FAC 5 (First Amendment Conversations) Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book
I have spent a lifetime fighting for a very broad First Amendment, keeping the government out of the First Amendment. But I have also said that there is a terrible price that one pays for that. — Burt Neuborne, “The Open Mind” with Richard D. Heffner, January 16, 1997
He is not a pause-button sort of guy / he is not one to vanish into the void / he is not a fellow you forget / and he is never one to forsake a debate or turn down a chance to raise a rebellious lance. He is animated / calibrated / cultivated / complicated / and always opinionated. He is Bill Brennan on overdrive . . . and then some!
Yes, he is Burt Neuborne, the Norman Dorsen Professor of Civil Liberties at New York University Law School. And he has a new book (Madison’s Music: On Reading the First Amendment), about which I will soon say more — but first a few biographical notes, if only to set the stage for the Madisonian music to come.
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After graduating from Cornell University in 1961, Neuborne studied constitutional law at Harvard under Albert Sacks and had Henry Hart for federal courts. He took a seminar in English Legal History from Samuel Thorne. His Harvard Law School classmates included Michael Boudin, Stephen Breyer, Bert Rein, and Patricia Schroeder. Given his interests in the law at that time, it seemed that young Burt Neuborne was destined to be either a public-interest lawyer or a professor. As it turned out, he became both, but it didn’t start out that way.
Had Fortuna not intervened, Neuborne might have continued to be an estate-planning lawyer for the well-heeled of the Eastern corridor. That, at least, is how things looked a half-century or so ago for the young Harvard graduate: “I went to Wall Street for three years after graduation, at a small blue chip firm, Casey, Lane & Mittendorf. [From 1964-1967] I specialized in estate planning for the ultra-rich.” That brand of life-in-the-law was not, however, meant to be his calling. His life-change was the child of chance: “My big break came when a lawyer for the NYCLU transferred into my Army Reserve unit. When a job opened up at NYCLU, I went for it, although my father-in-law almost killed me.” Thankfully, his father-in-law’s homicidal tendencies abated, and with that twist of fate Burt Neuborne’s career traveled along a far different track, one in civil liberties law.
Thus did things begin. And when they did he quickly found himself working in the shadow of some of the ACLU’s brightest lights: “In those days,” he told Joseph Berger, “the NYCLU and ACLU were both located in a building in the Flatiron district honeycombed with left-wing organizations. Aryeh Neier was the NYCLU director. Ira Glasser was associate director. Ruth Bader Ginsburg was a director of the ACLU’s women’s rights project. ‘By the second day I knew this was what I was going to do,’ said Neuborne.” Between 1967 and 1973, Neuborne first worked as staff counsel for the NYCLU and thereafter as the ACLU’s assistant legal director. Later, he served as the National Legal Director of the ACLU from 1981-86.
→ “I verge on the obsessive,” he once said. How very true.
Burt Neuborne is a scholar / activist / teacher / author / litigator / and one-time actor . . . and rather hyper and quite self-motivated. He has done much and is committed to doing yet more. The Bronx-born lawyer has argued several Supreme Court cases, including Clark v. Community ore for Creative Non-Violence (1984) (the case of the homeless who wanted to sleep in Lafayette Park to protest their plight). Though he lost in the High Court (7-2), earlier he managed to win the Clark case by a 6-5 en banc vote in the DC Circuit, with then Judge Ruth Ginsburg casting the swing vote (though she found “the case close and difficult”).
- He was one of the co-authors of the ACLU amicus brief filed in the Pentagon Papers Case (1971)
- As early as 1972 (seventeen years years before Texas v. Johnson), Neuborne claimed that “he had personally handled three hundred flag desecration cases.”
- Neuborne argued (audio of oral arguments here) and won Legal Services Corporation v. Velazquez (2001), a 5-4 ruling in which the majority relied on the First Amendment to strike down a funding restriction on the LSC.
- He signed onto an amicus brief in Elred v. Ashcroft (2003) (brief of Jack Balkin, Yochai Benkler, Burt Neuborne, Robert Post & Jed Rubenfeld in support of the Petitioners)
- And years later he filed an amicus brief on behalf of the Brennan Center for Justice in support of the Petitioners in Holder v. Humanitarian Law Project (2010).
Neuborne was the founding Legal Director of the Brennan Center, which he oversaw from 1995-2007. Much of its focus, then and now, relates to efforts to reinforce American democracy and secure campaign finance reform. During the late 1990s, Neuborne authored Building a Better Democracy: Reflections on Money, Politics and Free Speech (Brennan Center for Justice at NYU School of Law, 1999). Consistent with that, the Center has pursued a constitutional course (see, e.g., here, here, here and here) in tune with what Neuborne argued in Nixon v. Shrink (2000) when he opposed the First Amendment claim raised in that campaign finance case. To the same effect, he filed amicus briefs in opposition to those of the ACLU in the following cases:
- Wisconsin Right to Life v. Federal Election Commission (2006),
- Randall v. Sorrell (2006),
- Federal Election Commission v. Wisconsin Right to Life (2007), and in
- Citizens United v. Federal Election Commission (2010).
More recently, he filed an amicus brief in Williams-Yulee v. Florida State Bar on behalf of himself and three other “past leaders of the ACLU” — this time he was on the winning side thanks to Chief Justice John Roberts’ unexpected vote. And Neuborne has debated Floyd Abrams on the pages of The Nation (2011), this on the topic of the legitimacy of Citizens United. (See also here for video of Intelligence Squared debate with Floyd Abrams and Nadine Strossen).
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February 17, 2015 – 6:00 p.m, New York University Law School, Vanderbilt Hall: It was one of the high points in his long and diverse career. It was the Inaugural Lecture of the Norman Dorsen Professorship in Civil Liberties, and the all-smiling Burt Neuborne was the one to give that lecture named after his long-time friend (video here). In the course of that distinguished lecture, Neuborne admitted: “I have to confess . . . , I signed the [ACLU] brief in Buckley v. Valeo” (1976). Before anyone had a chance to gasp, however, he changed gears and branded his earlier action as a mistake. And then with his characteristic bravado, he added: “Today we live under an imperial seven-word free speech clause that redoubles its deregulatory efforts long after it has lost sight of its Madisonian goals.”
There is, of course, more to the First Amendment story of this man who has been a force in our free-speech world and will likely continue to be one. But my biographical sketch ends here, save for one more comment.
Bottom line: Make of Burt Neuborne what you will — admire him or abhor him — but don’t ignore him, for his roller-coaster-of-a-life-ride has yet to run its daring and twisting course.
→ See here re SCOTUSblog six-part video interview series with Neuborne.
→ See here for curriculum vitae
→ See “Justice Sotomayor joins in discussion of Burt Neuborne’s New Book,” First Amendment News/Concurring Opinions, March 25, 2015
The First Amendment is about making democracy work. — Burt Neuborne (Oct. 2014)
Question: The cover of your book has a photo of an 1816 painting of James Madison by John Vanderlyn (1775-1852). The image on your book, however, cuts off the top of Madison’s face so that his eyes are hidden. When you first saw a mockup of the jacket, did that fact catch your eye? If so, what did (or now, what do) you make of it?
Neuborne: I liked the veiled and somewhat mysterious image. It reinforces my sense of how difficult it is to recapture the past.
Question: In many ways, Madison’s Music: On Reading the First Amendment (New York University Press, 2015, 272 pp.) is unconventional, starting with its touching full-page dedication to your Father (“Odysseus the Tailor”) / to the poetic cast of the first chapter with a nod to Wallace Stevens / to the textual analysis that informs your theoretical arguments concerning democratic government / to the various historical and conceptual narratives that both challenged and inspired Madison / to the book’s ending which comes full circle with poetic nuance.
Why did you elect to approach your subject with literary and artistic flare rather than by way of a more traditional approach?
Neuborne: My thesis is that the Bill of Rights has a deep structure similar to the unifying thread that runs through any great work of art, whether music, painting, poetry, or literature. I hope that my book will inspire people – not just lawyers and judges – to recognize that deep structure, and to be drawn to the remarkable story of democracy the text of the Bill of Rights narrates.
Question: Unlike most books, yours does not have a formal Acknowledgements page. That said, in the Notes you do flag three individuals for special credit: Charles Black (1915-2001), Akhil Amar, and Justice Antonin Scalia. Can you tell us how they helped to shape your thinking in this book?
Justice Scalia’s defense of textualism as consistent with democratic political theory challenged me to think about how the First Amendment’s text interrelates with democracy. — BN
Neuborne: When I graduated from law school in 1964, no one paid much attention to legal text. We treated it as a window that opened into some deeper truth – purpose, coherence or policy. The most important intellectual change during my 50 years of practice has been the emergence of text as a freestanding binding concept, cut off from purpose, coherence and policy. I have my doubts about whether the change has been beneficial, but you can’t step in today’s legal river without being serious about text. Charles Black taught me that reading text may be enriched by considering its place in a larger legal structure; Akhil Amar taught me that you can be playful and serious about text at the same time; and Justice Scalia’s defense of textualism as consistent with democratic political theory challenged me to think about how the First Amendment’s text interrelates with democracy.
Question: Your book taps into the literary well of the 1923 poem “The House Was Quiet and the World Was Calm” by Wallace Stevens. Given your sense of the poem and your reliance on it in Madison’s Music, can you tell us why you selected it as an interpretive tool? In other words, how does Wallace Stevens’s poem help us to understand the meaning of the First Amendment?
Neuborne: Wallace Stevens is the poet laureate of reading. His day job as the working General Counsel of the Hartford Insurance Company immersed him in the intricacies of drafting complex text. His poetry sings with the joy of reading complex text. I chose the poem because it celebrates the importance of reading text closely to bring a reader closer to the authorial source. It’s just what any reader should do in seeking the best meaning of the text of the Bill of Rights.
Burt Neuborne in The People v. Larry Flynt Movie (circa 1996, YouTube clip here)
Question: Your book is about a legal text – the First Amendment and the Bill of Rights. You elaborate on their “meaning” (if that is the word) by way of a poem with particular attention to the “rhythmic cadence of the language” of the text in question.
Why the resort to music? A poem, after all, has a cadence of its own sans a single musical note. Speak to our ears: What does the “music” add to Mr. Madison’s constitutional legacy?
Neuborne: I could have called the book “Reading the Bill of Rights as a Poem” but my editors at The New Press assured me that it would not sell a single copy. So, I went for alliteration. Madison’s Music also captures the soaring nature of the Founder’s vision. Once I have a reader hooked, I do call the first chapter “Reading the Bill of Rights as a Poem.”
Question: You champion, and eloquently so, the cause of a “democracy friendly-First Amendment.” But isn’t a key function of the First Amendment to be anti-democratic, and to create a space for individual liberty that is not beholden to the will of the demos? Does that not explain why we extend free speech protection to rogues like Lenny Bruce, Larry Flynt, and the followers of the Westboro Baptist Church whose words offend the will of the majority?
Neuborne: The very purpose of the First Amendment – indeed the entire Constitution – is, of course, to limit the tyranny of the majority. But that only takes us so far in deciding what the limits are. I argue that the principal reason for limiting the majority in the First Amendment is to be sure that the majority does not stifle any of the five components needed for democratic governance set out chronologically in the First Amendment’s text – freedom of thought; freedom of speech; freedom of the press; freedom to engage in collective action by assembling and associating, and freedom to petition for redress of grievances. Speech by rogues and hateful bigots is important to the proper functioning of self-government. It assures a robust exchange necessary to the formation of informed judgment. So is speech by artists and writers.
Question: As you are well aware, there is no express equal protection guaranty in the Constitution of 1787 and in the Bill of Rights. Yet your rather egalitarian interpretation of the First Amendment does not seem to be in need of such an explicit provision. You seem to find egalitarian harmony without it – almost as if there were a hidden equal protection guarantee lurking within the First Amendment. True? If so, say more for us.
Neuborne: Despite the embarrassment of slavery, I believe that the Bill of Rights is a landmark in egalitarian practice. The very idea of mandating that everyone — rich or poor — must be subject to the same protective speech rules and to the same criminal procedure rules was an enormous egalitarian advance. That’s why I find the campaign finance cases so dispiriting. They make mincemeat of the egalitarian ethos of the First Amendment. After all, it didn’t take much heavy lifting in 1954 for the Supreme Court to find an implied equal protection clause in the due process clause of the Fifth Amendment (Bolling v. Sharpe). That same commitment to equality is present in the Frst Amendment.
Question: The second chapter of Madison’s Music quotes the text of the First Amendment and then comments on it. What do you make of the use of the word abridging? It was not a word that was used in the Declaration of Independence or the Constitution of 1787 or even in the early state declarations of rights. Why that word, and how does it play into the harmony of your interpretive overture?
Neuborne: The Founders used three verbs in the First Amendment: “respecting” in the Establishment clause; “prohibiting” in the Free Exercise clause; and “abridging” in the Free Speech, Free Press, Free Assembly, and Petition clauses. You could argue that “abridge” connotes a stronger limitation on the government than “prohibit,” but I think the argument puts too much weight on a stylistic quirk. After all, if we really get literal, how do we deal with the first word “Congress,” the third word “no;” and the fourth word “law.” We read “Congress” as “the government;” “no” as “almost no” and “law” as everything the government does, including regulations and discretionary action.
I think if Madison were here today he’d tell the Supreme Court Justices: “I intended the First Amendment to be democracy’s best friend and you’ve turned it into democracy’s enemy. How could you have done that?” (source: here)
Question: The text of the First Amendment reads: “Congress shall make no law . . . .” By that textual measure, the making of laws is the constitutional evil. Judicial review, by contrast, comes after the unconstitutional fact. Your constitutional cure seems court-centric rather than legislative-centric. Do you have any ideas as to what might be done to better institutionalize the command of the First Amendment in the lawmaking process itself?
Neuborne: Current First Amendment doctrine is wholly court-centric. It functions like a prim schoolmarm rapping the knuckles of misbehaving legislators. One of the least attractive features of current campaign finance legislation is the Supreme Court’s refusal to give any deference to the legislators’ understanding of how the electoral process really works. Not one of the Justices has ever run for office. Yet they claim to know more than Congress about whether independent expenditures pose a risk of corruption. They even claim a monopoly on knowing when the process is “corrupted,” and whether campaign subsidies will function well as a way to preserve electoral equality.
Recognizing the risk of self-dealing, I would grant more deference to Congress in dealing with the role of money on elections. My experience in 50 years of teaching is that if you treat students like children, they’ll act like children. But if you treat them like adults, they respond with a much greater sense of responsibility. I would apply that to Congress. In areas where we give Congress a little slack, they act more responsibly than in areas where the Court treat Congress like a group of selfish, unruly children. That said, I’d keep a tight rein for even a whiff of self-dealing. That’s why I signed the ACLU brief in Buckley. The ceilings in the 1974 Act were absurdly low, starving the electoral process of the speech needed to challenge incumbents. But just because you can’t starve the process doesn’t mean that reasonable limits on spending can’t be enacted preventing the process from being dominated by the very rich.
Question: What role, if any, does empirical evidence play in your brand of Madisonian jurisprudence? That is, how exactly is a judge to know whether a particular law does or does not foster democratic principles? Will it always be obvious?
Neuborne: Empirical evidence is, of course, useful, but, under the current state of the art, massively manipulable. Once an empirical consensus develops about the causal consequences of government action, a political consensus usually follows. The real problem is legislating in the fog of law where we don’t know for sure what the consequences of legislative or executive or judicial action – or non-action – will be. I’m not sure that doubling-down on empiricism helps much in those settings. Under my model, there would be fierce arguments about whether regulating campaign financing is good or bad for democracy. That’s exactly the argument we should be having. If Congress thinks democracy is better off with the rich unregulated, I’ll grumble, but accept it. If Congress thinks regulation is necessary to preserve an egalitarian democracy, Justice Scalia would probably grumble, but he should accept it.
Question: As I understand your general take on the structure of the First Amendment, it is this: You start with religion (which is conscience), then speech (which is articulation), then press (which is mass articulation), then assembly (which is collective action), followed finally by petition (which is putting it into law). This is what you tag the “odyssey of the democratic idea.”
But tell me this: Why is your argument cast in the logic of rights rather than in that of limitations on power? And on that count, note that the religion clause does more than reference a right, it also limits the domain of that right. As you see it, is the constitutional logic of rights the same as that of limitations on government power?
Neuborne: Yes. I don’t see much to be gained by drawing bright line distinctions between the idea of a “right,” and the idea of a mandatory limitation on government power. I see them as two sides of the same political coin.
I think that a constitutional right to vote is also lurking in the white spaces of Madison’s First Amendment. — BN
Question: In an exchange with David O. Stewart at the National Constitution Center you said: “You can’t use originalism to read the First Amendment.” That said, you use more than a dollop of originalism/textualism to advance some of your major arguments in Madison’s Music. Given that, just how determinative do you find originalism and at what point is its value overridden and why?
Neuborne: Actually, I don’t use originalism. The first line of my book disavows any expertise about Madison’s inner life. My thesis is that if monkeys using quill pens randomly created the remarkably disciplined structure of the First Amendment, we should treat it as a stroke of good fortune and be guided by the egalitarian democratic story it tells. I then go on to cheat a little bit by speculating that Madison must have known what he was doing. The one thing we should not do is read the First Amendment – indeed, the entire Bill of Rights – as though the Founders threw a pot of ink at the wall and used the splatter to organize the document.
Question: As you note, as late as June 8, 1789, Madison avoided “a coherent and comprehensive listing of rights.” His thinking: He wanted to “avoid an inadvertent freezing of rights to only those described by the literal text.” Consider in this regard the fact that there are many rights deemed fundamental in other nations – e.g., a constitutional right to work, a right to housing, a right to health care – that are foreign to our notion of constitutional rights. Even the state action doctrine, implicit in the First Amendment and explicit elsewhere, has curbed the scope of any number of important rights.
Mindful of that and looking back, what do you think can be said in defense of Madison’s original constitutional view of things?
Neuborne: Madison was right. He anticipated Justice Scalia. Madison was afraid that someone would read the Bill of Rights as a closed list, preventing the recognition of important new rights except by the impossibly difficult process of constitutional amendment. That’s why he put the Ninth Amendment into the text of the Bill of Rights. When Justice Harlan interpolated a non-textual right of “association” into the First Amendment in 1958 in NAACP v. Alabama, he was accepting Madison’s Ninth Amendment invitation to recognize new rights, but only when they are needed to make the democratic narrative of the First Amendment work. As I argue in Madison’s Music, I think that a constitutional right to vote is also lurking in the white spaces of Madison’s First Amendment.
Question: Twenty years ago, in a piece published in the University of Chicago Law Review, you wrote a thoughtful critique of Professor Sunstein’s book Democracy and the Problem of Free Speech. In that book, Professor Sunstein set out to reconcile democracy with free speech. You described his project as “one in a series of recent challenges to current First Amendment doctrine by scholars with a serious commitment to protecting the weak.” In light of that you added: “I fear that, in an effort to make things better, Professor Sunstein’s call for a ‘New Deal’ for speech will leave controversial speech at the mercy of ‘reformers’ . . . .” And you also took aim at his egalitarian-democracy-focused thesis: “[E]ven if the First Amendment is given an egalitarian Madisonian reading, the most one can say is that it is a reading, not the reading.” (emphasis in original)
How does Sunstein’s democratic-focused “New Deal” for free speech differ from your democratically inspired views of the First Amendment?
Neuborne: What has changed in the last twenty years is the Supreme Court’s view of the First Amendment, not my view of Sunstein’s book. When Sunstein wrote his book, the Supreme Court had not imposed a public choice vision of democracy on the nation, using the First Amendment as a deregulatory tool to prevent any effort to protect democracy against the corrosive effects of big money. You can believe, as I do, that what the ACLU did in Skokie was correct because protection of hateful speech is important to assure informed choice without which democracy cannot function, without believing that the First Amendment prevents us from preserving the egalitarian democracy pre-figured in the organization and structure of Madison’s First Amendment.
Question: If a judge were to interpret the First Amendment as you urge, what role, if any, would doctrines such as overbreath, vagueness, content neutrality, and strict scrutiny (or even historical exceptions to the First Amendment) play in deciding a case? How, if at all, would the jurisprudence you counsel affect those doctrines?
Neuborne: It would have little effect on the doctrines. Indeed, given the risk of self-dealing inherent in my model, the procedural protections surrounding speech regulation might well take on enhanced importance. Whether or not you accept my model, the procedural corollaries like vagueness, overbreadth, viewpoint neutrality, and equal treatment of similarly situated speakers would remain important techniques to control local administrators and prevent hidden efforts at viewpoint manipulation. But the doctrines are not automatic, and should not be used, as Justice Anthony Kennedy used them in Citizens United, as a substitute for substantive analysis.
Question: Since more and more “censorship” in modern America is the product of corporate behavior, would your theory of the First Amendment relax the application of the current state action requirement in order to combat such censorship?
Neuborne: I would not relax the state action doctrine. I’m not a great fan of non-democratic judicial regulation of private behavior, even through the common law. Witness the mess modern judge-made contract law has made that allows the strong to force the weak to “contract” to give up access to the courts. I would deal with the increasing power of corporations over what gets said and heard in twenty-first century America by allowing Congress to regulate powerful corporate “gatekeepers” in order to assure a voice for the less powerful. That’s what I argued in Turner II.
Question: In 1996, on the Opend Mind show, you spoke of the feminist critique of pornography and described it this way: “Pornography is not about sex, but about power.” Shortly thereafter you added: “I am very troubled by that argument; it is a very powerful argument.” Given your concern about power in the campaign arena, why doesn’t that same egalitarian concern extend to power in the context of the so-called commercial exploitation of women in the pornography arena?
Neuborne: I do believe that pornography involving the forcible subordination of women is much more about power than sex. Everything we know about rape tells us that it is more an act of power than of sexual gratification. Commercial pornography that panders to men’s desire to subordinate women is pretty far down on my list of First Amendment concerns. That said, if participation is voluntary, depiction of sex itself should be protected. There’s nothing unequal about good sex. Problems of definition impossibly complicate any legal effort to separate one from the other.
Question: In McCullen v. Coakley (2014) a unanimous Supreme Court struck down a Massachusetts law that made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” As you know, the national ACLU and the ACLU of Massachusetts filed an amicus brief defending the facial constitutionality of that law. Do you agree (please be clear and candid) with the ACLU position argued for in that brief? And how does your take on this case fit into the general theory of Madison’s Music?
Neuborne: I believe the ACLU was wrong in Coakley on the very narrow ground that 35 feet is an unnecessarily broad swath of turf to declare off-limits to free speech activity. I do believe, however, that women have a right to be free from harassing speech as they make their way into a reproductive health care facility, just as voters have a right to some peace as they approach the polls.
Question: Eighteen years ago you published an article entitled “One Dollar-One Vote: A Preface to Debating Campaign Finance Reform” (1997). Does that mark the origin, at least in print, of your move away from Buckley and the kind of First Amendment arguments at work in that ruling?
Neuborne: That’s about right. There’s another piece – “The Supreme Court and Free Speech: ‘Love and a Question‘” (1998) from about the same period. I couldn’t resist Frost’s poem. [See also Burt Neuborne, “Toward a Democracy-Centered Reading of the First Amendment” (1998)]
Question: When the Federal Elections Commission sought to prevent the conservative lobbying group Citizens United from airing a political documentary critical of Hillary Clinton during a presidential election cycle, do you think that constituted government censorship?
Neuborne: Yes. My quarrel with Citizens United has nothing to do with the outcome; it was with using the case to hold that corporate speech is protected in an election context. I argued that point in my amicus brief [Norman Dorsen, counsel of record, with Burt Neuborne, “Supplemental Brief of Former Officials of the ACLU as amici curiae on Behalf of Neither Party”]
Question: Citizens United is a non-profit corporation. Mindful of that, assume that a liberal non-profit corporation wanted to air Robert Reich’s documentary Inequality for All (distributed by the Weinstein Company) just before a presidential election, much as Citizens United did. Is it your position that Congress could make a law barring such non-profit corporations from airing such a documentary, the First Amendment notwithstanding?
Neuborne: I have no difficulty with First Amendment protection for non-profit corporations – left or right. That’s been the law since Wisconsin Right to Life, which I support. I urged the Court to apply WRTL in Citizens United. When individuals associate in corporate form to advance political ideals, the corporate form is merely a convenient way to organize the joint enterprise. For-profit corporations are not made up of individuals associatingtogether for political ends. They are vehicles for efficient economic activity, with huge built in legal advantages for obtaining and accumulating massive wealth having nothing to do with politics.
Treating the two as indistinguishable for First Amendment purposes simply ignores the fact that one is essentially a collection of like-minded human beings with no built-in fundraising advantages, while the other depends on its separate legal status (designed to enhance its economic efficiency) to accumulate huge pools of wealth having nothing to do with politics, or like-minded human beings. That’s why Citizens United was right on its facts, but wrong in insisting in dicta on providing equivalent First Amendment protection to for-profit corporations.
Question: For many years now, you and several other former ACLU leaders have filed amicus briefs in campaign finance cases in opposition to those espoused by the national ACLU. You did that again recently in the Williams-Yulee v. Florida State Bar case (ACLU brief here). Do you think the current ACLU position on these matters is insensitive to the democratic values you champion in your book? (Here again, your candor is appreciated).
The ACLU is dead wrong on campaign finance. — BN
Neuborne: Absolutely. I served as national legal director of the ACLU during the Reagan years. It is one of my most cherished experiences. I continue to support the ACLU as one of the most important institutions in American life – but the ACLU is dead wrong on campaign finance. That’s why I helped to found the Brennan Center at NYU Law School, and that’s why Norman Dorsen (who served as a legendary President of the ACLU for 15 years), Aryeh Neier (who served as Executive Director), and John Shattuck (who served as Legislative Director) file amicus counter-briefs opposing the ACLU’s overly-rigid position on regulating big money in campaign contexts.
→ See Burt Neuborne, “Why the ACLU is Wrong About Citizens United,” The Nation, March 21, 2012.
→ Contra, Joel Gora, “Campaign Finance Reform: Still Searching Today for a Better Way,” 6 J.L. & Pol’y 137 (1997) and Joel Gora, “Limits on Giving and Spending Violate the First Amendment,” N.Y.T., October 13, 2014.
Question: Would you support a constitutional amendment to overrule Citizens United and its progeny? And has the Brennan Center taken a position on this? If not, do you know why not?
Neuborne: I do not support a constitutional amendment to overturn Citizens United. Nor do I believe that there is sentiment at the Brennan Center for such an approach. Once we start tampering with the text of the First Amendment, I fear that we won’t stop with Citizens United. The Religion Clauses will be fair game for amendment. Then comes flag desecration, and after that everyone’s pet First Amendment peeve. Rather than open a Pandora’s Box, I’ll take my chances on persuading the Court to abandon the incorrect dicta in Citizens United.
In any event, the real villain of the piece isn’t Citizens United. It’s Buckley v. Valeo’s insistence that (1) the unlimited spending of money is exactly the same as speech; (2) preserving electoral equality cannot justify any limits on electoral spending; (3) the system can only be “corrupted” by bribery or extortion; and (4) independent expenditures do not pose a risk of actual, or the appearance of, corruption.
* * * *
Question: As I mark it, you’re 74 years old. That’s younger than Holmes was when he penned his various opinions in Schenck and Abrams. What frontiers have you yet to visit in your life journey? What’s next?
Neuborne: What a lovely thing to mention. These days, I’m drawn to the line in Victor Victoria: “You ain’t seen the last of me yet.” I plan at least one more litigation cycle aimed at improving American democracy by attacking partisan gerrymandering, protecting the right to vote, and permitting regulation of the stranglehold the rich now have on the democratic process.
Note: In an e-mail to me, Professor Neuborne stated: “I have a memoir in the works called Tales of a Constitutional Cop, which is about dozens of fascinating cases in which I was involved.”
Professor Neuborne: Again, congratulations on the publication of your latest book, and thank you for being so very generous and thoughtful in responding to my questions. — RKLC
Previous First Amendment Conversations
FAC #1: Larry Tribe on Free Expression
- “The Complete Posner on Posner Series“
- “Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky“
- “Ask the author: Chief Judge Katzmann on statutory interpretation“*
- “Ask the author: Garrett Epps on clashing visions on the Court“*
- “Ask the author: Three decades of Court watching – a political scientist’s take on the Court“*
- “Ask the authors: Conflict in the Court — an inside look at New York Times v. Sullivan and its progeny”*
- “Ask the author: Floyd Abrams & his fighting faith“*
- “Ask the author: Marcia Coyle on the Roberts Court“*
- “Ask the author: Kathryn Watts on the workings of the Supreme Court“*
- “Ask the author: Alex Wohl on Tom and Ramsey Clark and the Constitution“*
- “Ask the author: Jeffrey Toobin on THE OATH“*
* Published on SCOTUSblog