Category: General Law


FAN 160 (First Amendment News) Latest First Amendment Salon: A Dialogue Between Geof Stone & Vince Blasi re “Sex & the Constitution”

Note: Summer schedule until September 6th when I will return to a regular Wednesday weekly schedule. 

Professors Geof Stone & Vince Blasi

This book was in some ways an accident. One day in occurred to me [that] the Supreme Court has made, what I regard, all this progress in these various areas relating to sexual freedom, over the last 60 years. (It’s was actually 50 years ago when I had that thought. . . .) I said, ‘what would the framers have thought of this?’ Not that I’m an originalist, because I’m not. I was just sort of curious. Because I really didn’t have any idea of wat they would have thought of the world we’re living in today.Geoffrey Stone 

Last month, the First Amendment Salon hosted its 14th salon, which consisted of a conversation betwwen Professors Vince Blasi and Geoffrey Stone. The dialogue, which was introduced by Lee Levine, focused on Stone’s latest book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, 2017).

A video of this rich and engaging dialogue can be found here, thanks to Nico Perino and the folks at FIRE.

The next salon will occur in New York on November 14th at 6:00 pm. It will consist of a Second Circuit reargument of the the Masses case (2nd Cir., 1917). Details forthcoming in early fall. This Salon will follow the all day conference at New York Universtiy celebrating the 100th anniversary of Judge Learned Hand’s district court opinion in that case.

“Ninth Circuit poised to resolve major free speech issue in secret proceeding”

Paul Alan Levy writing in the Consumer Law & Policy Blog notes that “[t]he United States Court of Appeals for the Ninth Circuit has issued an order signed only by the Clerk declaring that a significant free speech issue bearing on the rights of anonymous Internet users will be decided in a totally secret proceeding, involving sealed briefs, a sealed record, and without any help from would-be amici (including Public Citizen) seeking to explain the dangers posed by the proceeding.”

Paul Alan Levy of Public Citizen

“The case arises from a subpoena served by the United States on the employer-rating site Glassdoor, originally demanding identifying information about the owners of more than one hundred pseudonymous accounts that had, it appears, been used to post reviews of a particular employer whose contracting practices were subject to a federal criminal investigation. Over the past few years, Glassdoor has been one of the most aggressive companies demanding strong justification for civil subpoenas seeking to identify its users (considering how expensive legal services are, this company commitment earns it much credit in my book). Extending this approach to the criminal law context, Glassdoor refused to produce the information demanded by the grand jury subpoena, citing the First Amendment right of its users to speak anonymously.”

“In an effort to compromise, the government limited its production demand to eight specified reviewers. Glassdoor responded to that offer by proposing that it notify the users of the subpoena and provide identifying information for such of its users who were willing to be identified to the prosecutors. After the government rejected this offer, Glassdoor moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously which, Glassdoor contended, created a privilege against production of the information. At the same time, it notified its users of the subpoena, thus meeting one of the conditions of the Dendrite line of cases that it cited in its motion. Those cases rely on the First Amendment right to speak anonymously as a basis for posing procedural and substantive obstacles to civil subpoenas seeking to identify online speakers so that they can be served with process and sued for wrongful speech. Eventually, Glassdoor also invoked Bursey v. United States, a decision in which the Ninth Circuit quashed in part a grand jury subpoena directed at the process of publishing the newspaper of the Black Panther Party.”

“The entire subpoena litigation was conducted under seal, but we know some of the details because, having taken a contempt citation to secure its ability to appeal, Glassdoor next obtained the government’s stipulation for the partial unsealing of the briefs exchanges by the two sides on Glassdoor’s motion to quash. Glassdoor had appealed, and raised the possibility that parties beside itself might wish to provide the Court of Appeals with the benefit of their views of the applicable law. The trial judge granted that request; as a result the briefs supporting and opposing the Glassdoor motion to quash, as well as reply briefs both from Glassdoor and from the government, are available in the public record, as is the judge’s ruling on the motion. . . .”

[ht: Volokh Conspiracy]

Professor Ruthann Robson

Robson on New First Amendment Rulings

  • Ruthann Robson, Third Circuit: First Amendment Right to Record PoliceConstitutional Law Prof Blog, July 7, 2017 (In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.’  As the panel majority opinion by Judge Thomas Ambro noted, ‘Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public’; the Third Circuit joined ‘this growing consensus.'”)

           → Video of oral arguments in Third Circuit 

See also: Rebecca Tushnet, Court gags on Utah’s ag-gag law (July 13, 2017)

→ Related:  Press Release: Animal Legal Defense Fund Puts Wisconsin Hunting Statute in the Cross Hairs (“Today the Animal Legal Defense Fund filed a lawsuit in federal court aiming to strike down a recently amended Wisconsin statute which bans photographing, videotaping, approaching or even “maintaining a visual or physical proximity” to a hunter. The organization argues the law unconstitutionally restricts free speech and violates the First Amendment.”)

[ht: David Keating]

National Review headline: “Republicans, Don’t Sacrifice Free Speech to Punish the Media”

Here is how Elliot Kaufman begins the above titled editorial: “You can’t call yourself a supporter of the First Amendment if you would deny the rights it guarantees to those with whom you disagree.”

Elliot Kaufman

“By a margin of over two to one, Republicans support using the courts to shut down news media outlets for “biased or inaccurate” stories, according to a recent poll from The Economist and YouGov. When asked if cracking down on the press in this manner would violate the First Amendment, a narrow majority of Republicans agreed that it does, seeming to create a contradiction. However, a further question gave them a chance to clear the air and reaffirm the primacy of principle over political expediency: “Which is more important to you?” it asked, ‘(A) Protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories; (B) Punishing biased or inaccurate news media, even if that means limiting the freedom of the press; (C) Not sure.'”

“Shockingly, a full 47 percent of Republicans support “punishing biased or inaccurate news media, even if that means limiting the freedom of the press,” versus just 34 percent who support “protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories.” By contrast, 59 percent of Democrats said they prioritize protecting the freedom of the press, dwarfing the 19 percent who see it the other way. On this issue, the Democrats are right. Freedom of the press is included in the Bill of Rights for two reasons: It matters, and there is perpetually an illiberal temptation to extinguish it. Republican politicians will always call CNN and the New York Times ‘biased’ and ‘inaccurate.’ . . . .”

Looking Back: 1972 | Pressmen Balk at an Impeachment Ad in The Times

Writing in the New York Times recently, David Dunlap began his story with this: “‘A Resolution to Impeach Richard M. Nixon as President of the United States,’ said the headline across a two-page political advertisement in The New York Times. It had nothing to do with Watergate. In fact, the break-in at the Democratic National Committee office in the Watergate complex — the “third-rate burglary” that ultimately doomed President Nixon — hadn’t even occurred on May 31, 1972, when the ad ran. . . .”

“Down in The Times’s basement pressroom at 229 West 43rd Street, the men who printed the newspaper were having none of it. . . . The pressmen demanded that The Times remove the ad. The management refused. Then they demanded space in the paper to express their opposition. The management refused again. By this time, the start of the press run had been delayed almost 15 minutes — a critical interval given delivery timetables that required Times trucks get to newsstands, depots, railroad stations and airports on a pinpoint schedule.”

Arthur Ochs Sulzberger, the publisher, was infuriated. . . .”

Ira Glasser responds in letter-to-editor:

“I was the head of the New York Civil Liberties Union when we represented the plaintiffs in the 1972 impeachment ad case you describe. It was the first time the government tried to use a campaign finance law to suppress criticism of an elected official.”
“The Times vigorously supported the free speech right of the citizens we represented, and we won.”

“Later, the ACLU (a corporation) itself was effectively barred by campaig

Ira Glasser

n finance law from running an ad in the Times criticizing President Nixon for his views on school integration. We sued, and again the Times vigorously supported our free speech right against restrictions in campaign finance law, and our ad was published.”

“In 2010, an organization called Citizens United, also a corporation like the ACLU, tried to broadcast a film it had made critical of Hillary Clinton, as we had years before been critical of Richard Nixon. Again, the government tried to use the campaign finance law to block the film from being shown. The Supreme Court struck that attempt down.”
“But this time the Times radically changed its position, and denounced the Court’s decision, opposing publication of the Citizens United film criticizing Clinton, a radical departure from its support of the ACLU’s ad criticizing Nixon.”
“Why the change? What happened at the Times that led it to abandon the First Amendment, upon which its own freedom of the press depends?”
Ira Glasser

The writer was executive director of the NYCLU 1970-78 and of the ACLU 1978-2001.

3 Notable Forthcoming Scholarly Articles 

Al-Amyn Sumar, Are All Prior Restraints Equal? The Constitutionality of Gag Orders Issued under the Stored Communications Act, Yale Journal of Law & Technology (Forthcoming 2017)

Al-Amyn Sumar of Levine, Sullivan, Koch & Schulz

Abstract: The First Amendment abhors no restriction on speech more than a prior restraint. A prior restraint on expression — a restriction that “forbid[s] certain communications when issued in advance of the time that such communications are to occur” — is “the most serious and the least tolerable infringement on FirstAmendment rights,” and bears a “heavy presumption” of unconstitutionality. Put simply, the prohibition on prior restraints under black letter First Amendment law is “near-absolute.”

The focus of this Essay is the source of an unexpected but important challenge to classic prior restraint doctrine: government surveillance in the digital era. Ongoing litigation about the constitutionality of the Stored Communications Act (SCA) highlights that challenge. The SCA authorizes the government both to obtain a person’s stored Internet communications from a service provider, and to seek a gag order preventing the provider from even notifying a person of that fact. In April 2016, Microsoft brought a lawsuit against the Department of Justice in federal court, alleging that gag orders issued under the SCA constitute unconstitutional prior restraints and content-based restrictions on speech. In a February 2017 decision, the court denied the government’s motion to dismiss Microsoft’s First Amendment claims and allowed the suit to proceed.

The court was right to do so, and it should ultimately invalidate the SCA’s gag-order provisions. SCA gag orders are prior restraints on speech, and the statute cannot withstand the heavy scrutiny that applies to them. However, recent decisions addressing the constitutionality of similar gag orders involving National Security Letters suggest that courts are sympathetic to the view that such orders are not “typical” prior restraints, and therefore attract a lesser standard of scrutiny. That premise appears dubious. But even granting it, the SCA poses serious constitutional problems, and it should be either invalidated and then amended or interpreted to avoid those issues. If courts are to carve out an exception allowing for prior restraints in the era of digital surveillance, that exception should be exceedingly narrow.

Martin H. Redish & Matthew Fisher, Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity, Fordham Law Review (Forthcoming 2017)

Professor Martin Redish

Abstract: Recent concern about modern terrorists’ attempts to induce ideologically-driven violence has given rise to a First Amendment dilemma. Some conclude that to preserve our free speech tradition, unlawful advocacy must be protected absent the imminent danger of harm. Others argue that traditional First Amendmentprotection must be suspended in the specific context of terrorist speech to prevent potentially violent catastrophes. We seek to resolve this dilemma by recognizing a new hybrid category called “terrorizing advocacy.”

This is a type of traditionally protected public unlawful advocacy that simultaneously exhibits the unprotected pathologies of true threats. When a speaker urges a willing listener to commit violence against an intended victim who is an intended recipient of the speaker’s advocacy, the speech constitutes a blend of protected persuasive and unprotected coercive speech. We propose a new multi-factor test designed to balance these competing elements in a manner that protects unlawful advocacy when appropriate but suppresses inherently coercive threats where they dominate the expression. In this manner we have recognized an inherent duality of two types of criminal speech when to date courts and scholars have implicitly assumed the mutual exclusivity of unlawful advocacy and true threats doctrine.

Robert Yablon, Campaign Finance Reform Without Law, Iowa Law Review (forthcoming 2017)

Professor Robert Yablon

Abstract: Conventionally understood, campaign finance reform is a matter of public regulation. Reformers believe that, without adequate government intervention, wealthy individuals and entities are destined to exert outsized influence over elections and governance. Propelled by that belief, they have spent decades advocating regulatory fixes, with relatively little to show for it. Many existing regulations are watered down and easy to circumvent. Efforts to bolster them have repeatedly hit doctrinal and political roadblocks — obstacles that are more formidable today than ever before.

This Article seeks to shift campaign finance discourse toward private ordering. Because scholars and reformers have long focused on public regulation, they have largely overlooked possible private correctives. The Article maps that uncharted terrain, revealing an array of extra-legal mechanisms that at least somewhat constrain money’s electoral clout. This survey suggests that numerous private actors have incentives and capacities to implement additional extra-legal reform. The Article then sketches several potential private interventions, and it assesses the interplay between public regulation and private reform. Private reform is no silver bullet, but to ignore private ordering even as public regulation flounders makes little sense. Especially given the significant constraints on public intervention, it is vital for campaign finance scholars and reformers to look beyond the law.

New & Forthcoming Books

Abstract: From the University of California, Berkeley, to Middlebury College, institutions of higher learning increasingly find themselves on the front lines of cultural and political battles over free speech. Repeatedly, students, faculty, administrators, and politically polarizing invited guests square off against one another, assuming contrary positions on the limits of thought and expression, respect for differences, the boundaries of toleration, and protection from harm.

In Free Speech on Campus, political philosopher Sigal Ben-Porath examines the current state of the arguments, using real-world examples to explore the contexts in which conflicts erupt, as well as to assess the place of identity politics and concern with safety and dignity within them. She offers a useful framework for thinking about free-speech controversies both inside and outside the college classroom, shifting the focus away from disputes about legality and harm and toward democracy and inclusion. Ben-Porath provides readers with strategies to de-escalate tensions and negotiate highly charged debates surrounding trigger warnings, safe spaces, and speech that verges on hate. Everyone with a stake in campus controversies—professors, students, administrators, and informed members of the wider public—will find something valuable in Ben-Porath’s illuminating discussion of these crucially important issues.

Abstract: Grove Press and its house journal, The Evergreen Review, revolutionized the publishing industry and radicalized the reading habits of the “paperback generation.” In telling this story, Rebel Publisher offers a new window onto the long 1960s, from 1951, when Barney Rosset purchased the fledgling press for $3,000, to 1970, when the multimedia corporation into which he had built the company was crippled by a strike and feminist takeover. Grove Press was not only one of the entities responsible for ending censorship of the printed word in the United States but also for bringing avant-garde literature, especially drama, into the cultural mainstream. Much of this happened thanks to Rosset, whose charismatic leadership was crucial to Grove’s success. With chapters covering world literature and the Latin American boom; experimental drama such as the Theater of the Absurd, the Living Theater, and the political epics of Bertolt Brecht; pornography and obscenity, including the landmark publication of the complete work of the Marquis de Sade; revolutionary writing, featuring Rosset’s daring pursuit of the Bolivian journals of Che Guevara; and underground film, including the innovative development of the pocket filmscript, Loren Glass covers the full spectrum of Grove’s remarkable achievement as a communications center for the counterculture.

Abstract:  The overarching objective of Understanding the First Amendment is to facilitate student learning efficiency and academic success. Toward this end, it focuses upon core subject matter that is likely to be tested in a law school examination or on the bar examination. The book also provides tools that enable students to organize the course and their understanding in a way that enhances retention. The beginning of each chapter highlights key points of coverage. The end of each chapter indicates essential points to remember. The book strikes a balance between comprehensiveness and selectivity, thus providing students with assurance that they know enough, know it well, but are not overwhelmed by details that are unduly esoteric or irrelevant to their performance needs.

Abstract: This title was first published in 2000:  While there are many philosophical studies of free speech, treating censorship historically, politically, or by the medium restricted (films, press etc.), little has been written on censorship and free speech dealing with issues philosophically and approaching them from the perspective of restrictions. This book treats censorship and free speech as a problem of ideas, examining the issues as an aspect of our wider social and political lives and critically examining mainstream arguments against censorship. This unique approach takes issue with the concept of censorship as something aberrant, to examine where the limits of free speech lie in ensuring individual development and collective harmony. Examining the possibility of accepting censorship positively to serve legitimate purposes, it will be a thought-provoking challenge to prescriptive arguments for free speech.

Litigation Journal: “Chutzpah” Issue 

The forthcoming summer issue of Litigation Journal (vol. 43 #4) is devoted to the topic of “Chutzpah” and the law.  Included in the issue are the following two articles:

  • Robert Corn-Revere “’I Will Defend to the Death Your Right to Say It.’ But How? (A look at First Amendment cases and how to plead them successfully.)
  • Joel Gora, Money, Speech, and Chutzpah (The ins and outs of the decades-long battle over campaign finance limitations and free speech.)

An Interpretive Fable

I came across this story in an Indian children’s book.  Hope you enjoy its take on interpretation.

Five men set off in a ox cart to sell produce from their garden and to buy provisions at the local market. They were Guruji the teacher, in a bright saffron turban, and his four very enthusiastic, very obedient disciples. Guruji urged his men, ‘Your guru is like a cow, ever ready to give milk for your benefit. So always, always, follow your guru’s orders.’ ‘Ji ha,’ said the four men together, their heads wobbling in agreement.

Guruji went on. ‘Make sure you take the essentials to eat and drink. We will not stop at all as I want to reach the market by noon.’ ‘Ji ha,’ said the four men. They loaded the cart with a big black pot of rice, jars of water, and a basket filled with fruit and vegetables for selling at the market. They sat in the soft, hay-lined wagon at the back. The cart was drawn by two oxen with tinkling brass bells on their thick necks. It was a beautiful day and the morning breeze tickled their noses.

Soon Guruji dozed off, and his head rolled from side to side. On the way the cart swerved to avoid a troop of monkeys. It gave a big jolt and Guruji’s turban slipped off his head and fell on to the road. ‘Stop!’ cried two of the men. ‘We must pick up Guruji’s turban.’ ‘No!’ cried the other two men. ‘Don’t you remember? Guruji doesn’t want to stop at all. He wants to reach the market by noon.’ The men did not know what to do. They looked at Guruji for guidance, but their teacher’s chest rose and fell with rattling snores. They continued the journey and the bullock cart wound its way along the road that skirted the edge of the river.

Guruji woke up, feeling very hot. He stroked his bald, damp head. ‘Where is my turban?’ he shouted. Guruji seemed very angry. The four men looked at each other. Then one of them said, ‘Guruji, it fell when the cart jolted!’ ‘Then why didn’t you pick it up?’ The four men shrugged uneasily. ‘Guruji, you told us not to stop at all,’ they said together. ‘Silly, silly men!’ Guruji slapped at his forehead in frustration. ‘How will I go to the market without my turban? Turn back at once. I need my turban!’ ‘Ji ha,’ said the four men together, and they all wobbled their heads in agreement. The cart turned back. Soon the men spotted the bright saffron turban on the road. They stopped the cart, picked up the turban and gave it to their teacher.

Guruji placed it on his head and wagged his finger at the four men. ‘Next time, pick up ANYTHING that falls on the road! Do you understand me? Do you?’ ‘Ji ha,’ said the four men, wobbling their heads. ‘Now hurry up or we will never reach the market in time.’ ‘Ji ha,’ said the four men, wobbling their heads once again. The five men in the ox cart set off for the market once more. Further along the road, Guruji dozed off again. Soon the droppings of the oxen fell heavily onto the road. Plop! Plop! Plop!

The four men looked at each other, horrified. They were supposed to pick up anything that fell on the road. ‘Stop’ cried two men. ‘We must pick up the dung, even if it is filthy. We must obey Guruji.’ ‘No!’ said the other two. ‘We will be late for the market!’ The tour men argued for a while. They looked at their sleeping teacher and recalled his orders — to pick up ANYTHING that fell on the road. Finally, they stopped the cart and the four men leapt out. They scooped the dung off the road and dropped it into the back of the cart, even though it made their hands filthy, even though they felt squeamish doing it.

Guruji woke and saw the pile of brown dung in the wagon next to him and asked, ‘What is this?’ ‘Dung,’ explained the four men. ‘It fell on the road so we picked it up.’ Guruji turned as red as cherry. ‘Silly, silly men! Stop! Get this dung off at once and clean the cart and your hands.’ ‘Ji ha,’ said the four men. The cart stopped. The men scooped the dung out the wagon then went to the river to wash their hands. When they returned, Guruji had calmed down. ‘I have made a list of all the essentials to be picked up if they fall off the cart.’ He handed the list to them. ‘Now, for your guru’s sake, please follow this list. DO NOT pick up anything that is not on the list. Is that clear?’ ‘Ji ha,’ said the four men, wobbling their heads in agreement. They read out the list:

Guruji’s turban;

The basket of fruit and vegetables;

The pot of boiled rice;

Jars of water.

The five men in the ox cart set off for the market once more. On their way, the cart ran into a tree and rolled over. Guruji fell into a deep, muddy ditch, while two of the men were flung on one side of the ditch and the other two were flung on the other side, along with the basket, the fruit, vegetables, pot of rice, and the jars of water. The men went through their teacher’s checklist to see what had fallen out of the cart: ‘Guruji’s turban did not fall. The basket of fruit and vegetables fell.’ They picked up the basket, but left the fruit and vegetables scattered on the road. ‘The pot of boiled rice fell.’ They picked up the pot, but left the rice. ‘The jars of water fell.’ They picked them up.

‘Help!’ cried Guruji. ‘Get me out of here.’ The four men shook their heads in unison. ‘Guruji, you are not on the checklist you gave us.’ ‘Help! Help!’ cried Guruji, struggling to get out of the ditch, but falling face down into the sticky mire. His white gown and face were soiled brown. The four men looked at each other in confusion. ‘He is testing us,’ said one of them. ‘This is a hard test, but we must follow his list.’ ‘Help! Help! Help!’ cried Guruji again. The four men looked helplessly at their teacher.

An old woman collecting twigs for firewood heard Guruji’s cries and ran to help. She held out a long twig to him. ‘Hold on to this,’ she said and pulled and pulled. Guruji clung on to the other end of the twig, but slipped and sank back into the sticky mire. The old woman suddenly caught sight of the four men standing still like temple pillars. ‘Stop gawking!’ she cried. ‘Come and help me.’ The four men shook their heads sadly. ‘We must follow Guruji’s checklist and he is not on it.’

‘Give me that list.’ The old woman grabbed it from the men and threw it to Guruji, who hastily scrawled his name on it. Then, and only then, did the four men pull their teacher out of the ditch and help him back on to the ox cart! ‘Turn back. We are not going to the market,’ said the upset Guruji. ‘Ji ha,’ said the four very obedient but very bewildered men.


A Presidential Indictment

Perhaps I’m missing something in the discussion of this issue, but to my mind the question of whether a president can be indicted is simple–the President can only be indicted by a federal prosecutor if he consents to the indictment.

I would hope that we can all agree that a state cannot indict the President. This would raise impossible structural problems similar to those identified by M’Culloch v. Maryland (in other words, one state would be able to control the Executive Branch and oust the President by throwing him in jail).

What about the feds? I’m hard-pressed to see why the President cannot consent to being indicted. He could allow the indictment from a US Attorney (through a grand jury) to proceed and could refuse to raise his unique office as a defense to the charge.

Why would a President want to do this? Perhaps to clear his name in a trial. Perhaps because he might think allowing a trial to go forward would forestall an impeachment. Are these likely scenarios? No. I would say a President would be crazy to let himself be indicted.


The Seventh Amendment and Louisiana

As I’m still going through the proofs of my book and trying to complete my reapportionment paper, let’s still with offbeat posts for the time being.

The Seventh Amendment is among the few that the Supreme Court has not extended to the states. Suppose, though, that at some point the Seventh Amendment is incorporated.  This provision refers twice to the common law (the only part of the Constitution does):

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Does this mean that the Seventh Amendment could not be extended to Louisiana? Louisiana, after all, has a civil law system.  (No state in 1791 used civil rather the common law.) Would Louisiana have to switch to common law?  Or would we undertake a more practical interpretation of common law to mean “certain types of actions” or “certain standards of appellate review of facts?”


The Vermont Ratification Convention

Here’s something that I didn’t know until yesterday: Vermont held a convention to ratify the Constitution. Vermont was an independent country (in other words, it was not part of the Union under the Articles of Confederation). In 1791, delegates were elected for a convention and they voted by a large margin to ratify. (Shortly afterward, Vermont was admitted as a state in time to also ratify what became the Bill of Rights.)  I’m going to read the records, though at first glance it seems like the focus was mostly on whether Vermont should stay independent rather than on what the Constitution said.


Who Would Be the Senate Majority Leader?

I’m working on the galley proofs of my Bill of Rights book–the last stage before publication. This puts me in the mood to daydream about far-fetched legal scenarios.

Suppose the Senate is divided equally between the parties. Under that scenario, the party of the Vice-President is the majority because the VP breaks ties. But what if the VP dies and the office is vacant? Does the Majority Leader remain the Majority Leader? Or is there no Majority Leader until a new VP is confirmed?

One way of thinking about that is that the Majority Leader must be affirmatively deposed by some Senate resolution or ruling of the Chair. In other words, the status quo is preserved. But what if there was a Senator from the “majority” who was ill (as Senator McCain is now). Then the other party could muster a 50-49 vote ousting the “Majority Leader” and the former majority could not muster a similar vote until the VP was confirmed (which the same Senate could delay).

Of course, the Senate does not have to have a majority leader to function. Perhaps the best rule in such an interregnum is that the office of Senate Majority Leader is also vacant.

An even more complex question would be presented if the VP was merely incapacitated (say, in a coma) rather than dead. Can a majority rest on a comatose VP?


FAN 159 (First Amendment News) Flying Dog quits Brewers Association over censorship flap

It’s a free speech issue, but not a First Amendment one. Still, a censorship battle has been been brewing for a while and now it’s come to a head:  Flying Dog Brewery has just terminated its Brewers Association membership. And why? According to Craft Business Daily and confirmed by Jim Caruso, Flying Dog’s CEO:

Bob Pease

“When Brewers Association president Bob Pease announced plans to crack down on offensive beer labels earlier this year [see Craft Business Daily, 4-12-2017], we had a hunch (as did most people) that this new initiative would not sit well with the people at Flying Dog Brewery . . . . Flying Dog ended its relationship with the BA at the start of last month. The departure, as predicted, is in response to the BA’s recent tweak to the language in its Marketing and Advertising code [see here].

Jim Caruso (credit: Atlast Society)

In a prepared statement for Craft Business Daily,  Mr. Caruso stated: “The BA’s new Marketing and Advertising Code is nothing more than a blatant attempt to bully and intimidate craft brewers into self-censorship and to only create labels that are acceptable to the management and directors of the BA. By contrast, Flying Dog believes that consumers are intelligent enough to decide for themselves what choices are right for them: What books to read, movies to watch, music to listen to, or beers to consume (and whether or not they like the labeling).”

According to Craft Business Daily (and confirmed by Mr. Caruso):

“When Flying Dog first started barking at the BA over the announcement, Bob Pease allegedly tried to keep the relationship in tact by assuring the brewery that the BA has ‘no issue with any Flying Dog brand.’ But Bob’s claim ‘entirely missed the point,’ Jim said, and appears to have set the brewery off even more. After announcing its intention to part ways with the BA on June 1st, Flying Dog CEO Jim Caruso penned a six-page letter to Bob that made Flying Dog’s position clear: ‘On principle, Flying Dog will never contribute to, support, or in any way sanction any organization that is so averse to freedom of expression that it actively engages in any form of censorship. “Everybody finds something offensive,’ Jim continued. ‘That’s just part of life. People have the right to choose what they like and to reject what they find offensive. To us, the BA’s anti-free expression stance is offensive, and we are exercising our freedom to choose by rejecting the BA,’ Jim wrote.”

Flying Dog’s statement ended with this: “Flying Dog is contributing to the 1st Amendment Society an amount equal to double the tens of thousands of dollars it has spent on its BA membership and BA-related events annually.”

Invitation to respond 

Mr. Bob Pease, CEO of the Brewers Association, has been invited to respond to Flying Dog’s comments.



Lampkin v. Connor

I am working away on my draft paper arguing that the congressional reapportionment process is unconstitutional under Section Two of the Fourteenth Amendment. In the course of my research, I’ve uncovered a fascinating unknown (or at least unheralded) story about the Civil Rights Movement.

In February 1963, Daisy Lampkin wrote a letter to the Secretary of Commerce. Lampkin was an activist for woman’s suffrage who became the national field secretary of the NAACP in 1935. After leaving that role in 1947, she became the first woman to serve on the organization’s Board of Directors. Lampkin’s letter asked the Commerce Secretary, who was responsible for the reapportionment calculations under the relevant statute, to enforce Section Two of the Fourteenth Amendment and lower the number of representatives from the South while increasing them elsewhere. The Commerce Secretary replied in a letter that he lacked the statutory authority to do what Lampkin wanted.

Shortly thereafter, the NAACP Legal Defense Fund (with Lampkin as the lead plaintiff) filed suit in the District of Columbia against the Commerce Secretary and the Director of the Census. The suit sought a declaratory judgment against these officials stating that the Reapportionment Act imposed a duty on them to enforce Section Two as part of the 1970 census. If the statute could not read as imposing such a duty, then the Act should be declared unconstitutional. Jack Greenberg (who succeeded Thurgood Marshall as the Head of the LDF and was part of the Brown litigation) was on the brief and (at least according to a newspaper article that I found) was assisted by Constance Baker Motley.

In early 1965, the Federal District Court dismissed the suit for want of standing.  Part of that conclusion rested on the fact that the plaintiffs were individual voters who might have lacked the concrete interest necessary to bring the claim. The court’s opinion, though, was also full of quotes from Justice Frankfurter about the need for courts to say out of political disputes.Shortly after this decision, the Voting Rights Act was signed by President Johnson.

A year later, the D.C. Circuit affirmed the dismissal, though on prudential standing grounds. Basically, the panel said that the wise approach was to see how the Voting Rights Act was implemented prior to the 1970 census before taking on the statutory and constitutional issues raised by the plaintiffs.

The suit was never refiled. One can understand why–the Voting Rights Act worked well. The problem, as my paper will explain, is the legal issue identified by the NAACP (that the reapportionment statute is unconstitutional under Section Two of the Fourteenth Amendment) was not fixed by the VRA and thus still stands. In a case with proper plaintiffs (states rather than individuals) this can be addressed.

Anyway, one of those curious “What If?” scenarios.


Clinton v. Jones and President Trump

I’ve posted before about the litigation pending against President Trump from his run as the host of The Apprentice. The President’s attorneys have moved to have the case thrown out, and in part they are arguing that Clinton v. Jones should be read as applying only to civil lawsuits filed in federal court. The pending lawsuit is in state court, which (under the President’s theory) allows him to obtain immunity.

I don’t think that this argument is persuasive. Clinton v. Jones was a misguided decision, but it’s hard to see why a President should get civil immunity for private acts only in one kind of forum. To a certain extent all that does is deny a remedy to plaintiffs who live in the same state as the President (therefore making diversity of citizenship impossible) while allowing plaintiffs from other states with the same claim to have an action.  How does that make sense?

Who knows, though, what the Supreme Court would do if ever called upon to reconsider Jones.


Library Fines and Regulation

This is a growing movement for public libraries to slash overdue book fines. (My local library just reduced its fines by half.) The rationale for this change is that fines impose a disproportionate burden on poor patrons and tend to discourage them from borrowing. A more effective (and distributively neutral) approach is to impose short suspensions of borrowing privileges on people who keep on returning books late.

I wonder if there is an insight here for other areas where fines or damages are used to regulate behavior.  Bail is a good example, as there is increasing interest in bail reform motivated by the fact that bail operates in a manner that discriminates against the poor (i.e. bail is being set too high for many criminal defendants).