FAN 110 (First Amendment News) Steve Shapiro to Step Down as ACLU’s Legal Director

Civil liberties without Steve Shapiro is like the Rolling Stones without Jagger. — Kathleen Sullivan

Steve Shapiro

          Steven Shapiro

He is a giant in his world, the world of civil liberties. For some two decades he has been the man at the helm of defending freedom on various fronts ranging from free speech to NSA surveillance and more, much more. His journey began 40 years ago as a staff counsel to the New York Civil Liberties Union.

He is Steven R. Shapiro.

Sometime this fall Shapiro will step down as the Legal Director of the American Civil Liberties Union. He has long been the one ultimately responsible for the ACLU’s entire legal program. Equally significant, Shapiro has been most closely involved with the ACLU’s Supreme Court docket. Ever since 1987, he helped to shape, edit, and occasionally write every ACLU brief to the Supreme Court.

  • Law Clerk (1975-1976 ) Judge J. Edward Lumbard, Court of Appeals, Second Circuit
  • J.D. (1975), Harvard Law School, magna cum laude.
  • B.A. (1972), Columbia College

Since 1995 Shapiro has served as an adjunct professor at Columbia Law School, where he has taught “Civil Liberties & the Response to Terrorism,” and “Free Speech and the Internet.”

 Shapiro is a member of the Board of Directors of Human Rights First and the Policy Committee of Human Rights Watch, as well as the Advisory Committees of the U.S. Program and Asia Program of Human Rights Watch.

Steven Shapiro, “The Roberts Court and the Future of Civil Liberties,” Houston Law Center, April 20, 2012

Natalie Singer, “Freedom Fighter, A conversation with Steven R. Shapiro ’75

SCOTUSblog on Camera: Steven R. Shapiro (complete six-part series here)

The Measure of the Man: What Others Say

I invited a few of those who know Steve Shapiro and are familiar with his work to offer a few comments. Before proceeding to their full comments, I selected a set of words drawn from them that capture the measure of the man: Here are those seven words:

“thoughtful” 

“principled”

 “unflappable”

 “effective” 

“remarkable” 

“honest”

“extraordinary”

Nadine Strossen: “Steve Shapiro has been a supremely thoughtful, lucid, persuasive advocate of First Amendment rights and other civil liberties, both orally and in writing. Whether he is serving as Counsel of Record on a Supreme Court brief or giving a sound-bite for the national media, he always presents even the most complex, controversial positions clearly, colorfully, and compellingly.”

EVAN E. PARKER/ THE TIMES Steven Shapiro, legal director of the American Civil Liberties Union, speaks Thursday at Valparaiso University's School of Law about the legal aspects of the United States Patriot Act.

   [credit: Evan E. Parker/ The Times]

Robert Corn-Revere: “Through his long career in defending civil liberties, and First Amendment rights in particular, Steve Shapiro demonstrated that protecting individual rights often requires championing the right to express ideas you abhor, but that doing so is necessary to protect basic freedoms. For those of us who had the privilege of working with him, his principled advocacy will be greatly missed.”

Burt Neuborne: “Steve Shapiro set the standard for all once and future ACLU Legal Directors. I know because I didn’t reach his standard. Steve has a precise and uncannily quick analytic mind that breaks complex fact patterns down into controllable issues, together with a keen strategic sense that accurately separates a good academic argument from an argument having a chance in the real world. Couple Steve’s extraordinary legal ability with his careful approach to administration, unflappable good humor, patience, and deeply principled commitment to the ACLU, and you have the key to his enormous success. He leaves office with the respect and affection of hundreds of lawyers whose work he aided, and with the knowledge that he performed one of the nation’s most important legal tasks with brilliance and humanity.”

Erwin Chemerinsky: “Steve Shapiro has done a truly spectacular job as Legal Director of the ACLU. The ACLU legal staff has grown tremendously and likewise benefitted greatly under his leadership and has made a huge difference in so many areas of law. He has been especially effective in directing the ACLU’s presence in the Supreme Court.”

Kathleen Sullivan: “Over his remarkable tenure Steve’s energy, intellect, and suppleness enabled the ACLU to navigate profound changes in the landscape of security, privacy, and freedom. It has always been a joy to work with him.”

Paul M. Smith: “It has been my privilege and pleasure to work with Steve Shapiro on a large number of projects over the years. For a quarter century, he has been on the job at the ACLU displaying a breadth of knowledge and a depth of wisdom that has been extraordinary.”

Arthur Spitzer: “At a recent ACLU Nationwide Staff Conference where Steve Shapiro’s forthcoming retirement was announced, the event planners handed out cardboard fans that said, ‘We’re all fans of Steve.’ The humor may not have been brilliantly original, but I think no one disagreed with the sentiment. Steve is a terrific lawyer, often seeing the deep problems in a case before anyone else and then seeing the way around them. But I think his even greater value to the ACLU has been his ability to be an honest broker among all the competing viewpoints within the ACLU. As far as I’ve been able to perceive (although from afar, at the local affiliate in DC), everyone feels that Steve understands and appreciates his or her concerns, weighs them fairly, and takes them into account, even if not ultimately agreeing. That will be a hard act to follow.”

UnknownOne Measure of His Work: Free Expression Cases

Below is a list of all the free speech cases (not all First Amendment cases) in the Supreme Court where the ACLU filed or signed onto a brief in the last ten terms. The direct cases are marked by an asterisk; all the others are amicus briefs.

2014 Term:

2013 Term:

2012 Term:

2011 Term:

2010 Term:

2009 Term:

2008 Term:

2006 Term:

2005 Term:

____________

Court Denies Review in Sign Case

This past Monday the Court denied review in Herson v. City of Richmond. One of the issues in the case was whether a municipal sign ordinance that identified various categories of signs based on the type of information they convey, then subjected each category to different restrictions, exempted signs containing favored noncommercial subject-matter (including foreign and domestic governmental insignia, religious symbols, and civic, patriotic, and commemorative speech), and also favored commercial speech over noncommercial speech, abridged the First Amendment in light of this Court’s recent opinion in Reed v. Town of Gilbert.

SEC Petition Withdrawn in Corporate Disclosure Case  

Stephen M. Silberstein, an individual investor, has asked this Court to issue a writ of mandamus “compel[ling] the SEC to take all steps necessary to propose a corporate disclosure rule, including discussing, investigating, planning, and developing a draft proposal, within 30 days of the Court’s decision.” Pet. at 20. This extraordinary remedy is couched in terms of the Commission’s “unreasonable delay,” but goes far beyond “requiring the SEC to act on petitioner’s rulemaking request” by, for instance, “deny[ing] the [rulemaking] petition. . . .”

“While the Petition bears every indication that Mr. Silberstein is motivated by his passionate views on campaign finance law, and his civic engagement is commendable, the Petition nonetheless fails to establish how such rulemaking would further the SEC’s core mission, and it does not support the issuance of a writ of mandamus.”

So states an amicus brief filed in the Court of Appeals for the District of Columbia. That brief was filed by Senators Mitch McConnell, Thad Cochran, John Boozman, and Richard Shelby. The ebrief was prepared by Bradley A. Smith and Allen Dickerson of the Center for Competitive Politics.

On May 18, 2016, Mr. Stephen Silberstein withdrew his petition before the D.C. Circuit. Mr. Silberstein’s Stipulation of Voluntary Dismissal can be found here.

Sarah Haan: A New Way of Thinking About Corporate Campaign Disclosure

Forthoming in the Yale Law Journal is an article by Professor Sarah Haan titled “Shareholder Proposal Settlements and the Private Ordering of Public Elections.” Here is the abstract:

Prof. Sarah Haan

Professor Sarah Haan

“Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections – and particularly what is known about corporate “dark money” – comes from disclosures that conform to privately-negotiated contracts.”

“The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8 – and potentially the rights of other shareholders – for a privately-negotiated social policy commitment by corporate management. Settlements of campaign finance disclosure proposals have been memorialized in detailed private agreements that set the frequency, format, and substance of disclosure reports, are enforced by private actors, and typically are not available to other shareholders, corporate stakeholders, or the public. Proposal settlements are producing a body of private disclosure law that increases corporate transparency to advance First Amendment values, and is exempt from First Amendment scrutiny. The private disclosure standards themselves are a mixed bag: effective at filling some gaps in public campaign finance disclosure law, but inadequate to make corporate electoral spending transparent in advance of elections.”

“As a form of private electoral regulation, the proposal settlement mechanism raises issues of democratic transparency, participation, accountability, and enforcement. This Article challenges the characterization of proposal settlements as ‘voluntary’ corporate self-regulation, provides a framework for understanding settlement-related agency costs, and shows how settlement subverts the traditional justifications for the shareholder proposal itself. Solutions that address the democratic and corporate governance problems of settlement largely overlap, suggesting a path forward.”

Timothy Zick  on How We Conceptualize First Amendment  (& Other) Rights

Professor Timothy Zick, author of Speech Out of Doors (2008) and The Cosmopolitan First Amendment (2013), has a new article entitled “Rights Dynamism.” Here is the abstract:

Professor Timothy Zick

Professor Timothy Zick

“Constitutional rights provisions are not isolated and self-contained. To the contrary, they are often intensely relational. As the Supreme Court’s recent marriage equality decision shows, constitutional rights such as due process and equal protection can combine in dynamic ways to create new meanings and new rights. The contemporary meaning of rights is often a product of their dynamic intersection, over long periods of time, with other rights provisions.”

“This Article identifies, describes, and examines the process in which rights intersect with one another and through which constitutional meanings are partially constructed. That process, which the Article calls “Rights Dynamism,” draws upon and complements some existing interpretive methodologies. However, Rights Dynamism is not high – or even low – constitutional theory. Rather, it is a real-world account of how constitutional rights intersect, converse, and conflict with one another and how rights influence one another’s meanings. To explicate Rights Dynamism, the Article examines three illustrative rights relationships – due process and equal protection; freedom of speech and equal protection; and freedom of speech and free exercise of religion.”

“Based on this examination, the Article proposes that we reconsider how constitutional rights are conceptualized, studied, and interpreted. It also proposes and defends a form of rights pluralism in which distinctive, but collaborative, rights enhance constitutional liberty. Finally, the Article identifies additional rights relationships, as well as relationships between rights and structural provisions, that would be worthy of systematic study.”

Corn-Revere Interviews Mary Beth Tinker

My parents came from World War II very concerned about the good people who say nothing and allow things, like Nazism, to take hold. So they really believed that you have to speak your conscience. — Mary Beth Tinker (2016)

This from FIRE:

Mary Beth Tinker

Mary Beth Tinker

“Her journey started with wearing a black armband to school and proceeded to the landmark Supreme Court case Tinker v. Des Moines Independent School District (1969), but it by no means stopped there: Mary Beth Tinker, namesake of the Tinker decision, continues to be a free-speech icon.

“Interviewed by Robert Corn-Revere, the eminent First Amendment attorney who represents FIRE’s Stand Up For Speech Litigation Project plaintiffs, Tinker sheds light on her case and the state of student speech rights today, connecting the past with the present.”

“Tinker sets the scene by noting that she and her siblings were raised in Iowa, where their father was a Methodist minister. Both of her parents believed in “putting faith into action,” she explained, and were actively involved in the social gospel movement. This led them to take part in the civil rights movement and the fair housing movement. It made sense, then, that all of the Tinker children were influenced by their parents’ advocacy and social consciousness. . . .”

The interview is on FIRE’s YouTube station.

____________

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule of Cases Already Argued

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Pending Petitions*

  1. Delaware Strong Families v. Denn
  2. Lee v. Tam
  3. Dart v. Backpage.com
  4. Pro-Football v. Blackhorse 
  5. Scholz v. Delp
  6. Packingham v. North Carolina

Review Denied

  1. Herson v. City of Richmond
  2. Hodge v. Talkin
  3. POM Wonderful, LLC v. FTC
  4. Cressman v. Thompson
  5. Justice v. Hosemann 
  6. Electronic Arts, Inc. v. Davis
  7. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  8. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  9. Town of Mocksville v. Hunter
  10. Miller v. Federal Election Commission
  11. Sun-Times Media, LLC v. Dahlstrom
  12. Rubin v. Padilla
  13. Hines v. Alldredge
  14. Yamada v. Snipes
  15. Center for Competitive Politics v. Harris
  16. Building Industry Association of Washington v. Utter (amicus brief)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims):  Cert. denied

Freedom of Information Case

 The Court’s next Conference is on May 26, 2016.

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.

NEXT SCHEDULED FAN POST, #111: Wednesday, June 1, 2016

LAST SCHEDULED FAN POST, #109Abrams Institute to Host Event on Commercial Speech

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