Why Does The Medium Matter?

I find the recent injunctions issued against the uploading of software and instructions to make 3D printed guns hard to reconcile with the First Amendment.

Let’s try a thought experiment. Suppose I want to make a metal gun in my garage. I can find out how to do that on the web, and I can freely tell others how to do that. Why is a 3D printed gun different? It would be one thing if the law took the position that no instructions on personal gun making could be made public, much as we might say for a nuclear or a biological weapon. But that is not the law.

The Government is, of course, are free to regulate the manufacture or possession of 3D printed guns (hard as that may be to do). But I can’t see why they can censor the relevant information.


Corfield and the Power of Congress

I’ve been researching how the Reconstruction Congresses understood Justice Washington’s opinion in Corfield v. Coryell. One point that I had not previously considered is that among the privileges and immunities of citizenship Washington named in that opinion was “protection by the government.” This phrase was cited many times during Reconstruction in support of the authority of Congress to enact the Ku Klux Klan Act, which was intended to protect African-Americans from private violence in various places (especially at the polls).

“Protection from the government” is, of course, a positive right. Subsequent Supreme Court decisions hold that state inaction is not generally a constitutional violation. In other words, there is no general positive constitutional right to government protection. John Bingham rejected that view during the Ku Klux Klan Act debate, and one could say that Washington did as well in his era.


FAN 197 (First Amendment News) Congressional Committee Holds Hearing on Proposed Free Flow of Information Act

[T]he potential chilling effect occasioned by the current state of affairs in the federal courts cannot be overstated. The ongoing drum beat of subpoenas, coupled with the lack of clear guidance concerning the recognition and scope of a reporters’ privilege in the federal courts, has impaired the ability of the American public to receive information about the operation of its government and the state of the world in which we live. There is, therefore, now a palpable need for congressional action to preserve the ability of the American press to engage in the kind of important, public-spirited journalism that is often possible only when reporters are free to make meaningful commitments of confidentiality to their sources.Lee Levine

* * * * 

Committee: Joint Hearing of the Subcommittee on Intergovernmental Affairs and the Subcommittee on Healthcare, Benefits, and Administrative Rules of the United States House of Representatives Committee on Oversight and Government Reform  (video of hearing here)

Date: 24 July 2018

  • To discuss H.R. 4382, the Free Flow of Information Act, a shield law that conditions the federally compelled disclosure of information by journalists.
  • In November 2017, Rep. Jamie Raskin (D-MD) and Rep. Jim Jordan (R-OH) introduced the Free Flow of Information Act to protect the exercise of freely reporting critical information to the American public by establishing federal protection from compulsory disclosures for journalists.
  • Most states have enacted laws to shield journalists from being compelled to reveal their confidential sources. However, this patchwork of protection at the state level does not fully protect journalists as the federal government increasingly seeks to seize records belonging to journalists.

What the Bill Does

Representative Jamie Raskin (credit: Jewish Insider)

The Free Flow of Information Act would for the first time enshrine a journalist-source protection into federal law. It would prevent journalists or news organizations from being forced to reveal to the government any sources or documents related to their investigations.

Such information could only be compelled under subpoena if several separate conditions are all met:

  1. The federal government can prove it has exhausted other options for obtaining the information.
  2. The information sought is “critical” to the investigation at hand, rather than tangential.
  3. “The public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.”

This last requirement in particular is subject to considerable interpretation on the part of the judicial system. It’s possible — even likely — that certain courts or judges would almost always rule in favor of the government rather than news organizations, even if this bill became law.

Representative Jim Jordan (credit: Toledo Blade)

So how would that work in the real world? Take the famous example of the NYT’s Miller from 2005, who was imprisoned for refusing to reveal her source in a grand jury case investigating the leak of the identity of an undercover CIA officer. Presumably Miller would have been significantly less likely to have been jailed under this law, with its much higher burden of proof.

But as even the bill’s sponsors concede, it’s almost impossible to say she “wouldn’t” have been jailed, as a court may still have ruled that the public interest in compelling disclosure may have outweighed any other considerations.

Wittnesses & Testimonies 

Name Title Organization Panel Document
Lee Levine Senior Counsel Ballad Spahr, LLP Document
Sharyl Attkisson Investigative Correspondent FullMeasure Document
Rick Blum Policy Director Reporters’ Committee for Freedom of the Press Document

Dershowitz on “Trump’s bid to silence dissent” Read More


The Power to Raise or Lower Taxes

One curious aspect of the Trump Administration’s trade policies is the degree to which Congress has delegated its taxing authority to the Executive Branch. When news headlines say that the President is raising tariffs on somebody, this is a tax increase. Angl0-American law, though, is traditionally very hostile to giving the Executive to raise taxes on his or her own. (Think of the battles between King and Parliament that led to the English Civil War.)

I’m not suggested that Congress cannot delegate its tariff authority in the way that it has. You wonder, though, whether that sort authority will be withdrawn in the coming years.


Taking Delight in the Senate Rules

I’ve always been fascinated by the arcane rules of the Senate. Here is one worth pondering:

(a) Notwithstanding any other provision of the rules, when the Senate is in session, no committee of the Senate or any subcommittee thereof may meet, without special leave, after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after two o’clock postmeridian unless consent therefor has been obtained from the majority leader and the minority leader (or in the event of the absence of either of such leaders, from his designee). The prohibition contained in the preceding sentence shall not apply to the Committee on Appropriations or the Committee on the Budget.

Basically, this means that Senator Schumer could withhold his consent and force Judge Kavanaugh’s confirmation hearing before the Judiciary Committee to end each day two hours after the Senate convenes (or at 2PM), whichever comes first.

What is the purpose of the rule? I guess it was supposed to ensure broad attendance on the floor after a certain time of day if necessary. In practice, though, consent for ongoing committee meetings is almost always given.


FAN 196.1 (First Amendment News) Summertime: Free Speech Podcasts to Check Out

It’s summertime and the livin’ is easy (channeling Ella Fitzgerald & Janus Joplin). So, if you’re driving to the beach, or at the beach under an umbrella, or in a hammuck watching the stars, why not plug into a mind-opening podcast on free speech? Sound inviting?  If so, check out these great podcasts (all free!):

  1. Fire in a Crowded Theater (Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls for exceptions to the First Amendment.)
  2. Street (In this episode, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag.
  3. Crush (Ken White and guest Marc Randazza examine the question of whether the government can continually come to the Supreme Court with potential exceptions to the First Amendment._

  1. The Great Disruption: Part I: The Printing Press and the Viral Reformation (In episode 10, we cover the invention, spread, and effects of the Gutenberg printing press:
  • What significance did this new technology have for the dissemination of knowledge and ideas?
  • Why was the printing press instrumental in helping a German monk and scholar break the religious unity of Europe?
  • What happened when new religious ideas raged through Europe like wildfire?
  • And did Martin Luther’s Reformation lead to religious tolerance and freedom, or persecution and censorship?)

2.  Expert Opinion: Christime Caldwell Ames (Our last stop in the Middle Ages is an interview with professor Christine Caldwell Ames, who is an expert on medieval heresy and inquisition in Judaism, Christianity, and Islam. The discussion highlights the similarities and differences between Christianity, Catholic and Orthodox, Judaism, and Islam when it comes to defining and policing orthodoxy.)

3.  The Hounds of God — Medieval Heretics & Inquisitors (From the High Middle Ages, Europe developed into a “persecuting society,” obsessed with stamping out the “cancer” of heresy. But questions about how this was accomplished — and the consequences of these developments — abound)

  1. Supreme Court Review: Kennedy, Kavanaugh, and “weaponizing the First Amendment” (On this episode of So to Speak, we discuss President Donald Trump’s nomination of Brett Kavanaugh to the United States Supreme Court and what it might mean for the First Amendment. We also review Anthony Kennedy’s legacy, the free speech cases from this past Supreme Court term, and Justice Elena Kagan’s contention that some of her colleagues are “weaponizing the First Amendment.” The guests on today’s show are: Paul Sherman: Senior attorney, Institute for Justice Bob Corn-Revere: Partner, Davis Wright Tremaine Walter Olson: Senior fellow, Cato Institute)
  2. ‘HATE’ with Nadine Strossen (On this episode of So to Speak, we welcome back to the show former ACLU president and New York Law Professor Nadine Strossen. She is the author of “HATE: Why We Should Resist It With Free Speech, Not Censorship.” In this new book, she argues that America’s broad protections for hateful speech are a good thing, and that efforts to censor such speech has historically backfired or been proven ineffective.)
  3. Most memorable FIRE cases (In this episode of So to Speak, we take a trip down memory lane. We are joined by FIRE’s Greg Lukianoff, Samantha Harris, and Will Creeley to discuss memorable cases from FIRE’s 19-year history. You can watch a video of this conversation on FIRE’s YouTube channel(youtube.com/thefireorg).



The Birth of Law Reports

Published law reports are an essential component of a common-law system. Without knowing what a prior case held or said, how can anyone follow precedent? But the system of law reports that we have evolved in a haphazard manner. Until well into the nineteenth century, reports were put together by private individuals (sometimes on their own and sometimes hired by a court) or by the judge. As a result, many of the law reports that we have from early American cases are incomplete or missing.

One of Bushrod Washington’s many contributions was in getting more reports done. As a private practitioner, he published volumes on the opinions of the Virginia Supreme Court based on his notes. As a Supreme Court Justice, he worked to get reports of his circuit cases published in a more diligent manner than many of his colleagues.

Of course, there was a selfish aspect to this. Disseminating his own opinions increased Justice Washington’s influence. There was also selective bias at work. In my research, I have found some notes that Washington made for the preparation of circuit reports, where he explains how his oral statement about the case should be modified prior to publication. Sometimes he suggested revisions to clarify what was said, but sometimes he did so to correct an error he felt he had made.

There are also one set of cases that Washington never reported–his trials involving the Alien and Sedition Acts. This omission is probably not an accident, given how controversial those cases were. This is on reason why taking control of the reports away from the courts was a sound change.


ROUNDUP: Law and Humanities 07.11.18

News from the world of law and humanities.

Some Conferences, Calls for Papers, and Calls for Panelists


The Critical Legal Conference 2018 takes place at The Open University, Milton Keynes, UK, September 6-8, 2018. Registration is now open. More here at the Conference webpage.


The LSAANZ (Law and Society Association of Australia and New Zealand) Conference 2018 will take place December 12-15, 2018, at the University of Wollongong. 

The call for abstracts is open until July 20, 2018. 



Call for Contributions: New Open Access Peer-Review Website

The new open access website https://hedgehogsandfoxes.org/ is issuing a call for essays, articles, interviews, book reviews, teaching resources, photographs, poems, and other materials related to the study of law and the humanities (broadly defined). All publications are peer-reviewed. As you can see, we are just getting started and will be making changes to the design of the website over the next few weeks. If you are interested in publishing with us, please keep us in mind. For more information, or to inquire about publication, please send an email to a member of the Board:

ccorcos at lsu.edu

sghosh01 at law.syr.edu

david.papke at marquette.edu

csharp at uow.edu.au



Read More


FAN 196 (First Amendment News) Special Issue: 20 New or Forthcoming Books


        Marvin Kalb (Sept. 25,  2018)         Lukianoff & Haidt (Sept. 4, 2018)          Cynthia Chris (Jan. 2019)


Banned Books Week 2018, the annual celebration of the freedom to read, will be held September 23 – 29. The 2018 theme, “Banning Books Silences Stories,” is a reminder that everyone needs to speak out against the tide of censorship.

For more information, click here












Eric Robinson(Dec. 12, 2018)              Larry Brimner (Oct. 9, 2018)               Dan Bernstein (Jan. 1, 2019)












Christian Cotton & Eric Arp, eds. (Nov. 13)  Kristie Byrum (Aug. 15, 2018)  Mike Ananny (May 4, 2018)


Bollinger & Stone, eds. (Dec. 3, 2018) Read More