Category: Election Law

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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 

∇ ∇ ∇ ∇ 

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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Tax Returns and Ballot Access

I want to weigh in on the debate over whether states can constitutionally insist that presidential candidates must make some of their tax returns public in order to get on the ballot.  My tentative conclusion is that this would be unlawful under the Equal Protection Clause.

Let’s start with some basic principles. U.S. Term Limits v. Thornton that a state cannot impose upon congressional candidates substantive requirements for ballot access beyond the three that are in Article One of the Constitution. While Article Two’s text on the qualifications for the Presidency parallels the Article One requirements at issue in Thornton, state legislatures have more discretion over presidential elections because they can appoint electors in any manner that does not otherwise violate the Constitution (for example, a state legislature can just directly choose electors without holding any popular election). As a result, when it comes to presidential candidates and tax returns, the issue reduces (in my mind) to whether there is rational basis that connections the mandatory release of a tax return with ballot access.

I think the answer is no.  Here are my reasons.  First, it’s clear that these proposed statutes are directed at one man–Donald Trump. They will apply to all presidential candidates, but we all know that they might as well be called the “Make it Harder For Donald Trump to be Reelected” Act. This raises a red flag. Second, I have a hard time understanding the link between compulsory tax return release and ballot access. States have many procedural ballot access requirements (get signatures from voters, get them from certain places, pay a fee, etc.), that are, if modest, plausibly related to ether defraying the costs of election administration or establishing whether someone is a viable candidate. Requiring the release of tax returns has nothing to do with these things. What, then, is the rational basis for such a law, especially given that tax return disclosure does implicate privacy rights.  (I can’t, for example, get the President’s old tax returns through a FOIA request.)

Will this ever be litigated? I don’t know. Arguably the only states that might enact such a law are the ones that the President has no chance of winning next time. So he might just choose not to release his returns anyway. Or by 2020 his returns might be quite simple (“I earned my salary as President plus some money from passive investments.”) and thus releasing them will be no big deal.

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FAN 139 (First Amendment News) Gov. Cuomo turns to Floyd Abrams for First Amendment Help

Gov. Cuomo has hired prominent First Amendment lawyer Floyd Abrams to defend him against a federal lawsuit challenging a new law that requires politically active non-profit organizations to publicly disclose their donors.N.Y. Daily News, Jan. 23, 2017

Seattle. Yes, it’s true: Floyd Abrams, the nation’s preeminent First Amendment lawyer and author of the forthcoming The Soul of the First Amendment is defending two government officials against a claim of a First Amendment violation.

Floyd Abrams

The lawsuit was brought by Citizens Union. It claims that a New York ethics law violates First Amendment protections of free speech. It names Gov. Cuomo and state Attorney General Eric Schneiderman as defendants.

According to the New York Daily News, Mr. Abrams is representing the Governor thought it is “unclear how much Abrams and his firm are being paid since no contract has been filed yet with the state controller’s office. A Cuomo spokesman said the details with Abram’s firm are still being worked out.”

When I asked about his involvement in the case, Mr. Abrams said:  “I have long thought — and so has the Supreme Court — that more disclosure of who is spending significant sums of money to persuade the public who to vote for and how to view  public policy issues is not only not violative of the First Amendment but significantly pro-First Amendment in its impact. There are, to be sure,  exceptions to this when the identification of speakers will lead to threats, harassment or the like  (and such an exception is in the New York law) but as a general proposition more sunlight about such matters is not only good policy but consistent with well established First Amendment law.”

This from Professor Richard Hasen: “I think Floyd Abrams recognizes that campaign finance disclosure serves a valuable democratic function in helping voters make informed decisions in elections. I am pleased he has taken on this case.”  (See also Richard Hasen, Floyd Abrams, Who Argued Citizens United, Writes Letter for Gov. Cuomo Defending New NY Disclosure Requirements, Election Law Blog, Jan. 4, 2017)

The N.Y. Ethics Law

As set out in the Plaintiffs’ complaint, Section 172-e of the New York ethics law ‘mandates the public disclosure of all donors and donations to a 501(c)(3) in excess of $2,500 whenever that organization makes an ‘in-kind donation” of over $2,500 to certain 501(c)(4)s engaged in lobbying activity. N.Y. Exec. Law § 172-e[1][a], [d], [2]. An ‘in- kind donation’ is defined as ‘donations of staff, staff time, personnel, offices, office supplies, financial support of any kind or any other resources.’ N.Y. Exec. Law § 172-e[1][b].

Randy M. Mastro, lead counsel for Plaintiffs

“Section 172-e requires disclosure reports to be filed with the Department of Law within thirty days of the close of a reporting period. The disclosures must include:

(i) the name and address of the covered entity that made the in‐kind donation;
(ii) the name and address of the recipient entity that received or benefitted from the in‐kind donation;

(iii) the names of any persons who exert operational or managerial control over the covered entity. The disclosures required by this paragraph shall include the name of at least one natural person;

(iv) the date the in‐kind donation was made by the covered entity;

(v) any donation in excess of two thousand five hundred dollars to the covered entity during the relevant reporting period including the identity of the donor of any such donation; and

(vi) the date of any such donation to a covered entity.”

“Section 172-f requires 501(c)(4)s to disclose publicly donations over $1,000—including the donor’s identity and the amount of the donation—whenever the organization makes ‘expenditures for covered communications’ totaling over $10,000 in a calendar year. N.Y. Exec. Law § 172-f[1][a], [2]-[3].”

First Amendment Challenges

In Citizens Union v. Governor of New York the Plaintiffs make the following First Amendment arguments:

  • “Nonprofit Organizations Like Citizens Union And Citizens Union Foundation Depend On Donors To Function, Including Donors Who Choose To Give Anonymously To Support Speech On Matters Of Public Concern.”
  • “On Their Face, Sections 172-e And 172-f Substantially Burden The Rights Of Organizations Like Plaintiffs And Of Their Donors.”

“In order to avoid harsh penalties, including fines and revocation of its registration, under Section 172-e, Citizens Union Foundation and similarly situated 501(c)(3)s must disclose publicly all donations over $2,500 whenever they make an in-kind donation of more than $2,500 to certain 501(c)(4)s engaged in lobbying activity. Not only does this requirement directly chill speech by 501(c)(3)s, but it imposes significant compliance costs on covered organizations. . . . Section 172-e simply has nothing to do with protecting against quid pro quo corruption or promoting transparency in campaign finance. These disclosure requirements thus reach much farther than the disclosure requirements upheld in Citizens United, which were targeted at “electioneering communications” that were related to electoral politics.”

“Requiring these disclosures does not meaningfully advance the government’s interest in preventing quid pro quo arrangements with public officials, promoting transparency in campaign finance, or rooting out corruption. Unlike those upheld in Citizens United, the disclosures here are not linked with an informational interest in ‘election-related’ financing that may justify disclosures pertaining to electioneering communications.”

 “The law seems to be a solution in search of a problem and mainly serves to curtail the work of organizations like ours which seek to promote the public good,” said Dick Dadey, Executive Director. 

Plaintiffs’ Counsel 

Three Gibson Dunn & Crutcher lawyers from its New York offices are representing the Plaintiffs. They are:

Related: FAN 121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU, Aug. 31, 2016

Commentaries on the “Slants” Case

  1. Ronald Abrams, A Review of The Supreme Court’s Questions And Comments In ‘Slants, Forbes, Jan. 20, 2017
  2. Ken Jost, Justices Set to OK Offensive Trademarks?, Jost on Justice, Jan. 23, 2017
  3. Amy Howe, Argument analysis: Justices skeptical of federal bar on disparaging trademarks, SCOTUSblog, Jan. 19, 2017
  4. Steven Mazie, Free expression vs offensive speech at the Supreme Court, The Economist, Jan. 19, 2017
  5. Cristian Farias, Who’s To Say The Word ‘Slants’ Offends Asians? The Supreme Court, That’s Who, Huffington Post, Jan. 19, 2017
  6. Adam Liptak, Justices Appear Willing to Protect Offensive Trademarks, New York Times, Jan. 18, 2017
  7. Tony Mauro, In ‘Slants’ Case, Justices Skeptical of Ban on Disparaging Trademarks, National Law Journal, Jan. 18, 2017
  8. Robert Barnes, Can disparaging trademarks be denied? The Supreme Court is skeptical, Washington Post, Jan. 18, 2017
  9. Ruthann Robson, Court Hears Oral Arguments in Lee v. Tam, First Amendment Challenge to disparaging trademark ban, Constitutional Law Prof Blog, Jan. 18, 2017

 John Shu, Lee v. Tam: “Disparaging” Trademarks & the First Amendment, The Federalist Society, Jan. 17, 2017 (YouTube)

FIRE Celebrates 50th Anniversary of ‘Keyishian’ Decision Read More

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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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UCLA Law Review Vol. 63, Issue 5

Volume 63, Issue 5 (June 2016)
Articles

How Governments Pay: Lawsuits, Budgets, and Police Reform Joanna C. Schwartz 1144
Second-Order Participation in Administrative Law Miriam Seifter 1300
The Freedom of Speech and Bad Purposes Eugene Volokh 1366

 

Comments

Evolving Jurisdiction Under the Federal Power Act: Promoting Clean Energy Policy Giovanni S. Saarman González 1422
Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble Samuel S. Sadeghi 1472
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FAN 117 (First Amendment News) Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law

Columnist George Will held them out as the go-to group when it comes to the First Amendment and campaign finance laws. The group: The Center for Competitive Politics. Consistent with that reputation, the Center has recently prevailed in a challenge it leveled against  a Utah campaign finance law (Utah Taxpayers Association v. Cox). Here are some excerpts from a press release from the Center:

Screen Shot 2016-07-19 at 9.39.24 PM

“In an agreement approved by a federal judge this afternoon, Utah agreed not to enforce a state campaign finance law that violated the First Amendment. The complex law required nonprofit advocacy groups to register with the state and publicly report their supporters’ private information, threatening donations to those organizations.”

“The agreement, known as a consent decree, was approved by U.S. District Court Judge Dale A. Kimball and settles a lawsuit filed on behalf of three Utah groups by attorneys at the Center for Competitive Politics, America’s largest nonprofit working to promote and defend First Amendment rights to freedom of political speech, assembly, and petition.”

Allen Dickerson, CCP Legal Director and the lead attorney in the lawsuit said, ‘This complicated law chilled speech and association protected by the First Amendment. By regulating speech about any public policy issue and groups with only trivial connections to elections, Utah failed to regulate with the care the Constitution demands. We appreciate the work done by Attorney General Sean Reyes’s office to settle this litigation and provide necessary guidance to all advocacy groups in Utah.'”

The plaintiffs were represented by Center for Competitive Politics’ Allen Dickerson and Staff Attorney Owen Yeates.

Here are a few excerpts from the consent decree:

“The State Defendants and their agents, officers, and employees agree not to enforce the law currently codified at Utah Code Ann. §§ 20A-11-701 to -702, as modified to create a donor reporting regime by H.B. 43, because imposing such requirements on Plaintiffs for engaging in constitutionally protected political advocacy and political issues advocacy is unconstitutional unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose. In particular, the State Defendants will not impose fines against corporations for failing to comply with the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose; file or refer criminal charges against such corporations; or otherwise enforce the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose.”

Colorado Petitions SCOTUS in Campaign Disclosure-Requirements Case

The case is Williams v. Coalition for Secular GovernmentThe issue in the case is whether Buckley v. Valeo’s “wholly without rationality” test apply to all dollar thresholds that trigger campaign finance disclosures, or are thresholds below some as- yet-undefined amount subject to heightened constitutional scrutiny?

In its cert. petition Colorado notes:

“To trigger campaign finance disclosure regulations, States rely on dollar thresholds ranging from zero to amounts in the thousands. Recognizing that setting a disclosure threshold is a policy decision entitled to deference, this Court held in Buckley v. Valeo that disclosure thresholds must be upheld unless they are “wholly without rationality.” 424 U.S. 1, 83 (1976). The Tenth Circuit, however, has rejected this test. In two decisions, it has held that Colorado’s disclosure threshold for “issue committees” is too low, although it declined to explain what number would be constitutional. Under that reasoning, even groups that spend $3,500 on campaign advocacy—a figure over ten times greater than the amount that triggers similar disclosure regulations in other States—are exempt from Colorado’s disclosure laws.”

Colorado urged the Court to grant review for the following reasons:

“I.  This Court’s review is necessary to resolve the circuit split over the standard of review for campaign finance triggering thresholds.”

“A. The Circuits are split three ways over Buckley’s ‘wholly without rationality’ test.”

“B. The outcome below conflicts with cases from the Fifth, Ninth, and Eleventh Circuits, which uphold disclosure thresholds for issue committees ranging from $0 to $500.”

“II. The constitutional standards that govern campaign finance disclosure laws, particularly laws that apply in the ballot issue context, are exceptionally important in dozens of States.”

“III. Because it comes from the outlier circuit after a bench trial, this case is an excellent vehicle for resolving the confusion among the lower courts.”

Frederick Yarger, Solicitor Generall, counsel of record for Colorado.

The challenge to the Colorado law was brought by the Center for Competitive Policits.

The ACLU & Campaign Finance Laws: Marcia Coyle Interviews Outgoing Legal Director Steven Shapiro Read More

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UCLA Law Review Vol. 64, Discourse

Volume 64, Discourse

Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United Alexander Hertel-Fernandez & Paul Secunda 2
Lessons From Social Science for Kennedy’s Doctrinal Inquiry in Fisher v. University of Texas II Liliana M. Garces 18
Why Race Matters in Physics Class Rachel D. Godsil 40
The Indignities of Color Blindness Elise C. Boddie 64
The Misuse of Asian Americans in the Affirmative Action Debate Nancy Leong 90
How Workable Are Class-Based and Race-Neutral Alternatives at Leading American Universities? William C. Kidder 100
Mismatch and Science Desistance: Failed Arguments Against Affirmative Action Richard Lempert 136
Privileged or Mismatched: The Lose-Lose Position of African Americans in the Affirmative Action Debate Devon W. Carbado, Kate M. Turetsky, Valerie Purdie-Vaughns 174
The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection? Clay Calvert 230
A Worthy Object of Passion Seana Valentine Shiffrin 254
Foreword – Imagining the Legal Landscape: Technology and the Law in 2030 Jennifer L. Mnookin & Richard M. Re i
Imagining Perfect Surveillance
Richard M. Re 264
Selective Procreation in Public and Private Law Dov Fox 294
Giving Up On Cybersecurity Kristen E. Eichensehr 320
DNA in the Criminal Justice System: A Congressional Research Service Report* (*From the Future) Erin Murphy 340
Utopia?: A Technologically Determined World of Frictionless Transactions, Optimized Production, and Maximal Happiness Brett Frischmann and Evan Selinger 372
The CRISPR Revolution: What Editing Human DNA Reveals About the Patent System’s DNA Robin Feldman 392
Virtual Violence Jaclyn Seelagy 412
Glass Half Empty Jane R. Bambauer 434
Social Control of Technological Risks: The Dilemma of Knowledge and Control in Practice, and Ways to Surmount It Edward A. Parson 464
Two Fables Christopher Kelty 488
Policing Police Robots Elizabeth E. Joh 516
Environmental Law, Big Data, and the Torrent of Singularities William Boyd 544
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FAN 110 (First Amendment News) Steve Shapiro to Step Down as ACLU’s Legal Director

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

Steve Shapiro

          Steven Shapiro

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

He is Steven R. Shapiro.

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

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

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

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

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

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

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

The Measure of the Man: What Others Say

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

“thoughtful” 

“principled”

 “unflappable”

 “effective” 

“remarkable” 

“honest”

“extraordinary”

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

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

   [credit: Evan E. Parker/ The Times]

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

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

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

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

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

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

UnknownOne Measure of His Work: Free Expression Cases

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

2014 Term:

2013 Term:

2012 Term:

2011 Term:

2010 Term:

2009 Term:

2008 Term:

2006 Term:

2005 Term:

____________

Court Denies Review in Sign Case Read More

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FAN 107.2 (First Amendment Law) Hasen on the Next Big Campaign Finance Case

James Bopp, Jr.

James Bopp, Jr.

The case is Republican Party of Louisiana, et al. v. FECAs noted on the Federal Election Commission’s website: “On August 3, 2015, the Republican Party of Louisiana, the Jefferson Parish Republican Parish Executive Committee and the Orleans Parish Republican Executive Committee (collectively, plaintiffs) filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of portions of the Federal Election Campaign Act that specify how state and local parties must finance and disclose certain ‘federal election activity’ that they plan to engage in, including fundraising costs for such activity. They argue that the provisions are unconstitutional under the First Amendment because they burden the plaintifffs’ ‘core political speech and association’ and that there is no sufficiently ‘cognizable’ governmental interest justifying the challenged provisions.”

Prof. Richard Hasen

Prof. Richard Hasen

The case is now before a three-judge court with James Bopp arguing on behalf of the Republican Party of Louisiana. Recall that Mr. Bopp was the one who played a major role in orchestrating the litigation around such campaign finance cases as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014).

As Professor Richard Hasen sees it, the Republican Party of Louisiana case could prove to be a major moment in the ongoing battle over campaign finance laws and the First Amendment. Writing in The Atlantic, Professor Hasen notes:

“The three-judge court is unlikely to overturn the soft-money ban. It has to follow the Supreme Court precedent set in a 2003 case, McConnell v. FEC, which specifically upheld the prohibition. But thanks to a quirk in the McCain-Feingold law, any appeal in the case would go directly to the Supreme Court. The appeals provision makes it very likely the Court will take the case, because unlike a usual decision not to hear a case, rejection of an appeal would indicate the Supreme Court’s belief that the lower court reached the right result.”

“If the Supreme Court still has a vacancy when the soft-money case arrives,” adds Hasen, “that means the lower-court ruling could stand on a 4-4 split. But even if that happens, there will be other cases waiting in the wings. Eventually, when the Court has its full complement of justices, it will face a fundamental decision: Should it embrace the vision of Justice Scalia, in which the Court holds that the First Amendment does not allow meaningful limits on money in politics?”

Related Documents

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FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)

Abstract

51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

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Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment Read More