FAN 112 (First Amendment News) Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet

Over at Balkanization, Harvard Law Professor Mark Tushnet has some provocative things to say about the rule of law and the First Amendment. His post came in response to a New York Times story by Adam Liptak entitled “Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.

Here is what Professor Tushnet wrote:

Professor Mark Tushnet

Professor Mark Tushnet

“I feel compelled to note that — except for blatantly strategic reasons that I actually wouldn’t find compelling — I almost certainly wouldn’t endorse the view that Trump shows contempt for the rule of law and the First Amendment — not because I agree with his views, of course, but because ‘the rule of law’ and ‘the First Amendment’ are almost entirely without content, so that I don’t know how someone could show contempt to ‘them’ — if there’s no there there, I can’t see how you could be contemptuous of ‘it.'”

Then, by way of a parenthetical comment, he added:

“Of course the claim that there’s no there there is backed up by a fairly complicated argument not worth developing here — an important component is that a reasonably well-socialized lawyer can mutter words showing that any proposition asserted to show contempt for the rule of law is actually consistent with the rule of law properly understood, and that those words are indistinguishable in principle from other words uncontroversially regarded as professionally respectable.”

Over at The Volokh Conspiracy, George Mason University Professor David Bernstein took exception: “I think that Donald Trump does show contempt for the rule of law and the First Amendment, which I believe have plenty of ‘content.’ In Trump’s case, I don’t think it’s a rejection of the concept of the rule of law as much as complete, willful ignorance of the principles underlying our legal system.”

Invitation: Given Professor Tushnet’s comment that his is a “fairly complicated argument not worth developing here,” I invite him to say a few more words about what he meant, and I will happily post them.

Elementary School Bans Trump Cap

Logan Autry

Logan Autry

Powers-Ginsburg Elementary School has barred Logan Autry, a nine-year student, from wearing a Donald Trump cap to school. As reported by  Sontaya Rose for ABC News, young Autry said: “The vice principal came up to me and told me to take my hat off because it brings negative attention from other students. And I said no a few times and then the principal told me again and I still said no and refused.”

“For three days straight,” wrote Rose, “the third grader wore the hat to class. But each day, more and more classmates began confronting him at recess. ‘I still want to keep my hat. It’s not the hat that draws attention, it’s just my personality that the other children do not like,’ said Autry.”

“Autry recently moved to Fresno from the foothills, he loves politics and American history. ‘He knows more than I do. He knows more about this election than I know, it’s kind of embarrassing. You know, like are you smarter than a third grader kinda thing. But he is just very adamant about his beliefs and his rights. He wants to be a politician that’s his goal,’ said Angela Hoffknecht, Logan’s guardian. . . .”

FIRE Podcast Interviews with Glenn Greenwald & David Baugh

Over at FIRE, the “So to Speak” podcast interviews continue. The first interview in the series was with Glenn Greenwald. Recall, Greenwald is best known as one of the journalists who coordinated the 2013 National Security Agency revelations made by whistleblower Edward Snowden.

The second podcast interview was with David Baugh, who was the ACLU lawyer who represented the petitioner in  Virginia v. Black(2003) — the cross-burning case.

Nico Perrino, Director of Communications for FIRE, conducted the interviews.

New Book on Free Speech & “Conservative Libertarianism” 

In the realm of 21st century constitutional law, few developments have been as momentous as the increasingly ardent embrace of the First Amendment by conservative jurists and intellectuals. The Right’s First Amendment describes, with gusto and fairness, this startling shift in conservative views, one with major impact on the liberty of all Americans. —Floyd Abrams

Recently, Stanford Law Books released The Right’s First Amendment: The Politics of Free Speech & the Return of Conservative Libertarianism. University of Delaware Political Science Professor Wayne Batches is the author of the book.

Here is the publisher’s abstract of the book:

pid_24144Not so long ago, being aggressively “pro–free speech” was as closely associated with American political liberalism as being pro-choice, pro–affirmative action, or pro–gun control. With little notice, this political dynamic has been shaken to the core. The Right’s First Amendment examines how conservatives came to adopt and co-opt constitutional free speech rights.

In the 1960s, free speech on college campuses was seen as a guarantee for social agitators, hippies, and peaceniks. Today, for many conservatives, it represents instead a crucial shield that protects traditionalists from a perceived scourge of political correctness and liberal oversensitivity. Over a similar period, free market conservatives have risen up to embrace a once unknown, but now cherished, liberty: freedom of commercial expression. What do these changes mean for the future of First Amendment interpretation?

Wayne Batchis offers a fresh entry point into these issues by grounding his study in both political and legal scholarship. Surveying six decades of writings from the preeminent conservative publication National Review alongside the evolving constitutional law and ideological predispositions of Supreme Court justices deciding these issues, Batchis asks the conservative political movement to answer to its judicial logic, revealing how this keystone of our civic American beliefs now carries a much more complex and nuanced political identity.

Here is the table of contents:

Screen Shot 2016-06-07 at 8.14.26 AMThe Right’s First Amendment is an important and very readable guide to the transition from conservative moralism to conservative libertarianism. Batchis expertly documents the powerful impact of this thirty-year transition on constitutional law, politics, and the development of free speech.Mark Graber

New & Forthcoming Scholarly Articles 

  1. Sonja West, “The Media Exemption Puzzle of Campaign Finance Laws,” U. Pa. L. Rev. Online (2016)
  2. Marc J. Randazza, “Ulysses: A Mighty Hero in the Fight for Freedom of Expression,” University of Massachusetts Law Review (2016)
  3. Nicole B Casarez, “The Synergy of Privacy and Speech,” University of Pennsylvania Journal of Constitutional Law (2016)

New & Notable Blog Posts: Muller v. Hasen on $ & Politics

News, Editorials, Op-eds & Blog Posts 

  1. Gene Policinski, “‘A journalist by any other name’ … should just report,” GazetteXtra, June 8, 2016
  2. Judge grants preliminary injunction, says NC State policy violates First Amendment,” Winston-Salem Journal, June 8, 2016
  3. Clara Harmon, “Legal experts say Trump could weaken the First Amendment,” News Today, June 7, 2016
  4. Eoin Higgins, “The List: Cuomo’s anti-BDS executive order is a first amendment nightmare,” Mondoweiss, June 7, 2016
  5. David Chavern, “Trump endangers First Amendment,” Miami Hearld, June 6, 2016
  6. Mathew Ingrm, “Here’s Why We Need a First Amendment for Social Platforms,” Fortune, June 3, 2016
  7. Greg Scott, “Yes, Pittsburgh, the First Amendment Applies to Pro-Life People, Too,” Ricochet, June 3, 2016
  8. Steven D. Schwinn, “Ninth Circuit Revives Student Group’s First Amendment Claim,” Constitutional Law Prof Blog, June 2, 2016
  9. Nick Cahilll, “First Amendment Advocates Assail California Bill to Copyright Public Works,” Courthouse News, June 1, 2016
  10. Omri Ben-Shahar, “Vermont’s GMO Labeling Law Violates The First Amendment,” Forbes, June 1, 2016
  11. Erica Goldberg, “Trump’s Stance on Libel Would Make America Europe Again,” In a Crowded Theater, May 26, 2016

Coming: “Can We Take a Joke?” Documentary

Coming to theaters July 29th: a documentary about what happens when outrage and comedy collide.

Trailer here.

Today in First Amendment History 

Benjamin Gitlow

Benjamin Gitlow

The Court hands down its ruling in Gitlow v. New York (1925).

Issue: Is a New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?

Held: Though the Court assumes the First Amendment applies to the States, employing the “dangerous tendency” test it finds no violation.

Vote: 7-2 per Justice Edward Sanford with Justice Holmes & Brandeis in dissent.

Lawyer for Benjamin Gitlow: Walter Pollak

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. Packingham v. North Carolina

Review Denied

  1. Scholz v. Delp
  2. Herson v. City of Richmond
  3. Hodge v. Talkin
  4. POM Wonderful, LLC v. FTC
  5. Cressman v. Thompson
  6. Justice v. Hosemann 
  7. Electronic Arts, Inc. v. Davis
  8. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  9. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  10. Town of Mocksville v. Hunter
  11. Miller v. Federal Election Commission
  12. Sun-Times Media, LLC v. Dahlstrom
  13. Rubin v. Padilla
  14. Hines v. Alldredge
  15. Yamada v. Snipes
  16. Center for Competitive Politics v. Harris
  17. 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 June 16, 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, #113: Wednesday, June 15, 2016

LAST SCHEDULED FAN POST, #111: Flying Dog Brewery Launches First Amendment Society

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