FAN 75 (First Amendment News) Justice Kagan & the future of Abood, the strength of stare decisis, & the relevance of Garcetti
This post marks the 75th weekly issue of First Amendment News. I want to thank our publisher Dan Solove for making this possible. Thanks, too, to all those in the free-speech community — lawyers, professors, judges, journalists, and activists — who brought me their news and kindly shared mine. And thanks to my fellow bloggers, both here and elsewhere, for their support. In the days ahead I will explore ways to make FAN better and ever more timely and informative. Thus, if you have any ideas (small or big), please pass them along. Finally, and consistent with the spirit of the First Amendment, I try to be fair to all sides in what I select and how I present it. So if you have some news to share, pass it along. Meanwhile, onward!
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This October will mark the beginning of her sixth term on the Court. At 55, she could spend another 27 years on the Court before she is Justice Ruth Bader Ginsburg’s age. So she has plenty of time, she can move slowly and deliberatively, and she can plant seeds in today’s dissents for harvest in a future year. She is, of course, Justice Elena Kagan.
Soon, the Court will schedule oral arguments in Friedrichs v. California Teachers Association, et al., the latest public employees union case involving a First Amendment challenge to an opt-out requirement in a union-fee case. Among other issues, Justice Kagan has previously flagged two points that could prove to be important in Friedrichs. (1) how will the Court finesse the stare decisis question? And (2), how much latitude will it give to what it ruled in Garcetti v. Ceballos (2006). Those two points are highlighted below.
________ Just How Binding is Stare Decisis? ________
In Brulotte v. Thys Co. (1964), this Court held that a patent holder cannot charge royalties for the use of his invention after its patent term has expired. The sole question presented here is whether we should overrule Brulotte. Adhering to principles of stare decisis, we decline to do so. . . Overruling precedent is never a small matter. . . Respecting stare decisis means sticking to some wrong decisions. — Justice Elena Kagan for 6-3 majority in Kimple v. Marvel Entertainment (2015)
One of the specific issues in Friedrichs is whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. In that regard, recall that Justice Kagan joined Justice Stephen Breyer’s dissent in Knox v. Service Employees International Union, Local 110 (2012), wherein it was said: “Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance.” In Friedrichs it will have precisely that “benefit of argument” . . . assuming the case is not dismissed.
“Abood v. Detroit Bd. of Ed. answers the question presented in this case. Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. . . The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.”
Sensitive to the doctrine of stare decisis — a creed to which all would-be Justices feign allegiance when appearing before a Senate confirmation hearing — she roundly defended that doctrine as it applies to Abood:
“This Court’s view of stare decisis makes plain why the majority cannot—and did not—overturn Abood. That doctrine, we have stated, is
- a ‘foundation stone of the rule of law.’ Michigan v. Bay Mills Indian Community (2014). It ‘promotes the evenhanded, predictable, and consistent development of legal principles [and] fosters reliance on judicial decisions.’ Payne v. Tennessee (1991).
- As important, it ‘contributes to the actual and perceived integrity of the judicial process,’ ibid., by ensuring that decisions are ‘founded in the law rather than in the proclivities of individuals,’ Vasquez v. Hillery (1986). For all those reasons, this Court has always held that ‘any departure’ from precedent ‘demands special justification.’ Arizona v. Rumsey (1984).
- And Abood,” she stressed, “is not just any precedent: It is entrenched in a way not many decisions are. Over nearly four decades, we have cited Abood favorably numerous times, and we have repeatedly affirmed and applied its core distinction between the costs of collective bargaining (which the government can demand its employees share) and those of political activities (which it cannot).”
- “Perhaps still more important, Abood has created enormous reliance interests. More than 20 States have enacted statutes authorizing fair-share provisions, and on that basis public entities of all stripes have entered into multi-year contracts with unions containing such clauses.” [indented numbers added to text]
Notably, many of those same arguments, even worded the same way, were set out in her Kimple majority opinion, with the Chief Justice and Justice Clarence Thomas joining in Justice Samuel Alito’s dissent. Perhaps fearful of the application of stare decisis to future cases such as Friedrichs, Justice Alito began his Kimple dissent by stating: “The Court employs stare decisis, normally a tool of restraint, to reaffirm a clear case of judicial overreach.”
________ Garcetti’s Liberal Promise? ________
There is also the Garcetti point raised by Justice Kagan in the course of oral arguments in Harris: “[I]n the workplace we’ve given the government a very wide degree of latitude and there’s much that the government can do. It can fire people. It can demote people for things that they say in the workplace, not for things that they say as a citizen, but for things that they say in the workplace. That’s the fundamental lesson of Garcetti and of many, many others of our cases. So you’re saying, well, the government can punish somebody for saying something [as in Garcetti], but the government in the exact same exact position cannot compel somebody to say something they disagree with. And I want to know what’s the basis for that distinction . . . .”
SCOTUSblog Symposium on Friedrichs
Charlotte Garden, “Another battle in the war over union fees,” SCOTUSblog, Aug. 28, 2015; David Rivkin & Andrew Grossman, “Correcting the “historical accident” of opt-out requirements,” SCOTUSblog, Aug. 27, 2015; Catherine Fisk, “The Friedrichs petition should be dismissed,” SCOTUSblog, Aug. 26, 2015; Bill Messenger, “Will the Court continue to recognize a distinction between bargaining with government and lobbying the government?,” SCOTUSblog, Aug. 25, 2015; Ann C. Hodges, “Public-sector unions, labor relations, and free speech,” SCOTUSblog, Aug. 25, 2015; and Deborah J. LaFetra, “Overrule Abood to protect individual rights,” SCOTUSblog, Aug. 24, 2015.
Reed Opinion fuels Challenge to D.C. Panhandling Law
This from Martin Austermuhle at WAMU 88.5: “If someone walks down a D.C. sidewalk loudly expressing a political opinion, it’s considered free speech that’s protected by the First Amendment. But what if they’re homeless, and instead of making a statement ask someone else for money? Is that also protected speech?”
“D.C. attorney William Claiborne thinks so, and he’s hoping a D.C. court agrees with him.”
“Claiborne has filed a class action lawsuit challenging the city’s panhandling law, saying that it unconstitutionally infringes upon the First Amendment by distinguishing between panhandlers who ask passers-by for money on spot and organizations like the Girls Scouts who might ask for donations to be given later. . . . “
→ The First Amendment challenge is grounded largely in the Court’s recent ruling in Reed v. Town of Glibert.
→ See also: Clay Calvert, “Content-Based Confusion and Panhandling: Muddling a Weathered First Amendment Doctrine Takes its Toll on Society’s Less Fortunate,” Richmond Journal of Law & Public Interest (2015)
→ FAN 54 (First Amendment News): “Fourth Circuit Skeptical of Local Panhandling Law . . . Issue Before SCOTUS in Another Case,” April 1, 2015
Rick Hasen Interviews Floyd Abrams: Selected Excerpts
UCI Law Professor Rick Hasen has done it again — he has made the Election Law Blog even more appealing. By way of yet more value added, the ELB now has a podcast component. The second podcast consists of an interview with Floyd Abrams.
Abstract: Is more money in elections good or bad for our democracy? Would it be better to lift all limits on money in elections? What is the Supreme Court doing in the area of free speech? What of the new decision in Reed v. Town of Glibert? And what of academics and their views of the First Amendment?
→ Listen to audio feed here (31 minutes)
Here are a few excerpts from that interview:
- Campaign Disclosure Requirements: Abrams: “[Rick,] I think you are right to say that in [Citizens United] Justice Kennedy did not anticipate the way disclosure would play out . . . on the ground. I doubt very much it would change his overview of what the First Amendment protects and doesn’t protect in this area. My own view . . . [is] that disclosure requirements are constitutional, in general, apart from . . . . NAACP–like situations [in which] the mere fact that disclosure is so likely to have a such chilling effect on the ability of citizens to participate in the political process . . I don’t think that has occurred, and as a generality I don’t think [much of it] occurs. And more broadly, when it does occur . . . , I think that’s fine — that’s part of the system, too. The fact that the Federal Election Commission is itself immobilized, for political reasons, is not something that I think the Constitution has to take into account. It would be a good thing, in my view, if there were more disclosure, and Citizens United holds that it would be constitutional if that occurred.”
- Buckley Revisited: Hasen: “Would you like to see the Court go further and strike down contribution limits to candidates and parties as a First Amendment violation? First, would that be constitutionally required? And second, would that be a good state of affairs compared to where we are now? Abrams: “For some time I thought the Buckley v. Valeo creation [of distinguishing contributions from expenditures] . . . was sort of [an] acceptable on-the-ground compromise. I must say that it is increasingly difficult . . . from a First Amendment perspective, and probably a more on-the-ground perspective, to defend it. That is to say, it is very hard to come up with the words — maybe I speak now too much as a litigator — . . . to explain why it is that contributions are said to be more inherently corrupting than individual or corporate or union expenditures because, obviously, on the ground level they approach and cross over each other very often. . . . [Thus,] it really does get more difficult to defend . . . [Buckley’s] half-way system . . . .”
- Reed v. Town of Gilbert: Abrams: “I do think that [Reed] will lead to a major change. . . . I think one of the most important lessons of this case is how close our [First Amendment] law is becoming with respect to commercial speech as it is in political speech. I think we are moving in that direction. I don’t know that I would have moved all the way there, but I think that is where we are going. This case tells us that. We are not only going to have an expanded version of what is content based, with all of the consequences of that, but it is likely to apply as well in a large number of commercial speech contexts, which makes it, if anything, even more of a blockbuster decision. . . . One consequence of that may be that strict scrutiny becomes less strict as we apply it. . . . One of the arguments against it is [just that] . . . . [In that regard,] Justice Breyer warned that strict scrutiny will become less strict than it has been in the past. . . . [The ruling in Williams-Yulee] may be a good example of this. . . . That may be a direction that we go in. . . . Five years from now people like me . . might be saying, ‘I would rather have the old strict scrutiny if the price of cases like Reed . . . is that strict scrutiny is not at all as strict as it was.'”
- The First Amendment & the Legal Academy: Hasen: When it comes to defending broad readings of the First Amendment, “[d]o you think something has changed in academia, and if so, what do you attribute it to, and do you think the First Amendment runs the danger of becoming another yet issue that divides the country [along] partisan lines? Abrams: “Yes and yes. . . I am sorry to say — but maybe one shouldn’t be naive about this — that an awful lot of [academic] decsisionmaking . . . comes not from [a] judgment about speech [protection], but what the topic happens to be. Protests around abortion clinics are viewed by some on the Left as more easily subject to restriction than would be the case if they were protests around factories by unions. I do think that scholars tend to be more liberal than not, more left-of-center than not. I have to say this has come to affect their judgment about the First Amendment and when it applies and what it means. . .”
There is much more and I urge readers to consult the entirety of this engaging and illuminating interview.
→ See also ELB Podcast Episode 3: “Larry Lessig: Bold Campaign Reformer or Don Quixote?” (go here)
Limits on Protests @ Supreme Court
- Lyle Denniston, “Court now can ban protests on its threshold,” SCOTUSblog, Aug. 28, 2015
- Ruthann Robson, “DC Circuit Finds No First Amendment Violation in Statute Limiting Expression at Supreme Court,” Constitutional Law Prof Blog, Aug. 28, 2015
- Jess Bravin, “Demonstrators Can’t Use Supreme Court’s Outdoor Plaza, Appeals Court Says,” Wall Street Journal, Aug. 28, 2015
- Bridget Bowman, “Will The Supreme Court Become ‘First Amendment-Free Zone?’,” Roll Call, Aug. 28, 2015
→ The Case: Hodge v. Talkin (D.C. Cir., Aug. 28, 2015) (per Judge Sri Srinivasan)
- Beth S. Brinkmann, Attorney, U.S. Department of Justice, argued the cause for Appellants.
- Jeffrey L. Light argued the cause and filed the brief for Appellee.
- Arthur B. Spitzer was on the brief for amicus curiae American Civil Liberties Union of the National Capital Area in support of Appellee.
Camus Free-Speech Watch
- Greg Lukianoff, “Does Free Speech Offend You?,” Ricochet, Aug. 31, 2015 (video clip)
- Bob Goodlatte, “Colleges and universities should protect free speech,” The News Virginian, Aug. 31, 2015
- Regina Garcia, “New ND law bolsters student journalists’ free speech rights,” Bismark Tribune, Aug. 31, 2015
- “Free Speech Zones MSU,” Fox5, Aug. 26, 2015
- “Missouri chooses ‘free speech’ over ‘free speech zones’,” NewsNow, Sept. 1, 2015 (Missouri Gov. Jay Nixon has signed the Campus Free Expression Act, known as the CAFÉ Act, into law to protect free speech on college campuses — Joe Cohn of the Foundation for Individual Rights in Education said FIRE was instrumental in helping legislators pass the ACT)
→ See also, “The Role of Free Speech on Campus,” University of Chicago, School of Law (discussants: Geoffrey Stone, Mark Hansen, Margaret Mitchell, & Ramon Guitierez) (posted on YouTube, Aug. 25, 2015)
Local pro bono North Carolina counsel sought for First Amendment amicus brief
This from the Eugene Volokh over at the Volokh Conspiracy blog: “Any North Carolina lawyers interested in being pro bono local counsel in a very interesting First Amendment case in North Carolina? The Scott & Cyan Banister First Amendment Clinic that I run here at UCLA is working on an amicus brief (due in about three weeks), on behalf of a prominent public interest organization, before the North Carolina Supreme Court. If you’d be inclined to help out, I’d be much obliged. We’ll take care of all the filing, printing, and mailing costs. Please let me know (at firstname.lastname@example.org) if you might be interested, and I’ll then give you more details.”
- Helen J. Knowles & Steven B. Lichtman, Judging Free Speech: First Amendment Jurisprudence of US Supreme Court Justices (Palgrave Macmillan, September 17, 2015)
- Steve Sheinkin, Most Dangerous: Daniel Ellsberg and the Secret History of the Vietnam War (Roaring Brook Press, September 22, 2015)
- Catherine J. Ross, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights (Harvard University Press, October 19, 2015)
- Paul Rosenzweig, Timothy J. McNulty & Ellen Shearer, editors, Whistleblowers, Leaks, and the Media: The First Amendment and National Security (American Bar Association, November 7, 2015)
- Anthony Maniscalco, Public Spaces, Marketplaces, and the Constitution: Shopping Malls and the First Amendment (State University of New York Press, November 2015)
New & Forthcoming Scholarly Articles
- Timothy Zick, “Professional Rights Speech,” Arizona State Law Journal (forthcoming 2015)
- Neil M. Richards, “The Atlantic Divide on Privacy and Speech,” in Andrew T Kenyon (ed), Defamation: Comparative Defamation and Privacy Law (New York, NY: Cambridge Press 2015).
- “Tort, Speech, and the Dubious Alchemy of State Action, University of Pennsylvania Journal of Constitutional Law (2015, forthcoming).
- Edward Lee, “The Right to Be Forgotten v. Free Speech,” A Journal of Law and Policy for the Information Society (forthcoming 2015)
- Daniel Greenwood, “After Citizens United: Extending the Liberal Revolution to Corporations,” SSRN, Aug. 19, 2015
Notable Magazine Article
- Elliot Zaret, “Commercial Speech and the Evolution of the First Amendment,” Washington Lawyer, Sept. 2015 (a sampling of this very long article is set out below):
Companies in recent years have brought First Amendment challenges to such diverse issues as data mining of medical prescription information, Seattle’s minimum wage law, licensing requirements for tour guides in Washington, D.C., and rare coin dealers in Ohio, graphic health warnings on cigarette packages, meat labeling, and U.S. Securities and Exchange Commission (SEC) disclosure laws. Additionally, the First Amendment has become a primary vehicle for new challenges to restrictions on the promotion of off-label use of drugs, labeling of genetically modified organisms (GMOs) in food, and the Federal Communications Commission’s “net neutrality” regulations.
Critics and supporters alike agree that these kinds of First Amendment challenges would not have been taken seriously—and even may have been laughed out of court—as recently as 20 years ago.
“Two decades ago, if somebody had suggested that the registration scheme under the Securities Act of 1933 is a violation of the First Amendment because it requires SEC approval before you can use certain documents in the sale of securities, people would have laughed at it,” says Frederick Schauer, a constitutional law professor at the University of Virginia School of Law and former First Amendment scholar and academic dean at Harvard’s Kennedy School of Government.
“My sense is that these days that’s less laughable than it was 20 years ago,” Schauer says. “Whether it be in the area of data mining, or source code or a whole bunch of other things of this variety, or ordinary business regulation—the antitrust area, the securities area, the [Federal Trade Commission] area, the [Food and Drug Administration] area, and so on—arguments that were laughable not that long ago are now being treated as less so.” . . .
Tamara Piety, a professor at the University of Tulsa College of Law, has written prolifically on the subject in law review articles and in her book Brandishing the First Amendment: Commercial Expression in America. She argues that this expansion of the First Amendment could erode the ability for government to regulate commerce to the point where New Deal-era consumer and safety protections are undermined.
“Once everything becomes ‘expression’ then nothing is regulable,” says Piety. “It’s not like we haven’t tried the laissez faire before as a country. We had that in the 19th century; it didn’t work out so well. That seems to have been the consensus from those who were living during that period and the decades that followed . . . I think one of the things that this new First Amendment threatens is going back to that sort of regime.” . . .
“If every time government regulation touched on speech [and we treat it] as a First Amendment problem, [it] would jeopardize a considerable amount of, let us call it the post-New Deal regulatory state,” Schauer says. He says this includes the FDA and labeling, the FTC and labeling and truth in advertising, and the SEC in terms of truth in security sales. . . .
News, Editorials, Op-eds & Blog Posts
- Lyle Denniston, “Is the First Amendment a threat to the safety of medicines?,” Constitution Daily, Aug. 25, 2015
- A. Barton Hinkle, “For Progressives, First Amendment Comes in Second,” Reason, Aug. 31, 2015
- Krista-Ann M. Staley & Alyssa E. Golfieri, “Content Neutrality in the Government Regulation of Free Speech,” The Legal Intelligencer, Sept. 1, 2015
- Noelle Phillips, “Legal battle over First Amendment plays out at Denver courthouse,” Denver Post, Sept. 1, 2015 (“Dispute between police, protesters at Denver courthouse started with jury nullification pamphlet”)
Oxford Union Free-Speech Debate
Pretty much every freedom we enjoy is a product of individual’s having given offense. . . . Offensiveness is the motor of human progress. — Brendan O’Neill
- Peter Hitchins, “Freedom of Speech and the Right to Offend | Proposition” (Oxford Union) (posted Aug. 25, 2015)
- Kate Brooks, “Freedom of Speech and the Right to Offend | Opposition” (Oxford Union) (posted Aug. 25, 2015)
- Brendan O’Neill, “Freedom of Speech and the Right to Offend | Proposition” (Oxford Union) (posted Aug. 25, 2015)
- Shami Chakrabarti, “Freedom of Speech and Right to Offend | Proposition” (Oxford Union) (posted Aug. 25, 2015)
- Ruvi Ziegler, “Freedom of Speech and Right to Offend | Opposition” (Oxford Union) (posted Aug. 25, 2015)
- Tim Squirrell, “Freedom of Speech and Right to Offend | Opposition” (Oxford Union) (posted Aug. 25, 2015)
Headline of the Week: “America is growing dangerously protective of free speech”
From the Star Exponent (Clupper, VA) by A. Barton Hinkle.
Progressive America is troubled. Some of its leading lights fret that if something is not done soon, government will actually need a good reason to censor other people’s speech.
New YouTube Posts
- “Madison Federalists: Political Speech and the First Amendment” (posted Aug. 26, 2015) (featuring Hans von Spakovsky of the Heritage Foundation speaking to the Madison Chapter of the Federalist Society)
The Court’s 2015-2016 First Amendment Docket
* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it
Last Scheduled FAN #74: “Summer thoughts on dissent”
Next Scheduled FAN #76: Wednesday, September 9, 2015