FAN 53 (First Amendment News) Justice Sotomayor joins in discussion of Burt Neuborne’s New Book (“Madison’s Music”)

[My colleague Anthony Kennedy’s] approach to [the First Amendment], unlike some of my other colleagues,  is born on a very, very, almost fanatical belief that . . . the essence of democracy is no regulation of speech. Justice Sonia Sotomayor (March 13, 2015)

How could the pie get much sweeter? I mean, who among us is so fortunate as to have a sitting Supreme Court Justice travel to discuss a book we have just published?

Answer: Professor Burt Neuborne.

It is as rare as it is true — on March 13, 2015 Justice Sonia Sotomayor ventured to New York University Law School to join with Dean Trevor Morrison to discuss (for one hour or so) Neuborne’s Madison’s Music: On Reading the First Amendment (The New Press, 2015).  

Burt Neuborne, left, Sonia Sotomayor, & Trevor Morrison

Professor Burt Neuborne, left, Justice Sonia Sotomayor, & Dean Trevor Morrison

As it turned out, the pie did get sweeter when Justice Sotomayor first praised and then commented  on  Madison’s Music: “It’s a fun book for someone who’s not immersed in the law,” she said. “It’s so well written that I heard Burt’s voice in my head as I was reading it. I consider that the highest of compliments to an author.”

Later she asked: “You say that the focus of the First Amendment is democracy. You invite your thesis as a different way of interpreting the Constitution. So who decides what promotes democracy? People disagree about it all the time. How do you define democracy? Is it something like one person, one vote? What are its structures?”

Neuborne: “I’m sort of shocked that you asked that, because it’s clear that I define it,” he said jokingly, to audience laughter. “But Sotomayor prevailed with the wry rejoinder, ‘No, no, no, you forget, I do,’ “prompting an eruption of mirth and applause.”

“I don’t know what will be the final denouement of a judicial discussion about whether unlimited campaign spending is the best way to have a good democracy or a bad democracy,” Neuborne added. “But I would rather have judges asking that question among themselves than pretending to decide the case by deciding what seven words mean — ‘Congress shall make no law abridging speech’ — and having it be sort of automatic, without even thinking about the consequences for democracy.”

When Neuborne took issue with the Roberts Court’s campaign finance line of cases, Justice Sotomayor asked: “How does a Madisonian judge strike on balance [when it comes to those] laws?” To which Neuborne replied: “Great question.” He then proceeded to discuss cases going back to Buckley v. Valeo (1976) and up to the Court’s latest rulings in this area. He took pointed exception to the Court’s “narrow, bribery, quid quo pro definition of corruption.”

Speaking in a very animated way, Neuborne was equally critical of the Court’s notion (one that “I genuinely . . . don’t understand”) that “contributions can create a risk of corruption because you give the money directly to a candidate, but the unlimited spending of money, without coordination with the candidate, doesn’t create a risk of corruption . . . .” He thought that citizens and judges alike need to ask themselves: “What kind of democracy are we trying to protect here?”

Returning more directly to his answer to Justice Sotomayor’s question, Neuborne remarked: “Everybody’s political power should be equal in a democracy, and money shouldn’t corrupt that idea. . . . I think if they adopted a Madisonian reading of the First Amendment  we would change campaign financing regulation overnight.”

Neuborne on Justice Anthony Kennedy

[Justice Kennedy is] the most important First Amendment Judge that has ever sat on the Supreme Court. . . . 

Federal Judges Get Free Book

At the outset of his remarks Professor Neuborne thanked his publisher, The New Press, “a non-profit press that remembers the responsibility of a truly free press in placing new and challenging ideas before the public, and who has helped in making the book available both to every federal judge and in donating the books outside [here today] for you.” 

There is much more, about democracy, free speech, substantive due process, the Second, Third, and Ninth Amendments, media corporations, partisan gerrymandering, and the rule of unelected judges. See video of the event here.

I will be doing a Q&A with Professor Neuborne concerning his new book, the First Amendment, and other things that matter to those in the First Amendment community (divided as it is).

On Corporations: Point – Counterpoint 

 Adam Liptak, “First Amendment, ‘Patron Saint’ of Protesters, Is Embraced by Corporations,” NYT, March 23, 2015

Damon Root, “The New York Times, a Corporation, Worries That the First Amendment Is Now ‘Embraced by Corporations,'”, March 24, 2015

Amanda Shanor

Amanda Shanor

“Adam Smith’s First Amendment” — DC Circuit Comes Under Fire

That is the title of a new essay by Robert Post and Amanda Shanor, one that appears in the Harvard Law Review Forum. What troubles the authors is the “recent and aggressive expansion of commercial speech doctrine,” one that they argue has resulted in a “striking turn in our constitutional order.”

The essay was prompted by a decision by the Court of Appeals for the District of Columbia in a case named Edwards v. District of Columbia (2014). (Ms Shanor, a Yale PhD in law candidate and a Yale Law School graduate, is a former law clerk to Judges Judith Rogers (2012-2013) and to Cornelia T.L. Pillard (2013-2014) of the Court of Appeals for the D.C. Circuit.)

Judge Janice Rogers Brown authored the Edwards opinion in which Judges Robert L. Wilkins and  Karen L. Henderson joined. Here is how Judge Brown described the law challenged on First Amendment grounds:

“In Washington, D.C., it is illegal to talk about points of interest or the history of the city while escorting or guiding a person who paid you to do so — that is, unless you pay the government $200 and pass a 100-question multiple-choice exam. The District requires that certain tour guides obtain a tour-guide license, which can be procured by paying application, license, and exam fees totaling $200, and passing the exam, of course. Operating as a paid, unlicensed tour guide is punishable by up to 90 days in jail or a fine of up to $300, or both. Believing the licensing scheme to be an unconstitutional, content-based restriction of their First Amendment rights, Appellants . . . refused to comply and filed suit in district court.”

In the course of her opinion, Judge Brown quoted from Adam Smith’s An Inquiry Into the Nature and Causes of the Wealth of Nations (1776): “‘It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard to their own interest’” — hence the title of the Post and Shanor essay.

Judge Janice Rogers Brown

Judge Janice Rogers Brown

As Post and Shanor see it, “Edwards holds that regulations burdening speech in the marketplace must convincingly demonstrate their necessity before they can interfere with the unassisted operation of the market. Edwards puts the constitutional burden of justifying regulations of marketplace speech squarely and onerously on the state. Because almost all commercial activity pro- ceeds through the medium of communication, Edwards effectively revives Lochnerian substantive due process.”

“How could,” they ask, “the First Amendment constitutionalize the unregulated operation of the laissez-faire commercial marketplace? How could the First Amendment require the political branches to adopt the theories of an eighteenth-century philosopher, even if, after due democratic deliberation, ‘We the people’ have decided to reject them? We have always celebrated the First Amendment as ‘the guardian of our democracy.’ Yet now in the hands of the D.C. Circuit, the First Amendment seems to have been transformed into a straitjacket for our institutions of democratic governance. . . .”                                              * * *

For a different take on the Edwards case from the one advanced by Post and Shanor, see Ilya Shapiro, Eugene Volokh, and Erik S. Jaffe, “Edwards v. District of Columbia,” Cato Institute, Sept. 20, 2013

Robert J. McNamara argued the Edwards case on behalf of the Appellants. And Erik JaffeIlya Shapiro and Eugene Volokh filed an amicus brief on behalf of the Cato Institute in support of Appellants.

Note: In Kagan v. City of New Orleans (June 2, 2014) the Fifth Circuit affirmed the constitutionality of a similar tour guide ordinance. The Cato Institute thereafter filed an amicus brief (Ilya Shapiro & Eugene Volokh) in support of the Kagan Petitioners when they sought review  in the Supreme Court (cert. denied Feb. 23, 2015).

News Item: “Savannah Tour Guides Move Ahead With Free Speech Suit,” Associated Press, March 24, 2015

First Amendment Salon & Abrams Institute to Host Debate Between Jack Balkin & Martin Redish

IMG_20150324_093205930 The fifth First Amendment salon is being held at the Floyd Abrams Institute for Freedom of Expression at Yale Law School on March 30th at 7:00 p.m.  Lee Levine will introduce the program and Floyd Abrams will moderate the dialogue between Yale Law Professor Jack Balkin and Northwestern University Law Professor Martin Redish.

The topic: “Is the First Amendment Being Misused as a Deregulatory Tool?”

As in the past, the event will be webcast live to salons in Washington, D.C. and New York City.

The last salon was held in Washington, D.C. The topic: “Hate Speech – From Parisian Cartoons to Cyberspace to Campus Speech Codes.” Dean Lucy Dalglish moderated the discussion between Christopher Wolf and Greg Lukianoff.

Indian Supreme Court Strikes Down Online Hate Speech Law

Petitioner, Shreya Singhal

Petitioner, Shreya Singhal (ANI News)

According to an article by Niharika Mandhana in the Wall Street Journal: “India’s Supreme Court on Tuesday struck down legislation barring ‘offensive messages’ online, saying it violated constitutional guarantees of free expression.”

“A two-judge panel voided a part of India’s Information Technology Act that made it a crime to share information through computers or other communications devices that could cause “annoyance, inconvenience” and ‘enmity, hatred or ill will.'”

“Announcing the ruling in a crowded courtroom in the Indian capital, Justice Rohinton Nariman said the law’s provisions were too vague and didn’t provide ‘clearly defined lines’ for law-enforcement officials. ‘What is offensive to one person may not be offensive to another,’ he said. The court also ruled that Internet companies, such as Facebook and Google, could only be required to remove or block access to online material if ordered to do so by a court, sharply limiting the power of the government to police Internet content. . . .”

See full opinion: Singhal v. Union of India (March 24, 2015).

New Book on Privacy & Free Speech

UnknownOxford University Press has just published a new and important book by Washington University Law Professor Neil Richards. The book is titled: Intellectual Privacy: Rethinking Civil Liberties in the Digital Age (2015).  Here is an excerpt from the publisher’s blurb of the book:

“How should we think about the problems of privacy and free speech? In Intellectual Privacy, Neil Richards offers a . . . solution . . . that ensures that our ideas and values keep pace with our technologies. Because of the importance of free speech to free and open societies, he argues that when privacy and free speech truly conflict, free speech should almost always win. Only when disclosures of truly horrible information are made (such as sex tapes) should privacy be able to trump our commitment to free expression. But in sharp contrast to conventional wisdom, Richards argues that speech and privacy are only rarely in conflict. America’s obsession with celebrity culture has blinded us to more important aspects of how privacy and speech fit together. Celebrity gossip might be a price we pay for a free press, but the privacy of ordinary people need not be. True invasions of privacy like peeping toms or electronic surveillance will rarely merit protection as free speech. And critically, Richards shows how most of the law we enact to protect online privacy pose no serious burden to public debate, and how protecting the privacy of our data is not censorship.”

Professor Neil Richards

Professor Neil Richards

“More fundamentally, Richards shows how privacy and free speech are often essential to each other. He explains the importance of ‘intellectual privacy,’ protection from surveillance or interference when we are engaged in the processes of generating ideas – thinking, reading, and speaking with confidantes before our ideas are ready for public consumption. In our digital age, in which we increasingly communicate, read, and think with the help of technologies that track us, increased protection for intellectual privacy has become an imperative. What we must do, then, is to worry less about barring tabloid gossip, and worry much more about corporate and government surveillance into the minds, conversations, reading habits, and political beliefs of ordinary people.”

See Book Review by Jeffrey Rosen: “What would privacy expert Louis Brandeis make of the digital age?,” Washington Post, March 22, 2015.

→ See alsoLegal Roundtable: Society Must Evolve with Technology” (audio interview with Neil Richards), St. Louis Public Radio, March 19, 2015

“Jawboning”: A New Threat to Free Speech

Professor Derek Bambauer

Professor Derek Bambauer

Abstract: “Despite the trend towards strong protection of speech in U.S. Internet regulation, federal and state governments still seek to regulate on-line content. They do so increasingly through informal enforcement measures, such as threats, at the edge of or outside their authority – a practice this Article calls “jawboning.” The Article argues that jawboning is both pervasive and normatively problematic. It uses a set of case studies to illustrate the practice’s prevalence. Next, it explores why Internet intermediaries are structurally vulnerable to jawboning. It then offers a taxonomy of government pressures based on varying levels of compulsion and specifications of authority.”

“To assess jawboning’s legitimacy, the Article employs two methodologies, one grounded in constitutional structure and norms, and the second driven by process-based governance theory. It finds the practice troubling on both accounts. To remediate, the Article considers four interventions:

  1. implementing limits through law,
  2. imposing reputational consequences,
  3. encouraging transparency, and
  4. labeling jawboning as normatively illegitimate.”

“In closing, it extends the jawboning analysis to other fundamental constraints on government action, including the Second Amendment. The Article concludes that the legitimacy of informal regulatory efforts should vary based on the extent to which deeper structural limits constrain government’s regulatory power.”

Derek E. Bambauer, “Against Jawboning,” Minnesota Law Review (2015)

New & Forthcoming Scholarly Articles 

  1. Sonja West, “The ‘Press,’ Then & Now,” SSRN (March 17, 2015)
  2. Twana A. Hassan , “A Jurisprudential Definition of Freedom of Expression,” SSRN (March 23, 2015)
  3. Feroz Ali, “Technical Speech: Patents, Expert Knowledge and the First Amendment,” Minnesota Journal of Law, Science & Technology (forthcoming 2015)
  4. John D. Moore, “The Closed and Shrinking Frontier of Unprotected SpeechWhittier Law Review (2014)

PBS New Hour

News Stories, Op-Eds & Blog Posts

  1. Katie Pavlich, “‘Last Bastion of Free Speech’ Invites Islamic Jihadist Who Doesn’t Believe in Free Speech As Star Guest,” TownHall, March 25, 2015 (re Oxford University invite)
  2. Laura DeGeer, “FCC facing first lawsuits over ‘net neutrality’,” Jurist, March 24, 2015
  3. Nicole Haas, “Guy booted from plane for profanity-laced T-shirt sparks First Amendment argument,” BizPac, March 24, 2015
  4. Daniel Drezner, “Why free speech on campus is not as simple as everyone thinks,” Washington Post, March 23, 2015
  5. Mark Mix, “Illinois Governor Challenges Union Bosses’ ‘Unconstitutional’ Forced Dues Powers,”, March 23, 2015
  6. Charles Butts, “Pro-lifers say public sidewalk, First Amendment favor them,” NewsNow, March 23, 2015
  7. Nicholas Ebelhack, “First Amendment is not an excuse,” Western Courier, March 23, 2015
  8. Tom Jackson, “Protecting a robust rebirth of the First Amendment,” Tampa Tribune, March 22, 2015
  9. Tyrone James, “Jeb Bush tries to silence supporter by crushing his First Amendment Rights,”, March 22, 2015
  10. Jacob Gershman, “‘American Sniper’ Case Triggers First Amendment Concerns,” WSJ, March 19, 2015
  11. George Anders, “Facebook, Twitter — And A Tussle At SXSW Over First Amendment,” Forbes, March 14, 2015


[updated: 3-24-15]

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. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Arneson v. 281 Care Committee
  2. Kagan v. City of New Orleans
  3. on 8 v. Bowen
  4. Kagan v. City of New Orleans
  5. Clayton v. Niska
  6. Pregnancy Care Center of New York v. City of New York 
  7. City of Indianapolis, Indiana v. Annex Books, Inc.
  8. Ashley Furniture Industries, Inc. v. United States 
  9. Mehanna v. United States
  10. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  11. Vermont Right to Life Committee, et al v. Sorrell

Last Scheduled FAN Post, #52: “Corn-Revere signs with Cambridge to do Censorship Book

Next Scheduled Fan Post, #54: Wednesday, April 1, 2015

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