FAN 120 (First Amendment News) Snapshots of David Cole #2: Chipping Away at Citizens United

If Citizens United is overturned, it will be because of the sustained efforts of critics in civil society to critique it, educate the public about why it’s wrong, and show through local initiatives that alternative reforms are possibleDavid Cole, August 22, 2016

This is the second post concerning  David Cole, the ACLU’s New National Legal Director (first post here).  In this post the focus is on Professor Cole’s views on the First Amendment and campaign finance laws, with a particular focus on Citizens United v. Federal Election Commission (2010).

This past April Professor Cole published an article in The Atlantic entitled “How to Reverse Citizens United.” Here are a few excerpts from that article (subheadings were added):

Change in the Court: New Opportunities & Challenges 

Professor David Cole

Professor David Cole

“Now, with a new Justice in the offing, the prospect of reversing Citizens United, among other Roberts Court decisions, seems suddenly larger, more plausible: For campaign-finance-reform proponents, the brass ring seems within reach.”

“But the matter is not so simple. Even if Scalia is replaced by a more liberal justice, the Court’s campaign-finance rules will not be easily reversed. The precedents extending First Amendment protection to campaign spending date back to 1976, long before Scalia became a judge. The Court generally follows precedent, and overrules past decisions only rarely, even as justices come and go. A new justice will not be sufficient.”

Incremental Steps: The Slow March to Victory

“If campaign-finance reform similarly succeeds, it will not be through dramatic measures like the current proposals to pass a constitutional amendment overturning Citizens United. Nor will it be through a quixotic presidential campaign, like Lawrence Lessig’s short-lived run on a platform devoted almost exclusively to electoral reform. Constitutional law is more typically changed through a long process of smaller, incremental steps. If the various groups now seeking to fix the problem of money in politics are to prevail, they would do well to take a page from the gun-rights and marriage-equality playbook.”

Start with the States

“Some promising campaign-finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth. New York City, for example, matches small donations six-to-one for those candidates who agree to contribution and spending limits. Maine offers a public grant to candidates who raise a qualifying number of $5 donations and then agree to abstain from further private fund-raising. In November, Seattle voters approved a first-of-its-kind ballot initiative that will provide every voter with four $25 “democracy vouchers,” to be distributed as they wish among candidates who agree to abide by spending limits. By amplifying the contributions of ordinary citizens, reducing candidates’ reliance on Big Money, and enticing candidates to accept voluntary limits on their spending, these laws are meant to encourage politicians to pay attention to all their constituents, not just the wealthy ones.”

The Role of Scholarship

“Scholarship could similarly lay the groundwork for a new approach to campaign finance. One promising critique of the Court’s recent rulings concedes that spending restrictions limit First Amendment rights, but maintains that the constitutional interest in protecting speech is outweighed by other compelling considerations. Although the Court’s most recent rulings assert that the only legitimate basis for restricting campaign spending is curtailing bribery—what the Court calls ‘quid pro quo corruption’—a number of scholars are persuasively pressing a broader understanding of the state’s interests. For example, Zephyr Teachout, a law professor at Fordham, has shown that the Constitution’s framers expressed an active desire to fight corruption, a category they understood to include, beyond mere bribery, the undue influence of wealth on politics. Robert Post, the dean of Yale’s law school, argues that ensuring ‘electoral integrity’ is essential to a functioning democracy, and justifies limits on the free flow of campaign cash. And in an important new book, Plutocrats United, Richard Hasen, a law professor at UC Irvine, maintains that the state’s interest in equality can justify rules aimed at countering money’s distortion of politics. Each of these arguments could provide a path toward a constitutional jurisprudence that allows states and Congress more leeway in regulating campaign spending.”

Related Articles by David Cole

  1.  The Supreme Court’s Billion-Dollar Mistake, New York Review of Books, January 19, 2015
  2. How Corrupt Are Our Politics?, New York Review of Books, September 25, 2014
  3. The Roberts Court vs. Free Speech, New York Review of Books, August 19, 2010

See also Jameel Jaffer, How Constitutional Change Happens: Q&A With David Cole, ACLU, April 4, 2016:

Cole: “My own sense is that incrementalism is pretty much all there is. The NRA, the gay rights groups, and the human rights groups all succeeded in significant part by acting incrementally. Campaign finance reform today is similarly proceeding incrementally, introducing clean election and public financing and disclosure reforms in the most receptive states first, and then seeking to spread those wins to other states. A full-frontal attack on Citizens United is unlikely to prevail, but attacking it around the edges shows more promise.”

 See generally, Jeffery Rosen Interview with David Cole: How Citizen Activists Can Make Constitutional Law, National Constitutional Center, April 18, 2016 (on YouTube) (discussion focuses on activist and litigation strategies)

Proposed Federal Law Would Ban Revenge Porn

On July 14, 2016, Congresswoman Jackie Speier (D-CA) introduced the Intimate Privacy Protection Act. In a Press Release, Congresswoman Speier stated that she introduced the bill to target “perpetrators who share nonconsensual pornography, also known as revenge porn, and the online predators who profit from the further distribution of such images. The Intimate Privacy Protection Act (IPPA) is a bipartisan bill cosponsored by Reps. Katherine Clark (MA-5), Ryan Costello (PA-6), Gregory Meeks (NY-5), and Thomas Rooney (FL-17) and supported by numerous victims’ rights and legal organizations.”

Congresswoman Jackie Speier

Congresswoman Jackie Speier

Specifically, the bill “would make it illegal for an individual to knowingly distribute sexually explicit material with reckless disregard for the victim’s lack of consent. The bill recognizes that the distribution of nonconsensual pornography is a privacy violation, as nonconsensual pornography is not always about revenge or harassment. Recent examples of this would include recent cases of medical and law enforcement personnel sharing private images of vulnerable individuals for entertainment purposes. The bill focuses on the harm caused to the victim rather than the motive of the perpetrator.”

The bill, the Congresswoman added, “provides safe-harbor protections for online intermediaries dealing with third-party content, while allowing the prosecution of sites that actively promote or solicit nonconsensual pornography. The bill, unlike some state laws, contains explicit statutory protections for First Amendment rights. This means that any disclosure of private information that is public, voluntary or in the bona fide public interest would not be criminalized.”

See also:

  1. Bronwyn Isaac, Hillary Clinton Talking About Revenge Porn Is So Important For The Battle Against Online Harassment, The Frisky, August 23, 2016
  2. Thomas McDonnell, Setting the bar too high on revenge porn, Providence Journal, August 21, 2016
  3. Editorial, We need national legislation to combat revenge porn, Washington Post, August 20, 2016
  4. Jason Newman, Werner Herzog on Revenge Porn, Adult Diapers and the Internet’s Future, Rolling Stone, August 15, 2016
  5. David McCabe, Peter Thiel ties Gawker lawsuit to fight against revenge porn, The Hill, August 15, 2016
  6. Mary Ann Franks, It’s Time For Congress To Protect Intimate Privacy, The Huffington Post, July 18, 2016

Abortion Opponents Challenge Ordinance Restricting Protesters

Thomas Brejcha, lead attorney for Plaintiffs

Thomas Brejcha, lead attorney for Plaintiffs

This from a story in the Chicago Sun Times: “Anti-abortion activists filed a federal lawsuit against City Hall on Tuesday, arguing that an ordinance restricting protesters from approaching people outside abortion clinics is unconstitutional. The 2009 law states that within a 50-foot radius of a medical or healthcare facility, anyone with the intention of leafletting, “displaying a sign to, or engaging in oral protest, education, or counseling” must obtain individual consent before approaching within 8-feet of another person. Violators are subject to a $500 fine.”

“The lawsuit targeting the city’s so-called “bubble zone” ordinance was filed against the City of Chicago, Mayor Rahm Emmanuel, Commissioner of Transportation for the city, Rebekah Scheinfeld, and Police Supt. Eddie Johnson.”

The complaint in Price v. City of Chicago was filed in the federal district court for the Northern District of Illinois (see here).

Thomas Brejcha (president & chief counsel of the Thomas Moore Society) is the lead counsel for the Plaintiffs.

Campus Free Speech

→ Greater Viewpoint Diversity: New Initiative to Empower Students 

Heterodox Academy is . . .  launching an initiative to empower students who want greater viewpoint diversity on campus. Working with students at several universities, we have drafted three short resolutions that you can use or modify as you please. Click here to see the resolutions, along with advice about how to get started.”

“If you would like to reduce political orthodoxy at your school, then please consider introducing a resolution to your student government to declare your school a “Heterodox University.” The first school to do so will earn a great deal of positive media attention, attract a much larger number of applicants, and gain a national reputation for independent thinking. It will also have a much more open and exciting intellectual climate.”

“(This is the first of a suite of new tools and resources we’re releasing this fall to promote viewpoint diversity on college campuses and in academic disciplines).”

See also, Nicholas Quinn Rosenkranz, New Heterodox Academy initiative, The Volokh Conspiracy, August 23, 2016

* * * *

  1. Daniel Payne, The Coming Free Speech Apocalypse, The Federalist, August 22, 2016
  2. Alex Morey, University of Iowa to Rework Bias Response After Criticism, FIRE, August 22, 2016
  3. Jillian Kay Melchior, University of Iowa Scraps Plans for ‘Bias Response Team’, Heat Street, August 22, 2016
  4. Adam Steinbaugh, CSU Long Beach Administrators Refuse to Recognize Any New Student Organization, FIRE, August 19, 2016

Forthcoming Books on Free Press, Academic Freedom & More

511ixFHaS-L._SX329_BO1,204,203,200_Abstract: In 1952, the Hill family was held hostage by escaped convicts in their suburban Pennsylvania home. The family of seven was trapped for nineteen hours by three fugitives who treated them politely, took their clothes and car, and left them unharmed. The Hills quickly became the subject of international media coverage. Public interest eventually died out, and the Hills went back to their ordinary, obscure lives. Until, a few years later, the Hills were once again unwillingly thrust into the spotlight by the media—with a best-selling novel loosely based on their ordeal, a play, a big-budget Hollywood adaptation starring Humphrey Bogart, and an article in Life magazine. Newsworthy is the story of their story, the media firestorm that ensued, and their legal fight to end unwanted, embarrassing, distorted public exposure that ended in personal tragedy. This story led to an important 1967 Supreme Court decision—Time, Inc. v. Hill—that still influences our approach to privacy and freedom of the press.

Newsworthy draws on personal interviews, unexplored legal records, and archival material, including the papers and correspondence of Richard Nixon (who, prior to his presidency, was a Wall Street lawyer and argued the Hill family’s case before the Supreme Court), Leonard Garment, Joseph Hayes, Earl Warren, Hugo Black, William Douglas, and Abe Fortas. Samantha Barbas explores the legal, cultural, and political wars waged around this seminal privacy and First Amendment case. This is a story of how American law and culture struggled to define and reconcile the right of privacy and the rights of the press at a critical point in history—when the news media were at the peak of their authority and when cultural and political exigencies pushed free expression rights to the forefront of social debate. Newsworthyweaves together a fascinating account of the rise of big media in America and the public’s complex, ongoing love-hate affair with the press.

51M77o2-fML._SX331_BO1,204,203,200_Abstract: In these seventeen essays, distinguished senior scholars discuss the conceptual issues surrounding the idea of freedom of inquiry and scrutinize a variety of obstacles to such inquiry that they have encountered in their personal and professional experience. Their discussion of threats to freedom traverses a wide disciplinary and institutional, political and economic range covering specific restrictions linked to speech codes, the interests of donors, institutional review board licensing, political pressure groups, and government policy, as well as phenomena of high generality, such as intellectual orthodoxy, in which coercion is barely visible and often self-imposed.

As the editors say in their introduction: “No freedom can be taken for granted, even in the most well-functioning of formal democracies. Exposing the tendencies that undermine freedom of inquiry and their hidden sources and widespread implications is in itself an exercise in and for democracy.”

  1. Barney Rosset, Rosset: My Life in Publishing and How I Fought Censorship (OR Books, January 10, 2017)
  2. Nicole Moore, Censorship and the Limits of the Literary: A Global View (Bloomsbury Academic, February 23, 2017)
  3. Randall W. Bobbitt, Free Speech on America’s K-12 and College Campuses: Legal Cases from Barnette to Blaine (Lexington Studies in Political Communication, November 2016)

New & Forthcoming Scholarly Articles

  1. Richard Hasen, Election Law’s Path in theRoberts Court’s First Decade:A Sharp Right Turn but with Speed Bumps and Surprising Twists, Stanford Law Review (2016)
  2. Andrea Armstrong, Racial Origins of Doctrines Limiting Prisoner Protest Speech, SSRN, August 18, 2016
  3. John O. McGinnis, Neutral Principles and Some Campaign Finance Problems, William & Mary Law Review (2016)
  4. Jonathan Adler, Persistent Threats to Commercial Speech, Journal of Law & Policy (forthcoming 2016)
  5. Jan L. Jacobowitz, Ending the Pursuit: Releasing Attorney Advertising Regulations at the Intersection of Technology and the First Amendment, SSRN, June 10, 2016
  6. Noah B. Lindell, Williams-Yulee and the Anomaly of Campaign Finance Law, Yale Law Journal (student comment, forthcoming 2017)

New Blog Posts from the Volokh Conspiracy 

News, Editorials, Commentaries, Op-eds & Press Releases

Sydney Ember, Lawyer for Melania Trump Threatens Defamation Suits Against News Outlets, New York Times, August 22, 2016 (Ms. Trump’s counsel, Charles J.. Harder, “represented the former professional wrestler Hulk Hogan in the invasion-of-privacy lawsuit against Gawker Media that ultimately resulted in Gawker’s filing for bankruptcy.”)

  1. Paul Dughi, Shoptalk: Standing Up for the First Amendment in the Digital Age, Editor & Publisher, August 23, 2016
  2. Eugene O’Donnell, Your First Amendment rights don’t trump the NYPD’s duty to protect the public, Daily News, August 23, 2016
  3. Foundation for Economic Education, Before Celebrating Gawker’s Demise, Consider This, ValueWalk, August 23, 2016
  4. ACLU of North Dakota Statement on First Amendment Violations at Dakota Access Pipeline Protest, ACLU of North Dakota, August 22, 2016
  5. Glenn Harlan Reynolds, Free speech in the new century not so free, Daily Record, August 21, 2016
  6. Brian Miller, Who’s ‘Weaponizing the First Amendment’—the Left or the Right?, The Federalist Society, August 17, 2016

Today in First Amendment History

Congress Outlaws Communist Party (Today in Civil Liberties History)

August 24, 1954

“President Dwight Eisenhower on this day signed into law the Communist Control Act, outlawing the Communist Party. This was the first American law ever to outlaw a specific political party or group. The law also outlawed membership in the Communist Party or support for a ‘Communist-action’ organization. Apart from two minor cases, no administration tried to enforce it, and the Supreme Court has never ruled on its constitutionality.”

“This law is not to be confused with the Smith Act, passed on June 29, 1940, which made it a crime to advocate the violent overthrow of the government. The top leaders of the Communist Party were convicted of violating the Smith Act, and on June 4, 1951, in Dennis v. United States, the Supreme Court upheld the convictions and the constitutionality of the Smith Act.”

“The law: The Communist Party or any of its successors ‘are not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges, and immunities which have

heretofore been granted to said party or any subsidiary organization by reason of the laws of the United States or any political subdivision thereof, are terminated ….'”


  1. Unlawful and Un-American: How our leaders are attacking your First Amendment rights, Competitive Enterprise Institute, August 23, 2016
  2. Alex Jones, The Attack On The Free Press Will Only Make It Stronger, InfoWars, August 23, 2016

The Court’s 2016-2017 First Amendment Free Expression Docket

Pending Petitions*

  1. Armstrong v. Thompson
  2. Williams v. Coalition for Secular Government 
  3. Wolfson v. Concannon
  4. Lee v. Tam
  5. Dart v.
  6. Pro-Football v. Blackhorse 
  7. Packingham v. North Carolina

→ The Court’s next Conference is on September 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.

Last Scheduled FAN, #119Snapshots of David Cole, the ACLU’s New National Legal Director

Next Scheduled FAN, #120: Wednesday, August 31, 2016


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1 Response

  1. Brett Bellmore says:

    It should be noted that the ACLU was an amicus on the *winning* side of the CU decision. Here’s their amicus brief supporting Citizens United.

    After that decision, there was substantial controversy and internal meetings within the ACLU, and free speech advocates feared that this indicated that the ACLU was going to backtrack, and cease supporting free speech where it conflicted with the campaign ‘reform’ movement’s ambitions.

    Alas, I see the fear was justified.