Category: First Amendment


The Boy Scouts and Discrimination

Imagine the Boys Scouts of America discriminated on the basis of race. In this hypothetical, no black parents are allowed to lead troops, and no black children are even allowed to join them. If your child were eligible, would you let him become a Boy Scout? My guess is that the answer would be no. There are plenty of alternative extracurricular activities available, including other scouting clubs, so why belong to a racist one whose policies stigmatize innocent children and perpetuate hostility towards a group based on a completely irrelevant characteristic? In fact, you might not want to support them in any way. The federal government certainly does not: groups that discriminate on the basis of race are ineligible for government funding and cannot qualify as a tax exempt organization. In short, no government money would flow to them, not even in the form of tax breaks. As an expressive association, the Boy Scouts might have a constitutional right to discriminate, but that doesn’t mean that our tax dollars should help them.

In recognition of National Coming Out Day on October 11, let’s tweak the hypothetical and substitute sexual orientation for race. Shouldn’t the results be the same?



Is IP for People or Corporations?

Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.

Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).

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BOOK REVIEW: A New (Scientific) Look at the SG and the Court (reviewing Black and Owens’s The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions)

Ryan C. Black & Ryan J. Owens, The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012)

I think a strong Solicitor General can have a very considerable influence on the Court.

— Erwin Griswold

Recently the Justices asked the Solicitor General’s office for its views on two cases, one concerning the Clean Water Act, and the other concerning the immunity of a foreign government’s central bank when the U.S. seeks to seize its assets.  Though standard fare, the request reminds us of the importance that of SG’s office in our system of justice.  To understand the workings of the Court, it is important to understand the workings of the SG’s office and how the two interact. Or as Lincoln Caplan put it in his The Tenth Justice: The Solicitor General and the Rule of Law (1987): “The relationship between the Supreme Court and the SG’s office has long been more intimate than anyone at either place likes to acknowledge.”  Indeed.  Thankfully, some of that intimacy is subject to scrutiny, as a forthcoming book on the subject reveals.

A newly released book is sure to be of interest to Court watchers. I refer to The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012) by political science professors Ryan C. Black (Michigan State University) and Ryan J. Owens (University of Wisconsin, Madison).  Both have written extensively, and continue to do so, on the Court, its workings, and on constitutional law generally.  As their book and other works make clear, different SG’s approach their job quite differently and what they do can sometimes shape the resulting law announced by a majority of the Court. (See Michael McConnell, “The Rule of Law and the Solicitor General,” 21 Loy. L.A. L. Rev. 1105 (1988), and Steven Calabresi, “The President, the Supreme Court & the Constitution,” 61 L. & Contemp. Probs. 66 (1998).)


“Learned in the law”

The Office of the Solicitor General (OSG) is a curious institution.  On the one hand, the SG is the lawyer for the Executive Branch, yet on the other hand the SG enjoys chambers at the Supreme Court as if he or she were a “tenth justice.”  Though the SG is independent of the Court, the Justices are frequently dependent on the SG’s counsel.  Not surprisingly, then, federal law (28 U.S.C. § 505) requires that the SG, and no other, be “learned in the law.”

The SG’s influence can hardly be denied. As David O. Stewart has observed: “The Justices have relied on the SG to screen unworthy petitions for certiorari and to provide a complete statement of the relevant law.  And they have granted a disproportionately high proportion of the SG’s petitions for certiorari, invited his views on cases ion which the government was not a party and tended to rule in his favor.” (Book Review, ABAJ, Nov. 1, 1987, at 136.)  So, exactly, how influential is the OSG when it comes to what the Court does or does not do?  Professors Black and Owens answer that question by way of a remarkable illustration offered up in the first chapter of their nine-chapter book. This illustration, about which more will be said momentarily, sets the stage for a rigorous and detailed examination, replete with charts, of the work of the OSG and how it helps shape Supreme Court law.  Their work-product derives largely from, among other things, cert pool memos, private docket sheets, and other archival data collected by them and other scholars. The result is a remarkable, as their discussion of National Organization of Women v. Scheidler (1994) illustrates.

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Cultural Dissent

I’m often reminded of Madhavi Sunder’s brilliant article Cultural Dissent. Sunder argues that recognition of dissent within doctrine “would prevent law from becoming complicit in . . . project[s] of suppressing internal cultural reform.” Consider the Russian feminist band which could be imprisoned for staging a minute-long rock video in a church. The band sang and performed an intercessory prayer for the removal of President Putin from power. Here is one member’s closing statement:

That Christ the Savior Cathedral had become a significant symbol in the political strategy of the authorities was clear to many thinking people when Vladimir Putin’s former [KGB] colleague Kirill Gundyayev took over as leader of the Russian Orthodox Church. After this happened, Christ the Savior Cathedral began to be openly used as a flashy backdrop for the politics of the security forces, which are the main source of political power in Russia.

Why did Putin feel the need to exploit the Orthodox religion and its aesthetic? Read More

Is Harry Reid Engaging in Libel by Implication?

Harry Reid has sparked an uproar by suggesting that Mitt Romney paid no taxes. On the floor of the Senate, Reid stated, “The word’s out that he [Romney] hasn’t paid any taxes for 10 years.” Glenn Kessler summarizes Reid’s follow-up on the claim:

He originally told the Huffington Post that a person who had invested with Bain Capital had called his office and told him this. Then, he told reporters in Nevada that “I have had a number of people tell me that.” Reid has refused to identify his source (or sources).

Kessler notes that, “Without seeing Romney’s taxes, we cannot definitively prove Reid incorrect.” He still faults Reid for making the accusation. Others praise Reid because “his allegations are easy to disprove with evidence that Mitt Romney himself has, viz., Romney’s tax returns,” and “every party nominee for 40 years” has been more forthcoming than Romney about their taxes.

The controversy reminded me of an article on “Libel by Implication,” and a decade-old defamation case, Howard v. Antilla. That case concerned a New York Times article, which asked, “Is Robert Howard really [the felon] Howard Finkelstein? A lot of investors in Mr. Howard’s Presstek Inc., would like to know. But not even the Securities and Exchange Commission can say for sure. And the lingering mystery has roiled a hot stock and left the S.E.C. blushing.” The article reported rumors that turned out to be false, though the defendant said it was based on “1500 pages of notes and documents in her investigative file.” A jury found for Antilla on the defamation claim, but awarded Howard $480,000 on a false light claim. The First Circuit eventually vacated the verdict, engaging in some fine distinctions between claims that someone “might be” and “is” some suspect identity:
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Chick-fil-A, Nudity Bans, and the Speech/Conduct Distinction

In the wake of the very public opposition to gay marriage by Dan Cathy, president of Chick-fil-A, local government officials have taken steps to make Chick-fil-A unwelcome in their cities.  Although these officials may express their justified antipathy towards Chcik-fil-A, denying it permits to operate restaurants on the basis of Chick-fil-A’s viewpoint is clearly unconstitutional.  Professor Eugene Volokh, on The Volokh Conspiracy, has fully covered why.  This isn’t a close First Amendment case.

It seems strange to me that Chicago’s Mayor Rahm Emanuel, who supported an alderman’s decision to block permits for Chick-fil-A to build a second store in Chicago, wouldn’t realize this.  It would be painfully obvious that Boston, for example, couldn’t deny building permits to a clothing store because the store, for example, donated money to Ron Paul.  Or, Boston couldn’t decide to fire a teacher for her speech about gun control unrelated to her job duties written in a private newspaper (although the city may have almost total control of her speech in the classroom).  So, why aren’t the free speech implications of this case more apparent?

My guess is because Chick-fil-A’s speech, and the company’s expression through its donation of money to anti-gay rights causes, begins to blur the speech/conduct distinction.  As Professor Volokh notes, Chick-fil-A, a private speaker, cannot be denied a governmental benefit on the basis of its viewpoint, but if Chick-fil-A discriminated in serving or hiring decisions, the company could be punished.  This is because, while speech cannot be punished, conduct can.  This speech/conduct divide is what preserves our First Amendment values.  Chick-fil-A’s statements against gay marriage, when they sound like “I think we are inviting God’s judgment on our nation when we shake our fist at him and say, ‘We know better than you as to what constitutes a marriage,’” make it difficult for us to believe that the company’s views won’t bleed into its conduct and impact hiring decisions.  And even if the company doesn’t breach the speech/conduct divide, I cannot imagine that a gay couple would feel entirely comfortable entering the establishment holding hands (although they certainly should).

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Newspaper Must Unmask Anonymous Commenter

An Idaho judge ruled on Tuesday that a Washington newspaper, The Spokesman-Review, must reveal identifying information about an anonymous commenter. The commenter, ironically named “almostinnocentbystander,” remarked in two comments on the newspaper’s blog that Tina Jacobson, the chairwoman of the Kootenai County Republican Party, may be embezzling funds from the Party. Specifically, the comment claimed “Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina’s blouse??? Let’s not try to find out.” Another comment, according to the judge’s written opinion, used the words embezzlement, mentioned Jacobson’s position as bookkeeper, and accused Jacobson of refusing to allow others to review treasurer’s reports. The comments were removed from the blog after 2.5 hours, but Jacobson sued for defamation. In denying the newspaper’s motion to quash the subpoena, the judge also ruled that two other commenters’ identities need not be revealed because their posts were not defamatory.

I have been watching episodes of Ally McBeal on Netflix, and, as John Cage says, “I am troubled.” Perhaps innocentbystander’s comments technically meet the standard for defamation in Idaho (Communicating information to others, that tends to harm plaintiff’s reputation, causing damages to plaintiff.) But was that comment really damaging enough to unmask almostinnocentbystander?  The primary harm to Jacobson’s reputation that allowed this suit to proceed was that Jacobson herself ordered an audit of GOP books.

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Are Liberals Under-Estimating the Chances that the Catholic Hospitals Will Win Against the Health Care Act?

(Disclaimer — I decided soon after law school not to focus most of my efforts on the Supreme Court or con law.  There are brilliant people who work on it all the time, and I don’t.  But I am a law prof who can’t help noticing some things …)

Last week, liberals went through the near-death experience for the Affordable Care Act — far, far, far closer than the confident predictions of most liberals when the law was passed.

This week, I had the chance to speak in depth with an experienced liberal lawyer about the Next Big Constitutional Thing — the Catholic hospital challenges to the ACA’s requirements that contraception and other coverage must be included for the employees of hospitals, universities, and other Catholic institutions that are not themselves part of the Church.

The lawyer confidently predicted that the Catholic hospitals would lose.  After all, everyone knows the peyote case — Employment Division v. Smith, where a neutral state anti-drug law trumped a Free Exercise of religion argument that would have allowed an adherent to use peyote.  The lawyer said there was no precedent for the Catholic hospitals to win, such a holding would disrupt innumerable neutral state laws, and even Justice Scalia would be bound by his prior writings to find against the Catholic hospitals.

My reaction — “here we go again.”  It felt just like the over-confident predictions that the individual mandate inevitably would be upheld.  And my friend sounded like other liberals who have scoffed at the claims of the Catholic hospitals.

My instinct — as a realist prediction of the outcome, and not as a statement of my policy choice — is that the Catholic hospitals very possibly will win if the case goes to final judgment in the courts.

First, I don’t think Justice Scalia will find that a law prohibiting peyote (a “good” and long-standing law) is remotely similar to a law requiring the Catholic Church, for the first time in history, to buy an insurance package that pays for contraceptives.  He’ll think that the latter is a “bad” law.

Second, the Catholic Church has tens of millions of members in the U.S., and is not the splinter group at issue in the earlier case.  In a realist analysis, the views of a tiny church are not the same as those of the largest organized Church in western history.

Third, the views of the Church on contraception are sincere, widely publicized, and long-standing.  Although many individual Catholics don’t follow the doctrine on this issue, the institution of the Church is firmly on record on the issue.  This is not a pretext to take mind-altering drugs; it is a major doctrinal tenet.

Fourth, many Catholic hospitals are deeply religious institutions.  They often have a cross and a Bible in each room.  Many nuns and priests work in the hospitals.  Providing health care is deeply rooted in the mission of the Church, and has been for many years.  In other words, this is not the equivalent of “unrelated business income.”  Instead, religion and healing of the sick are thoroughly intertwined.

Fifth, and my apologies for mentioning it, six of the nine Supreme Court justices are Catholic.  I am not saying that a Catholic judge will hold for the Church any more than a white judge holds for whites and a black judge holds for blacks.  However, the justices will have deep personal knowledge of the healing tradition of Catholic hospitals.  They will read the briefs in the context of their personal knowledge.  I don’t think they will lightly assume that they are bound by cases with facts that seem to them quite different.

After we went through this list, my liberal friend said that he had adjusted his prediction.  He now thought that some of the district court cases, at least, would go for the Church.  He then added an extra idea — the case may arise under the Administrative Procedure Act, on whether the HHS rule was properly promulgated and consistent with the statute.  His point was that a court may have a “procedural” way to block the rule from mandating that the Catholic hospitals pay for insurance that covered contraceptives.  That might be an easier path for a judge to take than overturning Free Exercise case law, if the judge were inclined to stop the rule from taking effect.

Currently, there are over 20 challenges by Catholic hospitals to this provision.  Smart lawyers in each case will be trying to define distinctions that will retain the peyote precedent while letting the hospitals win this case.  Randy Barnett and others had a huge success with the “action/inaction” distinction about the individual mandate. My realist instincts are that we will see the emergence of clever, new distinctions for the hospital cases.

I think that many liberal con law experts were complacent when the individual mandate was challenged.  If they are complacent again about the Catholic hospital cases, then I, for one, will not be surprised to see the current HHS approach struck down.


The Harm in “The Harm in Hate Speech”

Jeremy Waldron’s new book “The Harm in Hate Speech” has rightfully received a lot of attention. Professor Waldron’s book provides an important and multi-layered justification for what many refer to as “hate speech” regulations. These regulations, like the following example from the Danish Penal Code, prohibit statements “by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin . . . . ” Such regulations are antithetical to the American free speech paradigm, but exist in many other Western democracies.

Waldron believes that, in light of America’s uniquely speech protective history and jurisprudence, his arguments are unlikely to impact the law. I fear that he is wrong. His arguments are ingenious, and therefore quite dangerous. Former Justice John Paul Stevens and former judge, and current professor, Michael McConnell have excellently rebutted Waldron’s arguments in their reviews of his book. I’d like to add a few points of my own.

Like other scholars who seek stronger regulations against hate speech, Waldron connects his arguments to the values of equality enshrined in the Fourteenth Amendment. He argues that hate speech, and its appearance and tolerance in society, undermine certain groups’ senses of inclusion, security in their equal standing, and dignity. Because the Fourteenth Amendment was enacted after the First Amendment, it is tempting to argue that protection of inclusion and dignity supersedes free speech protections. Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.

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Lie to me: the First Amendment in US v. Alvarez

The Supreme Court had a busy day yesterday, and in the wake of healthcare, there’s a risk of overlooking an important addition to this Court’s First Amendment jurisprudence: U.S. v. Alvarez.

In short, the Court found that Congress can’t send you to jail just for lying. Alvarez confirms that this Court is extremely reluctant to create new FirstAmendment exceptions, and has a speech-protective understanding of the marketplace of ideas. Alvarez also leaves open some interesting questions, both doctrinal and practical.

Alvarez was prosecuted under the Stolen Valor Act (18 USC  s. 704) for lying about having received the Congressional Medal of Honor. What made this case particularly interesting, and probably what split the Court, is that Alvarez did not lie to gain money, or to get a job. He didn’t lie for any apparent reason. He just lied.

The Court split 4-2-3, with six affirming the Ninth Circuit and finding the Act unconstitutional. Justice Kennedy wrote the plurality, Justice Breyer wrote the concurrence (joined by Justice Kagan), and Justice Alito rather unsurprisingly wrote the dissent.

The plurality forcefully reiterated what the Court articulated two years ago in U.S. v. Stevens (2010): content-based restrictions on speech are subject to strict scrutiny, with limited exceptions that have been clearly established in prior caselaw. What was (again!) at stake in this decision was whether the First Amendment protects all speech except for the familiar carveouts, or presents an “ad hoc balancing of relative social costs and benefits” with each new proposed exception (at 4, quoting U.S. v. Stevens (2010)).

The plurality went the First-Amendment-protective route. Its “historic and traditional categories” of First Amendment exceptions present a familiar roster:  obscenity, fighting words, incitement, and the rest. False speech as false speech is not one of the historical exceptions, and the plurality made it perfectly clear that it does not plan to add to the list. In Stevens, then, the Court said what it meant about not intending to add to historical First Amendment exceptions. Future brief-writers would do well to keep this in mind.

Eugene Volokh in his Amicus brief feared that if the Court went the route of protecting false speech, the First Amendment would become a patchwork of under-theorized exceptions to that rule. The plurality proved him wrong. It both articulated theoretical underpinnings for existing exceptions that do involve false speech, and took the Government to task for advocating an overly restrictive understanding of the marketplace of ideas.

The plurality walked through two general categories of exceptions to First Amendment protection for false speech. These categories are effectively distinguished from most false speech as “false speech-plus.” Each is not just false speech, but has an additional element.

The first kind of false speech not subject to First Amendment protection is false speech where there is a legally cognizable harm to an individual, such as an invasion of privacy or legal costs. This category includes defamation and fraud (at 7). Robert Post might further add that these kinds of crimes and torts generally take place outside of the public sphere, and so are subject to less First Amendment protection because they involve individual relationships rather than public-facing speech.

The second kind of false speech not subject to First Amendment protection is false speech that impedes a government function (eg perjury or lying to a federal officer), or abuses government power without authorization (eg impersonating a Government officer). Here, no direct injury to an individual is required. The plurality found that these two types of laws are similar because both “protect the integrity of Government processes” (at 9).

The more serious and broad-sweeping theoretical debate resolved by the Alvarez plurality concerns a fundamental understanding of the marketplace of ideas.

In the historical understanding of the marketplace of ideas, speech competes with speech towards the pursuit of “truth” (although truth is more accurately understood as political truth, not just truth in the sense of non-falsity). Thus Volokh is probably correct when he writes that historically, false speech was considered of lower value in the marketplace of ideas than true speech.

However, the present-day understanding of the marketplace of ideas is that it’s impossible to determine which speech has high value, and which speech has low value. Speech competes, and listeners choose what to believe, but there’s no competition towards an absolute truth-in-the-sense-of-non-falsity, or towards higher values that have been officially designated as such. The Court acknowledged as much in Cohen v. California, which often gets misread as being a case about political speech, where it’s in fact about protecting traditionally low-value expression.

The Alvarez plurality explicitly rejects the proposal that false speech is low value speech and thus not subject to full First Amendment protections. “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.” (at 15)

The plurality thus articulates a speech-protective and autonomy-driven understanding of the marketplace of ideas, where the marketplace is self-correcting, and Congress has no place determining what is true, or good or bad, apart from protecting individuals from legally cognizable harms and from abuse of government structures and government power.

Both doctrinal and practical questions remain after Alvarez, unsurprisingly.

Doctrinally, the question is what type of scrutiny applies to false speech. The plurality employed strict scrutiny, while the concurrence used intermediate scrutiny. It is not clear what the Court will employ in the future.

Using intermediate scrutiny to strike down the Act, it should be noted, creates a strange tension between this case and commercial speech doctrine, which allocates First Amendment protection only to commercial speech that is not misleading. Intermediate scrutiny may also raise questions about trademark dilution, where no competition, commercial harm, or likelihood of confusion need be shown. The concurrence thus struggles with trademark dilution on pp 6-7, where the majority could probably get rid of —or at least restrict the scope of— the trademark problem by applying intermediate strutiny.

Practically speaking, the Act might survive on rewriting. The Act might be rewritten to require that the liar lie for the purpose of receiving a benefit. Alternatively, the Act could be rewritten to penalize lying where the liar benefited from the lie (ie, harm was accomplished as a result of the lie). If the Act were thus rewritten, it’s not clear how the plurality would treat it with respect to historic exceptions and their justifications. It also seems likely that the concurrence would switch sides.

It’s worth noting the implications of Alvarez for the ongoing discussion of anonymous speech, and the use of online personae. If Alvarez had gone the other way, the Court might have made it possible for Congress to prohibit the use of pseudonyms, or “fake names,” online. Lying about your identity is another way of describing choosing to hide your real identity, which would have brought the case into conflict with McIntyre v. Ohio and other doctrine on anonymous speech.  I’m not sure that a good doctrinal distinction could be developed between positively asserting that you are another person , and choosing a pseudonym for the purpose of hiding your identity. For now, at least, thanks to Alvarez, the distinction between legal and illegal pseudonymous behavior appears to rest clearly in the additional element of harm the Court noted must be shown for fraud, or the performance of some other tort or crime.

There is another fast-developing area potentially impacted by Alvarez that the Program for the Study of Reproductive Justice at Yale has been working on all year: the regulation of Crisis Pregnancy Centers, where states require the centers to explain that they are not actually doctors and do not actually provide medical services such as abortion. On this issue, though, I’ll defer to my colleague Jennifer Keighley, who has a piece forthcoming on the matter.

But leaving all this aside, there’s a very simple reason Alvarez was correctly decided.

As Kozinski noted below, people lie an awful lot.