Category: General Law

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FAN 140 (First Amendment News) Will Judge Hardiman be the nominee? A sketch for a First Amendment portrait

The talk in the air is thick: Third Circuit Judge Thomas Hardiman could be President Trump’s pick to fill the vacancy created by the death of Justice Antonin Scalia. Already much has been written about the Judge (see e.g., SCOTUSblog #1, SCOTUSBLOG #2, and Bloomberg-BNA), but what more might be added about his views on freedom of expression and the First Amendment?

Below is an sketch of his First Amendment views as expressed in B.H. v. Easton Area School District (3rd Cir. 2013), a case decided by the Third Circuit sitting en banc.

Judge Thomas Hardiman

Mary Catherine Roper of the ACLU of Pennsylvania argued on behalf of the Appellees, while while John E. Freund, III of King, Spry, Herman, Freund & Faul argued on behalf of the school district.

Focus on Alito’s Morse concurrence 

The issue in the case was was whether the First Amendment rights of middle school students were violtaed when the school district banned them from wearing “I ♥ boobies! (KEEP A BREAST)” braclets as part of a nationally recognized breast-cancer-awareness campaign.  The vote sustaining the First Amendment claim was 9-5, with Judge D. Brooks Smith writing for the majority and Judges Hardiman and Joseph Greenaway, Jr. writing the dissents.

In the back-and-forth between the majority and the dissenters, Justice Samuel Alito’s concurrence in Morse v. Frederick (2007) was referenced 51 times. Nonetheless, when the matter was presented to the Supreme Court, the School District’s petition was denied.

As the majority in Easton Area School District saw it, “Justice Alito’s concurrence, which it viewed as determinative, “did not permit the restriction of speech that could plausibly be interpreted as political or social speech.”

Judge Hardiman took exception. In his dissent, and in the Greenaway dissent he joined, Hardiman’s views as evidenced in both of those opinions focused on six basic points, which are summarized below:

  1. Justice Alito’s Morse concurrence was not dispositive: “The notion that Justice Alito‘s concurrence in Morse is the controlling opinion flows from a misunderstanding of the Supreme Court‘s ―narrowest grounds‖ doctrine as established in Marks v. United States, 430 U.S. 188 (1977). . . . [I]n the six years since Morse was decided, nine of ten appellate courts have cited as its holding the following standard articulated by Chief Justice Roberts in his opinion for the Court.”
  2. The Tinker precedent has limited constitutional vitality: “‘Since Tinker v. Des Moines Independent Community School Dist. (1969), every Supreme Court decision looking at student speech has expanded the kinds of speech schools can regulate.'”
  3. Lack of guidance for school officials: “The Majority‟s test leaves school districts essentially powerless to exercise any discretion and extends the First Amendment‟s protection to a breadth that knows no bounds. As such, how will similarly-situated school districts apply [the majority’s] amorphous test going forward?”
  4. What speech may be regulated? “[W]hat words or phrases fall outside of the ambiguous designation other than the ‘seven dirty words’?”
  5. How to judge the validity of the speech claims: “[H]ow does a school district ever assess the weight or validity of political or social commentary?”
  6. Slippery slope problems: “Applying the Majority‟s test, “I ♥ penises,” “I ♥ vaginas,” “I ♥ testicles,” or “I ♥ breasts” would apparently be phrases or slogans that school districts would be powerless to address. Would the invocation of any of these slogans in a cancer awareness effort fail to garner protection under the Majority‟s test?”

Judge Hardiman closed his dissent with this: “As this case demonstrates, running a school is more complicated now than ever before. Administrators and teachers are not only obliged to teach core subjects, but also find themselves mired in a variety of socio-political causes during school time. And they do so in an era when they no longer possess plenary control of their charges as they did when they acted in loco parentis.”

What might we infer?

So what does this case tell us about Judge Hardiman and his views of the First Amendment? Here are a few preliminary takes:

  1. He is a legal pragmatist: If his views in Easton Area School District reveal anything, they suggest that Judge Hardiman is a man with his eye very much focused on institutional needs.
  2. He favors bright line rules over open-ended ones: Where institutional norms are threatened, Judge Hardiman prefers bright-line guidance, even if it means denying a First Amendment claim.
  3. He has little interest in reviving certain Warren Court First Amendment precedents: While it is true that as a circuit judge he must honor Supreme Court precedent rather evade it, still, the tenor of his dissent strongly suggests that Judge Hardiman has little or no interest in extending the Tinker precedent.
  4. He is skeptical “political speech” labels. Tagging something as “political speech” is no talismanic pass to constitutional protection. Rather, as Judge Hardiman sees it, such claims must first prove their validity and then their worth.
  5. Narrow opinions are preferable to broad ones: Consistent with what is set out above, Judge Hardiman does not seem to be the kind of jurist who would feel comfortable with First Amendment opinions such as those in New York Times Co. v. Sullivan (1964) or United States v. Stevens (2010).

Bottom line: Don’t expect to find a First Amendment Brennan or Black or Kennedy or Roberts in Thomas Hardiman; he does not seem to have that much free-speech spunk.

 Even so, and to be fair, all of this is based on one case only, which may not be true to the full measure of the man.  For now, let’s wait and see if he gets the nod, and if so, I will then say more.

For more, see David Keating, Make the First Amendment Great Again? Trump’s Potential Supreme Court Nominees’ Views on Free Speech, Center for Competitive Politics 

The University of Oregon Controversy

Free speech is central to the academic mission and is the central tenet of a free and democratic society. The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to this community University of Oregon report (2016) (professor’s free-speech activity violated school’s racial-harassment policy)

This free-speech controversy has been brewing in the land that many believe has the most robust protection of any state in the nation — this thanks to a spate of state constitutional free-speech cases dating back to some opinions by Justice Hans Linde (see e.g., State v. Robertson (1982)).

Professor Nancy Shurtz

But all of that is coming into question on the very campus where Linde taught before he was elevated to the state court high bench.  It started with a report that a UO law professor, Nancy Shurtz, wore  black makeup on her face and hands at a Halloween costume party she hosted at her home for UO law students, former students, and faculty members.

Professor violated racial-harassment policy 

I intended to provoke a thoughtful discussion on racism in our society, in our educational institutions and in our professions. In retrospect, my decision to wear black makeup was wrong. It provoked a discussion of racism, but not as I intended. — Nancy Shurtz

Professor Shurtz’s conduct was deemed to have violated school’s discrimination policy. According to December 21, 2016 statement from the office of the Provost:

Though [our] report recognizes that Professor Shurtz did not demonstrate ill intent in her choice of costume, it concludes that her actions had a negative impact on the university’s learning environment and constituted harassment under the UO’s antidiscrimination policies. Furthermore, the report finds that pursuant to applicable legal precedent, the violation and its resulting impact on students in the law school and university outweighed free speech protections provided under the Constitution and our school’s academic freedom policies.

Professor Shurtz was officially reprimanded; last semester her courses were cancelled. She is not teaching this semester but is scheduled to return in February.

→ The two lawyers who prepared the report were: Edwin A. Harnden and Shayda Z. Le.

→ Professor Shurtz criticized the report, which she said should not have been released: “This release violated rights of employees to confidentiality guaranteed by law. In addition, the report contains numerous mistakes, errors and omissions that if corrected would have put matters in a different light.”

→ An Open Letter from members of the Oregon Law faculty calling for colleague’s resignation

 → Lawrence Haun, Petition: Support Academic Freedom at the University of Oregon

U.O. law prof weighs in

Professor Ofer Raban

Writing in the Oregonian, first in November and then it late December, University of Oregon Law professor Ofer Raban led the criticism of the University’s action. In his first op-ed, Professor Raban wrote: “This regrettable Halloween event was a teachable moment, but it ended up teaching many wrong lessons. Surely, this was a moment to teach about racial sensitivity and awareness of history, and of what it means to live as a racial minority in this country. But it was also a moment to teach other valuable lessons for law students: Do not rush to judgment. Deliberate carefully, away from emotions running high. Consider all the relevant factors. And show compassion for human fallibility.

At a time of an emboldened pernicious racism, the refusal to recognize the distinction between malicious racism and a stupid but well-intentioned mistake is not only a moral and legal travesty, it is also fodder for the real enemies of racial equality.”

And then in response to the University’s report, he wrote that it “fails to mention or analyze the Oregon Constitution’s free speech provision, which Oregon courts ordinarily address even before the First Amendment since it provides greater free speech protections. . . .”

“Whatever the reason for administrators’ responses, let’s not forget what’s at stake in this sordid affair. According to the university, a professor is guilty of racial discrimination and harassment for donning a costume that sought to advocate for racial equality. And that act of political expression is not protected by the rights to free speech nor by academic freedom.This is a sad day for the freedom of speech and expression at the University of Oregon.”

Volokh joins in

The University’s action also drew sharp criticism from UCLA Law Professor Eugene Volokh: “contrary to the university’s explicit assurances in its free speech policy, the university report shows that ‘[t]he belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or ‘just plain wrong’ would indeed be viewed as ‘grounds for its suppression.'”

Tucker Carlson & Professor Eugene Volokh

“[T]he report reasons that university professor free speech is limited by the so-called Pickering v. Bd. of Ed. balancing test, under which government employee speech is unprotected if ‘the State, as an employer, in maintaining the efficiency of its operations and avoiding potential or actual disruption’ outweighs ‘the employee’s interest in commenting on the matter of public concern.'”

“There is good reason to think that the university misapplied this test here, especially in light of lower court precedent (see, e.g., these posts by Prof. Josh BlackmanHans Bader, and Prof. Jonathan Turley, as well as Levin v. Harleston (2d Cir. 1992)). Given that universities are supposed to be a place for debate and controversy, the tendency of university professor speech to spark debate and controversy — even debate and controversy that many people find offensive or disquieting — shouldn’t strip it of protection in a university community, even if it might be seen as doing so in, say, a police department. But the Pickering test is notoriously mushy, as such “balancing” tests tend to be, so I’ll set it aside here.”

See Professor Volokh being interviewed by Fox’s Tucker Carlson

U.O. President responds 

In light of such criticisms, the University’s President Michael H. Schill (who is a law professor) issued a response, which in part reads:

“When Professor Shurtz invited her two classes to her home for a Halloween party on October 31 and dressed up wearing blackface, she created a conundrum that is the stuff of a very difficult law school examination question. Two very important principles were potentially in conflict—the right of students to be free from racial harassment and the right of faculty members to exercise free speech. A law firm that the university hired to do an impartial investigation of the matter interviewed students and faculty members who were at the party and made a factual finding that at least some of the students felt compelled to attend their professor’s party and that they would potentially suffer negative consequences if they left early, despite being deeply offended and affronted by Professor Shurtz’s costume and its strong connotations of racism. The investigators made a factual finding that the behavior by Professor Shurtz constituted racial harassment under university policy V.11.02.

President Michael Schill

“. . . .As I consider the case of Professor Shurtz, I have to admit I am torn. I believe that freedom of speech is the core value of any university. When faculty members pursue their avocation—teaching students and conducting research—they must be able to say or write what they think without fear of retribution, even if their views are controversial, and even if their research and their views risk causing offense to others. Otherwise, advances in learning will be stunted. This freedom of speech includes the freedom to share political views, academic theories, good ideas, and even bad ones, too. It includes speech that offends others. Without academic freedom we could scarcely call the UO a university. . . .”

“But, when exactly does offending someone turn into proscribed harassment? Only a small number of legal commentators would say that faculty members should be immune from all harassment charges on academic freedom grounds. Instead, most of us recognize that speech rights are extremely important, but they also fall on a continuum. For whatever it is worth, I personally am fairly close to the end of the spectrum that believes speech should be maximally protected. But even I believe that there are cases when speech or conduct is of relatively minimal value compared to the great harm that it may do to our students—particularly to students who already struggle with isolation and lack of representation. For example, imagine a required class in which a professor repeatedly uses the ‘N’ word for no apparent reason except to elicit a reaction. Could African American students forced to sit through this class have a claim of harassment? I think so. Similarly, imagine a class in which a professor makes repeated, sexually explicit remarks to a student or students for no educational purpose. Free speech principles should not, in my view, prevent the university from taking appropriate actions to make sure these actions stop and do not recur in the future. . . .”

“The case against free speech”

 Brian Leiter, The Case Against Free Speech, Sydney Law Review (2016)

Abstract: Free societies employ a variety of institutions in which speech is heavily regulated on the basis of its content in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Of course, three differences between courts and the polity at large might seem to counsel against extending that approach more widely.

Professor Brian Leiter

First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not.

Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity.

Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be.

I argue that only the first of these — the ‘Problem of the Epistemic Arbiter’ as I call it — poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing ‘freedom of speech’ like ‘freedom of action’: speech, like everything else human beings do, can be benign or harmful, constructive or pernicious. Thus, the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimise its very real harms, without undue cost to its positive values. In particular, I argue against autonomy-based defences of a robust free speech principle. I conclude that the central issue in free speech jurisprudence is not about speech, but about institutional competence.

I offer some reasons — from the Marxist ‘left’ and the public choice ‘right’ — for being sceptical that capitalist democracies have the requisite competence and make some suggestive remarks about how these defects might be remedied.

Dorf & Tarrow on Fake News & the First Amendment

Michael Dorf & Sidney Tarrow, Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism, SSRN (Jan. 26, 2017)

Abstract:  Constitutional law, technological innovations, and the rise of a cultural “right to know” have recently combined to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful investigative reporting. But the rise of “truthiness” — that is, falsehoods with the ring of truth, diffused through new forms of communication — threatens the integrity of the media. How to respond to these contradictions is a growing problem for advocates of free speech and liberal values more generally.

Forthcoming Books Read More

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In Light of Recent Developments . . .

I thought I would repost my favorite quote from John Bingham:

When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.

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Vanderbilt Law Review, Volume 70, Number 1

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

ARTICLES

Nicole Stelle Garnett, Sector Agnosticism and the Coming Transformation of Education Law, 70 Vand. L. Rev. 1 (2017)

Elizabeth Chamblee Burch, Monopolies in Multidistrict Litigation, 70 Vand. L. Rev. 67 (2017)

Jason Parkin, Aging Injunctions and the Legacy of Institutional Reform Litigation, 70 Vand. L. Rev. 167 (2017)

J. Maria Glover, A Regulatory Theory of Legal Claims, 70 Vand. L. Rev. 221 (2017)

NOTES

Brian P. Baxter, The Securities Black Market: Dark Pool Trading and the Need for a More Expansive Regulation ATS-N, 70 Vand. L. Rev. 311 (2017)

Stanley Onyeador, The Chancery Bank of Delaware: Appraisal Arbitrageurs Expose Need to Further Reform Defective Appraisal Statute, 70 Vand. L. Rev. 339 (2017)

Laura C. Williams, An Ocean Between Us: The Implications of Inconsistencies Between the Navigational Laws of Coastal Arctic Council Nations and the United  Nations Convention on the Law of the Sea for
Arctic Navigation
, 70 Vand. L. Rev. 379 (2017)

 

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Interstate Representation and the Electoral College

Yesterday I posted about the advantages and drawbacks of expanding the membership of the House of Representatives. Let’s now focus on some structural aspects of this issue and think about whether partisan politics stand in the way.

One problem that others have pointed out is that the relatively small size of the House violates the spirit of the “one-person, one-vote” principle. The reason is that the average population of a House district now exceeds the population of our smallest states. Each state must get at least one member (under Article One of the Constitution) even though some of them would get less than one if you only looked at the population figures.  Take a simple example.  California has 53 House members and Wyoming 1.  But California (as of the 2010 census) has 66 times more people than Wyoming. This means that Wyoming is overrepresented or California is underrepresented. This does not rise to the level of a constitutional violation (at least not so far) but expanding the size of the House is a way of eliminating this disparity.

Another consequence of the small size of the House is that the unequal representation of the states in the Electoral College is getting worse.  Wyoming, for example, is overrepresented in the Electoral College because it gets two votes because of its two senators.  But it’s even more overrepresented (or the large states are more underrepresented) because Wyoming is, in effect, getting three electoral votes instead of something like 2.75.  Is this distortion large?  No, but it might have changed the outcome of the 2000 election. (I need to crunch numbers on that.)

If you enlarge the House and reduce the average population of each district, these problems would diminish or go away.  Would one party benefit from this disproportionately?  I don’t think so.  The state that would see the biggest increase in House members would be California.  But Texas would also benefit. Moreover, the partisan effect would depend in part on how the new districts would be drawn, which would in turn depend on who controlled each state’s government at the time.

In short, I don’t think that this sort of change would far a partisan roadblock the way, say, getting rid of the Electoral College will.

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Should the Membership of the House of Representatives Be Enlarged?

Another question I’m looking at in my reapportionment research (along with the Section Two issue discussed in my prior posts) is whether the current size of the House of Representatives is too small.  Since the 1910s, the House has had 435 members (except for a brief time after Alaska and Hawaii became states).  Over the past century, the population of the United States has trebled.  You can do the math–each representative now represents three times as many people as was the case in 1917. It is also fair to say that a Representative represents far more people than an equivalent legislator in other major democracies, such as Canada, Britain, Germany, etc.

What would be some benefits of adding, say, 200 more members to the House?

  1. Better constituent service.  You might think that if each member (on average) represented fewer people, members would be more responsive to the needs of his or her constituency.
  2. A reduced workload.  More members would mean less committee service for each member (if you assume that the number of committees stays constant).  That would also allow more time for helping constituents or just working on other matters.
  3. More viewpoints.  More members would bring more ideas to the table. If constituencies were smaller, you might also think that certain local perspectives that are not being represented now would get represented.
  4. Reduced cost of campaigning.  If each district was smaller on average, then the cost of running for the House would be reduced without any campaign finance reform.
  5. More competition.  In the initial election or elections after an expansion, you would be creating many new seats without an incumbent.  This would allow lots of new people into politics and give us something other than the usual “reelect most members” result that we get every two years.
  6. Better oversight.  Maybe you’d think that more members of the House would lead to more eyes looking at the executive agencies to hold them accountable.

What are some downsides of this proposal? Well, it would cost money.  (New offices, more staff, etc.) The transaction costs of legislative action would also go up, in that there would more people to negotiate with to get a majority for a bill, more time required for debate on the floor, etc. These do not strike more as especially strong objections, but I want to give that more thought.

Is there a partisan valence to increasing the number of House members that dooms the idea?  (In the way that there almost always is for enlarging the membership of the Supreme Court.) I’ll take that up in a separate post.

UPDATE:  I didn’t realize until now that the New Hampshire House of Representatives has 400 members.  This is an outlier among the states, but this does suggest that 435 could be too small for the entire nation.

 

 

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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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The Duty Imposed by Section Two on the Commerce Department

In two posts, I observed that the current statutes regulating the reapportionment of the House of Representatives say nothing about how Section Two of the Fourteenth Amendment–which is still in force–should be taken into account when representatives are allotted to the states after each census. These statutes cannot lawfully prohibit Section Two from being taken into account, but they need not be read as doing so. They can instead be read as delegating authority to the Commerce Department to exercise that constitutional duty. Was that duty fulfilled following the last census?  No, because the Commerce Department ignored Section Two entirely.  Is there any remedy for that now? No. But there should be after the next census if the same thing happens.

A fine Note by Michael Hurta that appeared in the Texas Law Review about two years ago made a similar argument about the Commerce Department’s authority and duty to conduct Section Two review. What do I mean by review?  I mean that the Commerce Department must collect data on people who are eligible to vote under the Constitution but are not permitted to vote by a state. If they decide that no adjustment to representation is warranted by that data, then that conclusion should be reviewed deferentially under ordinary administrative law principles.  But such a review must, in my view, be done.  If not, I would think that almost every state would have standing to say that its allotment of representatives after the next census is invalid (maybe they are entitled to one more, for instance, if somebody else should be getting one fewer).

Here’s one problem though: The Commerce Department is not the right agency to conduct this analysis.  Suppose questions are included on the census about past voting history and someone claims that they were turned away at the polling place.  How could this be verified?  Census data is confidential, in large part to encourage people (even those here illegally) to respond. Moreover, the DOJ is the place where you find experts on voting rights–not the Commerce Department.  Thus, I think all Commerce could do is say “X number of people in a state told us that they were denied the right to vote for what appears to be an invalid reason.”  Now maybe that number would be so small as to be irrelevant, but suppose it were large and Section Two was invoked.  Congress would be free to reject the Department’s conclusion that a state’s representatives should be reduced based on a disputed question of fact, but partisan deadlock might prevent Congress from acting at all.

Consequently, I’m wondering if the reapportionment statute should be amended to require the DOJ to conduct a Section Two review following the census. Section Two does not require an enumeration of the disenfranchised in the way that the Census requirement in the Constitution does.  But I want to think about that some more.

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Unintended Consequences and the Bill of Rights

As you know, I’m working on a book about the Bill of Rights.  The book is currently in publisher’s limbo, by which I mean that I’ve turned in the first draft and am waiting for the manuscript to be returned to me for the next round of changes.  Until then, what will I be mulling over?

First, I want to see what (if anything) President Trump has to say about the Bill of Rights.  My book ends with Bush 41’s speech in 1991 marking the bicentennial of the Bill of Rights.  (I’ve posted about that speech before.)  Since then, there really haven’t been any significant presidential statements on the Bill of Rights, and no real celebration was held to mark the 225th anniversary of ratification this past December. But maybe the new President will say something that I will need to include.

Second, I’m wondering about a question posed by one reader of the draft.  To what extent was the expansion of civil liberties in the 1940s an unintended consequence of the way in which FDR talked about the Bill of Rights?  One argument in the book is that Roosevelt often used and emphasize the Bill of Rights to justify the New Deal and the growth of federal power to fight World War II.  If that’s true, then couldn’t you say that the wider embrace of the term and of the first set of amendments for a different purpose was in part an accident. I think my answer is “kind of,” but I need to give that more thought.

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The Validity of Section Two of the Fourteenth Amendment

The other day I posted a hypothesis that the current apportionment of the House of Representatives does not comply with Section Two of the Fourteenth Amendment. Before explaining that further, I must address the threshold question of whether Section 2 is still part of the Constitution. This is a live issue partly because Professor Gabriel Chin (now at Davis) wrote an excellent article in 2004 arguing that the Fifteenth Amendment implicitly repealed Section Two of the Fourteenth. I do not find this claim persuasive though.

Here is why you might think that the Fifteenth Amendment repealed Section Two of the Fourteenth Amendment. Section Two allows states to deny African-American men the right to vote–the result is just that the state loses representatives.  But The Fifteenth Amendment says that the states may not discriminate on the basis of race for voting. Since these are inconsistent ideas, perhaps the best reading is that the Fifteenth Amendment superseded Section Two. Professor Chin’s article explains that some people also made this argument shortly after the Fifteenth Amendment was ratified.

Nevertheless, there are significant problems with this interpretation. One is that the Fifteenth Amendment talks only about race whereas Section Two is not so limited. Granted, the object of Section Two was primarily to encourage voting access by African-American men, but the omission of the word race makes the two texts somewhat different. A second, and more powerful objection to my mind, is that one year after the Fifteenth Amendment was ratified Congress and the Census Bureau spent a considerable amount of time thinking about whether and how Section Two should be applied. Not a word was uttered then that the Fifteenth Amendment had repealed Section Two (nor was anything said about that when the Fifteenth Amendment was debated).  This seems like pretty strong evidence that no repeal occurred.

This is not a complete response to Professor Chin’s arguments, which I guess I would have to save for an article, but the upshot is that I think Section Two is still the law. But what does this mean for how we conduct the census and apportionment?  That’s my next post.