Category: General Law

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FAN 194 (First Amendment News) “Cato Unbound” & Knight Institute’s “Emerging Threats” host separate online exchanges on Free Speech abroad & on the Internet

Over at Cato Unbound they have just posted an online exchange entitled “Free Speech in International Perspective.”

The lead essay is by Jacob Mchangama and is titled “How Censorship Crosses Borders.”

Jacob Mchangama describes what he terms a “cross-fertilization of censorship,” in which regimes both free and unfree are in the process of copying one another’s restrictions on expressive freedoms. More liberal countries still frequently restrict hate speech, while less liberal ones use those restrictions to justify still more restrictive acts. The world’s centuries-long march toward freedom of expression seems to have halted. Can it be restarted?

Mchangama’s essay drew a reply from Anthony Leaker and is titled Against “Free Speech”

Anthony Leaker characterizes the recent free speech “crisis” as mythical. It is the product of far-right and indeed fascist propaganda, and we can know that this is so by observing the purported victims in the “crisis:” They are right-wing, successful, and absolutely not being persecuted. Indeed, they dictate the terms of present-day debate, exactly as people like them have always done. In this way, Leaker denies that the United States has been, or is, a force for liberty at all. Political speech does well when it liberates the oppressed, but the type of speech under discussion here is nothing of the kind.

RelatedFAN 192 — The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech” (May 29, 2018)

Forthcoming

Two more essays are slated to follow:

Knight Institute’s “Emerging Threats” online symposium

Excerpt: “The United States’ internet freedom project is not just failing abroad. It is also failing at home. [T]he United States is increasingly engaged in forms of digital protectionism that it once decried. But both the commercial non-regulation principle and the anti-censorship principle are allowing real harms within the country’s borders as well. ‘[M]odern information networks and the technologies they support can be harnessed for good or for ill,’ Clinton acknowledged in her 2010 speech. The premise of the U.S. internet freedom agenda is that an open, unregulated internet is great at home on balance and thus should be exported abroad. This premise — built on an optimism about the impact of digital technologies on American public life — is now being called into question.”

“The fact that the U.S. internet freedom agenda is failing, however, does not necessarily mean that the larger project of internet freedom is failing. On the contrary, the growing detachment of this project from American commercial and ideological interests may suggest a new path forward. This is the glass-half-full perspective offered [in responses] by Nani Jansen Reventlow and Jonathan McCully, and David Kaye. While endorsing Goldsmith’s basic critique of U.S. policy, these leading international lawyers push back against the parochialism inherent in evaluating internet freedom in U.S.-centric terms.”

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Nationwide Biweekly Administration, Inc., et al v. Perez
  2. CTIA v. City of Berkeley 
  3. Harris v. Cooper 
  4. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  5. Livingwell Medical Clinic, Inc. v. Becerra
  6. Berninger v. Federal Communications Commission

Review Denied

  1. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
  2. Contest Promotions, LLC., v. City & County of San Francisco
  3. Holmes v. Federal Election Commission
  4. Walker v. N.Y.C. Dep’t of Educ. et al.
  5. Shepard v. Florida Judicial Qualifications Commission 
  6. Morris v. Texas (dismissed for want of jurisdiction)
  7. Connecticut v. Baccala
  8. Tobinick v. Novella
  9. Muccio v. Minnesota
  10. Elonis v. United States
  11. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)

Free-Speech Related Cases: Cert. Pending

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)

Free-Speech Related Cases: Cert. Denied

Last Scheduled FAN # 193: Eight Free Expression Take Away Points from Masterpiece Cakeshop Case (# 8: Seven Justices Discuss Free Expression Claim)

Next Scheduled FAN # 195: Wednesday, June 20, 2018

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FAN 193.1 (First Amendment News) First Amendment Watch to host online roundtable on Seidman’s “Can Free Speech Be Progressive?” essay

The notion that our free speech tradition might be weaponized to advance progressive ends is fanciful.

Groups like the American Civil Liberties Union [once] managed to translate [the] right of agitation into the language of law, but the radicalism of free speech [has since been] lost in the translation.

Louis Michael Seidman

Professor Michael Seidman (credit: Book TV)

Over at First Amendment Watch Stephen Solomon and Tatiana Serafin are preparing to launch an online roundtable discussion of Professor Louis Michael Seidman’s forthcoming Columbia Law Review essay titled “Can Free Speech Be Progressive?

Below are the lineup and dates of postings:

  1. Wednesday, June 20:        Introduction & Seidman excerpt with link to his essay
  2. Thursday, June 21:            Floyd Abrams
  3. Friday, June 22:                 John Schnapper-Casteras
  4. Monday, June 25:             Jane Bambauer
  5. Tuesday, June 26:              Ronald K.L. Collins
  6. Wednesday, June 27:       Richard Delgado
  7. Thursday, June 28:           Louis Michael Seidman:  Rejoinder
  8. Friday, June 29                  Onward — Reader Responses
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Felix Frankfurter and Muzak

I was astonished to read in this week’s New Yorker about a case decided by the Supreme Court in the 1950s. In Public Utilities Commission of the District of Columbia v. Pollak, the Court upheld a municipal transit system’s authority to play music through loudspeakers (basically, muzak) for riders. Justice Douglas was in dissent arguing that “the right to be let alone” barred compelling people to listen to state broadcasting.

What astonished was that Justice Frankfurter recused himself in the case.  Why? He said that he hated Muzak so much that he could not judge the case fairly. Here is his explanation in full:

The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.
This case for me presents such a situation. My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it. I am explicit as to the reason for my non-participation in this case because I have for some time been of the view that it is desirable to state why one takes himself out of a case.
No current Justice, I would venture to say, ever recuses because they have strong feelings about a case.
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Willie Stark on the Constitution

On a recent vacation, I read again Robert Penn Warren’s classic novel All The King’s Men. Willie Stark, the novel’s fictional Governor of an unspecified southern state, offers many choice comments about law, politics, and human nature.  Here is one that I liked:

“The law is always too short and too tight for growing humankind. The best you can do is do something and then make up some law to fit and by the time that law gets on the books you would have done something different. Do you think half the things I’ve done were clear, distinct, and simple in the constitution of this state?

“The Supreme Court has ruled–” Hugh Miller began.

“Yeah, and they ruled because I put ’em there to rule it, and they saw what had to be done. Half the things weren’t in the constitution but they are now, by God. And how did they get there? Simply because somebody did ’em.”

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FAN 193 (First Amendment News) Eight Free Expression Take Away Points from Masterpiece Cakeshop Case (# 8: Seven Justices Discuss Free Expression Claim)

Earlier today the Court, by a 7-2 margin, sustained the Petitioner’s Free Exercise claim in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Even so, there was much in the various opinions that either indirectly or directly addressed the Free Expression claims rasied in the case.  The sketch below, replete with eight take away points, discusses that very issue.

* * *  * * *

MAJORITY OPINION (7 votes) : #1 — Subtext: Free Expression Implications  

Two First Amendment Claims: “The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”

Two Interrelated First Amendment Claims: “[Petitioner Phillips] argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs.”

“Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.”

Viewpoint Discrimination: “[T]he Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” [emphasis added]

KAGAN CONCURRENCE (Joined by Breyer): #2 — No Expressive Conduct in this Case 

No Expressive Conduct: “The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). And contrary to JUSTICE GORSUCH’S view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with ‘religious significance.'”

“A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. . . .” [emphasis added]

GORSUCH CONCURRENCE (Joined by Alito): #3 — Making a Cake for a Gay Marriage = Same as Celebrating Gay Marriage = Compelled Expression 

Expression without Words: “To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction.”

“Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.”

“Like ‘an emblem or flag,’ a cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,” signifying approval of a specific ‘system, idea, [or] institution.'”

Compelled Expression“Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated.”

Cake Celebrating Gay Marriage: “Suggesting that this case is only about ‘wedding cakes’—and not a wedding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right.”

#4 — Significant Fact: Roberts Did Not Join Gorsuch Concurrence 

Though Chief Justice John Roberts’ First Amendment free speech voting record is very speech protectiive, in this case he elected not to join the Gorsuch concurrence. Why?

THOMAS CONCURRENCE (Joined by Gorsuch): #5 — Free Expression Claim Limits Reach of Obergefell

Expressive Conduct: “The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. . . . To [Mr. Phillips], a wedding cake inherently communicates that ‘a wedding has oc­curred, a marriage has begun, and the couple should be celebrated.’ Wedding cakes do, in fact, communicate this message. . . . Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., or flying a plain red flag, Stromberg v. California . . .” [emphasis added]

No Evidence of Communicating a Message Required: “The dissent faults Phillips for not ‘submitting . . . evidence’ that wedding cakes communicate a message. Post, at 2, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our prece­dents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing.”

Compelled Affirmation Prohibited: “Forcing Phillips to make custom wedding cakes for same-sex marriages re­ quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],”Hurley, 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573.”

Obergefell no Bar to Free Expression Claim: [T]he fact that this Court has now decided Obergefell v. Hodges, 576 U. S. ___ (2015), [does not] somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled toexpress a different view. Id., at ___ (ROBERTS, C. J., dis­senting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage ‘long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.’ (majority opinion). If Phillips’ continued adherence to that under­ standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected.”

Limiting Reach of Obergefell: “In Obergefell, I warned that the Court’s decision would ‘inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to partic­ ipate in and endorse civil marriages between same-sex couples.’ 576 U. S., at ___ (dissenting opinion). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting).” [emphasis added]

#6 — Roberts & Alito did not join Thomas Concurrence & Its Analysis of Obergefell 

It is notewortthy that only Justice Gorsuch was willing to sign onto the Thomas opinion. Though Justice Alito’s supportive langauage was quoted, he declined to sign onto this opinion.  Same with the Chief Justice who in the course of oral arguments in the case stated: “when the Court upheld same-sex marriage in Obergefell, it went out of its way to talk about the decent and honorable people who may have opposing views.” Even so, he remained silent on this issue.

GINSBURG DISSENT (Joined by Sotomayor): #7 — No Free Expression Right Implicated 

No Free Expression Right: ” As JUSTICE THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. [emphasis added]

“Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. . . . And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.”

Note that the Court’s other two liberals (Justices Kagan and Breyer) did not join Ginsburg’s dissent. Why?

#8 — Total Tallies: Seven Justices Openly Discussed First Amendment Expression Issue

  • Three Justices (Thomas, Gorsuch & Alito) supported the free expression claim
  • Two Justices (Thomas & Gorsuch) suggted that the free expression claim could not be limited by Obergefell.
  • Four Justices (Kagan & Breyer concurring / Ginsburg & Sotomayor in dissent) suggsted that there was no valid free expression claim made in this case.
  • All total, 7 Justices (everyone save Kennedy & Roberts) discussed the First Amendment free expression issue.
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FAN 192.1 (First Amendment News) Thomas & Gorsuch discuss First Amendment expression claim in Colorado baker case

While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. The Court does not address this claim because it has some uncertainties about the record. — Justice Clarence Thomas

Justice Clarence Thomas

Today the Supreme Court rendered its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The vote in the case was 7-2 with Justice Anthony Kennedy writing for the majority and Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The majority opinion was grounded in a First Amendment free exercise claim tailored to the specific facts of the case involving some evdience of the Colorado Civil Rights Commission’s “impermissible hostility toward the sincere religious beliefs motivating [the baker’s] objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.” Given the basis of its ruling, the majority did not reach the baker’s First Amendment freedom of expression claims.

Writing separately, and joined by Justice Neil Gorsuch, Justice Clarence Thomas concurred in part and concurred in the judgment. Justice Gorsuch also authored a concurring opinion joined by Justice Samuel Alito.  Unlike the majority, Thomas and Gorsuch addressed the First Amendment free expression claim in their separate opinions.

Question: What are we to make of the fact that neither Chief Justice John Roberts nor Justice Samuel Alito signed onto Justice Thomas’s more expansive opinion?

Here, first, are some excerpts from Justice Thomas’s opinion:

  • Expressive Conduct: “The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. . . . To [Mr. Phillips], a wedding cake inherently communicates that “a wedding has oc­curred, a marriage has begun, and the couple should be celebrated.” App. 162. Wedding cakes do, in fact, communicate this message. . . . Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., or flying a plain red flag, Stromberg v. California . . .”
  • No Evidence of Communicating a Message Required: “The dissent faults Phillips for not ‘submitting . . . evidence’ that wedding cakes communicate a message. Post, at 2, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our prece­dents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing.”

  • Compelled Affirmation Prohibited: “Forcing Phillips to make custom wedding cakes for same-sex marriages re­ quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],”Hurley, 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573.”
  • Strict Scrutiny Standard: “Because Phillips’ conduct (as described by the Colorado Court of Appeals) was expressive, Colorado’s public- accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court some­ times reviews regulations of expressive conduct under the more lenient test articulated in O’Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes, 501 U. S., at 566–572 (applying O’Brien to evalu­ate the application of a general nudity ban to nude danc­ ing); Clark, 468 U. S., at 293 (applying O’Brien to evaluate the application of a general camping ban to a demonstra­tion in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand “ ‘the most exacting scrutiny.’ ” Johnson, 491 U. S., at 412; accord, Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010).”
  • “The Court of Appeals did not address whether Colo­ rado’s law survives strict scrutiny, and I will not do so in the first instance.”
  • Obergefell no Bar to Free Expression Claim: [T]he fact that this Court has now decided Obergefell v. Hodges, 576 U. S. ___ (2015), [does not] somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled toexpress a different view. Id., at ___ (ROBERTS, C. J., dis­senting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.” Id., at ___ (majority opinion). If Phillips’ continued adherence to that under­ standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected.”

  • Limiting Reach of Obergefell: “In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to partic­ ipate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the free­dom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (ALITO, J., dissenting).”

Next, here are some excerpts from Justice Gorsuch’s opinion:

  • Justice Neil Gorsuch wrote a concurrence joined by Justice Samuel Alito

    Cakes Without Words Can Convey a Message “To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers’ intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.”

  • Making Cakes vs Conveying a Message:  “Suggesting that this case is only about ‘wedding cakes’—and not a wed- ding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; un- derstanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way.”

Note: The Gorsuch opinion, unlike the Thomas one (in which Gorsuch joined), did not mention Obergefell.  

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Constitutionality of Imposing a Ratification Time Limit

Here is an interesting question that came up yesterday in a discussion with a colleague. In my posts on the ERA, I have assumed that Congress has the power to impose or extend a ratification deadline through a joint resolution. There is, though, no enumerated power for Congress to do this. Thus, maybe the ERA ratification deadline is unconstitutional since it was not placed in the text of the amendment.

What’s the answer to this? Mostly practice. From 1960 until the late 1970s, Congress went with the thought that a ratification deadline could be imposed through a joint resolution. Some amendments were ratified with that understanding, and the ERA was debated that way. Still, a practice that only lasted for about 20 years is not tremendously powerful. Moreover, in the 1960s and 1970s the limits imposed by enumeration were not taken as seriously as they are now.

You could also say that the question is not justiciable. In other words, Congress is the final judge of its own powers in this respect. This is not entirely straightforward, but you can read Coleman v. Miller in this way.

Here is why this could matter. Suppose 38 states are deemed to have ratified the ERA. The Archivist of the United States, who is charged by the relevant statute with recognizing new constitutional amendments, then says the ERA is not ratified because the deadline expired long ago. Someone could then sue claiming that the deadline was unconstitutional and that the Archivist should be ordered to certify the ERA. Should a court just stay out of this? What’s the correct ruling here?

I thought I would finish this draft by July 1. Now maybe not.

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William Robert Emmons–Where are you?

When I was at Mount Vernon, I read a three-volume work in their collection called “Bushrod Washington and the American Constitution.” This was an unpublished dissertation written by William Robert Emmons in 1991.

I would like to obtain a copy of the dissertation for my research.  To do that, though, I need to find Mr. Emmons and get his permission under copyright law. (Yeah, I could argue that this is fair use and just make a copy, but I don’t want to do that.) If anybody knows Mr. Emmons (or, if he is dead, his heirs), please let me know so that I can reach out.

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FAN 192 (First Amendment News) The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech”

Dr. Anthony Leaker

Who is Anthony Leaker? Answer: He is a Senior Lecturer in Cultural and Critical Theory at the University of Brighton. Now this cultural critic has turned his attention to free speech. Perhaps taking his cue from Professor Steven Shiffrin (What’s Wrong with the First Amendment), Leaker’s forthcoming book, Against Free Speech (Rowman & Littlefield, November 16, 2018), may well be yet another example of the liberal flight from robust free-speech freedom.

Abstract: This book examines the renewed and vociferous defence of free speech witnessed in relation to a number of recent events, including the Charlie Hebdo massacre, the Brexit and Trump campaigns, and recent campus politics.Anthony Leaker argues that the defence of free speech has played a pivotal role in a resurgent right-wing nationalism, that it is the rallying point for a wider set of reactionary political demands, a form of aggrieved liberalism at best and patriarchal white supremacy at worst, aided by a complicit liberal centre.

By focusing on these events and situating them within the wider geopolitical context of a post-democratic, post-truth world of austerity, ongoing conflict in the Middle East, pasokification, and rising fascism, Leaker critiques the role that the defence of free speech has played in legitimising the scapegoating of oppressed minorities while deflecting attention from the egregious operations of power that have led to ever greater inequality, injustice and capitalist destruction.

This powerful book shows that free speech is in fact a myth, an ideological tool employed by those in power to sustain existing power relations.

Yesterday: Supreme Court Denies Cert. in Commercial Speech Case

The case is Contest Promotions, LLC., v. City & County of San Francisco. The issue in the case was whether the First Amendment permits a municipality to ban all signs, of any kind, advertising off-premises commercial activity, without making any showing that the ban furthers a substantial government interest in a direct, material and tailored way.

Just Launched — The FIRE Faculty Network

This from Julia Schwarz over at FIRE: “We’re excited to announce the launch of the FIRE Faculty Network, a diverse coalition of faculty interested in defending and sustaining academic freedom, free speech, and civil liberties on campus. By joining FIRE’s faculty network, you’ll receive information curated specifically for faculty, including the latest information on FIRE events, legal developments, strategies for activism, and noteworthy research and reporting related to free speech and academic freedom.”

“If you’re a faculty member, graduate student, or higher education professional interested in getting involved or staying informed on issues related to academic freedom and free speech on campus, sign up today!”

Upcoming: 2018 Faculty Conference 

“We’re also currently accepting applications to attend our 2018 FIRE Faculty Conference, taking place October 11-13 in Chicago, at Loyola University Chicago’s downtown Water Tower campus, with accommodations at the nearby Omni Hotel. We’re accepting applications on a rolling basis through July 31. Apply now to secure a spot — space is limited!”

“The conference will bring together faculty from a variety of disciplines and institutions to present research and discuss issues related to academic freedom and freedom of expression on campus. Beyond these discussions, faculty will meet peers from around the country who share an interest in defending academic freedom and promoting rigorous intellectual discourse. There is no fee to attend the conference, and those accepted will be eligible for a $750 travel stipend to assist with the costs of lodging and transportation.”

“If you have questions about the faculty network or the conference, please be in touch.”

Headline:” PETA — Texas A&M is violating First Amendment rights by blocking critics online” Read More