Category: Constitutional Law

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FAN 152 (First Amendment News) Gilbert Roe — Free Speech Lawyer is Subject of Forthcoming Book

Breaking News from the New York Times

“. . . Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.”

“Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”

_______________________

Do not be bluffed on this subject of free speech. Remember that the first amendment of the Constitution stands.  I would say it with greater emphasis if I were a member of the forces of the [Wilson] Administration; for I want to say that if any administration in this country wants to seek trouble, it will find it along the line of denying the constitutional rights of free speech and free press. — Gilbert Roe (1917)

Indeed, [Gilbert] Roe provided the most trenchant and prescient of all criticisms of the Espionage bill by stressing the dangers of the intent requirement. — David Rabban

Gilbert Roe

By and large, First Amendment law is Supreme Court centric. That is, we equate the law, logic and history of freedom of speech with the names of Justices — Holmes, Brandeis, Black, Douglas, Brennan, Scalia, and Roberts. The lawyers behind the cases are all-too-frequently ignored . . . save, perhaps, for Floyd Abrams. But if one looks around the black robes and then turns the clock back, one name, among others, surfaces — Gilbert Roe (1864-1929).

Among other things, Gilbert Roe was the lawyer for the Free Speech League. He  knew and once worked with Louis Brandeis before the latter became a Justice. In 1917 Roe represented Max Eastman, the petitioner in Masses Publishing Co. v. Patten (1917, per Hand., J.). Mr. Roe also argued the case on appeal to the Second Circuit (246 F. 24), which reversed Judge Hand’s opinion.

Before the Masses case Roe was Eastman’s lawyer in a criminal libel case. See People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314 (N.Y., 1915). Before that Roe was the attorney for the petitioner in Fox v. State of Washington (1915). And in April of 1917, he testified before Congress against the Espionage Act.

In his amicus brief in Debs v. United States (1919) Roe, along with the attorney for the petitioner, challenged the Blackstonian interpretation of freedom of expression.

Once this Court says that public discussion of the measures of government can be punished because of any intent which a jury may find caused the discussion, or because of any result which a jury may think will follow such discussion, then the free speech and free press of the Constitution is destroyed. — Gilbert Roe, amicus brief in Debs v. United States (1919)

 Statement of Gilbert Roe, representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”).

Gilbert Roe & Robert La Follett (credit: Wisconsin Historical Society)

Related

Gilbert Roe died in 1929.

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Beyond what Professor David Rabban wrote in his seminal Free Speech in its Forgotten Years (1999) and Mark Graber in his Transforming Free Speech (1991), this January Gilbert Roe will be the object of a full-length biography by Professor Eric B. Easton.

The book, to be published by the University of Wisconsin Press, is titled Defending the Masses: A Progressive Lawyer’s Battles for Free SpeechHere is the abstract:

“Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.”

“Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended ‘Fighting Bob’ when the Senate tried to expel him for opposing America’s entry into World War I.”

“In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.”

Prof. Eric Easton

How the book came about: “I was looking to write something about Masses Publ. Co. v. Patten, but couldn’t find an approach that hadn’t already been done . . . and done well.  I decided to look at the human side of the case. Again, I found Hand and Eastman well covered (and Patten not terribly interesting).  But Roe seemed like a possibility, although I didn’t know who he was. Brief mentions of him in books I had read (Rabban, Graber) hadn’t really registered with me.

“I wrote to the University of Wisconsin Law Library, among others, to see if they might have some of Roe’s papers, and a librarian there sent me a Westlaw printout of Roe’s published cases (something I could have done myself, but didn’t). My interest was really piqued when I saw some familiar names as parties. When I read the cases, I knew I had something, and plunged into his papers (with La Follette’s in the Library of Congress) and his wife’s (at the Wisconsin Historical Society).”

“What followed was the most enjoyable scholarly experience of my career:  a new discovery nearly every day, a fascinating cast of characters, and a true unsung hero in the evolution of American freedom of speech.  I only hope I have done him justice.” [Source: e-mail to RKLC]

Professor Easton will present a paper at the October Masses conference at New York University Law School. His paper is entitled: “The Role of Gilbert Roe, the Masses attorney.”

Cert. Petition filed in Right to Assembly Protest Case Read More

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Did You Hear the One About the Alaska Legislator Who Said …

We have folks who try to get pregnant in this state so that they can get a free trip to the city, and we have folks who want to carry their baby past the point of being able to have an abortion in this state so that they can have a free trip to Seattle.

One might think, at first blush, that this is a bad joke.  Yet this quote actually did fall from the lips of Alaska state representative David Eastman of Wasilla (Anchorage suburb, of Sarah Palin fame) last week, in conversation with the Associated Press.  Eastman subsequently made similar comments to other media outlets.  Bear with me as I bracket Eastman’s impeachment of women’s character, returning to it below.

Like me, you are probably wondering about this “free trip” thing, given that the Hyde Amendment prohibits the use of federal funding for abortions.  Turns out, according to the AP story, that the “Alaska Supreme Court has held that the state must fund medically necessary abortions if it funds medically necessary services for others with financial needs.”  Mighty progressive, if you ask me, not least because many women in Alaska must travel vast distances to reach an abortion provider, given the size of the state.  And this can be mighty expensive and involve multiple plane journeys, even within Alaska.  (Bear in mind that the villages around Bethel and the Yukon-Kuskokwim Delta are among many Alaska places not accessible by road.) Ditto for those who must travel for other medical services, which the Alaska court has wisely recognized.

Indeed, speaking of distance, the dust-up created by Mr. Eastman reminds me of one of the most knuckle-headed things I’ve ever seen a judge say about the “undue burden” standard under Planned Parenthood of S.E. Pennsylvania v. Casey (1992):

A woman in Alaska, for example, could be required to travel 800 miles to get to an abortion clinic merely because she lives in one place and the nearest abortion clinic is on the other side of the state. But that certainly doesn’t constitute anything even approaching an undue burden.

The judge who wrote this was Dee Benson (now a senior district judge), and the case was Utah Women’s Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994) (discussed here).  Why the Utah judge thought it appropriate or necessary to use an example from Alaska rather than Utah is unclear.  I suppose he was looking for the most extreme example of distance he could find–to then make the point that such travel would still not trigger a constitutional problem.  Given that Alaska is the largest state in terms of land area, Judge Benson necessarily turned to “The Last Frontier” to illustrate his point.

Interesting in light of this point is the fact that the second largest state in the union, Texas, became the subject of the latest round of litigation over abortion restrictions, culminating in the U.S. Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt.  Of course, distance ultimately loomed very large in relation to the Court’s assessment of the undue burden standard there because women would have been challenged to travel as far as 550 miles each way (from El Paso to San Antonio) to reach an abortion provider had the Court not struck down Texas H.B. 2.  Read more here and here.  Distance as an undue burden is also a reminder of my recent exchange with Prof. Carol Sanger of  Columbia Law  on this blog regarding  the significance of spatiality/geography/rurality as it relates to abortion access.

But let me return now to the issue most directly implicated by Eastman’s comments,  which is less about the burden of distance (and therefore the “situation of women”)–which the state of Alaska has pragmatically taken care of, at least in part–and more about the character of women.  The AP story, by Becky Bohrer, includes not only helpful background for us on abortion availability in Alaska and, for late-term abortions, in Seattle, she also fills us in on the furor Eastman’s comments have generated:

In a speech on the House floor Friday, Democratic Rep. Neal Foster of Nome said Eastman’s comments were unacceptable and said he hoped Eastman would apologize.

“It shocks the conscience to think that a female in a village would want to endure the physical and the emotional pain of getting an abortion just so that they could get a free trip to Anchorage,” Foster said.

Most of the women who live in villages that Foster represents are Alaska Native and feel Eastman’s comments were directed toward them, Foster said. Many Alaska communities are not connected to a road system and smaller communities often have limited health services that necessitate travel to larger communities for care.

Two other “rural lawmakers,” demanded a public apology from Eastman, and Rep. Geran Tarr of Anchorage said she might “seek a motion to censure Eastman,” calling his comments “deeply offensive, racist in nature, and misogynistic.”

It is encouraging to see other legislators standing up for Alaska Natives and other rural populations.  And it also brings me back to the really outrageous part of what Eastman said–that women might purposefully get pregnant so that they can have a day out on the town, a freebie trip to the bright lights to get an abortion … and then tie on some shopping or a fancy meal, maybe even a jaunt up the Space Needle. This outrageous suggestion ties perfectly into Sanger’s over-arching point in About Abortion:  Terminating Pregnancy in the 21st Century:  women take abortion seriously–and we should presume they can make good decisions about it for themselves.  We should certainly not presume–as Eastman suggests–that they will get pregnant willy-nilly to “earn” a frolic in the city.  Insulting, misogynist and racist, indeed.

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FAN 151 (First Amendment News) Morgan Weiland Meet Ira Glasser — The First Amendment & the Liberal Dilemma

[F]or those who believe that the Speech Clause has meaning beyond its strategic use, the application of the speech right must have limits. In other words, the outward creep of the speech doctrine’s boundaries need not be tolerated as “freedom for the [speech] that we hate.” — Morgan N. Weiland

I regard [the campaign finance issue] as the biggest liberal blindspot in First Amendment struggles in my entire career at the ACLU. – Ira Glasser 

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Morgan Weiland

Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition” is the title of a forthcoming article in the Stanford Law Review.

The author is Morgan N. Weiland, an attorney and PhD candidate at Stanford University specializing in speech, press, and technology law and ethics. Next year she will clerk for Ninth Circuit Judge M. Margaret McKeown. Here is how Ms. Weiland begins the abstract to her forthcoming article:

“Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s expansion and risks undermining the First Amendment’s theoretical foundations.”

“This Article excavates the libertarian tradition through an analysis of Supreme Court cases that, beginning in the 1970s, consistently expanded speech protections by striking down limits on commercial speech and corporate political spending. The Court justified this expansion with the rationale of vindicating listeners’ rights in the free flow of information—the corporate benefit was incidental. But by narrowly conceptualizing listeners as individuals whose interests are aligned with corporate speech interests, the Court ended up instrumentalizing listeners’ rights in the service of corporate speech rights. This is the libertarian tradition. Today, the tradition has abandoned listeners’ rights altogether, directly embracing corporate speech rights. . . .”

As Ms. Weiland sees it, the “libertarian tradition” threatens two longstanding free-speech theories:  “the republican and liberal tradition.” Against that conceptual backdrop, she adds:

“First, by reconceptualizing listeners as individuals whose interests are vindicated through deregulation, the libertarian tradition draws from and is hostile to the republican tradition, which emphasizes the rights of the public, figured as listeners. Second, because the libertarian tradition focuses on vindicating corporate speech rights, it strips away the hallmarks of individual autonomy central to the liberal tradition, leaving only a naked speech right against the state, which this article names ‘thin autonomy.’ If the two traditions have value, then the libertarian tradition is problematic.

This insight cuts against the widespread belief that to protect speech we must be willing to countenance nearly any application of the right, even—and perhaps especially—if it goes against our most deeply held beliefs. That view is a myth; the speech right must have limits.”

 Related 

Weiland on Press Clause & Shield Legislation 

“Weiland’s scholarship and policy work has also focused on the press clause and journalism. She is researching the doctrinal development of the press clause, a paper that was supported by Stanford’s Constitutional Law Center and presented at the Communication Department’s Rebele Symposium in April 2015.”

“Related to this research, Weiland has engaged extensively with the federal shield bill debate. She has spoken about the bill and its potential impact on journalism at AEJMC’s 2014 conference. Free Press, in a report titled “Acts of Journalism: Defining Press Freedom in the Digital Age,” notes that “[j]ournalism and First Amendment scholar Morgan Weiland has argued that lawmakers should simply drop the definition of ‘covered persons’ in both the House and Senate bills and rely instead on the House definition of journalism.” She advanced these arguments while working as a legal intern at the Electronic Frontier Foundation in 2013, where she critiqued and helped to change the legislation. Her work on congressional shield legislation is also featured in the Stanford Lawyer.” [Source here]

Podcast: Interview with former ACLU Executive Director Ira Glasser

[F]or me the First Amendment and all those always was a strategic argument. I regarded the First Amendment, not as a highfalutin doctrine of principle, but as an insurance policy, and that’s what it was meant to be. . . .Ira Glasser 

Ira Glasser

Over at FIRE’s So to Speak podcast series Nico Perrino interviews one the ACLU’s giants, Ira Glasser (transcript here).

In this wide-ranging and spirited interview, the liberal Glasser speaks about everything from

  • his teaching math at Queens and Sarah Lawrence Colleges,
  • to the people who inspired him (e.g., Murray Kempton, I.F. Stone and Max Lerner),
  • to his admiration for Jackie Robinson,
  • to his early days in 1967 at the NYCLU with Aryeh Neier (Glasser is not a lawyer),
  • to his understanding of  how real political change comes about,
  • to his presence at March on Washington in 1963 when he was 25 (“I’d never seen anything like that in my life before, or since”)
  • to his activism during the Nixon years
  • to his views on the ACLU’s involvement in the Skokie case (“It was a surprise to us that it got so controversial”)
  • to his historical discussion of Buckley v. Valeo and how of campaign-finace laws were tapped to go after liberals,
  • to his views on progressives’ call to amend the First Amendment in order to overrule Citizens United (“You are handing your enemies the tools to suppress you!”)
  • to his reply to Perrino’s last question: “What are you most proud of?” — Glasser: “There are two answers: One answer is substantive, and one answer is organizational . . . .” [You’ll have to listen to the podcast or read the transcript to hear the rest of Glasser’s answer.]

Related 

[B]ack in 1972, the ACLU, which by the way is . . . a corporation, was prevented from taking out an ad in The New York Times criticizing then-President Nixon for his opposition to school busing for integration, and had to go to court to vindicate its right to free speech. Ira Glasser (2011)

From Stanford Law Review Online: Judge Neil M. Gorsuch on Free Expression Read More

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Our Unconstitutional Reapportionment Process

I thought I would post the Introduction of the paper that I’m now writing. I’ve taken out the footnotes to make this short enough for a long post, though I’m happy to share those if asked. Hopefully the draft will be complete by August.

Determining how many members each state is entitled to in the House of Representatives is among the most routine constitutional tasks. Every ten years, a census is conducted under the auspices of the Commerce Department. When the census is complete, the Department enters the state and national population information into a mathematical formula that was fixed by Congress in 1941, and the formula generates a representative total for each state. These state tallies are sent to the President and are certified by him without any congressional action or any exercise of administrative discretion. Though the counting method in the census and the allocation formula for representatives were the subject of unsuccessful court cases in the 1990s, the ministerial nature of the modern reapportionment process is taken almost entirely for granted.

This Article argues instead that the current mechanical system for redistributing congressional representatives violates Section Two of the Fourteenth Amendment. Section Two provides that if the right to vote in federal or many state elections is “denied” or “in any way abridged” by a state for a broad class of presumptively eligible voters, then that state’s delegation in the House of Representatives shall be reduced in proportion to the amount of disenfranchisement. Consistent with this requirement, the first census taken after the Fourteenth Amendment was ratified tried to ascertain the number of people who fell within Section Two’s definition. The resulting data was then forwarded to Congress and was discussed in floor debates as part of the reapportionment legislation enacted in 1871.

Under present law, by contrast, the Commerce Department is barred from considering Section Two in assessing how many representatives each state should get. While the census can ask Americans about their voting eligibility and behavior, the formula that Congress created to delegate its reapportionment authority does not include a Section Two variable. The current state regulations of voting rights may not require the imposition of any representation penalty, but the imposition of such a penalty cannot be precluded no matter what the facts are. It is axiomatic that Congress cannot erase a constitutional requirement through ordinary legislation, but that is exactly what the reapportionment statutes do given that Section Two of the Fourteenth Amendment says a representation penalty is mandatory if the suffrage rights of a sufficient percentage of the relevant population within a state are “in any way abridged.”

My claim that the reapportionment law in place since World War II is unconstitutional may seem unbelievable, but that reaction might fade after learning that the same point was made in the civil rights era. In the early 1960s, there was growing interest in Congress’s failure to enforce Section Two of the Fourteenth Amendment against the flagrant exclusion of African-Americans in the South. Indeed, there was a specific demand from the 1963 March on Washington led by Martin Luther King Jr. for the “[e]nforcement of the Fourteenth Amendment—reducing Congressional representation of states where citizens are disfranchised.” As part of this brief renaissance, a handful of scholars observed that the automatic system of ascertaining that representation violated Section Two and litigation was filed in the District of Columbia seeking a declaratory judgment that would invalidate the reapportionment statutes. Following the enactment of the Voting Rights Act in 1965, however, academic interest in the Section Two issue evaporated and the litigation was dismissed on prudential grounds pending “appraisal of the effectiveness of the new Voting Rights Act.”

Though the Voting Rights Act and its subsequent amendments did not fix the constitutional flaw in the reapportionment process, the Supreme Court’s 2013 holding in Shelby County v. Holder that the Act’s preclearance requirement cannot be applied to the jurisdictions that were designated by Congress makes that flaw more visible. After decades of neglect, it is time to treat Section Two of the Fourteenth Amendment with respect. Congress must revise the reapportionment statutes and at least permit the Commerce Department to take Section Two into account. If Congress takes no action, then a state with standing to contest the result of the next reapportionment should raise a Section Two objection and the Supreme Court should hold the reapportionment void.

Part I explores the history of congressional reapportionment and describes the contemporary process. Part II discusses Section Two of the Fourteenth Amendment, how that provision was applied when Congress conducted the first reapportionment after ratification, and the short-lived revival of interest in Section Two’s role in that process during the 1960s. Part III explains why the current reapportionment framework is at odds with Section Two and why a judicial declaration to that effect is proper.

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“THE JUDGE: 26 Machiavellian Lessons” coming this Fall

Ronald Collins & David Skover, The Judge: 26 Machiavellian Lessons (Oxford University Press, October 3, 2017).

The Judge is in a league of its own. For all the countless books and articles written on the politics of judging, no work has ever taken that point seriously, at least not the way the authors do. The Judge breaks into the world of judicial decision-making with bold strides and throws down a provocative conceptual gauntlet. The authors’ thesis is at once shocking and sobering. By cutting to the quick of the matter with Machiavellian acumen and fervor, they level a powerful pox on the houses of liberals and conservatives alike. Combining a sophisticated knowledge of the Supreme Court with a resourceful understanding of Machiavelli’s Prince, Collins and Skover’s The Judge is certain to redefine the entire “law is politics” debate. It will spark needed controversy in the short run and prompt informed thought in the long run. The light from this book is also likely to cast a long shadow for decades to come.

David M. O’Brien, Leone Reaves & George W. Spicer Professor of Politics, Woodrow Wilson Department of Politics, University of Virginia & Author of Storm Center: The Supreme Court in American Politics (Norton, 10th ed.)

∇ ∇ ∇ ∇    ∇ ∇ ∇ ∇

This inspired tract is Machiavellian in a profound sense. If, as Rousseau and Spinoza alleged, Machiavelli wrote The Prince to expose the true ways of power, Collins and Skover perform a similar service: The Judge ingeniously delineates how the pursuit of power lurks within the rarefied realm of appellate judging. Moreover, it delves even deeper: its Machiavellian examination of our judicial history illuminates how John Marshall established an autonomous realm of authority (a state as it were) for the judiciary. In so doing, the great Chief Justice is revealed to be of that most rarefied breed, a true modern “prince,” a state-maker in black robes. This unique work is astute and compelling; it is also carefully executed and buttressed by impressive scholarship. In any variety of instructive ways, The Judge will challenge political theorists, legal scholars, and judges alike.

Alissa Ardito, Ph.D., J.D. & author of Machiavelli and the Modern State (Cambridge University Press)

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Direct Taxes and the Border Adjustment Tax

Former Solicitor General Ted Olson has an op-ed in The Washington Post arguing that a border-adjustment tax would be subject to the state apportionment requirement of the Constitution’s Direct Tax Clause. I see no prospect that a border-adjustment tax will be enacted, but if one is I think that Olson’s argument is without merit.

Let’s start with a point that is missing from the op-ed. The term “direct taxes” in the Constitution is largely a euphemism for “taxes on slaves.” Supporters of slavery in the Constitutional Convention faced a dilemma–suppose Congress were to tax slaves at a very high rate? Would that not give Congress the power (in practice) to abolish slavery? The solution was to say that direct taxes had to be apportioned among the states, which meant that even states with no slaves would have to pay a slave tax.  This was a strong disincentive for such a tax, which was never enacted.

When the Supreme Court first interpreted the Direct Tax Clause in 1795, Justice Patterson (who was a member of the Convention) explained this point in his separate opinion. The import of this history is that the Court never (despite many invitations) applied the Direct Tax Clause from 1795 to 1895. (To the extent that Congress did, it was only for taxes on land.)  In 1895, the Court deviated from this deferential posture and held that the income tax was a direct tax, but that was overruled by the Sixteenth Amendment. Since then, no other tax has been deemed direct.

In the face of this original understanding and overwhelming precedent, Olson musters very little in response. He simply tries to define a border-adjustment tax as direct from first principles. Maybe if given the chance he could say more (an op-ed is, after all, a very limited forum), but I doubt it.

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FAN 150 (First Amendment News) Trend Ends: ACLU’s 2017 Action Plan Stands “Up for Free Speech”

Throughout our history, the ACLU has stood up for freedom of speech and the right to dissent.  From providing know-your-rights materials, to sending trained legal officers to protests, to bringing critical lawsuits defending free speech, the ACLU is on the ground across the country ensuring that people’s voices can be heard. — 2017 Workplan

After a two year hiatus, the American Civil Liberties Union has reaffirmed its long-standing commitment to free-speech rights, this in its 2017 workplan. The group’s latest workplan contains a section on safeguarding free-speech rights. The 2017 “ACLU Strategy for Defending the Constitution” includes a segment entitled “Standing Up for Free Speech and Protestor Rights.” This portion of the work plan was part of an eight-page mailer sent out to ACLU members. The 2016 and 2015 workplans, by contrast, omitted any mention of protecting First Amendment free-expression rights.

“From Standing Rock to the Women’s March, from airport protests of the Muslim ban to Black Lives Matter marches across the country,” the workplan states, “we are experiencing historic levels of protest.  The whole point of lifting up your voice is making sure your elected officials hear you.”

Anthony Romero, ACLU Executive Director

“The response to these powerful displays of democracy in action? Legislators in at least 15 states have proposed new laws to criminalize and penalize protest activities. Some of these have been dressed up as bills having to do with obstruction or public safety, but at their core they have one intent and effect — and that is to suppress dissent.”

“. . . The ACLU will fight in statehouses against any bill that violates the First Amendment, and for any that become law, we stand ready to go to court.  We’re confident the courts will see these bills for what they are: unlawful infringements of people’s right to speak out.”

“We’ve also seen a troubling trend of companies attempting to squelch the freedom of speech of the people who disagree with their practices.  Take the residents of Uniontown, Alabama for example. When four residents of Uniontown — a poor, predominately black town with a median per capita  income of $8,000 — decided to fight the hazardous coal ash that Georgia-based Green Group Holdings keeps in a landfill in their community, they were sued for defamation by the company to the tune of $30 million.”

“No one should face a multimillion-dollar federal lawsuit just for organizing and speaking out for the health and well-being of their community. The ACLU took up the case and won a critical victory on behalf of the residents of Uniontown when the court dismissed the case. . . .”

Woman Convicted for Laughing During Congressional Hearing

One horselaugh is worth ten thousand syllogisms.” — H.L. Mencken

Ms. Desiree Fairooz

According to Ryan J. Reilly writing in the Huffington Post,  a “U.S. Capitol Police officer . . . decided to arrest an activist because she briefly laughed during Attorney General Jeff Sessions’ confirmation hearing in January . . . . [P]rosecutors persisted this week in pursuing charges against the 61-year-old woman the rookie had taken into custody. . . .”

“Desiree Fairooz, [a librarian and 61-year-old] activist affiliated with the group Code Pink, . . . laughed when Sen. Richard Shelby (R-Ala.) said that Sessions’ record of ‘treating all Americans equally under the law is clear and well-documented.’ Fairooz was seated in the back of the room, and her laugh did not interrupt Shelby’s introductory speech. But, according to the government, the laugh amounted to willful “disorderly and disruptive conduct” intended to “impede, disrupt, and disturb the orderly conduct” of congressional proceedings. The government also charged her with a separate misdemeanor for allegedly parading, demonstrating or picketing within a Capitol, evidently for her actions after she was being escorted from the room. . . .”

**** Ben Mathis-Lilley writing in Slate has just reported that a “jury in Washington has convicted a 61-year-old protester named Desiree Fairooz of disorderly conduct and “parading or demonstrating on Capitol grounds” because she laughed out loud during Attorney General Jeff Sessions’ confirmation hearing. Fairooz could be sentenced to up to a year in prison. . . .”

Press Advisory, CODEPINK Members Stand Trial for Intervening at Jeff Session Confirmation Hearing, May 1, 2017

James Bovard, Arresting someone for laughing may sound funny, but it’s no joke, Washington Post, May 3, 2017 (“It isn’t the first time federal cops have attempted to enforce the difference between licit and illicit laughter, though, and unfortunately, it might not be the last. Laughing got me tossed out of the press box at the Supreme Court in March 1995. I was on assignment for Playboy, covering arguments in a case involving an Arkansas woman who had sold a small amount of illegal drugs to a government informant and was later the target of a no-knock police raid. Then, too, some laughter was okay, and some wasn’t: When then-Chief Justice William Rehnquist mocked one lawyer’s assertion, everyone in the house responded with a polite chuckle.”)

Christopher Mele, Is It a Crime to Laugh at a Congressional Hearing? A Jury Will Decide, New York Times, May 3, 2017 (“Two other activists, Tighe Barry and Lenny Bianchi, dressed as Ku Klux Klan members with white hoods and robes, stood up before the hearing started and were also charged.All three pleaded not guilty to the charges, rejecting a plea deal and demanding a trial. If she is convicted on both charges, Ms. Fairooz said she faces up to 12 months in prison.”)

Headline: Trump’s Chief of Staff threatens free speech crackdown Read More

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The Pursuit of Happiness

We all know the pedigree of this phrase as part of the Declaration of Independence.  What I was surprised to learn, after doing some research, is how often the Supreme Court has quoted this term of art to support the creation or existence of an unenumerated constitutional right.  Indeed, the pursuit of happiness does more work in this respect that the Ninth Amendment, even though the former is . . . well . . . not actually in the Constitution.

Here are some examples:

Cummings v. Missouri (1866):

“The theory upon which our political institutions rest is, that all men have certain inalienable rights—that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law.”

Meyer v. Nebraska (1923):

“While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

Olmstead v. United States (Brandeis, J., dissenting) (1928):

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”

Loving v. Virginia (1967):

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

I wonder if there is an article or Essay in this.

 

1

Looking back on Bridges v. California (1941) — Some random thoughts inspired by Floyd Abrams’ new book

The Bridges opinion was “a judicial Declaration of Independence for the First Amendment, freeing it from English law.” — Benno C. Schmidt

Harry Bridges

One sign of a good book is its ability to engage readers, to pique curiosity, and to urge one to return anew to something largely known but mostly forgotten. By that measure, Floyd Abrams’ latest book (The Soul of the First Amendment) is a valuable book.

In reading this so-called “modest essay” — Abrams tags it “ruminations about certain aspects of American constitutional law” — I was drawn back to a Bridges v. California (1941), the contentpt of court case involving the militant Harry Bridges, the then conservative Los Angeles Times, and their unrestrained comments on a then pending case.

Abrams devotes the better part of a concise chapter to this First Amendment majority opinion authored by Justice Hugo Black. The Court divided 5-4 with Justice Felix Frankfurter registering a stinging dissent.

Bridges is “a seminal but too-little recalled First Amendment case” writes Abrams.  I agree. Many con-law casebooks do not even cite the case anymore.

After reading the Bridges chapter, which is rich with important observations and comments, I went back and did some research on the case. Here is what I found — several revealing facts nearly lost to time.

Justice Douglas Edmonds

The Importance of a Forgotten State-Court Dissent: Does the name Douglas Lyman Edmonds (1887-1962) ring a bell? There is no reason it should except for the fact that he authored a powerful lone dissent when the California Supreme Court ruled on the  case in 1939.

  • Edmonds’ dissent drew in part on a 1928 Columbia Law Review article entitled “Contempt by Publication in the United States.” It was written by Walter Nelles (co-founder of the ACLU and co-counsel in Gitlow v. New York and Whitney v. California) and Carol Weiss King (one of Bridges’ lawyers and one of the founders of the National Lawyers Guild).
  • After discussing British constitutional history, Edmonds wrote: “The concept of freedom of the press, stated by Blackstone, is completely foreign both in time and place to the fundamental principles of American institutions. The doctrine that ‘the liberty of the press … consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published’ . . . is a statement of the British law at a time when seditious libel was punishable as a crime; it is not the interpretation of a Constitution. Moreover, that law has been very differently declared in the last one hundred and twenty-five years. (See Chaffee, Freedom of Speech, (1920), 8 et seq.”
  • And then following more extended discussions of federal and state laws (decisional and statutory laws), Edmonds declared: “The notion that contumacious publications have been subject to the summary power from time immemorial has been shown to be historically incorrect. Also, the experience of Pennsylvania and other jurisdictions where immunity of the press has long been maintained conclusively proves that no such power is necessary to maintain either the existence of courts or the respect for them. It is not necessary to the wholesome administration of justice in this state that judicial officers have uncontrolled discretion in passing upon alleged constructive contempts of court.”
  • “The rights of freedom of speech and of the press,” Edmonds added, “have their roots deep in the soil of this nation’s organic law. Five days before the Declaration of Independence was proclaimed, the patriots of Virginia declared in their Constitution ‘that the freedom of the press is the great bulwarks of liberty, and can never be restrained but by despotic governments.’ For more than a century and a half our nation has consistently upheld this right of expression by a free people as a vital principle which the founders of our national and state governments stated in the respective constitutions as necessary to a democracy.”
  • He closed his dissent with these words: “When free speech is fettered, liberty is a meaningless word.”

More, much more, can be said about this remarkable dissent, but that is a task for another day.

A.L. Wirin

The Importance of the Counsel in the Case: Turning back the pages of history reminds us that two rather important ACLU lawyers represented Bridges in the U.S. Supreme Court:

  • Osmond K. Fraenkel argued the case. Earlier, he represented the defendants in the Sacco-Vanzetti case and was one of the attorneys for Scottsboro boys. Fraenkel argued 26 cases  in the Supreme Court.  He was the lead counsel for the petitioners in  De Jonge v. OregonKunz v. New York and Schneider v. New Jersey. [Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (2009), p. 200]
  • A. L. Wirin was with Fraenkel on the Bridges brief. Wirin was the first full‐time lawyer for the ACLU and served as chief counsel of the ACLU of Southern California for four decades. As Sam Walker noted: Wirin “particularly distinguished himself during the Japanese-American internment when he and the ACLU affiliate sought an aggressive challenge to the government’s catastrophic program.” Wirin was counsel for the petitioner in Korematsu v. United States

Here is an excerpt from the Fraenkel-Wirin brief, a passage that apparently got the attention of Justice Black when he authored his majority opinion:

“The ‘Inherent Tendency’ and ‘Reasonable Tendency’ rule applied by the California Courts to publications pertaining to issues pending in the courts are too vague and indefinite… They offend due process of law and deprive the petitioner of freedom of speech and freedom of the press… Only the application of the ‘clear and present danger’ or the ‘actual obstruction’ principle to publications alleged to be in contempt of court will reconcile the independence of the judiciary with freedom of the press.”

The Importance of Fate: The Bridges case was first argued on Friday October 18th and on Monday October 21st of 1940. At the time of the conference, Chief Justice Charles Evans Hughes found it to be an easy case. In conference he was straightforward: “The facts here transcend the limits of reasonable discussion and I think [the lower court] should be affirmed.” (Roger K. Newman, Hugo Black: A Biography (1994), p. 290).  With that he assigned the majority opinion to Justice Frankfurter with Black, Reed and Douglas in dissent.  But then Fate changed things.

Anthony Lewis

As Anthony Lewis noted, on February 1, 1941, Justice James McReynolds retired.  “That left a five-to-three majority for affirmance.” And then Justice Frank Murphy jumped ship and joined with the dissenters.  That left the vote at four-to-four.  “At the end of the term,” Lewis added, “Chief Justice Hughes retired, leaving only three votes to affirm the contempt convictions.” [Anthony Lewis, “Justice Black and the First Amendment,” in Tony Freyer, Justice Hugo Black and Modern America (1990), pp. 237-252.]

And then two new members joined the Court: Justices James Byrnes and Robert Jackson.  Byrnes voted to affirm, Jackson to reverse. The result: a new majority with Black writing for the Court and Frankfurter dissenting.

The Importance of the Date: The 5-4 ruling in Bridges v. California came down on December 8, 1941 — the day after the attack on Pearl Harbor. That was also the day when President Roosevelt spoke to Congress at noon to request a declaration of war from the House.

Meanwhile, at the Court there was great division. On the one hand, Justice Black declared that “[h]istory affords no support for the contention” that speech could be abridged merely because it was directed at a judge sitting in a case. On the other hand, Justice Frankfurter was adamant that “[o]ur whole history repels the view [that a] newspaper to attempt to overawe a judge in a matter immediately pending before him.”

While war was afoot in the nation, freedom was being debated in the nation’s highest Court.

The Importance of Four Unpublished Sentences: In a draft of his original dissent, Justice Black penned the following words, which never appeared in his majority opinion:

 First in the catalogue of human liberties essential to the life and growth of a government of, for, and by the people are those liberties written into the First Amendment to our Constitution. They are the pillars upon which popular government rests and without which a government of free men cannot survive. History persuades me that the moving forces which brought about the creation of the safeguards contained in the other sections of our Bill of Rights sprang from a resolute determination to place the liberties defined in the First Amendment in an area wholly safe and secure against any invasion — even by government. [Howard Ball, Hugo L. Black: A Cold Steel Warrior (1996), p. 191]

And then there was this line: Narrow abridgments have a way of broadening themselves[Newman, supra, at p. 290, n. *]

Hugo Black (1937: credit: Harris & Ewing)

The Importance of the Bridges TestJustice Black harbored no fondness for Holmes’ clear-and-present danger test. Still, in Bridges he did give it a judicial nod of sorts, but then pointed beyond it:

What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

The Importance of  Three PrecedentsAs Anthony Lewis saw it, Bridges was part of a trilogy of First Amendment cases that changed the conceptual landscape of American free-speech law. The other two cases were Near v. Minnesota and New York Times Co. v. SullivanHere is how Lewis put it:

  • What Near did for our law of prior restraints from English tradition, and Bridges for our law of contempt, the 1964 decision in . . . Sullivan did for libel.

What is also key to these three rulings, and what also links them together, is that unlike earlier First Amendment cases that “focused on the harm speech could do,” Near, Bridges and Sullivan focused instead on “the good it could do.”

  • “Chief Justice Hughes found affirmative reasons for a free press.”
  • “Justice Brennan spoke of our ‘profound commitment to the principle that debate on public issues should be ‘uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'”
  • And then there was Justice Black: “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.”

* * * * *

Justice Louis Brandeis

As Frankfurter told it, Justice Brandeis allegedly agreed with him and disfavored Black’s view in Bridges: “Black and Co.,” he had Brandeis saying, “have gone mad on free speech.” [H.N. Hirsch, The Enigma of Felix Frankfurter (1981), p. 158] Professor Hirsch noted that it was not “possible to verify this story.” [Id. at 240, n. 115].

True or not, one thing was certain: “Bridges cut deeply into Frankfurter’s sense of well-being.” [Id. at p. 158] And perhaps that explains FF’s need to find a purported ally in Brandeis.

Lewes was understandably skeptical: “I should not leave unquestioned any assumption that Justice Brandeis would in the end have disagreed with the Black view in Bridges if he had still been on the Court. No doubt fair trial was an important value for him, and he might well have been reluctant to limit the power of judges to punish comments threatening that fairness. But it is also true that Brandeis considered freedom of speech a positive good, and he made the case for that belief with compelling eloquence.” [Lewes, supra, at p. 245]

The battle between Black and Frankfurter continued for decades thereafter. Ultimately, however, the spirit of Brandeis’ free-speech jurisprudence pointed more towards Black’s expansive views than towards Frankfurter’s cramped ones. Perhaps that explains why Mr. Abrams began his book with an epigraph quote from Justice Black:

The very reason for the First Amendment is to make the people of the country free to think, speak, write and worship as they wish, not as the Government commands.  

And to think that much of that heroic spirit traced back to Bridges . .  . first in Justice Edmonds’s dissent, then in the work done by Fraenkel  and Wirin, followed by the Black dissent that became a majority opinion, and ultimately capped by Tony Lewis’s revealing explanation of it all.

1

FAN 149 (First Amendment News) On hate speech: Will Howard Dean publicly debate Eugene Volokh?

Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.  

Howard Dean

The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.

Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”

Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.

Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building.”

Now onto the reason why I suggest a Dean-Volokh on-air debate.

Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:

Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:

“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”

Professor Eugene Volokh (credit: UCLA Magazine)

“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”

And then this:

To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:

“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”

Then on MSNBC, Mr. Dean countered: “Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”

“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.

*  * * *  *  *

↑→ For a refutation, see Jim Geraghty, Howard Dean’s First AmendmentNational Review, April 24, 2017

Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017

Did anti-Trump protestors violate his First Amendment rights?

(credit: Politico)

This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”

“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.

 Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).

 R. Kent Westberry is counsel for Donald Trump, both as President and individually.

“The Trump Defendants request that the Court certify the following issues:

  1. Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ‘inciting a riot’
  2. Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.”

Susan Seager, a noted media lawyer,  commented on the claims made by President Trump’s lawyer:

President Trump makes an argument already rejected by the court.  The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers.  The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.

 Related: Noah Feldman, Trump Lawyers Get Creative With First Amendment, BloombergView, April 24, 2017

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