Category: Constitutional Law

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FAN 125 (First Amendment News) Forthcoming book spotlights First Amendment freedom & LGBT equality

It comes out this March: The First Amendment and LGBT Equality: A Contentious History (Harvard University Press, 320 pp.). The author is Carlos A. Ball, the Distinguished Professor of Law and Judge Frederick Lacey Scholar at the Rutgers (Newark) Law School.

Professor Ball is a prolific writer; his books include: Same-Sex Marriage and Children: A Tale of History, Social Science, and Law (2014); The Right to be Parents: LGBT Families and the Transformation of Parenthood (2012); From the Closet to the Courtroom: Five LGBT Rights Cases That Have Changed Our Nation (2010); and The Morality of Gay Rights: An Exploration in Political Philosophy (2003) and he is a co-editor of Cases and Materials on Sexual Orientation and the Law (2014).

Professor Carlos Ball

Professor Carlos Ball

In late March of next year, Professor Ball will turn his attention to the intersection of First Amendment freedom and LGBT equality. Here is the abstract of his forthcoming book:

“Conservative opponents of LGBT equality in the United States often couch their opposition in claims of free speech, free association, and religious liberty. It is no surprise, then, that many LGBT supporters equate First Amendment arguments with resistance to their cause. The First Amendment and LGBT Equality tells another story, about the First Amendment’s crucial yet largely forgotten role in the first few decades of the gay rights movement.”

“Between the 1950s and 1980s, when many courts were still openly hostile to sexual minorities, they nonetheless recognized the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it had laid the groundwork for major LGBT equality victories.”

“Carlos A. Ball illuminates the full trajectory of this legal and cultural history. He argues that, in accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the established ways in which American antidiscrimination law has, for decades, accommodated equality dissenters. But he also argues that as progressives fight the First Amendment claims of religious conservatives and other LGBT opponents today, they should take care not to erode the very safeguards of liberty that allowed LGBT rights to exist in the first place.”

Headline: “Pharmacy Argues There’s A First Amendment Right To Secretly Sell Execution Drugs”

Writing in BuzzFeed, Chris McDaniel reports that a “pharmacy whose drugs have been used in 16 Missouri executions is arguing that its actions are political speech protected by the First Amendment to the Constitution, and that its identity should remain secret.Death row inmates in Mississippi subpoenaed information from the Missouri Department of Corrections — including about the drugs and supplier — months ago. Missouri Attorney General Chris Koster has attempted to have the subpoena quashed, but so far has been unsuccessful. . . .”

A picture of Texas’ supply of pentobarbital. (Via court filing)

Picture of Texas’ supply of pentobarbital. (via court filing)

“In the past two weeks, the supplier has spoken up for the first time, under the pseudonym ‘M7.’ In a motion filed late Friday night, M7 said its drug sales are political speech. . . .”

“Missouri has paid M7 more than $125,000, all in cash, for execution drugs, according to documents obtained by BuzzFeed News. The amount they are paid per execution — $7,178.88 for two vials of pentobarbital — is well above market value, and experts have expressed concern that the cash deals could violate federal tax law.”

“‘The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights,’ the pharmacy’s attorneys wrote in Friday’s court filing.”

“Selling execution drugs ‘is an expression of political views, no different than signing a referendum petition or selling a t-shirt.'”

Headline: “Court rules 3D printing not protected under First Amendment”

Greg Camp, writing in Guns.com, notes that the “Fifth Circuit Court of Appeals has ruled that designs of firearms to be used on 3D printers are not protected by the free speech provisions of the First Amendment.  The court, siding with the State Department, found that such designs could constitute an export, given the lack of borders on the Internet, and as such would pose a danger to national security.”

Defense Distributed v. United States Department of State (5th Cir., Sept. 20, 2016) (District Court opinion, August 4, 2015 — here)

College Campuses & Free Speech Read More

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The Time for a Presidential Veto

I just finished reading Samuel I Rosenman’s book Working With Roosevelt, which is the biography of FDR’s principal speechwriter during his years as Governor and for much of his presidency. In that book, I came across this interesting constitutional nugget.

Article One, Section Seven says: “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

When the President was preparing to go to Tehran for his conference with Stalin and Churchill in 1943, the following question came up:  Suppose a bill was passed while he was away and it took more than ten days to send the legislation around the world, get his decision, and send the decision back.  (No phone connections could work, of course.) The President’s advisors concluded that the constitutional language “presented to him” could be read as “presented to him in person,” which would mean that the ten days would not start until the bill reached Iran.

It turned out that the President did not need to veto any bills that he could not return in ten days from the time of passage, so the problem never ripened. Still, a neat problem for discussion.

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FAN 124 (First Amendment News) Ellen DeGeneres raises First Amendment defense in defamation case

Under the First Amendment to the United States Constitution and under well-established Georgia law, courts have consistently recognized that humor, parody, name-calling and other forms of ‘rhetorical hyperbole’ are simply not actionable as defamation or under any other legal theory. — Thomas Clyde, Warner Bros. lawyer (Sept. 16, 2016)

Thomas Clyde

Thomas Clyde

Thomas M. Clyde is a partner at the Atlanta, Georgia law firm of Kilpatrick Townsend. He has has “extensive experience in defending publishers, broadcasters and other information providers against claims alleging defamation, invasion of privacy, infringement of intellectual property rights and newsgathering misconduct. . . . Mr. Clyde was recognized in The Best Lawyers in America for First Amendment Litigation in 2017 and the four years immediately preceding. He was also named a 2017 ‘Atlanta Lawyer of the Year’ in the area of First Amendment Law by The Best Lawyers in America. Mr. Clyde was recognized as a Georgia ‘Super Lawyer’ for First Amendment, Media and Advertising Law in 2012 and 2013, for Constitutional Law in 2014, and again for Media and Advertising Law in 2015 and 2016 by Super Lawyers magazine.” He is also the past co-chair of the Media Law Letter Committee of the Media Law Resource Center.

Now his First Amendment expertise is being summoned to defend TV comedian and talk-show host Ellen DeGeneres who is being sued for defamation. Here is how it happened: Seems that on one of her national TV shows Ms. DeGeneres referred to Ms. Titi (pronounced ‘TEE TEE) Pierce as “Titty Pierce.”

According to LawNewz,  “[d]uring a segment of her daily talk show called, ‘What’s Wrong with These Signs? Ellen showed a photograph of a real estate sign advertising broker Titi Pierce, and pronouncing the name ‘titty’ instead of the phonetic ‘tee-tee.’ Ellen made the ‘Titty’ wisecrack right after showing a sign that read ‘Nipple Convalescent Home,’ and continued to joke, “Titty Pierce, sounds like she might have spent some time in that nipple home, I don’t know.’

 “It was all in good fun,” reported Elura Nanos, “until Ms. Pierce’s phone blew up with harassing calls and messages. And to make matters worse, she was on her way to a family funeral. Comedic timing really is everything.” In light of that, on “Ms. Pierce filed a lawsuit in Georgia Federal Court against  DeGeneres, alleging Invasion of Privacy, Misappropriation of Likeness, Defamation, and Intentional Infliction of Emotional Distress.”

As Mr. Clyde sees it, “This was silly, lighthearted fun,” and nothing more. Even so, his response to the complaint raised a First Amendment defense.

The Plaintiff is being represented by Stacey Godfrey Evans.

See video clip, courtesy of LawNewz, here.

Copy of Complaint here.

Katie Couric, film company & distributor sued for defamation

Katie Couric

Katie Couric

This from Larry Iser writing in Forbes: “Back in May, Katie Couric faced a heap of controversy over an edited scene in the 2016 documentary Under the Gun. This week, Couric, along with the documentary’s director Stephanie Soechtig, Soechtig’s company Atlas Film LLC and the film’s distributor Epix were named defendants in a $12 million defamation lawsuit filed by the Virginia Citizens Defense League (VCDL), a gun rights activist group appearing in the documentary, and two of its members, licensed firearms dealer Patricia Webb and Daniel Hawes, a firearms and personal defense litigator. Couric is the narrator and an executive producer of Under the Gun. According to the complaint, Couric’s interviews of VCDL members were heavily edited and portrayed them in a false light.At one point in the documentary, Couric asks members of the group, ‘If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”The film portrays the activists as speechless and apparently unable to answer the question for about eight or nine seconds. However, the complaint alleges that audio tapes prove that the activists had, in fact, provided an immediate, substantive six-minute response to Couric’s query. . . .'”

Larry Iser (the author of the Forbes piece) is a litigator at Kinsella Weitzman Iser Kump & Aldisert. He frequently litgates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.

→ See also Bob Ownes, Katie Couric Sued for $12 Million For Defamation In Anti-Gun Documentary, Bearing Arms, September 13, 2016

Headline: “Some defendants dismissed in BPI-ABC defamation case”

In an article by Nick Hytrek, writing in the Sioux City Journal, it was reported that “in the wake of the dismissal of five defendants in Beef Products Inc.’s $1.2 billion defamation lawsuit against ABC, court officials believe they do not need to move the trial out of the Union County Courthouse.The dismissal means fewer lawyers will be present at the trial, scheduled for June 5, and courthouse facilities should be adequate after some minor modifications, said Kim Allison, First Circuit court administrator. . . .”

unknown“In August, lawyers filed a stipulation to voluntarily dismiss ABC News, David Kerley, Gerald Zirnstein, Carl Custer and Kit Foshee as defendants in the lawsuit. The suit will now focus on what BPI’s attorney said are the three main defendants: American Broadcasting Companies Inc., former ‘World News Tonight’ anchor Diane Sawyer and news correspondent Jim Avila.’

“Circuit Judge Cheryle Gering entered an order dismissing the defendants on Aug. 24.”

“‘BPI’s decision to dismiss some of the other defendants does not release the primary targets of the litigation, nor does it have anything to do with the merits of our case,’ BPI attorney, Erik Connolly, of Chicago, said in a written statement. . . .”

“BPI sued ABC, its correspondents, federal officials and a former employee in September 2012 in Union County Circuit Court and will attempt to prove that a series of stories and broadcasts that began in early March 2012 defamed the company’s Lean Finely Textured Beef. . . .”

Headline: “Anti-Defamation League Boosting Presence In Silicon Valley” Read More

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FAN 123 (First Amendment News) When you think of free speech, think of “45” — New book by Stephen Solomon explains why

It is said that the dead live on the lips of the living.  And so it was at the Floyd Abrams Institute for Freedom of Expression at Yale Law School last Friday when it co-hosted the tenth First Amendment Salon.

The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Stephen Solomon, Nadine Strossen & Akhil Amar

Stephen Solomon, Nadine Strossen & Akhil Amar

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

Much of the lively discussion focused on dissenting speech (including symbolic expression) in the revolutionary era. In the course of an animated, opinionated, and sophisticated dialogue, there were several references to the number “45” and its significance in the history of free speech. So why?

Here is where Professor Solomon’s well-researched book came into play (as the excerpts below reveal):

“[T]he number forty-five [was] symbolically linked to John Wilkes, a member of Parliament who gained renown for going to jail after criticizing the king in the forty-fifth issue of the newspaper [The North Briton] he published” in 1763.

“First in England and then in America, those who sympathized with Wilkes began engaging in an endless variety of symbolic protests with the number forty-five as the common theme.”

unknown-1 “On the evening of March 14, 1770, a prison guard opened the doors of Alexander McDougall’s jail cell so that visitors could enter.  There were forty-five visitors, to be exact, and all of them were women. . . . For publicity sake — and all of this was for publicity sake — the forty-five women had been described to the public as virgins. McDougall had been jailed for criticizing the royal governor and the New York general assembly, and his supporters aimed to to draw attention to him as a martyr for the cause of liberty.”

“In 1769, the Boston Gazette noted that forty-five ladies engaged in spinning linen and cotton, providing cloth to replace the British goods boycotted in the non-importation agreements. The Sons of Liberty in Boston made a procession of forty-five carriages, while . . . [at] an orchard outside Charleston, patriots decorated their Liberty Tree [see above] with forty-five lights and fired forty-five rockets.”

There is more, to be sure, but you’ll have to read Revolutionary Dissent to find out what you’re missing.

One more notable point: The text of the First Amendment contains, yes, 45 words!

Amar & Strossen channel Madison 

One of the high moment of the event came toward the end when Amar began to recite portions of James Madison’s November 27, 1794 speech in Congress. As soon as he begun to mouth the opening words, Strossen joined in memorized unison and harmony: “If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.”

A video of this salon will be posted in an upcoming issue of FAN.

The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

Headline: “Supreme Court won’t block Senate subpoena for Backpage.com” Read More

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FAN 122 (First Amendment News) Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine

The Supreme Court’s government speech doctrine offers a constitutional escape hatch — a means by which government and courts may disregard the boundaries that the Free Speech Clause of the First Amendment would otherwise impose. — Harvard Law Review (2015)

There may be situations in whichit is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech. –Justice Samuel Alito for the Court in Pleasant Grove City v. Summum  (2009)

Unknown-1It’s not easy teaching the government speech doctrine these days. Why? Because, as indicated by Justice Alito’s quip, there is uncertainty about when the government is and is not speaking on its own behalf. However difficult it was to read the doctrinal tea leaves in 2009 in the Summum case, it became even more difficult after the Court handed down its 5-4 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) (the Confederale licence-plate case). Dissenting in Walker, Justice Alito asked:

Suppose that a State erected elec- tronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individu- als to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional?

What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.

UnknownAgainst that backdrop comes the cert. petition in Mech v. School Board of Palm Beach CountyThe issue in the case is this: “Does the decision in Walker allow the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection?” Truer still to Justice Alito’s hypothetical, the Mech case involves a school board, one which oversees the Palm Beach County School District.

The constitutional controversy arouse in connection with a pilot program that allowed schools to hang banners on their fences to recognize the sponsors of school programs. The petitioner David Mech (a/k/a The Happy/Fun Math Tutor) sued the School Board for violating his First and Fourteenth Amendment rights when three of the County’s public schools removed Mech’s math tutoring business banner advertisements from their fences, while permitting other private banners to remain. The Petitioner’s banners were removed after some parents complained that Mech’s tutoring business shared a mailing address at a private postal center with his former adult media business, Dave Pounder Productions. An Eleventh Circuit three-judge panel denied Mech’s First Amendment claims: “the banners for The Happy/Fun Math Tutor are government speech.”

Enter James K. Green, counsel of record for the Petitioner. As Mr. Green sees it:

  1. “The decision below presents the important unanswered question posed by the four dissenters in Walker v. Texas Division, Sons of Confederate Veterans,” and 
  2. “The decision below conflicts with Walker and In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), petition for cert. filed sub nom. in Lee v. Tam (April 20, 2016) (No. 15-1293) which limit the applicability of the government speech doctrine.

Gary S. Edinger filed an amicus brief in support of the Petitioner on behlaf of the First Amendment Lawyers Association, the Free Speech Coalition, and the Woodhull Freedom Foundation. Amici argue:

  1. “The ‘government speech’ doctrine mustbe narrowly defined and carefully applied so that this exception to the First Amendment does not swallow the free speech rights of all,” and
  2. “The decision below illustrates exactly what can go wrong when the government speech doctrine is applied in an imprecise manner.”

Shawntoyia Bernard, representing the School Board, counters:

  1. “The Eleventh Circuit’s decision below does not present the unanswered question(s) posed by the four dissenters in Walker
  2.  “The Eleventh Circuit’s decision below doe not conflict with the Federal Circuit’s decision in In re Tam, as the two cases are factually distinguishable,” and
  3. “The Eleventh Circuit’s decision below does not conflict with the Court’s decision in Walker or present the simple roadmap about which Mech warns.”

 One possible problem for the Petitioner is that the four dissenters in Walker (Chief Justice Roberts and Justices Scalia, Kennedy & Alito) are no longer four. But will that fact be decisive?

The case was distributed for Conference of September 26, 2016.

CJ Roberts  temporarily blocks subpoena over sex ads Read More

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The Journal of the Joint Committee on Reconstruction

I wanted to post about the bizarre tale of the Journal of the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment.

Unlike the Constitutional Convention, where James Madison kept an extensive record of the proceedings (supplemented by an official journal and some notes from other delegates), the only record of what occurred in the Joint Committee was created by George Mark, a clerk from Maine who probably received that assignment by Senator William Pitt Fessenden, a senior member of the Committee from Maine. Not much is known about Mark other than the fact that he later worked at the Library of Congress.

After the Joint Committee disbanded, Mark’s journal was retained by Senator Fessenden, then by his son, and then by his grandson. Around 1908, the journal was sold by the Fessenden family to a private collector. Not long after that, a doctoral student at Columbia–Benjamin Kendrick–traced the journal and was able to get Columbia to buy the original manuscript, which he then reproduced in his 1915 dissertation. Kendrick verified the Journal’s authenticity by contacting Mark’s son to confirm his father’s handwriting.  (There were also handwritten sheets from some of the members of the Joint Committee in Mark’s collection.)

This account, though, leaves many questions unanswered.  When did Mark write the journal?  At the time the Committee was meeting, or years later? Was he a reliable eyewitness? Since there are no other records of the Joint Committee’s proceedings, how do we know that Mark’s notes on the motions are correct? And did anything go missing in the decades prior to publication?  Strange that these questions have not been pursued by researchers.

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FAN 121 (First Amendment News) New York law to combat Citizens United is “constitutionally unsound” says NYCLU

The headline on the official website of New York State reads: “Governor Cuomo Signs First-in-the-Nation Legislation to Combat Citizens United.” The news story begins by noting:  “Governor Andrew M. Cuomo today signed first-in-the-nation legislation (S.8160/A.10742) to curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission. The legislation also takes significant steps to strengthen disclosure requirements for political consultants and lobbyists who provide services to sitting elected officials or candidates for elected office by requiring them to register with the state and reveal their clients.”

Unknown“This new legislation,” the news release continues, “will work to restore the people’s faith in government by instituting the strongest anti-coordination law in the country and explicitly prohibiting coordination in New York State election law for the first time. The legislation expressly identifies which activities constitute prohibited coordination, and strictly prohibits coordination in egregious scenarios, such as the ‘independent’ spender being an immediate family member of the candidate, as well as in subtle scenarios, such as the dissemination of a candidate’s campaign material by supposedly ‘independent” groups.'”

“Additionally, the legislation increases penalties for lobbying violations, while providing enhanced due process for individuals under investigation for potential violations.”

NYCLU Opposes Law

Robert A. Perry, the Legislative Director of the New York Civil Liberties Union, took issue with the law shortly before Governor Andrew Cuomo signed the legislation. “The bill,” he stressed, “is not only constitutionally unsound; it would promote public policies that are inimical to the mission of not-for-profit organizations that operate in the public interest.”

nyclu-logoThe legislation, he added, “includes several provisions that would regulate activity that is unrelated to electoral campaigns — including lobbying, as well as communications outside the definition of lobbying that addresses matters of public concern. Nevertheless, if enacted in law, the proposed legislation would direct government officials to regulate, and circumscribe, New Yorkers’ rights of speech and association.” Mr. Perry summarized his the NYCLU’s opposition to the measure this way:

  1. “[G]overnment regulation of lobbying and the imposition of disclosure requirements are consistent with the First Amendment only if they are limited to ‘direct communication’ with elected officials to influence legislation.”
  2. “[T]he legislation as well ast the state’s lobbying law and rules require the disclosure of information on contributors to organizations that engage in lobbying, even if the contributed funds are never utilized for that purpose.”
  3. [T]he mandated disclosure of personal information about contributors will undoubtedly have a ‘chilling effect’ on the exercise of protected speech and petition activities,” and
  4. [T]he First Amendment requires that the proposed regulations provide for exemptions for controversial organizations upon a showing of a ‘reasonable’ likelihood of harm from the disclosures.”

For those reasons and others, “the NYCLU objects to the legislation.”

[NB: The proposed measure was not amended after the NYCLU filed its letter of opposition to Governor Cuomo.]

See generally: National ACLU amicus brief (July 29, 2009) in support of Appellant in Citizens United.

Liberal Groups “Strongly” Oppose Legislation

Opposition to the New York law was also expressed by the following groups:

In an August 22, 2016 letter to Governor Cuomo, the groups stated:

“This poorly constructed bill will seriously harm some of New York’s most prestigious institutions, and infringe upon the rights of many public-minded New Yorkers to engage in their constitutionally protected right to comment and criticize. As a result, rather than advancing the public good, the legislation ends up as a secretly developed, clumsily drafted piece of legislation that in the end does little to advance meaningful reform other than dealing directly with problems caused by Citizens United. In fact, the legislation causes more problems than it solves by trying to solve a problem that wasn’t defined publicly and doesn’t really exist. We strongly urge you to veto” the measure.

* * *  *

See also David Keating, New York vs. the First Amendment: New ‘campaign finance’ legislation is an assault on political speech rights, New York Daily News, June 30, 2016 (“The legislation creates expansive new definitions of what constitutes illegal coordination between independent groups and candidates, and forces unprecedented reporting to the state by advocacy groups like the American Civil Liberties Union and the National Rifle Association.”)

Citizens United Group Loses Charitable Solicitation Suit  Read More

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Vergara and the Future of Liberal Constitutionalism

The other day the California Supreme Court decided not to grant review in Vergara v. California, which raised the issue of whether state law regarding teaching tenure violates the equal protection rights of students (basically, by irrationally allowing bad teachers to stay employed). The Court was divided 4-3, with Justices Goodwin Liu and Mariano-Florentino Cuellar dissenting and urging that the case be heard.  [Disclosure: Justice Liu was my law school classmate.]

I think that the dissenting position in this case represents the future of liberal constitutional thought, keeping in mind that there was no decision on the merits in Vergara. What I mean is that liberals in the academy and on the courts are probably going to start taking more seriously the idea that the Constitution confers positive rights or requires a more compelling state justification for policies that lead to unequal outcomes in the distribution of those benefits by legislation. When I say the future, I mean a decade from now. Merrick Garland and Steven Breyer are the archetypal legal process liberals who will not be terribly interested in such claims, but the next generation will probably have greater faith in the judicial capacity to address these problems.

Whether this is a good idea is another matter.  We’ll cross the bridge when it comes.

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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 Read More

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UCLA Law Review Vol. 63, Issue 6

Volume 63, Issue 6 (August 2016)
Articles

President Nixon’s Indian Law Legacy: A Counterstory Carole Goldberg 1506
Principles of International Law That Support Claims of Indian Tribes to Water Resources Reid Peyton Chambers & William F. Stephens 1530
Crime and Governance in Indian Country Angela R. Riley 1564
Recentering Tribal Criminal Jurisdiction Addie C. Rolnick 1638
The Politics of Inclusion: Indigenous Peoples and U.S. Citizenship Rebecca Tsosie 1692

 

Comments

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