Category: History of Law

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FAN 199.1 (First Amendment News) Two New Podcasts — Dissent in the Era of the Gutenberg Press & Free Speech in the Robotic Era

Two new podcasts — the subjects which are separated in time but not in concept — address the relationship between the modes of communication and censorship.  The first is a Clear & Present Danger podcast by Jacob Mchangama entitled The Great Disruption – Part II. The second is a So to Speak podcast narrated by Nico Perrino entitled Robotica: Speech Rights & Artificial Intelligence and consists of an interview with Ronald Collins and David Skover.

In episode 11 we continue to survey the wreckage after hurricane Luther was unleashed on Europe with the Reformation. When the Reformation mutated and spread across the continent a burning question arose: Can people of different faiths live together in the same state? Should social peace be based on tolerance or intolerance? We look into questions such as

  • How did other Protestant reformers like Calvin and Zwingli react to religious dissent?
  • In what manner did English and continental censorship laws differ?
  • How did the Catholic Church react to the Reformation?
  • Which states were the first to formalize religious tolerance?
  • How did the scientific and philosophical ideas of Galileo and Giordano Bruno conflict with the religious monopoly on truth and what were the repercussions?

___________________So to Speak podcast_______________________

David Skover (left), Ronald Collins (center) & Nico Perrino (right)

On this episode of So to Speak: The Free Speech Podcast, we are joined by First Amendment scholars Ronald Collins and David Skover. They are the authors of the new book, Robotica: Speech Rights & Artificial Intelligence.

From the printing press to the internet, advances in communications technology often upset the established order and spawn demands for censorship. There is little reason to suspect advances in artificial intelligence will be treated differently. As free speech advocates, how should we respond to these demands?

To answer that question, Collins and Skover argue that we need to take a step back and ask some more fundamental questions about the values we seek to advance in protecting speech in the first place.

___________________Make No Law podcast_______________________

Everyone loves a good redemption story. Maybe that’s because it helps us believe it’s never too late to change. But how does the same Justice who decided Schenck v. United States, a low point for First Amendment jurisprudence, become the ultimate source of famous First Amendment concepts and rhetoric?

In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores Justice Oliver Wendell Holmes’s transformation into the First Amendment hero we know him as today. To do this, Ken discusses the Sedition Act of 1918, Holmes’s dissent in United States v. Abrams, and the discourse with his friends and colleagues that ultimately swayed his opinion on free speech. He also talks to Professor Thomas Healy, First Amendment and constitutional law professor at Seton Hall and author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind And Changed The History Of Free Speech In America.

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FAN 199 (First Amendment News) SPECIAL ISSUE: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

Olive H. Rabe (credit: Boulder Daily Camera)

It was a Friday, April 12, 1929, when Olive Rabe, counsel for the appellant, entered the old Senate chamber with its grayish walls. She walked down the red carpet toward the bench, took her assigned seat at a mahogany table, and waited for the justices to enter the small chamber from the robing room across the Capitol corridor.

Only a few other women had done what she was about to do, argue a case before the Supreme Court — the first woman lawyer being Belva Ann Lockwood. (A couple of pro se women preceded her.)

There in that solemn chamber, with Chief Justice William Howard Taft in the center flanked by Oliver Wendell Holmes Jr. and Louis Brandeis and their brethren, Rabe (age 40) would make the case for another woman, Rosika Schwimmer (age 51). She would be the first woman to argue a “free speech” case in the high court. For any number of reasons, it was a rare moment in Supreme Court history. — Ronald Collins & David Hudson (May 26, 2008)

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Eleanor Holmes Norton

When it comes to the First Amendment, relatively little is known about the roles women played in the development of that body of law. While many may know of Justice Holmes’s oft-quoted free-speech dissent in U.S. v. Schwimmer (1929), how many are aware that Olive H. Rabe, a labor lawyer, represented the respondent in that case?  Schwimmer, however, was a free speech statutory interpretation case but not, strictly speaking, a First Amendment case. It would take another 24 years before a woman  (Florence Perlow Shientag) would argue a First Amendment free expression case —  Superior Films v. Dep’t of Education of Ohio (1953) (for respondent). Thereafter, it took  15 years before another woman would do likewise. That woman was Eleanor Holmes Norton, who successfully argued on behalf of the petitioner in Carroll v. President and Commissioners of Princess Ann (1968). Four years later Sophia H. Hall successfully argued on behalf of the appellant in Grayned v. City of Rockford (1972) (oral argument transcript here). The world was starting to change, but not fast or often enough.  

Barbara Underwood (credit: NY Daily News)

The list below consists of 38 women who  argued 43 First Amendment freedom of expression (speech, press and assembly) cases before the Supreme Court between 1880 and 2018.  Since the data bases I consulted started in 1880, my list begins there and continues through the 2018 line of Supreme Court cases.

The woman who argued the most such cases was Barbara D. Underwood (3 cases) followed by Patricia Millett (2 cases), Ann E. Beeson (2 cases), and Elena Kagan (2 cases). Pamela Karlan was the last woamn to argue a First Amendment free expression case — Lozman v. City of Riviera Beach, Florida  (2018).

To the best of my knowledge, the list below is complete though given the difficulty of identifying the lawyers and cases, it might be that I overlooked someone — if so, please inform me and I’ll update the list.

Related

_____________The 38 Women________________ Read More

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FAN 175.1 (First Amendment News) More from FIRE — New Podcast Series Charts History of Free Speech

“The podcast provides an engaging and inspiring history of free speech that is accessible to anyone interested in a topic that is fundamental to every human being and society. If you want to understand what’s at stake and know about the battles that our predecessors were engaged in the fight for free speech there can be no better place to start than with Jacob Mchangama’s podcast.”  Flemming Rose 

The folks at FIRE (Foundation for Individual Rights in Education) are on fire when it comes to almost anything having to do with free speech. They

And now, they have just released the first installment (an introduction) to an incredible podcast series on the history of free speech. It is titled: 

The series is spearheaded by Jacob Mchangama, a Danish lawyer, human-rights expert, and social commentator and the founder and director of Justitia, a Copenhagen think tank focusing on human rights and the rule of law. For six years he served as chief legal counsel at CEPOS. This year Mchangama is a Visiting Fellow at FIRE.

Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.

Jacob Mchangama

Description

A prologue introduces the background of the podcast series and is being released today. The first official episode will be aired on February 1st. Subsequent episodes will be released on a bi-weekly basis.

Each episode focuses on a particular historical era or theme, providing listeners with a deeper understanding of how, where and why free speech has developed over time.

The first episode takes listeners back to ancient Athens focusing on the trial of Socrates and the crucial role that equal and uninhibited speech played in the world’s first democracy.

“We mustn’t allow free speech to fade into a feel-good slogan. It is an unintuitive principle with a rationale that many don’t appreciate and a history that many don’t know. Mchangama’s lucid history of free speech fills that gap and deepens our understanding of this precious concept” Steven Pinker 

The following episodes will visit places and eras such as Ancient Rome, Central Asia’s Golden Age, the Abbasid Caliphate, The Renaissance, Enlightenment and beyond.

The podcast will also feature “Expert Opinions,” interviews with leading historians and experts.

You can follow the podcast on the website (www.freespeechhistory.com), Facebook (www.facebook.com/freespeechhistory) and on Twitter (@CAPD_freespeech).

Disclosure: I work on FIRE’s online First Amendment Library and am also working with them on a forthcoming e-coursebook on free speech (stay tuned!).

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FAN 174 (First Amendment News) Special Issue on Legal History — New article “reorients our understanding of the history of speech and press freedoms”

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean? A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.

Cass Sunstein, The Originalism Blog

Leonard W. Levy (1923-2006)

History forever haunts us. Even if it did not, there is always that temptation to look into the rear-view mirror to catch a fleeting glimpse of the world of the dead. Even some of the great who wrote about the dead are themselves now dead. Remember this constitutional historian?

Still, the living continue to dig up the dead and tell their stories . . . as best they can frame them. For example,

Of course, there is more, much more. That said, there’s a new player in the First-Amendment-history town; he is Professor Jud Campbell and he has an impressive new article in the Yale Law Journal. It is titled

Natural Rights and the First Amendment

ABSTRACT. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

Professor Jud Campbell

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Nico Perrino over at FIRE interviews Professor Campbell in a So to Speak podcast

Newly Posted Historial Documents Read More

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Bushrod Washington and West Ford

One controversy that I will explore in my Bushrod Washington books concerns the parentage of West Ford, one of the Justice’s slaves. Some scholars contend that Ford was fathered by a Washington, in part because he was freed by Bushrod and given a large parcel of land at Mount Vernon, which was highly unusual.

 

Without commenting further, take a look at a portrait of the Justice and an engraving of Ford done when he was a young man.

 

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Law as Beauty

Law book illustrations serve many practical purposes. Yet they also can be items of simple beauty. Our gallery tour closes with books in which the bridge between abstraction and the real—the two polarities at the heart of legal experience—opens onto a view of the aesthetic.

In this magic space of the imagination, law gives birth to art that stands on its own.

These books gently overflow the boundaries of law as a field of knowledge and the law book as a category of publishing. They thereby pay tribute to law and to the publishing of books as endeavors that implicate our deepest humanity. Read More

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Worth a Thousand Words

Sometimes a picture says it all. Or that’s what lawyers have often hoped. And beginning with the development of modern printing technologies, publishers have worked hard and well to oblige them.

The creation of lithography. Technical advances in etching and wood engraving. Anastatic printing. New iron presses. Steam-powered rotary cylinders. Photography. Starting in the nineteenth century, technological innovations such as these enabled law book publishers to depict places, objects, and events with greater accuracy than ever before—and lawyers soon perceived the value of images in crafting a winning argument.

Those images are the subject of the seventh case in our digital gallery tour, “Arguing the Law,” which features illustrations and photographs used as evidence in litigation. They are least symbolic, most literal, type of law book image.

They were used in intellectual property litigation (scroll over for links)

criminal prosecutions

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Staging Law

All the law’s a stage, and law books often raise the curtain to reveal its players carefully arranged on a complex set. They depict judges, lawyers, and litigants in the formal spaces where law takes place, especially courtrooms, law offices, and law libraries.

The illustrations in the next stop of our gallery tour—case five: “Staging the Law”—serve many purposes, including public education, political critique, and the promotion of commercial sales.

Yet whatever their purpose, by depicting law’s stage, the books also portray law’s character as a public ritual.

Gates and walls and curtains. Parallel and intersecting architectural lines. Legal players aligned on different horizontal and vertical planes. In their very their realism, the images depict law as a theater of social meaning.

They are the most concrete form of symbolic representation in the tradition of law book illustration.

Images of lawyers at work—which appear almost exclusively in German and Dutch law books—depict more intimate legal proceedings, and so reveal a wealth of details about the relationships between lawyers and their clients, and even about the lawyers’ record keeping systems, as here:

Or here:

We’re mighty fond of them. (Scroll over the images for links to the complete images.)

The scandalous trial of Queen Caroline for adultery—initiated by George IV, who sought a divorce—was one of the most notorious legal and political events of its day, and served as a vehicle for popular criticism of government. The image that starts this post depicts the House of Lords decked out for the proceedings.

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The life, trial & defence, of Her Most Gracious Majesty, Caroline, Queen of Great-Britain. London: Dean & Munday, 1820. Acquired with the Charles J. Tanenbaum Fund.

Mark S. Weiner and Mike Widener

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For the next stop on our tour, click here.

 

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Taking Law’s Measure

One aspect of law which makes it so compelling as a profession, as a field of study, and as a subject for book collecting, is that it’s a tool for solving real human problems. The peculiar beauty of law books derives in part from this usefulness.

They were made to be touched, handled, and put to work.

The books in the fourth case of our exhibit help practitioners solve legal problems through the tool of mathematics, and they focus on legal problems involving water and land. Their illustrations provide a clarity and a precision that a thousand words could never attain.

Both of us love these books. One of them, by Battisa Aimo, inspired Mike to develop Yale Law Library’s illustrated book collection in the first place.

Overflowing with formal beauty, their illustrations invite readers to shift their attention from book’s pages and onto a specific problem in the world—and then back again.

We note this toggling between text and image in the following video, referencing the long, fold-out map of the River Po at the bottom of the case:

The image at the start of this post comes from the first book of geometry for lawyers. The problem illustrated concerns the ownership of fruit produced by a tree that grows at the junction of several property lines.

In the illustration, the man perched precariously in the branches of the tree appears to have left his shoes and hat beside its trunk.

Look closely: it’s a delight.

The book takes pains to correct some formulations made in a great work of Barolo of Sassoferrato, or Bartolus, which we’ve also included in this case.

Next up in our gallery tour: “Staging the Law.”

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Jean Borrel, Opera geometrica. Lyon: Thomas Bertheau, 1554.

Mark S. Weiner & Mike Widener

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For the next stop on our tour, click here.