The Titles of Nobility Amendment

I was surprised to learn recently that hardly anything certain is known about the constitutional amendment proposed by Congress in 1810 that could, in theory, still be ratified by the states. The proposal states:

If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

I was curious about this proposed amendment because of the litigation filed against the President claiming that he is violating the Emoluments Clause of the Constitution. Since this text also refers to emoluments, I thought that the debate on this would be instructive. But there is hardly any recorded  debate on this (either in the Annals of Congress or in newspapers).

Furthermore, I was taken aback by the conspiracy theory that is out there that this amendment really was ratified and that this fact was covered-up because the proposal would have somehow made lawyers ineligible to serve in office or be citizens.  (Don’t ask me to explain how that follows from the text.)  You can search for yourself, and find people who think that this was the “real” 13th amendment.  (Wacky litigants have even argued this in court.)


Racial Gerrymandering vs. Partisan Gerrymandering

Some comments to my prior post about partisan gerrymandering asked why racial gerrymanders are invalid if the right of individuals to vote is not affected. And that being the case, why not say the same about gerrymanders based on political affiliation? (I’ll note, parenthetically, that these are not the issues that concern Justice Kennedy. He is focused on the practical implications of what test could be used to assess partisan gerrymanders.)

Anyway, my answer is that intentional state classifications are a unique evil that are subject to strict scrutiny. Simply being classified by race is a harm except with limited exceptions. Can the same be said for intentional classifications based on political identity (Republicans vs. Democrats)?  I would say no. There are constitutional limits to those sorts of classifications, but it seems to me that some concrete harm in addition to the classification must be shown. And that cannot be done here.


The Legal Status of the President’s Twitter Account

I want to revisit something that I posted months ago. Sooner or later, a court is going to have to assess whether the President’s tweets constitute state action.

Suppose that Mika Brzezinski decided to sue the President for libel based on what he tweeted. Before reaching the merits, the President’s lawyers would probably contend that he has absolute immunity from tort claims for his official acts and that his tweets are official acts.

There is litigation pending, though, in which some people who have been blocked by the President from his Twitter account are claiming that he cannot do that just because he does not like what they are saying. This amounts, they argue, to viewpoint discrimination under the First Amendment since the President’s Twitter account is a state actor.

If the President’s argument against the hypothetical libel claim is correct, then the claim by the folks blocked on Twitter must also be correct at least with respect to the state actor issue. I don’t see how the tweets can be official for purposes of a libel suit but unofficial for purposes of creating some sort of public forum under First Amendment doctrine. It is, of course, possible to exclude people from a limited public form with sufficient justification, but that’s a separate question.


Call for Authors – Feminist Judgments: Rewritten Family Law Opinions

This is a wonderful project!  Solangel Maldonado and I are on the advisory committee.

Call for Authors – Feminist Judgments: Rewritten Family Law Opinions


The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics. With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes. Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same. A description of the process of selecting decisions, as well as a list of cases considered but not included, can be found on the application website (link below).

Proposals must be to either 1. rewrite an opinion (subject to a 10,000-word limit) or 2. comment on a rewritten opinion (4,000-word limit). Rewritten decisions may be majority opinions, dissents, or concurrences. Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made. The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.

Those who are interested in rewriting an opinion or providing commentary should complete the form found here:


Applications are due no later than Friday, July 21, 2017. The editor will notify accepted authors and commentators by Monday, July 31, 2017.

First drafts of rewritten opinions will be due on Friday, February 2, 2018. First drafts of commentaries will be due on Friday, March 9, 2018.

If you have any questions, please contact Rachel Rebouché at rebouche@temple.edu.


Masterpiece Cake

Another case that the Court will hear next Term involves a baker who refused to make a wedding cake for a same-sex wedding. The state anti-discrimination statute was held to prohibit that refusal and a Colorado court ordered an equitable remedy. On certiorari. the baker is arguing that his Free Speech and Free Exercise rights are violated by that decision.

I find this case difficult. On the one hand, personal beliefs cannot result in a general exemption from anti-discrimination statutes. On the other hand, there is something very troubling about making someone to engage in creative expression against their will.

One way of thinking about this problem involves focusing on what constitutes creative expression for a free speech claim.  (I think this claim is more compelling than the free exercise claim, though some of the Justices will disagree.) Say I own a banquet hall that I rent out for weddings, but I say no same-sex weddings. It’s hard to see how there is any expression involved in banquet hall rentals that would entitle me to say no.How about a restaurant hosting a wedding reception? Cooking is expressive to some extent, but if I just do a standard set of menu choices for weddings than it is hard to see how the kind of wedding reception that I’m hosting matters for expression.

The strongest expressive claim in this context is a wedding photographer. Wedding photography involves a lot of time, thought, and creativity. To say that someone must photograph a same-sex wedding when they do not want to strikes me as a serious First Amendment problem.

How about wedding cakes? My initial thought is that this claim is not that strong as framed by the record.  Making a cake can be expressive, especially if you get a custom design. But there are many, standard wedding cakes where the only “expression” is writing the names on the cake. If a baker was presented with a same-sex couple who said, “We want you to do a cake and have lots of specific requests to make,” maybe that could involve enough expression to present a problem. In this case, however, the baker just said he wouldn’t do cakes for a same-sex weddings. It wouldn’t matter what kind of cake was ordered or if the request was simply, “I want that cake in the window.” This seems more like the banquet hall or restaurant scenario than the photographer.

In sum, I think that there is a First Amendment limitation on the reach of anti-discrimination statutes for same-sex marriages, but I don’t think that the petitioner qualifies.


The President and the Bill of Rights

I see that the President made his first reference to the Bill of Rights on June 8th. (I hadn’t noticed this one until now.) You can find the remarks here, in which he told a faith-based group:  “Our religious liberty is enshrined in the very First Amendment in the Bill of Rights.” Since I’ve made a big deal about his absence of statements to this effect, I wanted to make sure I pointed this one out.




Partisan Gerrymandering

Now that we know Justice Kennedy is not retiring this year, I would like to comment on the case that the Court will hear next Term upcoming on whether partisan gerrymandering can violate the Constitution. It is very likely that four Justices will say that the issue is not justiciable and four will say that the the issue is justiciable and find a constitutional violation. Justice Kennedy’s position in the last go-round on this question was that the issue could be justiciable if some sensible test could be fashioned to assess the merits.

My tentative view is that the Court should hold that the issue is not justiciable. I say this for the following reason: I don’t understand the nature of the harm to an individual voter. Let me give you an example. For years I lived in a “safe” Democratic district in Indianapolis. There was zero chance that a Republican would win there. I voted that way anyway. Why? Partly because I cling to the old-fashioned view that you should “vote the rascals out” periodically and that straight line party voting is foolish.  (I aim to offend equally here on CoOp.)

Did I suffer a constitutional harm because my preferred candidates or party could not win? I don’t see how. I have a right to vote. I do not have a right to vote in a competitive general election. Many House members run unopposed in November–sometimes the only action is in the primary due to the nature of the state or district. Are those general elections constitutionally suspect?  No.

The problem with gerrymandering is that the legislature will not reflect the will of the voters. Say through deliberate planning a system is established in a state where 70% of the vote for a party gets that party only 30% of the seats (in a two-party system). You could then say that the Legislature is unrepresentative. What is the constitutional injury there?  I would say the state lacks a republican form of government under the Guarantee Clause of Article Four.  The Court, though, insists that the Guarantee Clause is not justiciable. Thus, I do not see why partisan gerrymandering is justiciable.

Of course, the Court could use this case as a way of reviving the Guarantee Clause. I highly doubt this will happen though. In a sense, the die was cast when Baker v. Carr grounded what became the one-person, one vote standard in the Equal Protection Clause rather than in the Guarantee Clause.



FAN 158 (First Amendment News) 2016-2017 Term Ends: Three First Amendment Victories & cert. grant in religious cake-baker case

Today, after consideration in many conferences, the Court agreed to hear Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights CommissionThe issue in the case is whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment. The Coloroado Court of Appeals denied those First Amendment claims.

 Counsel of record for Petitioners: Jeremy D. Tedesco (cert. petition here)

2016-2017 Term: First Amendment Free Expression Opinions  

With the close of this Term, the Roberts Court has rendered opinions in 46 First Amendment free-expression cases. Notably, as indicated below, this Term the Court was unanimous in all three of its First Amendment free speech cases.

  1. Packingham v. North Carolina (2017) (8-0, per Roberts, C.J.) (opinion by Alito, J., concurring in the judgment) (striking down N.C. law prohibiting registered sex offenders access to Internet sites that permit minor children to become members or to create or maintain personal Web pages)
  2. Matal v. Tam (2017) (8-0, per Alito, J.) (with separate opinions by Kennedy, J., concurring in part & concurring in the judgment, and Thomas, J., concurring in part & concurring in the judgment) (disparagement clause of the Lanham Act violates the First Amendment’s free speech clause)
  3. Expressions Hair Design v. Schneiderman (2017) (8-0, per Roberts, C.J.) (opinion by Breyer, J., concurring in the judgment, and an opinion by Sotomayor, J., concurring in the judgment) (holding that N.Y. credit card surcharge statute regulates speech within the meaning of the First Amendment; remaded to determine whether law was valid commercial speech regulation under Central Hudson and whether the law can be upheld as a valid disclosure requirement under Zauderer).

Pending Appeals & Petitions & Related Cases

  1. Elonis v. United States
  2. Harris v. Cooper 
  3. National Institute of Family and Life Advocates v. Becerra
  4. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  5. Livingwell Medical Clinic, Inc. v. Becerra

Summary Dispositions

  1. Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
  2. Independence Institute v. FEC (affirmed)

Cert. Denied

  1. Garcia v. Bloomberg
  2. Mulligan v. Nichols
  3. Alabama Democratic Conference v. Marshall
  4. Augsburg Confession
  5. Keefe v. Adams
  6. Scott v. Georgia
  7. Bondi v. Dana’s Railroad Supply
  8. Bennie v. Munn
  9. Flytenow v. Federal Aviation Administration
  10. Armstrong v. Thompson
  11. Wolfson v. Concannon
  12. Dart v. Backpage.com
  13. NCAA v. O’Bannon
  14. Mech v. School Board of Palm Beach County
  15. Williams v. Coalition for Secular Government 
  16. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

  • Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

  • Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Petition Denied

  • Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Cert. Denied  

Roberts Court Era: Justice Kennedy’s Majority or Plurality First Amendment Free-Expreesion Opinions 

Given the talk in the news about Justice Anthony Kennedy’s possible retuirment, I thought it useful to list his free-expression First Amendment opinions published during the era of the Roberts Court:

  1. Garcetti v. Ceballos (2006) (vote: 5-4)
  2. Citizens United v. Federal Election Commission (2010) (vote: 5-4)
  3. Sorrell v. IMS Health Inc(2011) (vote: 6-3)
  4. Borough of Duryea v. Guarnieri (vote: 2011) (8-1)
  5. United States v. Alvarez (2012) (vote: 6-3)
  6. Packingham v. North Carolina (2017) (vote: 8-0)

 Notable Roberts Court Era Separate Opinions:

College fires professor over comments made on TV

This from a story by Josh Delk writing for The Hill: “Essex County College has fired adjunct professor Lisa Durden after she made racially charged comments in an interview with Tucker Carlson on Fox News, according to a new report by the Associated Press.”

Tucker Carlson & Professor Lisa Durden

“The college’s president, Anthony Munroe, announced the decision Friday, two weeks after Durden went on “Tucker Carlson Tonight” to discuss an “all-black Memorial Day celebration” hosted by a Black Lives Matter group.”

“When asked by Carlson about the event, Durden interrupted the host, saying “boo hoo hoo. You white people are angry because you couldn’t use your white privilege card to get invited” to the Black Lives Matter event.”

“‘You’re demented, actually,’ Tucker later responded to her defense.”

“Durden went on to call America a ‘racist society.'”

“According to AP, Durden was suspended with pay on June 8, two days after the interview aired, when college officials say they received complaints about her comments. After a Tuesday meeting with college officials, she was fired. . . .”

Video clip here

 Full text of statement from college president here

President Anthony E. Munroe

Excerpt from President Anthony E. Munroe’s statement: “While the adjunct who expressed her personal views in a very public setting was in no way claiming to represent the views and beliefs of the College, and does not represent the College, her employment with us and potential impact on students required our immediate review into what seemed to have become a very contentious and divisive issue. For the purpose of a fair and immediate review, the adjunct was suspended with full pay, for the remainder of the summer I session which equated to six (6) working days, pending the outcome of a fair and thorough review of the matter. The adjunct addressed the College community at an open forum on June 20th. In consideration of the College’s mission, and the impact that this matter has had on the College’s fulfillment of its mission, we cannot maintain an employment relationship with the adjunct. The College affirms its right to select employees who represent the institution appropriately and are aligned with our mission.”

FIRE’s Policy Reform department is hiring

By June 22, 2017

Free speech-minded attorneys and recent law school graduates, pay attention: FIRE is looking to add a new staff member to its Policy Reform department.

FIRE’s Policy Reform team works with college students, faculty members, administrators, and general counsels to improve their institutions’ protections for free speech and academic freedom. We help to revise unconstitutional and restrictive speech codes, enact policy statements codifying the principles underlying the First Amendment, and work in other ways to improve the campus climate for free expression. We’re now looking to add another member to our team!

Applicants can check out the full job posting before submitting their application materials.

The ideal applicant will be passionate about First Amendment law and principles, demonstrate enthusiasm for working with students, faculty members, and administrators, and possess the legal analysis, writing, and research skills that are critical to a successful career in constitutional law and civil liberties.

Chris Finan: New Director of National Coalition Against Censorship

Chris Finan

NCAC Press Release: The National Coalition Against Censorship (NCAC), an alliance of 56 national non-profit organizations, announced today that it has hired Christopher M. Finan as its next executive director.  Joan Bertin, the current executive director, is stepping down after leading the organization for 20 years.  NCAC promotes freedom of thought, inquiry and expression and opposes censorship in all its forms.

“We are indeed lucky that a free expression advocate the caliber of Chris Finan has agreed to lead the NCAC to its next chapter,” said Jon Anderson, chair of the NCAC Board of Directors and president and publisher of Simon & Schuster Children’s Publishing. “In this most challenging of times for First Amendment rights, we need someone with the experience and reputation that Chris brings to the table in protecting the rights of all Americans to express themselves as they choose.”

Finan has a long career as a free speech activist.  He is currently director of American Booksellers for Free Expression, part of the American Booksellers Association (ABA).  In 1982, he joined Media Coalition, a trade association that defends the First Amendment rights of booksellers, publishers, librarians and others who produce and distribute First Amendment-protected material.  In 1998, he became president of the American Booksellers Foundation for Free Expression.  The foundation merged with ABA in 2015.

Finan has worked closely with NCAC as a member of the board of directors and as a board chair.  In 2007, he and Bertin created NCAC’s Kids’ Right to Read Project, which supports parents, students, teachers and librarians who are fighting efforts to ban books in schools and libraries.

“I am very grateful for the opportunity to lead an organization that plays such an important role in protecting free expression.  I am also very fortunate to be succeeding Joan Bertin, who has led NCAC’s vigorous defense of free speech during a time of growing censorship pressure,” Finan said.

As examples of NCAC’s recent advocacy, Finan pointed to statements defending publishers who are pressured to censor books that some critics consider offensive, condemning the Trump administration’s attacks on the press and criticizing the Walker Art Center’s decision to dismantle a sculpture after accusations that it was “cultural appropriation.”

Joan Bertin Honored by Freedom to Read Foundation

NCAC Press Release:  Joan Bertin, the National Coalition Against Censorship’s (NCAC) longtime executive director, is a 2017 recipient of the Freedom to Read Foundation’s (FTRF) Roll of Honor Award, which recognizes individuals for outstanding contributions to safeguarding intellectual freedom and the right to read.

Joan Bertin

The FTRF, which is affiliated with the American Library Association, protects and defends the First Amendment to the Constitution and supports the right of individuals to access information. Bertin is being recognized for her efforts to provide “support, education, and direct advocacy to people facing book challenges or bans in schools and libraries.”  In announcing the award, the FTRF observes that under Bertin’s leadership, NCAC has defended hundreds of book titles across the country, helping ensure that thousands of children will continue to enjoy literary masterpieces and popular young adult novels.

Bertin said, “I am deeply honored by the award, especially for its recognition of NCAC’s contributions to the protection of the intellectual freedom rights of young people.  Books can contribute so much to kids’ intellectual and emotional development, and it has been my privilege and pleasure to protect their right to read.”

The award will be presented at the 2017 American Library Association Annual Conference during its Opening General Session on Friday, June 24, in Chicago.

New Additions to FIRE’s Online First Amendment Library

Forthcoming: Timelines on Movie Censorship and Anthony Comstock

Forthcoming Books

Professor Loren Glass, English Dept., University of Iowa

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.”

Related: Barney Rosset, Rosset: My Life in Publishing and How I Fought Censorship (2016)

New & Notable Blog Posts

  1. Ruthann Robson, En Banc Ninth Circuit Upholds Liquor Regulation Against First Amendment Challenge, Constitutional Law Prof Blog, June 23, 2017 (“In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.”)
  2. Zach Greenberg, Supreme Court strikes down law prohibiting disparaging trademarks, affirms protection for offensive expression, FIRE, June 20, 2017

News, Op-eds, Editorials & Blog Posts

Ilya Shapiro, Even sex offenders have First Amendment rights, Washington Examiner, June 19, 2017

  1. Alex Swoyer, Islamic State flag on New Hampshire dam raises First Amendment questions in times of terrorism, Washington Times, June 25, 2017
  2. Mark Joseph Stern, Does Partisan Gerrymandering Violate the First Amendment?, Slate, June 19, 2017

Next Scheduled FAN, #159: June 14, 2017

Last Scheduled FAN, # 157Today: Senate Judiciary Committee to hold hearing on campus free speech

Last FAN, #157.1Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews


Bushrod Washington and Slavery

My research on what will be my next book continues.  An important part of the story will involve slavery. There is a delicious irony in the fact that Justice Washington, who owned slaves all of his life and inherited America’s most famous plantation, wrote the opinion (Corfield v. Coryell) that was later seen as a defining text for Section One of the Fourteenth Amendment. Complicating that narrative was Washington’s leadership of the American Colonization Society, which advocated the freedom and deportation of slaves to Africa, at the same time that he was selling many of his own to pay the considerable debts of Mount Vernon.

There is, though, an even more extraordinary tale to tell. Let’s start with George Washington’s will, which stated that his slaves would be freed upon Martha Washington’s death.  This created a rather knotty problem; Martha was soon petrified that these slaves would kill her to hasten their freedom.  At one point there was a suspicious fire at Mount Vernon, and Bushrod was summoned by his aunt and asked for his advice.  He told her to free George Washington’s slaves immediately, and she did.

Washington may have feared that history would repeat itself. In March 1821, he called all of his slaves together at Mount Vernon and told them that they would never be freed by him. (I learned this from a terrific book on Mount Vernon’s slaves by Scott Casper called Sarah Johnson’s Mount Vernon.) Such a statement against liberty by a Supreme Court Justice at the home of the Father of the Nation is remarkable enough. What’s more, just two years later Washington was writing the famous passage in Corfield about “those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.”

To paraphrase Tolkien, Bushrod Washington’s life is a story that grows in the telling.


Leopards and Their Spots

My former colleague, Bill Bradford, is back in the news.  In 2005, he resigned from his position on our faculty, as summarized here. Two years ago he resigned his position as a lecturer at West Point, as summarized here.

These scandals, of course, made him a perfect candidate for a job in the Trump Administration at the Department of Energy. As the Washington Post reported the other day, though, Professor Bradford’s comments on Twitter are now under scrutiny. Among his observations was that Mark Zuckerberg was a “self-hating Jew.” (You can read the rest of the tweets yourself.)

In the Post article, Professor Bradford is quoted as follows: “As a minority and member of the Jewish faith, I sincerely apologize for my disrespectful and offensive comments. These comments are inexcusable and I do not stand by them. Now, as a public servant, I hold myself to a higher standard, and I will work every day to better the lives of all Americans.”

I wait with breathless anticipation to see the higher standard of conduct.