked technologies remove practical barriers that once protected society from the creation of antisocial groups,” Citron writes, and information can spread exponentially in seconds. The very same things that make the Internet such a uniquely powerful medium for freedom of speech make it a uniquely powerful medium for hate crimes.

The thesis of [Professor Gajda’s] book is that, more and more, media of all types are being used to invade privacy, and that a backlash is developing in the courts that threatens free speech.

Gajda . . . describes how courts traditionally favored freedom of speech over privacy when there was a conflict between those values. But now that has changed markedly, with courts increasingly siding with those who bring claims for invasions of privacy against not just websites but media of all types—newspapers, network news, cable shows, reality TV. . . .

Like Citron, Gajda would amend the Communications Decency Act of 1996. Specifically, she would like to see Congress change this federal statute “to include a provision carving out from protection those websites that have a plaintiff-proved intent to invade privacy or to defame or to inflict severe emotional harm.”But Gajda’s proposals, more than Citron’s, raise difficult First Amendment issues. Is it realistically possible to define who is the press and explain why some sites qualify while others do not? If newsworthiness is not measured by the public’s interest, how can it be determined by judges and juries? Will they be deciding what people should be interested in? And isn’t that inherently and problematically elitist?

. . . [Professor Neuborne] argues that the 45 words of the First Amendment need to be read and considered together. The six rights protected in the amendment—freedom from religion (the establishment clause), freedom of religion (the free-exercise clause), freedom of speech, freedom of the press, freedom of assembly, and freedom to petition the government for redress of grievances—create, in ensemble, a blueprint for democracy.

Neuborne’s historical view interlocks, then, with Citron’s definitional boundaries. And his emphasis on the democratic core of free-speech principles resonates too with Gajda’s take on the current communications climate. The more that harmful expression unrelated to the democratic process is deemed constitutionally protected, Gajda writes, the greater will be the pressure to reduce all speech protections. . . .

There is more, so check out the full essay here.  

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

→ The Court’s next Conference is scheduled for February 20, 2015.

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Berger v. American Civil Liberties Union of North Carolina (license plate case) (no date set for OA)
  5. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (no date set for OA)

Pending Petitions 

  1. Thayer v. City of Worcester
  2. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  3. Dariano v. Morgan Hill Unified School District (see above re Mary Beth Tinker amicus brief)
  4. Kagan v. City of New Orleans (see Cato amicus brief  of Ilya Shapiro & Eugene Volokh)
  5. Friedrichs v. California Teachers Association, et al.

Review Denied

  1. Pregnancy Care Center of New York v. City of New York 
  2. City of Indianapolis, Indiana v. Annex Books, Inc.
  3. Ashley Furniture Industries, Inc. v. United States 
  4. Mehanna v. United States
  5. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  6. Vermont Right to Life Committee, et al v. Sorrell

Upcoming Event re Charlie Hebdo & Free Speech

Topic: “Freedom of Expression: Where do you draw the line?”

HostOpenGov Hub

Date & Time: January 30, 2015, from 12:30 PM to 2:00 PM (EST) (no charge to attend)

Location: 1110 Vermont Avenue NW Suite 500 Washington, DC 20005

Forthcoming Books

  1. Neil Richards, Intellectual Privacy: Rethinking Civil Liberties in the Digital Age (Oxford University Press, Feb. 2, 2015)
  2. Neil Cogan, editor, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (Oxford University Press, 2nd ed., March 2015)
  3. John R. Vile, editor Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2015 (2- Vols, ABC-CLIO, July 31, 2015)

Forthcoming Scholarly Articles

  1. Martin Redish, “Fear, Loathing, and the First Amendment: Optimistic Skepticism and the Theory of Free Expression,” Ohio State L.J.
  2. Margot E. Kaminski & Shane Witnov, “The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech,” University of Richmond L. Rev.
  3. David S. Han, “Rethinking Speech-Tort Remedies,” Wisconsin L. Rev.

New Scholarly Articles & Comments 

  1. Carlton Larson, “‘Shouting Fire in a Theater’: The Life and Times of Constitutional Law’s Most Enduring Analogy,” UC Davis Legal Studies Research Paper (2015)
  2. Xiyin Tang, “Against Fair Use: The Case for a Genericness Defense in Artistic Works,” SSRN (2015)
  3. Daniel J. Hay, “Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct,” 68 Vand. L. Rev. 177 (2015)
  4. Aubrey Burris, “Hell Hath No Fury like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute,” Florida L. Rev. (2014)
  5. Nicholas Adell, “Extending First Amendment Protections to Artistic Compositions in Criminal Proceedings Through the Lens of Rap-Lyric Cases: The German ‘Dignity’ Model Applied to American Free Expression Jurisprudence,SSRN (2015)
  6. Margaret Tarkington, “Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity,” Florida L. Rev. (2014)
  7. Ashley Peterson, “Lighting a Fire Under Free Speech: The FDA’s Graphic Attempts to Reduce Smoking Rates,” University of Richmond L. Rev. (2014)
Professor Andrés Martinez

Professor Andrés Martinez

News Stories & Op.eds

  1. Andrés Martinez, “I used to be a free speech absolutist — Charlie Hebdo changed that,” Wash. Post, Jan., 26, 2014
  2. Allie Bidwell, “Teachers Take Union Dues to Supreme Court,” US News & World Report, Jan. 26, 2015
  3. Kevin McGowan, “Officer Demoted for Perceived Political Tilt Lacks First Amendment Claim, Court Affirms,” Bloomberg, Jan. 26, 2015
  4. Tony Schinella, “New England First Amendment Coalition to Honor Foley,” Merrimack Patch, Jan. 24, 2015
  5. Floyd Abrams, “President Wrong on Citizens United,” WSJ, Jan. 23, 2015 (letter)
  6. Martin London, “Why Tolerate Terrorist Publications?,” New York Times, Jan. 23, 2015
  7. Candice Bernd, “The Chilling First Amendment Implications of Journalist Barrett Brown’s Five-Year Sentence,” Truthout, Jan. 23, 2015
  8. Carrie Severino, “Cautiously Optimistic About First Amendment Rights of Elected Judges,” National Rev. Online, Jan. 23, 2015
  9. DeWayne Wickham, “‘Charlie Hebdo’ crosses the line,” USA Today, Jan. 20, 2015 (the author is the dean of Morgan State University’s School of Global Journalism and Communication)
  10. Robert E. Johnson & Paul Sherman, “Tying Up the First Amendment With Red Tape,” Wall St. J., Jan. 19, 2015

Last Scheduled FAN: # 44, “Citizens United: it was 5 years ago today — 13 First Amendment lawyers & scholars offer differing views

Last FAN: 44.1, “Professor William Van Alstyne weighs in on Citizens United

Next Scheduled FAN: # 46, Wednesday, February 4, 2015

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