Tagged: Constitutional Law

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FAN 101.2 (First Amendment News) Judge Garland on the First Amendment: Opinions & Votes   

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Here is an early snapshot of some of Chief Judge Merrick Garland’s opinions and votes in First Amendment free speech cases:

Ruggiero v. Federal Communications Commission (D.C. Cir., 2003, en banc) (joined majority opinion by C.J. Ginsburg denying First Amend. challenge to  restrictions on licenses for low-power radio stations) (separate concurrences by Randolf, J., and Rogers, J., and dissent by Tatel, J.)

— Initiative & Referendum Inst. v. U.S.P.S. (D.C. Cir., 2005) (Garland, J., for the Court) (sustaining First Amendment challenge of U.S. Postal regulation prohibiting solicitation of signatures outside post offices).

— Thompson v. District of Columbia (D.C., Cir., 2005) (Tatel, J., for majority joined by Garland, J., with Edwards, J., concurring) (reinstated plaintiff’s First Amend. claim that he was fired for exercising his free-speech rights) (NB: Judge Edwards’ concurrence: “given the posture of this case, it would appear that the disposition of the First Amendment claim may dispose of the entire case.”)

Lee v. Dep’t of Justice (D.C. Cir. 2005, en banc) (per curiam,  Garland, J., dissenting from the denial of rehearing en banc) (Garland: “The only way to render the reporter’s privilege effective in the face of Privacy Act claims is to include the requirement . . . that the court “weigh[ ] the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” Zerilli, 656 F.2d at 712.”)

— Boehner v. McDermott (D.C. Cir, 2007, en banc) (Randolph, J., majority, with Sentelle, J., dissenting joined by Garland, J. & others)

Commentary:

  • Reporters Committee (2015): (“In the dissent joined by Judge Garland, Judge Sentelle wrote that “the issue is: ‘Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?’” Judge Sentelle wrote that he would answer that question “in the negative,” and that the U.S. Supreme Court decision in Bartnicki v. Vopper (2001), which was decided after the first appeal in this case, made clear that such action should not be punished.”

— National Association of Manufacturers v. Taylor (D.C. Cir., 2009) (Garland, J., unanimous: 3-0)

Commentary:

  • Richard Hasen, “Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness,” Election Law Blog, March 17, 2016 (The “NAM decision . . . carefully applies precedent, and is not reluctant to uphold disclosure requirements in the face of unsubstantiated claims of harassment. the judge also signed a 2008 decision, Shays v. FEC, which required the Federal Election Commission to craft tougher regulations to implement the campaign finance law.”)

— SpeechNow.org v. Federal Election Commission (D.C. Cir.,2010, en banc) (Sentelle, C.J., unanimous: 9-0)

(Oral arguments audio)

Commentaries:

  • HasenJudge Merrick Garland” (“my view is that a Justice Garland would be moderately liberal on election law issues, probably voting with the four more liberal Justices in most election cases.” . . . .”we should not read too much into Judge Garland’s vote in the SpeeechNow case, the case which established Super PACs. As I explained that unanimous ruling was compelled by the Supreme Court’s Citizens United decision.”)
  • Damon Root, “Merrick Garland on Citizens United, the First Amendment, and Campaign Finance Regulation” (“Notably, the D.C. Circuit rejected the FEC’s attempt to distinguish Citizens United, which struck down an expenditure limit, from the SpeechNow case, which dealt with a contribution limit. In other words, the D.C. Circuit had an opportunity to accept the federal government’s narrowing analysis of Citizens United and it rejected that narrowing analysis. Among the judges who joined the D.C. Circuit’s opinion in SpeechNow.org v. FEC was Merrick Garland, who is now President Obama’s nominee to replace Justice Antonin Scalia on the U.S. Supreme Court.”)
  • John Light, “Merrick Garland Could Mean a New Chapter in the Fight to Reverse Citizens United,” Moyers & Co., March 16, 2016 (“Garland’s decision on SpeechNow does not necessarily indicate how he would vote on a case seeking to reverse Citizens United, should one reach the bench, reformers believe. “We personally think that there’s a lot of daylight between Citizens United and SpeechNow,” said Greytak. Stephen Spaulding, senior policy counsel and legal director at Common Cause, argued that Garland’s ruling could be explained by the fact that federal appeals court judges are bound by Supreme Court precedent. The year SpeechNow came before the DC Circuit, the justices already, through Citizens United, were sending a pretty clear message about how the high court felt about super PAC spending.”)

— American Meat Institute v. U.S. Department of Agriculture (D.C. Cir., 2010, en banc) (Williams, J., Garland, C.J., joining majority, Rogers, J., concurring in part, Kavanaugh, J., concurring in judgment, & Brown, J., dissenting) (Upholding over a First Amend, challenge Ag. Dept. rule requiring labels on meat to identify where the animal was born, raised and slaughtered)

→ (Oral arguments audio)

Commentary:

— POM Wonderful v. Federal Trade Commission (D.C. Cir., 2015) (per Srinivasan, J., unanimous: 3-0) (upholding FTC decision that the juice company made deceptive claims about its drinks’ health benefits)

→ (Oral arguments audio)

Commentaries:

  • Rich Samp, “The D.C. Circuit’s POM Wonderful Decision: Not So Wonderful for FTC’s Randomized Clinical Trial Push” (2015) (“the ruling is far from the sweeping endorsement of FTC advertising-control measures that the Commission might have been hoping for. In particular, the ruling provides little, if any, support for the FTC’s recent assertions that food and dietary supplement manufacturers are largely barred from including health-related claims on product labels unless their claims are supported by randomized and controlled human clinical trials (“RCTs”). To the contrary, the appeals court made clear medical studies that do not meet RCT standards may nonetheless have considerable value, and that the FTC’s regulation of advertising is subject to strict First Amendment limitations. The decision suggests that courts may be very reluctant to uphold the FTC’s application of RCT standards to claims that a product promotes general health and nutrition, as distinct from claims that a product is effective in preventing or curing specific diseases.”)

— Wagner v. Federal Election Commission (D.C. Cir., 2015) (Garland, J., unanimous: 3-0)

→ (Oral arguments audio)

Commentary: 

  • Hasen, “Judge Merrick Garland” (“the way that Judge Garland wrote the decision indicates that he accepts Congress’s role in crafting reasonable campaign finance regulations aimed at protecting government interests. Judge Garland could have written the opinion in a reluctant way, noting that Supreme Court cases like Citizens United and McCutcheon may have undermined the constitutionality of total bans on contributions by any class of contributors.”)

Hasen on Garland & Citizens United:

“The harder question is what a Justice Garland would do, if faced on the Supreme Court with the opportunity to overturn Citizens United. On the merits, I have little doubt he would have been in the dissent in the original Citizens United case. But the question is one of stare decisis (respect for precedent) now. Would he be willing to overturn such a case, just a few years after the controversial ruling? My guess is that his would be a struggle for him, less about the merits of the case and more about the proper role of the Justice (particularly if he becomes the new swing Justice) on a Court that is ideologically and politically divided.” (Source: HasenJudge Merrick Garland“) 

Reporters Committee releases report on Judge Garland’s First Amendment and Freedom of Information decisions (2015)

 FAN 101.1:  “Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

See also Tom Goldstein, “The Potential Nomination of Merrick Garland,” SCOTUSblog, April 26, 2010

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FAN 101.1 (First Amendment News) Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

Today, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to serve as an Associate Justice on the Supreme Court.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Judge Garland served as a law clerk to Second Circuit Judge Henry Friendly and thereafter as a clerk for Justice William J. Brennan. Garland’s clerkship at the Court was during the 1978-1979 Term.

During that Term the Court decided Hutchinson v. Proxmire (argued April 17, decided June 26, 1979). The vote was 8-1 with Chief Justice Warren Burger writing for the majority and Justice Brennan writing in dissent.

Facts in the Case: “In early 1975, Senator William Proxmire implemented what he called the “Golden Fleece Award of the Month.” The award was given out to governmental agencies which sponsored programs and research that Proxmire found to be a waste of tax dollars. One Golden Fleece went to federal agencies sponsoring the research of Ronald Hutchinson, a behavioral scientist. Proxmire detailed the “nonsense” of Hutchinson’s research on the floor of the Senate, in conferences with his staff, and in a newsletter sent to over 100,000 of his constituents. Hutchinson sued for libel, arguing that Proxmire’s statements defamed his character and caused him to endure financial loss.”

Issues: “The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue.”

First Amendment Ruling: Petitioner is not a “public figure” so as to make the “actual malice” standard of proof of New York Times Co. v. Sullivan applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. Nor is the concern about public expenditures sufficient to make petitioner a public figure, petitioner at no time having assumed any role of public prominence in the broad question of such concern.

Justice Brennan’s Dissent: “I disagree with the Court’s conclusion that Senator Proxmire’s newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States (1972).”

Counsel in the Supreme Court:

  • Michael E. Cavanaugh argued the cause and filed a briefs for Petitioner.
  • Alan Raywid argued the cause and filed a brief for Respondents.

Amicus Briefs:

  • Bruce J. Montgomery and John D. Lane filed a brief for the American Psychological Association et al. as amici curiae urging reversal.
  • Briefs of amici curiae urging affirmance were filed by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.
  • Chester H. Smith for Warren G. Magnuson et al. Stanley M. Brand filed a brief for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al.
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FAN 101 (First Amendment News) Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co.

Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full. — Paul M. Smith (cert. petition in Electronic Arts v. Davis)

Nothing in the Court’s opinion [in Zucchini] suggested that its analysis would have been different had the news broadcast been limited to a five- or ten- second excerpt . . . . — Brian D. Henri (brief in opposition in Electronic Arts v. Davis)

Lee Levine

Lee Levine

Lee Levine and Stephen Wermiel are at again — digging in Justices’ personal papers to reveal how the law of a First Amendment case came to be, replete with surprises and insights.

First they started with a law review article: “The Landmark that Wasn’t: A First Amendment Play in Five Acts,” Wash. L. Rev. (2013), which gave rise to several commentaries.

Then came a book: The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014). Now comes their latest work, “The Court & the Cannonball: An Inside Look,” American U. L. Rev. (forthcoming 2016).

In their latest work, Levine ( a seasoned media law lawyer & casebook author) teams up once again with Wermiel (law professor, Brennan Biographer & former WSJ reporter) to dig up the inside history of another First Amendment case — this time Zacchini v. Scripps-Howard Broadcasting Co. (1977), a 5-4 ruling.

The Facts: In 1972, Hugo Zucchini performed as a “human cannonball” at the Geauga County Fair in Burton, Ohio. In his act, Zucchini was shot out of a cannon and into a net 200 feet away. His performance lasted 15 seconds.  During one of these performances, a Scripps-Howard Broadcasting Co. freelance reporter attended the fair, replete with a movie camera. Petitioner noticed the reporter and asked him not to film the performance. Respondent honored the request that day but returned the following day and videoed the entire act. This 15-second film clip was shown on the evening news, together with favorable commentary. Petitioner brought a tort action (right of publicity) for damages and Respondent raised a First Amendment defense, among other things.

See “Zucchini: Human Cannonball” documentary trailer

Prof. Stephen Wermiel

Prof. Stephen Wermiel

The issue in the case was: Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer’s state-law right of publicity?

→ The Supreme Court Lawyers:

  • John G. Lancione argued the cause and filed a brief for Petitioner.
  • Ezra K. Bryan argued the cause for Respondent.

→ Judgment: 5-4 in favor the Petitioner. Justice Byron White wrote the majority opinion and Justices Lewis Powell and John Paul Stevens each wrote separate dissents.

→ Enter Levine & Wermiel: Here are a few excerpts from their forthcoming article:

“Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court Justices’ available papers shows that the Court did not view the case as presenting the type of claim that has become prevalent today.”

Hugo Zacchini; human cannon ball; in position for great blast off.

Hugo Zacchini; human cannon ball; in position for great blast off.

“For the Supreme Court, the internal papers indicate the case was about the right of a performer/producer to control the display of his entire act. The Court was not focused on the more contemporary claim that athletes, celebrities, and others have a right to control the use by anyone else, especially for commercial purposes, of their name or their visual image. Nor did the Court’s ruling address the First Amendment issue raised in contemporary cases when a name or likeness is used in a creative work or other public communication. . . . .”

Conclusion: “If nothing else, the record of the Court’s deliberations in Zacchini appears to support the view that that decision does not purport to speak to the viability of a First Amendment-based defense to the kind of “right of publicity” claims asserted by contemporary plaintiffs seeking compensation for the use of their name, likeness, or even their performance, in the context of a video game, sporting event, news report or other creative work produced by someone else. To the contrary, the Court’s deliberations in Zacchini suggest that, at least in contexts where the asserted “right of publicity” is not akin to a claim for common law copyright, there is no basis to depart from traditional modes of First Amendment analysis and engage instead in the kind of ad-hoc balancing of state-created and constitutional rights . . .”

Judge Srinivasan on Free Speech Read More

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FAN 100 (First Amendment News) FIRE Spreads — Group to Launch Online First Amendment Library

UnknownThis post marks the 100th weekly issue of First Amendment News, which began on February 10, 2014. First and foremost, I want to thank our publisher, Dan Solove, who makes all this possible. Dan: it’s been a great ride, so thanks for all your encouragement. Next, I want to thank my FAN readers — liberals, conservatives, libertarians, and the politically & non-politically correct — for your input and continued support.

I try to be a fair broker in what I present and how I do so. Why? Because I  believe that diversity of views is a good thing, even if it includes diverse views about the meaning of the First Amendment itself. After all, to march in lockstep is to give up on the great free-speech experiment that is America’s unique gift to civilization. One more thing: If you agree, and if you also believe in this free-speech principle, it certainly helps to have an open mind.– RKLC

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UnknownToday, the Foundation for Individual Rights in Education (FIRE) announces a new project—the creation of an online First Amendment library, which will be free to all users. The first phase of the library is scheduled to launch this fall. I am honored to serve as the library’s editor-in-chief. The online library will include, among many other features:

  • A hyperlinked list of all First Amendment opinions handed down by the Supreme Court, with the text of cases hosted on FIRE’s own site,
  • An ever-growing list of historical and related secondary materials, and
  • Users will be able to browse cases by numerous and varied topical categories (e.g. commercial speech) and sub-categories (e.g, lawyer advertising), as well as Court era (e.g., Warren Court, Burger Court, Rehnquist Court & Roberts Court).
The online library will also include many links (organized topically) to federal campus free-speech cases, along with links to new and ongoing litigation.

In some respects, this Project pivots from one I created many years ago for the Newseum’s First Amendment Center, thanks to the energetic support of Paul McMasters and Ken Paulson. Unfortunately, times and people changed and with that the online library came down several years ago. Gladly, FIRE elected to create a new, improved, and expanded version of a First Amendment online library.

Our collective hope is that this First Amendment library will become a valuable, reliable, and resourceful asset to judges, lawyers, professors, and students along with anyone else interested in our First Amendment freedoms.

Greg Lukianoff, FIRE’s President & CEO, issued the following statement concerning the forthcoming library:

We at FIRE are very excited to work with Professor Collins in creating a new, free online First Amendment Library. Where we can take it and what we can do with it is almost limitless, but my grand hope is that it makes the great wisdom contained in First Amendment jurisprudence as accessible to high school students as it is to practicing lawyers. And most of all, we would like to thank the Stanton Foundation for the generous grant that made this new project possible.

 Internship Opening: FIRE will soon be looking for a legal intern to help curate and expand the site’s content. The internship will be open to rising second- and third-year law students, recent law school graduates, and specialists in First Amendment law. Other responsibilities will include helping compile First Amendment cases and other resources to create a model First Amendment course book. Go to FIRE website for more information.

More FIRE: Volokh Video 

(Credit: FIRE -- By Aaron Reese & Chris Maltby)

(Credit: FIRE — By Aaron Reese & Chris Maltby)

Check out this excellent 7:28 video clip of Professor Eugene Volokh speaking on free speech (excerpt below)

“Even you know you’re in the right, and you know you’re opponents are wrong, maybe not just wrong — maybe they genuinely are biogeted — sometimes the experience of talking to them, of debating this with them, will help you better understand you’re own position. . . .”

“Healthy debate at universities requires three things: First, it requires legal protection for speech. If the university can, for example, discipline students for expressing offensive views, that’s very dangerous to free-speech protections. Second, it requires a level of social tolerance. Let’s say, for example, that the university won’t discipline students for expressing certain views, but, say, if you oppose abortion rights, or if you oppose race-based affirmative action, or if you oppose same-sex marriage, and everyone calls you a racist, or sexist, or a bigot, and you start worrying that if even professor stay they’ll treat you fairly — maybe they’re not going to give you letters of recommendation or something like that — that’s also bad for public debate.  A third thing that healthy debate at universities requires is some amount of politeness. [If] people are constantly insulting each other, that’s bad for public debate, too.”

Yet More FIRE: Debate re “Hashtag Activism”

FIRE Debates Are Back! ‘Hashtag Activism’ to Take Center Stage at the University of Pennsylvania.

FIRE is has just announced that the third installment of the FIRE Debates series will take place at the University of Pennsylvania on Wednesday, March 23, at 7:00 p.m. Eastern in the Harrison Auditorium at the Penn Museum of Archaeology and Anthropology.

Debaters will argue the effectiveness of “hashtag activism.”

Go here for more information.

Court Denies Cert in Public Forum Case — Thomas & Alito Dissent  Read More

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FAN 99.6 (First Amendment News) Floyd Abrams on Campus Censorship (Then & Now) & Related Topics

On March 1, 2016, Floyd Abrams gave the Levitt Lecture at the University of Iowa School of Law. Below are a few excerpts from his remarks:

Floyd Abrams

Floyd Abrams

Years Ago: In London with Justice Scalia & Nadine Strossen (then President of the ACLU): “We started talking about some First Amendment cases, particularly Hill v. Colorado, a ruling affirming the constitutionality of significant limitations on speech in areas near facilities in which abortions were performed. All three of us agreed on how terrible the majority opinion of Justice Stevens was and how enlightened Justice Scalia’s dissent was. (In those days, although not more recently, the ACLU, which Nadine then headed, took a strong First Amendment stand against such laws.) Justice Scalia, one could tell, enjoyed the conversation, and at one point leaned back, drink in hand, cigar in mouth, and said ‘you know, I’m not really bad about the First Amendment.’”

Campus Censorship in the 1950s: Reading [about] examples [of censorship on college campuses today], I couldn’t help but compare them to the time when I entered Cornell University more — as you will undoubted be surprised to hear — than a few years ago. At that time, upon entrance into the university, all students were required to sign some sort of document agreeing that we could be suspended for saying just about anything on just about any topic of which the university disapproved. In fact, we were required to carry at all times some sort of identification card saying just that. And as I recall it, there really was very little controversial speech at all on campus — a real loss, I can say in retrospect — but very much the ethos of life in America on and off campus in the long ago 1950s.”

Unknown

Free Speech on College Campuses Today: “Just about a year ago, I gave a speech in Philadelphia at Temple University in which I maintained that the single greatest threat to freedom of speech in the country was on college campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, even disturbing. Nothing that has occurred in the last year has led me to change that view. Part of the problem stems from the behavior—misbehavior might be the better word–of college and university administrations. The indispensable organization called FIRE, which tracks the behavior of colleges and universities with respect to free speech on campus, has just published its list of the 10 worst colleges for free speech in 2016. I held my breath as I read it, wondering if your great university would make the list in time for me to comment on it in this talk.”

The New Censors: “[T]oday there are new censors who seek to place new limits on what may be said on campus. And I’m sorry to say they’re students. . . . Most campus activism in public universities is protected by First Amendment and is indispensable if society is to change for the better. But too often in recent days, students have overstepped the bounds of activism into demanding a sort of de facto censorship. And too often, those desires of those students are accommodated by all-too-compliant university administrators that are willing to bend to their demands rather than risk the turmoil or worse that could result in their not doing so.”

Mr. Trump & the First Amendment: “[I]t’s worth remembering that some of [Mr. Trump’s] rhetoric would not only be controversial in other democratic nations, as it certainly is here, but illegal. In Belgium, a member of Parliament was convicted of a crime for saying, ‘Stop the Islamification of Belgium’ and making similar statements. In England, a man was convicted for carrying a poster that said, ‘Islam out of Britain-Protect the British People.’ Whatever you think of more than one not dissimilar statement of Mr. Trump in this campaign – and, in case you’re interested, I think they are appalling – the First Amendment protects them.” (See also Abrams & Collins: “Confronting Trump — An American Debate Censorship Cannot Stop,” Concurring Opinions, Dec. 18, 2015).

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FAN 99.5 (First Amendment News) Execution secrecy bill passed by Mississippi Senate

Attorney General Jim Hood applauded the Mississippi Senate today for approving a measure intended to protect the safety of the individuals responsible for carrying out executions. Senate Bill No. 2237 would protect the identities of the state executioner and members of the execution team, and would also keep confidential the names of the local supplier or suppliers of lethal injection drugs located in the State of Mississippi. The bill was drafted by the Attorney General’s Office, and it is part of the Attorney General’s legislative agenda. — Office of Attorney General Tim Hood, March 1, 2016

Mississippi Senator Sean Tindell introduced Senate Bill No. 2237, which in relevant part provides

“The identities of all members of the execution team, a supplier of lethal injection chemicals, and the identities of those witnesses listed in Section 99-19-55(2) who attend as members of the victim’s or the condemned person’s immediate family shall at all times remain confidential, and the information is exempt from disclosure under the provisions of the Mississippi Public Records Act of 1983.”

Senator Sean Tindell

Senator Sean Tindell

“Notwithstanding any provision of law to the contrary, any portion of any record of any kind that could identify a person as being a current or former member of an execution team or a current or former supplier of lethal injection chemicals, or those witnesses listed in Section 99-19-55(2), shall be privileged and shall only be subject to discovery, subpoena, or other means of legal compulsion for disclosure by order of a court of competent jurisdiction, and the remainder of the record shall not be privileged or closed unless protected from disclosure by law.”

“A person may not knowingly disclose the identity of a current or former member of an execution team, a current or former supplier of lethal injection chemicals, or witness who wishes to remain confidential, or disclose any record of any kind knowing that it could identify a person as being a current or former member of an execution team, current or former supplier of lethal injection chemicals or confidential witness.  Any person whose identity is disclosed in violation of this section shall:

(a)  Have a civil cause of action against a person who violates this section;

(b)  Be entitled to recover from any such person:

(i)  Actual damages; and

(ii)  Punitive damages on a showing of a willful violation of this section. . . .”

The bill passed 32-18 and is currently being held in the Senate on a motion to reconsider.

Press Opposition

  • “‘If we’re going to be in the business of putting people to death, there needs to be as much openness as possible,’ said Layne Bruce, executive director of the Mississippi Press Association.”
  • “[G]overnment secrecy coupled with prior restraint — the gag of state censorship — is unacceptable. — Geoff Pender, Clarion Ledger
  • “If there is anything that should be completely transparent, it is everything related to the state’s taking the life of one of its citizens. [This bill] rightfully should send chills down the spine of every Mississippian who values the civil liberties guaranteed by a free and unfettered press. This is Mississippi, not the old Soviet Union, not some banana republic, and this cannot be allowed to stand.” — Ray Mosby, Deer Creek Pilot
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FAN 99.4 (First Amendment News) Reporters Committee, “The Justice & the First Amendment: Justice Scalia’s role in press freedom cases”

2016-winter-coverThe Winter 2016 issue of the The Reporters Committee for Freedom of the Press journal has just been posted. The contents of the issue are set out below.

Editors: Bruce D. Brown, Gregg P. Leslie & Debra Gersh Hernandez

Cover

— Ronald Collins, “When five became four: Justice Scalia’s contribution to the law of free speech

— Reporters Committee letter, “Six degrees of Antonin Scalia

Reporter’s Privilege

— Michael Lambert, “Stopping an end-run around the reporter’s privilege

Freedom of Information 

— Caitlin Vogus, “Private email, government business

Prior Restraints 

— Kevin Delaney, “Near at 85: A look back at the landmark decision

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FAC 6 (First Amendment Conversations) The Law & Politics of Money: A Q & A with Professor Richard Hasen – Part II

This is Part II of my interview with Professor Richard Hasen concerning his new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, 2016) (cloth: $32.50, 256 pp.). Part I of my first interview appears here.

 A hyperlinked list of previous FAC interviews can be found at the end of this Q&A.

First Amendment News (FAN 100) will return next Wednesday.

____________________

Is Compromise Possible?

{99A7FD02-1A3C-40A1-888E-748696B03D3B}Img400Collins: “Any set of limits and rules” on campaign funding, you have written, “must be careful not to squelch too much political speech and competition.” To that end, in your book you propose a compromise:

“An individual or entity may contribute, spend from one’s own personal or general treasury, or both, no more $25,000 in each federal election on election-related express advocacy or electioneering communications supporting or opposing candidates for that election. Such limits shall not apply to the press, to political committees that solely spend contributions received from others, or to money contributed or spent in a voluntary government-created public finance program. An individual also cannot contribute and/or spend more than $500,000 total on all federal election activity in a two-year election cycle.”

In light of your “brief formula,” permit me to make a comment and then ask but three questions, the kind that would be raised time-and-again by election-law lawyers who make it their business to circumvent such rules:

Comment: Since you equate the spending of electoral monies with speech, your formula seems like another way of saying that the Government may dictate when a citizen may or may not speak during an election. Is that a fair statement? If so, how does it square with the command that “Congress shall make no law”?

  1. Would your proposed law apply to an “entity” that created 20 other entities, say non-profit corporations, and then gave them each $500,000 to be spent during a two-year federal election period? Presumably, the $500,000 cap would not bar this since it applies to an “individual.”
  1. Do “electioneering communications” as you understand those terms include books, including e-books?
  1. Would your proposed rule bar a Rupert Murdoch or George Soros from starting a “Save America” TV cable station, the purpose of which was to advance certain political candidates and causes? Presumably it would not bar this since your limits do “not apply to the ” True?

Hasen: I find the entire question whether “money is speech” to be an unhelpful way to think about the question. Money facilitates political speech, and we all agree that a law which would completely bar anyone from spending any money to support or oppose a candidate for office implicates the First Amendment.

Similarly, I find the use of the “Congress shall make no law” formulation also very unhelpful. Of course, it is no law abridging the freedom of speech, and we all agree that some laws which limit speech may be constitutional.

Consider, for example, a federal law that barred Canadian lawyer Benjamin Bluman from spending 50 cents at Kinkos to make flyers saying “Vote Obama” to distribute in Central Park. That’s a law some might say limits freedom of speech. Yet, as I quote in Plutocrats United, Floyd Abrams, Bradley Smith, and James Bopp (three leading First Amendment deregulationists) believe the federal ban on someone like Bluman spending a penny on election-related advertising is consistent with the First Amendment. I urge you to read the quotes on this point in the book, which show that, contrary to Citizens United, sometimes the identity of the speaker does matter for First Amendment purposes even to ardent opponents of regulation.

So let’s move beyond clichés about “no law” and “censorship” and “money is speech” and recognize that all of us believe that in certain circumstances the government has a compelling interest in limiting campaign spending. The question then is when and how.

  1. I should have stated this aspect of my proposal more clearly. We would need anti-circumvention rules that prevent the creation of shell corporations and other artificial entities for the purpose of getting around campaign limits.
  1. The term “electioneering communications” originates in the Bipartisan Campaign Reform Act (more commonly known as McCain-Feingold), and it applies only to certain television and radio ads broadcast close to an election featuring a candidate for office. My proposal would extend to those, as well as to Internet based advertising which is like television and radio ads, not e-books. This question, for the uninitiated, echoes a question Justice Alito asked at the oral argument the first time the Court heard Citizens United v. FEC. Justice Alito asked if Congress had the power to “ban” books. I discuss this question (and the right answers) in detail in my book.
  1. Of course they could set up a TV station. Think of Rupert Murdoch owning FOX News or Sheldon Adelson recently buying the Las Vegas Review Journal. And these entities get the press exemption, so long as they are bona fide press. I offer tests for how to figure out what the press is, especially in the social media age, in my book. One example I give is NRA News, which started out as a way of pushing the boundary on what counts as press. In the end, NRA News became a bona fide press entity.

The Power of PACs? Read More

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FAC 6 (First Amendment Conversations) The Law & Politics of Money: A Q & A with Richard Hasen – Part I

Professor Richard Hasen

Professor Richard Hasen

Richard Hasen is the Chancellor’s Professor of Law and Political Science at the University of California at Irvine. I am pleased to do FAC Q&A interview with him in connection with his new book:

Two of Professor Hasen’s previous books in this same area of study are:

  1. The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2013), and
  2. The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003).

{99A7FD02-1A3C-40A1-888E-748696B03D3B}Img400He has been writing in this field for over two decades (see 14 Cardozo L. Rev. 1311 (1993)). Today, Professor Hasen is one of as the nation’s leading authorities on election law and is the publisher of the much-noticed and highly regarded Election Law Blog. He is also the co-author of a leading election law casebook, author of a book on statutory interpretation, and author of numerous scholarly articles, including a review essay published in the Harvard Law Review.

* * * * 

Collins: Thank you Rick for agreeing to do this interview and congratulations on the publication of your latest book, which is getting quite a lot of favorable attention, including a four-part video interview on SCOTUSblog.

Hasen: Ron, let me thank you for the opportunity to answer your questions and engage in this dialogue. It is too rare these days for there to be serious discussion on these contentious First Amendment issues. Even among academics, much of what we read on blogs etc. is little more than talking points.

NB: A hyperlinked list of previous FAC interviews can be found at the end of this Q&A.

____________________

Can the System be Fixed? / Need it Be?

UnknownCollins: Four years ago you wrote: “Fixing Washington’s money problems may have to await widespread scandal, and fixing its broader problems likely will have to await a societal shift that alleviates the partisanship currently gripping national politics.” Do you still hold to that?

Hasen: I do stand by this statement. Even though many voters—Democrats, Republicans, and independents—believe that the Supreme Court’s decision in Citizens United v. FEC was wrong, and that more reasonable campaign finance laws are necessary, there is now a deep partisan divide on this issue among elites in Washington. More than ever, this is seen as a Democratic/Republican issue. As I argue in Plutocrats United, the John McCains of the Republican Party have gone silent on this issue, and the Mitch McConnells, who used to argue for no limits and full and instant disclosure, now argue even against effective disclosure.

I do expect that we will see continued attempts to improve campaign finance laws on the state and local levels, especially in those places with voter initiatives (which can bypass self-interested legislatures). Some of these laws may raise constitutional questions, which could lead a new progressive Supreme Court (if one arrives) to reconsider the First Amendment balancing in the campaign finance arena.

Collins: Does money translate to political power and advantage? Consider this news item (2-22-06) from the New York Times: “When Jeb Bush formally entered the presidential campaign in June, there was already more money behind him than every other Republican candidate combined. When he suspended his campaign on Saturday night in South Carolina, Mr. Bush had burned through the vast majority of that cash without winning a single state.” What do you make of this?

Hasen: I begin my book by urging progressives to reject facile campaign finance arguments such as “all politicians are corrupt” or money buys elections. A little while ago, I had a prebuttal to the Jeb Bush point in the Washington Post which pointed out that Money Can’t Buy Jeb Bush the White House, But It Still Skews Politics. I argued there:

“But this overly simplistic analysis misses the key role of money in contemporary American politics. In spite of the rhetoric of some campaign reformers, money doesn’t buy elections. Instead, it increases the odds of electoral victory and of getting one’s way on policies, tax breaks and government contracts. And the presidential race is the place we are least likely to see money’s effects. Looking to Congress and the states, though, we can see that the era of big money unleashed by the Supreme Court is hurtling us toward a plutocracy in which the people with the greatest economic power can wield great political power through campaign donations and lobbying….”

“And yet a single donor’s influence in presidential contests is tempered by other factors. With billions of dollars sloshing around on all sides, so much free media attention (especially to outlandish candidacies like Trump’s) and widespread public interest, mega-donors are only one part of a larger picture.”

“Money can matter more to the outcomes of congressional and state races because of relative scale. Millions of dollars spent in these contests can swamp the competition and help swing close elections, especially by influencing low-information voters. Merely the threat of such spending gets the attention of candidates, who worry about the next super PAC to line up against them.”

And there is more at stake here as I pointed out in my Washington Post piece:

“Even more significant, big money skews public policy in the direction of the wealthiest donors. In Illinois, a handful of the super-rich, including hedge-fund billionaire Kenneth C. Griffin, played a key role in getting Republican Bruce Rauner elected governor with an agenda to slash government spending, impose term limits and weaken employee unions. Hedge funds have used campaign to block a potential bankruptcy declaration by Puerto Rico that could help its people but hurt bondholders’ interests.”

“We’re supposed to be in a post-earmark era, yet Congress’s recent must-pass omnibus bill to fund the government was full of special interest deals backed by big spenders. The New York Times reported that “as congressional leaders were hastily braiding together a tax and spending bill of more than 2,000 pages, lobbyists swooped in to add 54 words that temporarily preserved a loophole sought by the hotel, restaurant and gambling industries, along with billionaire Wall Street investors, that allowed them to put real estate in trusts and avoid taxes.” Senate Minority Leader Harry Reid supported the language, and the company of one of Reid’s top donors admitted to being among those “involved in the discussions with congressional staff members.”

The Crisis of Liberalism Divided

Collins: As you well know, the campaign finance controversy has divided the liberal civil liberties community. In that regard, I understand that your aim in Plutocrats “is to start a dialogue among progressives.” Even if that dialogue might point to some common ground “among progressives,” there are still conservative Americans. What, if anything, is there in Plutocrats United for conservatives?

Hasen: There is a conservative case for campaign finance reform. I would point readers to Richard Painter’s new book, Taxation Only with Representation (2016). Painter was President George W. Bush’s ethics czar. My book has a different purpose: it is to talk among progressives and moderates about what the real problems of money in politics are and how to fix them. I say that the main problem is a system in which we allow ever increasing economic inequality to be translated into political inequalities, which distort our elections and politics. I then advocate conducting the First Amendment balance by considering not only anti-corruption arguments, but also political equality arguments, on the government interests side.

(credit: AP Photo-- J. Scott Applewhite)

(credit: AP Photo– J. Scott Applewhite)

Collins: The death of Justice Antonin Scalia has placed the entire nomination and confirmation process in bold ideological relief – and you have commented on the that very point. Mindful of that, Vice President Joseph Biden has suggested that the President nominate a “centrist.” In that regard,

  1. would you consider someone like Justice Potter Stewart or Justice Lewis Powell to be such a “centrist,”
  2. and would you support such a nomination as a compromise of sorts?

Hasen:

  1. It is hard to evaluate how the equivalent of a Justice Stewart or Powell would decide things today. The fact is that on the current Supreme Court all of the conservatives have been appointed by Republican presidents and all the liberals by Democratic ones. It is not that these Justices are deciding cases to help their party. It is that they are chosen because of how they would be likely to vote given their jurisprudential commitments on issues each of the parties cares about the most. This is not how things were even a few years ago. So what would we mean by a “centrist” today? Some conservatives consider Justice Kennedy a centrist (or a vacillator). On election-related issues, Justice Kennedy was in the majority in both Citizens United and the 2013 Shelby County v. Holder case, striking down a key portion of the Voting Rights Act. So he is no centrist on issues I care about.
  2. No, I see the Supreme Court today as essentially a political institution and the battle over confirmation essentially a political one. Why should the Left include a compromise candidate, especially when there is no reason to believe the Right would do so? The compromise I support would be to eliminate life tenure, and to move to 18-year non-renewable terms. This would ensure orderly turnover and that over time the Court reflects more of the public’s views on these issues. It is an idea supported by strong conservatives such as the Federalist Society’s Steven Calabresi.
Professor Lawrence Lessig

Professor Lawrence Lessig

Collins: Professor Lawrence Lessig took issue with you for discounting corruption (see here) as a viable reason for squelching First Amendment rights in the context of campaign financing. He writes: “I have had the pleasure of reading [Professor Hasen’s] . . . Plutocrats United, a book that will certainly mark him as the dean of this field—I think that he has presented us with a false dichotomy. It is not either corruption or equality. It is both. Our current system for funding campaigns is corrupt, but it is corrupt precisely because it violates a certain kind of equality. The violation is not an equality of speech, but an equality of citizenship. . . . We should not, as scholars, be fighting about which flaw our Republic reveals — inequality or corruption. We should be united — let us say, not citizens or plutocrats, but scholars, united—in the view that our Republic is both unequal and corrupt.”

Is Lessig right? Is there some troublesome division in the progressive ranks here? Is this a case of Progressives Disunited?

Hasen: I love the “Progressive Disunited” label! (Isn’t that always true?) I don’t think there is a large gap between Larry and me anymore. We went back and forth on what the problem is with money in politics in law reviews and blog posts, and in the end I think what is left is primarily a semantic difference. There is much value for an activist to labeling reform in anticorruption terms. Larry is an activist and wants to harness voter anger on this issue. I’m not. But in the end, we both think that the problem is that those with the greatest economic power are able to translate that power into political power, by influencing both who is taken seriously as a candidate for election, and by influencing the public policy that our elected officials pursue.

→ This FAN 6 Q&A will continue tomorrow with Part II.←  

____________________

Previous First Amendment Conversations

FAC #1: Larry Tribe on Free Expression

FAC #2Bruce Johnson on Press Access to Prisons

FAC #3Martin Redish on Free Speech, the Roberts Court, & the Liberal Academy

FAC #4Steve Shiffrin, the Dissenter at the First Amendment Table

FAC #5Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book

Other Interviews 

  1. On Legal Scholarship: Questions for Judge Harry T. Edwards (Journal of Legal Education)
  2. The Complete Posner on Posner Series
  3. Unto the Breach: An interview with the all too candid Dean Erwin Chemerinsky
  4. Ask the author: Chief Judge Katzmann on statutory interpretation*
  5. Ask the author: Garrett Epps on clashing visions on the Court*
  6. Ask the author: Three decades of Court watching – a political scientist’s take on the Court*
  7. Ask the authors: Conflict in the Court — an inside look at New York Times v. Sullivan and its progeny*
  8. Ask the author: Floyd Abrams & his fighting faith*
  9. Ask the author: Marcia Coyle on the Roberts Court*
  10. Ask the author: Kathryn Watts on the workings of the Supreme Court*
  11. Ask the author: Alex Wohl on Tom and Ramsey Clark and the Constitution*
  12. Ask the author: Jeffrey Toobin on The Oath*

* Published on SCOTUSblog

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FAN 99.3 (First Amendment News) Court Denies Review in Off-Campus Speech Case

Today the Court denied review in Bell v. Itawamba County School Board. The issue in the case was whether and to what extent a public high school, consistent with the First Amendment, may discipline students for their off-campus speech. In a divided en banc ruling, the Fifth Circuit denied the First Amendment claim.

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  2. Town of Mocksville v. Hunter
  3. Miller v. Federal Election Commission
  4. Sun-Times Media, LLC v. Dahlstrom
  5. Rubin v. Padilla
  6. Hines v. Alldredge
  7. Yamada v. Snipes
  8. Center for Competitive Politics v. Harris
  9. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Electronic Arts, Inc. v. Davis
  5. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is on March 4, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.