FAN 112 (First Amendment News) Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet
Over at Balkanization, Harvard Law Professor Mark Tushnet has some provocative things to say about the rule of law and the First Amendment. His post came in response to a New York Times story by Adam Liptak entitled “Donald Trump Could Threaten U.S. Rule of Law, Scholars Say.“
Here is what Professor Tushnet wrote:
“I feel compelled to note that — except for blatantly strategic reasons that I actually wouldn’t find compelling — I almost certainly wouldn’t endorse the view that Trump shows contempt for the rule of law and the First Amendment — not because I agree with his views, of course, but because ‘the rule of law’ and ‘the First Amendment’ are almost entirely without content, so that I don’t know how someone could show contempt to ‘them’ — if there’s no there there, I can’t see how you could be contemptuous of ‘it.'”
Then, by way of a parenthetical comment, he added:
“Of course the claim that there’s no there there is backed up by a fairly complicated argument not worth developing here — an important component is that a reasonably well-socialized lawyer can mutter words showing that any proposition asserted to show contempt for the rule of law is actually consistent with the rule of law properly understood, and that those words are indistinguishable in principle from other words uncontroversially regarded as professionally respectable.”
→ Over at The Volokh Conspiracy, George Mason University Professor David Bernstein took exception: “I think that Donald Trump does show contempt for the rule of law and the First Amendment, which I believe have plenty of ‘content.’ In Trump’s case, I don’t think it’s a rejection of the concept of the rule of law as much as complete, willful ignorance of the principles underlying our legal system.”
Invitation: Given Professor Tushnet’s comment that his is a “fairly complicated argument not worth developing here,” I invite him to say a few more words about what he meant, and I will happily post them.
Elementary School Bans Trump Cap
Powers-Ginsburg Elementary School has barred Logan Autry, a nine-year student, from wearing a Donald Trump cap to school. As reported by Sontaya Rose for ABC News, young Autry said: “The vice principal came up to me and told me to take my hat off because it brings negative attention from other students. And I said no a few times and then the principal told me again and I still said no and refused.”
“For three days straight,” wrote Rose, “the third grader wore the hat to class. But each day, more and more classmates began confronting him at recess. ‘I still want to keep my hat. It’s not the hat that draws attention, it’s just my personality that the other children do not like,’ said Autry.”
“Autry recently moved to Fresno from the foothills, he loves politics and American history. ‘He knows more than I do. He knows more about this election than I know, it’s kind of embarrassing. You know, like are you smarter than a third grader kinda thing. But he is just very adamant about his beliefs and his rights. He wants to be a politician that’s his goal,’ said Angela Hoffknecht, Logan’s guardian. . . .”
FIRE Podcast Interviews with Glenn Greenwald & David Baugh
Over at FIRE, the “So to Speak” podcast interviews continue. The first interview in the series was with Glenn Greenwald. Recall, Greenwald is best known as one of the journalists who coordinated the 2013 National Security Agency revelations made by whistleblower Edward Snowden.
Nico Perrino, Director of Communications for FIRE, conducted the interviews.
New Book on Free Speech & “Conservative Libertarianism” Read More