Category: General Law

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Singular vs. Plural

Let me tell you about another juicy detail from Bushrod Washington’s “lost” journal. The journal contains his draft opinion in Green v. Biddle, in which the Court invalidated two state statutes from Kentucky that dealt with property rights. At the close of an opinion on this hotly contested issue, he wrote:

“[W]e hold ourselves answerable to God, our consciences, and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may.”

In the draft opinion, here’s how this passage reads:

“I hold myself answerable to God, my conscience, and my country, to decide this question according to the dictates of my best judgment, be the consequences of the decision what they may.”

What does this difference mean? Was the draft opinion originally only for Washington (as a concurrence or dissent)? Did he just write drafts in the singular person until he received enough joins to make a majority? I’ll keep digging to find out.

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FAN 165.2 (First Amendment News) Masses Publishing Co. v. Patten court documents now posted on First Amendment Library

Judge Learned Hand’s order granting the temporary injunction against the postmaster and ordering the magazine transmitted through the mails “without delay” was dated July 26, two days after the decision became known. During that brief period, the company pulled back the copies sent to the Post Office so the edition could be delivered by alternate means. On the same day the order was issued, U.S. Attorney Francis G. Caffey filed an Assignment of Error listing grounds on which he would rely in his appeal from Hand’s decree. In all, there were seven alleged errors, although essentially all of them went directly to the bottom line: Hand was wrong in finding for the magazine under every provision of the Espionage Act raised by government and wrong in granting the injunction.   — Eric Easton, Defending the Masses (Jan. 2018) 

* * * *

‘Tis the year of The Masses. This year marks the 100th anniversary of Judge Learned Hand’s seminal free-speech opinion in Masses Publishing Co. v. PattenAs previously reported here, two major events have been organized to celebrate the occasion.

New York Univeristy School of Law and the Sandra Day O’Connor College of Law at Arizona State University are hosting an all-day conference in New York on October 20th.

Gilbert E. Roe (lawyer for The Masses)

 Not long thereafter, on November 6th, the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Patten. Floyd Abrams will appear on behalf of Postmaster Patten and Kathleen M. Sullivan will appear on behalf of Masses Publishing Co. The case will be argued before a panel of three judges:

  • Circuit Judge Reena Raggi,
  • Circuit Judge Pierre N. Leval, and
  • Circuit Judge Robert D. Sack

Original court documents posted for first time

In light of all of the above, the folks over at the First Amendment Library (led by Jackie Farmer) have uploaded 18 never before posted documents relating to the appeal in The Masses case. Among other things, this compilation includes the complaint, various affidavits filed in the case, transcript of the record, the order staying Judge Hand’s injunction, and much more.

Adriana Mark, head of research and education for the Second Circuit Library, unearthed these documents for the First Amendment Library. The librarians at the Gallagher Library of the University of Washington School of Law also provided additional research.

As the editor of the Library, I wrote the Introduction to the collection of The Masses documents.

Professor Eric Easton, author of Defending the Masses: A Progressive Lawyer’s Battles for Free Speech University of Wisconsin Press (Jan. 2018), kindly agreed to allow us to post a chapter from his forthcoming book, this to provide additional context for the documents posted.

            Judge Hand’s signature in Masses case

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Privileges and Immunities in Corfield

I thought that I would provide a full transcript of the money quote in Justice Washington’s notes on Corfield.

“As to the 4th article second section of the Constitution, ‘the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’ Is the right which a citizen has to enjoy the common property belonging to the citizens of the state a privilege or immunity? See infra A

A. I am inclined to think that it is a privilege within the meaning of this article of the Constitution. If it be not, then the rights to navigate the waters would not be, because they also are common property, and yet it would seem to violate this article to make a law forbidding citizens of their state to navigate the waters of that state. I am inclined to the opinion of the Court in Livingston v. Van Ingen, that the ___ of this article is that the citizen of each state shall within every other state have equal privileges or rights as the citizens of such state have, the words all privileges of citizens being equivalent to equal privileges.”

[There is one word I can’t quite make out.]

Other portions of the Corfield notes include summaries of the relevant cases, which is interesting from the standpoint of seeing how Washington made decisions. There is also a section on the Commerce Clause issue in the case, which I need to think about further in light of what was decided in Gibbons v. Ogden.  More tidbits to come.

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Some Thoughts from George Washington

In reading this letter by our first President about Bushrod Washington, I couldn’t help but think of the current President:

“With great pleasure I received the information respecting the commencement of my Nephew’s political course. I hope he will not be so buoyed up by the favorable impression it has made as to become a babbler.”

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FAN 165.1 (First Amendment News) New FIRE Report — Majority of college students self-censor & support disinvitations

This from a just-released report from the Foundation for Individual Rights in Education (FIRE):

PHILADELPHIA, Oct. 11, 2017 — A new report from the Foundation for Individual Rights in Education finds a majority of students on college campuses self-censor in class, support disinviting some guest speakers with whom they disagree, and don’t know that hate speech is protected by the First Amendment. The study also finds that Republican and Democratic students have different opinions on campus protests, disinvitations, and hate speech protections.
In the most comprehensive survey on students’ attitudes about free speech to date, FIRE measured student responses to questions about self expression, reactions to expression of other students, guest speakers, and hate speech. Some key findings include:
  • 46 percent of students recognize that hate speech is protected by the First Amendment, and 48 percent of students think the First Amendment should not protect hate speech.
  • Most students (56 percent) support disinviting some guest speakers. Democratic students are 19 percentage points more likely than their Republican peers to agree that there are times a speaker should be disinvited.
  • 58 percent of college students think it’s important to be part of a campus community where they are not exposed to intolerant or offensive ideas.
  • Very few students report that they would participate in actions that would prevent a guest speaker event from taking place (2 percent). Even fewer said they would use violence to disrupt an event (1 percent).
  • In open-ended questions, almost half of students (45 percent) identify speech with a racist component as hate speech, and 13 percent of students associate hate speech with violence.
  • In class, 30 percent of students have self-censored because they thought their words would be offensive to others. A majority of students (54 percent) report self-censoring in the classroom at some point since the beginning of college.

FIRE’s survey also found ideological differences in how students feel about free expression, both inside and outside the classroom. Very liberal students are 14 percentage points more likely than their very conservative peers to feel comfortable expressing their opinions in the classroom. Additionally, 60 percent of Republican students think they should not have to walk past a protest on campus, while only 28 percent of Democratic students think the same.

Robert Shibley

“There is clearly a partisan divide in how students perceive free speech on college campuses,” said FIRE Executive Director Robert Shibley. “This further solidifies the importance of FIRE’s mission. Free expression is too important to become a partisan issue in higher education.”

Additionally, FIRE’s survey found that a majority of students want their schools to invite a variety of guest speakers to campus (93 percent), and 64 percent report changing an attitude or opinion after listening to a guest speaker.

FIRE contracted with YouGov (California), a nonpartisan polling and research firm, to survey 1,250 American undergraduate students between May 25 and June 8. YouGov calculated weights for each response based on the respondent’s gender, race, and age. A copy of the full report, an FAQ, and the toplines and tabulations from YouGov can be accessed here.

The survey project was made possible by a grant from the John Templeton Foundation to conduct polling on campus attitudes, engage in legal and social science research, and mobilize a wider audience on and off campus in the fight for student and faculty rights.

ContactWilliam Rickards, Communications Coordinator, FIRE
215-717-3473; media@thefire.org
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Annotating Section Two of the Fourteenth Amendment

Last week I participated in a workshop organized by the ABA to assist civics teachers who want to teach their students about the Fourteenth Amendment. As part of that program, the ABA gave each of us a pocket constitution.  You are all familiar with these. But the ABA version is annotated to some extent. At the end of Section Two of the Fourteenth Amendment, a note says “Section Two age requirements superseded by the 26th Amendment and ‘male’ restrictions superseded by the 19th Amendment.”

Now I think this is the correct reading, as I explain in my forthcoming paper about Section 2 and the reapportionment process. On the other hand, no case says this, which raises the question of why the annotators think that this is true and are telling people it is true. (This is the only annotation for the amendments in the ABA pocket constitution.)

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FAN 165 (First Amendment News) Major New First Amendment News, Analysis & History Website Launched

Prof. Stephen Solomon (credit: Sarah Solomon)

If you are interested in the First Amendment, be prepared to bookmark an invaluable new site: First Amendment Watch. This news, anlysis and history website is the brainchild of Stephen D. Solomon, New York University’s Marjorie Deane Professor at NYU’s Arthur L. Carter Journalism Institute, where he teaches First Amendment law.

Recall: Professor Solomon is the author of, among other works, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016) (First Amendment Salon video here and news story re his speech at History Book Festival event here.)

Managing Editor: Tatiana Serafin has covered issues of press freedom for various publications, including her latest “I, Journalist” for The Seventh Wave. She was a staff writer at Forbes and then co-editor of the magazine’s billionaire’s list, initiating coverage of billionaires in Eastern Europe and Central Asia. She continues as a Forbes Contributor and is an Adjunct Professor at Marymount Manhattan College.

The mission of the site is to document threats to the First Amendment’s freedoms of speech, press, assembly, and petition. First Amendment Watch will highlight threats to the freedom of expression as they arise and provide continuing updates as news develops. The most important element is the deep dives into legal and historical background that provides the perspective that helps readers gain a full understanding of today’s First Amendment conflicts.

Social media also play an important role in getting news message out to the public. (See FAW’s Facebook and Twitter links.) “We hope to have a strong social media presence,” said Solomon. “We want to be engaged with the community and create a site for people to visit and learn about important First Amendment news issues.”

→ The startup phase of First Amendment Watch is entirely funded by New York University as a nonpartisan project in the public interest.

Easy to Navigate Topical Tabs 

The site has seven tabs on its information bar:

  1. News Gathering
  2. Speech
  3. Libel
  4. Threats
  5. Censorship
  6. Assembly
  7. Privacy

Managing editor Tatiana Serafin

Each tab contains numerous links to relevant news, updates, analysis, opinion and historical materials. See, for example:

Profiles — news, analysis & historical backdrop — of Contemporary Controversies 

→ Considerable attention is given to some of the most pressing free speech issues of the day, as in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The entry for that case is titled  Discrimination or Free Speech? What’s At Stake in the Wedding Cake Conflict.

→ Another such entry is The Supreme Court Considers First Amendment Arguments in Gerrymandering Case, the reference being to the oral arguments in Gill v. Whitford. These entries contain links to: audio and video clips, news stories and opinion posts,  and lower court opinions and appellate briefs, among other things.

Make the Connection: Linking Today’s Controversies to Those of the Past

Symbolic Speech in Early America: Liberty Tree in colonial Boston

From Liberty Tree to Taking a Knee: America’s Founding Era Sheds Light on the NFL Controversy

“Symbolic speech as a form of protest, like taking a knee at a football game while others stand for the National Anthem, enjoys a long history in America. It’s been a powerful form of political expression going back to the protests in the colonies in the 1760s against British oppression. Various forms of symbolic expression—liberty trees, liberty poles, effigies of hated politicians, even the use of the number 45—brought multitudes into the political sphere and was critical in building opposition to British rule. Much of this symbolic expression was controversial and even offensive but a powerful form of protest then and now.” – By Stephen Solomon

Mapping Free Speech Controversies

There is also a Mapping First Amendment Conflicts link that pinpoints timely free speech controversies accordingly to geographical areas.  From small to big cities, from social media to the White House, First Amendment conflicts arise nearly every day. They can involve libel suits against a big media organization, an attempt by state legislators to restrict demonstrations, public officials blocking Twitter followers they don’t like, and much more. The endless challenges to freedom of expression raise vital questions of constitutional law and the place of free speech in a democratic society. All one has to do is click on the map icons to get brief descriptions of controversies large and small as well as links to more information.

Thus, if you click on the Washington State pointer, this pops up:

Assembly – Olympia, WA – 10/11/16 — description

A Republican State Senator introduced a measure aimed at criminalizing what he calls “economic terrorism.” It “would make protesting a class C felony should it cause any sort of “economic disruption” or “jeopardize human life and property.””  http://thehill.com/blogs/blog-briefing-room/306580-washington- 

Video Links 

There are some interesting video links on the site as well.  For example:

Future Plans 

Plans for the future involve invited comment from experts as well as original videos and podcasts.

And yes, for those of you who wish to support this website, there is a tab you can click on to donate to it. Though NYU provided startup funding,  the site can continue only with outside funding.

*  * * Other First Amendment Websites * * * 

History of Film Censorship Timeline

Prof. Laura Wittern-Keller

 

Over at FIRE’s First Amendment Library, they have just posted an impressive History of Film Censorship Timeline.

The timeline was created by Professor Laura Wittern-Keller, author of Freedom of the Screen: Legal Challenges to State Film Censorship, 1915-1981 (2008) and The Miracle Case: Film Censorship and the Supreme Court (2008).

 

 

Scholarly Articles: One New, One Forthcoming  Read More

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Not King Tut’s Tomb, But . . .

I am pleased to announce a discovery that will interest many legal scholars. The Chicago History Museum has a journal that contains Justice Bushrod Washington’s notes on Corfield v. Coryell; the 1823 circuit case that set forth the first major interpretation of the Privileges and Immunities Clause of the Constitution and was an influential source for some members of the Thirty-Ninth Congress in assessing the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

I am currently researching a biography of Justice Washington and learned that the Chicago History Museum has some relevant materials. The item that immediately drew my attention was a notebook that dates from the 1820s (I need to do more work to give a precise date range). The journal contains drafts of letters, legal research, notes about life at Mount Vernon, and rough versions of at least two of the Justice’s Supreme Court opinions. My eyes opened as wide as saucers, though, when I saw “Corfield v. Coryell” as a heading followed by pages of notes about the case.

What do these notes tell us about Corfield? One revelation is that Washington’s initial view with respect to privileges and immunities was the opposite of what the opinion ended up saying. Corfield concerned a claim that a New Jersey statute barring non-residents from harvesting oysters and clams in state waters was unconstitutional, among other reasons, for violating the Privileges and Immunities Clause by making a distinction between state residents with respect to a privilege. The Court rejected this argument, concluding that no privilege was involved. Washington’s notes on the case, though, say “I am inclined to think that it [in other words, harvesting oysters and clams] is a privilege within the meaning of this article of the Constitution. If it be not, then the right to navigate the waters would not be, because they also are common property, and yet it would seem to violate this article to make a law forbidding citizens of their state to navigate the waters of that state.”

Another significant insight is that Washington’s thinking was shaped by an 1812 New York case, Livingston v. Van Ingen, in which Chancellor Kent discussed the Privileges and Immunities Clause briefly. The notes state that Washington found this case persuasive on the point “that the citizen of each State shall within every other state have equal privileges or rights as the citizens of such state have the words all privileges of citizens being equivalent to equal privileges.” The actual opinion in Corfield, though, does not cite the Livingston case at all.

I will have more to say as I work through other portions of the journal. I will also think about how to make this material available as widely as possible without treading on the interests of the Chicago History Museum. Anyone, of course, can go there and look at the journal.   

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Vanderbilt Law Review, Volume 70, Number 5

The Vanderbilt Law Review is pleased to announce the publication of our October 2017 issue:

ARTICLES

Aaron Tang, Reverse Political Process Theory, 70 Vand. L. Rev. 1427 (2017)

Jack Boeglin & Zachary Shapiro, A Theory of Differential Punishment, 70 Vand. L. Rev. 1499 (2017)

Eric Biber, Sarah E. Light, J.B. Ruhl, & James Salzman, Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb, 70 Vand. L. Rev. 1561 (2017)

 

NOTES

Julie Lynn Rooney, Going Postal: Analyzing the Abuse of Mail Covers Under the Fourth Amendment, 70 Vand. L. Rev. 1627 (2017)

Nicole A. Weeks, Do Your Job: Judicial Review of Occupational Licensing in the Face of Economic Protectionism, 70 Vand. L. Rev. 1663 (2017)

 

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Bipartisan Partisan Gerrymandering

The transcript of yesterday’s arguments in the partisan gerrymandering case left me confused. First, there was not a good answer as to why the plaintiffs have standing to challenge the statewide map. Perhaps five Justices will just decide that they want to reach the merits, but I’m not sure.

On the merits, the Court is still quite muddled on what the problem is. Justice Breyer, in his typical way, rattled off several factors that could guide courts in their analysis. The first one was that there could be no valid claim if one party was not in charge of redistricting.  But this is wrong. Two parties can collaborate on gerrymandering safe seats for both parties. Granted, this sort of bipartisan partisanship does not create a big discrepancy between vote and representative shares, but it does classify people according to their political views and increase political polarization (marginally).

I guess Justice Breyer thinks that only partisan partisan gerrymandering is a problem if it’s bad enough. Why that should be singled out is a mystery to me when you are talking about courts that generally ought to use neutral principles.