3

For the 4th!

In my book on the Bill of Rights, I argue that the first set of amendments was not widely known by that term until the 1930s. A friend of mine recently sent me an excerpt of Black’s Law Dictionary (circa 1910) containing its entry for the term “Bill of Rights.”

“A formal and emphatic legislative assertion and declaration of popular rights and liberties usually promulgated upon a change in government; particularly the [citation to the English Bill of Rights of 1689]. Also the summary of the rights and liberties of the people, or of the principles of constitutional law deemed essential and fundamental, contained in many of the American state constitutions.”

Nothing, of course, about any American national bill of rights.

1

FAN 194.11 (First Amendment News) Michael Seidman responds to his critics

Professor Louis Michael Seidman

Their comments have made me think hard about my position, and – at least for me — thinking takes time. — Michael Seidman 

The online dialogue reaches its apex with Professor Michael Seidman’s much awaited rejoinder to the five responses to his essay “Can Free Speech be Progressive?, forthcoming in the Columbia Law Review.

FAN has had the privilege of partnering with Stephen Solomon and Tatiana Serafin over at First Amendment Watch and I hope to do more of the same in the coming months.

Special thanks to Mike Seidman for being such a good sport in agreeing to participate in this online examination of his essay. And, fianlly, thanks to my four colleagues, listed below, for their contributions to this symposium..

Previous Responses 

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Six News Items

Forthcoming

On Thursday, July 5th, FAN will post Wendy Kaminer’s latest reply to David Cole re the ACLU free speech controversy.

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2017-2018 Term: First Amendment Free Expression Cases

Five Cases Decided with Opinions* 

  1. National Institute of Family and Life Advocates v. Becerra
  2. Lozman v. City of Riviera Beach, Florida
  3. Minnesota Voters Alliance
  4. Janus v. American Federation of State, Municipal and County Employees
  5. National Institute of Family and Life Advocates v. Becerra

*   Masterpiece Cakeshop v. Colorado Civil Rights Commission (First Amendment Free Exercise holding)

*   Benisek v. Lamone (Because the balance of equities and the public interest tilt against the preliminary injunction motion of plaintiffs claiming that a Maryland congressional district was gerrymandered to retaliate against them for their political views, the district court did not abuse its discretion in denying the motion.)

Harris v. Cooper (affirmed, without any written comment)

Vacated & Remanded 

  1.  A Woman’s Friend Pregnancy Resource Clinic v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)
  2. Livingwell Medical Clinic, Inc. v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Nieves v. Bartlett
  2. Flanigan’s Enterprises, Inc. v. City of Sandy Springs
  3. Nationwide Biweekly Administration, Inc., et al v. Perez
  4. CTIA v. City of Berkeley 
  5. Berninger v. Federal Communications Commission

Review Denied

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Walker v. N.Y.C. Dep’t of Educ. et al.
  4. Shepard v. Florida Judicial Qualifications Commission 
  5. Morris v. Texas(dismissed for want of jurisdiction)
  6. Connecticut v. Baccala
  7. Tobinick v. Novella
  8. Muccio v. Minnesota
  9. Elonis v. United States
  10. Final Exit Network, Inc. v. Minnesota

Free-Speech Related Case: Decided 

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment. — Fourth Amendment claim sustained).

Free-Speech Related Cases: Cert. Denied

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
  • MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
1

FAN 194.10 (First Amendment News) Richard Delgado Responds to Michael Seidman’s “Can Free Speech Be Progressive?”

  • News item: Adam Liptak, How Conservatives Weaponized the First Amendment, New York Times, June 30, 2018
  • Forthcoming: On Thursday, July 5th, FAN will post Wendy Kaminer’s latest reply to David Cole re the ACLU free speech controversy.  

_______________________

Prof. Richard Delgado (credit: Seattle University)

Unlike other areas of law that have greatly benefited from the realist revolution of the last century, First Amendment doctrine proceeds as though the realists and critics had never existed. No wonder it resists balancing, sociological jurisprudence, perspective-changing, and any of the other tools of critical thought that have enabled progress in dozens of other areas, including family law, torts, consumer protection, and environmental protection. Richard Delgado

The online dialogue continues over at First Amendment Watch with today’s posting of Professor Richard Delgado’s response to Professor Michael Seidman’s “Can Free Speech be Progressive?

Additional posts will continue tomrrow:

Previous Responses 

_____________________

2017-2018 Term: First Amendment Free Expression Cases

F ive Cases Decided* 

  1. National Institute of Family and Life Advocates v. Becerra
  2. Lozman v. City of Riviera Beach, Florida
  3. Minnesota Voters Alliance
  4. Janus v. American Federation of State, Municipal and County Employees
  5. National Institute of Family and Life Advocates v. Becerra

*   Masterpiece Cakeshop v. Colorado Civil Rights Commission (First Amendment Free Exercise holding)

*   Benisek v. Lamone (Because the balance of equities and the public interest tilt against the preliminary injunction motion of plaintiffs claiming that a Maryland congressional district was gerrymandered to retaliate against them for their political views, the district court did not abuse its discretion in denying the motion.)

Vacated & Remanded 

  1.  A Woman’s Friend Pregnancy Resource Clinic v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)
  2. Livingwell Medical Clinic, Inc. v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Nieves v. Bartlett
  2. Flanigan’s Enterprises, Inc. v. City of Sandy Springs
  3. Nationwide Biweekly Administration, Inc., et al v. Perez
  4. CTIA v. City of Berkeley 
  5. Harris v. Cooper
  6. Berninger v. Federal Communications Commission

Review Denied

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Walker v. N.Y.C. Dep’t of Educ. et al.
  4. Shepard v. Florida Judicial Qualifications Commission 
  5. Morris v. Texas(dismissed for want of jurisdiction)
  6. Connecticut v. Baccala
  7. Tobinick v. Novella
  8. Muccio v. Minnesota
  9. Elonis v. United States
  10. Final Exit Network, Inc. v. Minnesota

Free-Speech Related Case: Decided 

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment. — Fourth Amendment claim sustained).

Free-Speech Related Cases: Cert. Denied

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
  • MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
0

UC Davis Law Review, Issue 51:5 (June 2018)

Articles

Guns N’ Ganja: How Federalism Criminalizes the Lawful Use of Marijuana
Ira P. Robbins

Announcing the “Clean Hands” Doctrine
T. Leigh Anenson

Against Nonmarital Exceptionalism
Albertina Antognini

From Idealists to Hired Guns? An Empirical Analysis of “Public Interest Drift” in Law School
John Bliss

Supreme Irrelevance: The Court’s Abdication in Criminal Procedure Jurisprudence
Tonja Jacobi & Ross Berlin

Protecting LLC Owners While Preserving LLC Flexibility
Peter Molk

Incapacitating Motherhood
Priscilla A. Ocen

Public Choice Theory, the Constitution, and Public Understanding of the Copyright System
W. Michael Schuster

Essays

Neuroscience, Artificial Intelligence, CRISPR — and Dogs and Cats
Henry T. Greely

Denying Trademark for Scandalous Speech
Ned Snow

lawreview.law.ucdavis.edu

 

2

Restoring the Double Jeopardy Clause

Today the Supreme Court granted certiorari in Gamble v. United States, which asks the Court to overrule its 1958 decision in Bartkus v. Illinois. Bartkus was a deeply flawed opinion, written by Justice Frankfurter, which held that a state prosecution for the same criminal act that led to an acquittal in federal court (or vice versa) did not violate the Double Jeopardy Clause of the Fifth Amendment. The Court’s theory was that a state and the United States were “separate sovereigns” and that the Double Jeopardy Clause bars only the same sovereign from trying someone again for a crime after an acquittal.

Bartkus is inconsistent with the history of the Double Jeopardy Clause and the case law underlying that important protection to criminal defendants. I certainly hope that the Court will send Bartkus into the trash can next Term.

2

Measuring a Judicial Legacy

One way to think about a career such as Justice Kennedy’s is to look at the opinions that he wrote or the cases where he probably supplied the decisive vote.  You can also consider his extra-judicial acts or (years from now) assess his internal influence at the Court through memos.

Here’s another way of thinking about this though. Years from now, will anyone say something like “As Justice Kennedy reasoned” or “As Justice Kennedy explained” in an opinion or a brief? We see that with federal judges like Henry Friendly and Supreme Court Justices like Robert Jackson. And we have already seen that with Justice Scalia since his death. I doubt very much, though, that anyone will think invoking Justice Kennedy by name will convince anybody of anything in future.

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Barnette as the Ultimate Defense to Judicial Review

In my book on the Bill of Rights, I pointed out that the following passage from Justice Jackson’s opinion in West Virginia State Board of Education v. Barnette has become iconic:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

I then pointed out that the Court periodically turns to this quote as a last-ditch justification for an exercise of judicial review that is either on a controversial subject (prayer in schools, abortion, and same-sex marriage, to name three) or undertaken in a controversial manner.

What do we see in today’s opinion in Janus v. AFSCME, which overruled a prior precedent on fees in public sector unions for non-union members?  In Footnote 21 of the Court’s opinion, Justice Alito rejects the charge in the dissent that the majority are acting like “black-robed rulers” by saying:

In holding that these laws violate the Constitution, we are simply enforcing the First Amendment as properly understood, “[t]he very purpose of [which] was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943).

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Grand Theories & the Path to Censorship: Book Review of “Free Speech Beyond Words” and “The Taming of Free Speech”

I authored a short review of the two books listed below. The review appears in the current issue of the Political Science Quarterly.

____________________

First contention: Attempts to make the First Amendment safe frequently produce censorship. Take risk out of the jurisprudential equation, and little liberty is left. Oliver Wendell Holmes Jr. tagged it an “experiment,” this business of reconciling freedom with security. But experiments sometimes fail, which points back to risk. If one does not consent to these terms of our constitutional compact, then no freedom worth preserving will emerge. Or, to put it more cavalierly: yes, sometimes the Bill of Rights can be like a suicide pact—Justice Robert Jackson’s 1949 admonition in Terminiello v. City of Chicago (337 U.S. 1) notwithstanding, which returns us to Holmes’s Darwinian experiment.

Second contention: Theories of free speech, especially those of the “elevated” or “righteous” kind, lead inescapably to censorship. Take a canonical BIG NORM (for example, truth in the marketplace, self-realization, or democratic participation), link it to the First Amendment, and what inevitably follows is freedom cabined. Know this: the moral reformist and the progressive activist are censorial fellow travelers. Free-speech freedom must stand on its own legs, unfettered by intolerant ideological interventionists.

That conceptual frameworkprovides oneway to gaugemuchofwhatpasses as free-speech theorizing in modern America. Mind you, one need not accept that framework in order to appreciate several of the varied insights offered up in the two important books reviewed here. Moreover, the four authors of the two books under consideration urge us to consider a fundamental question—namely, how should we think about the First Amendment and our free-speech freedoms?

One book (Free Speech Beyond Words) invites us to think—and think hard—about why we protect “speech” that is not literally speech. The other book (The Taming of Free Speech) urges us to think—and think passionately—about the First Amendment as a weapon of the powerless to oppose the powerful.

The first book explains and challenges the existing premises underlying the reasons why some forms of expression (for example, art, music, and “nonsense”) are covered as “speech” under the First Amendment. The other book uses the “right of agitation” (correctly defined, of course) as the benchmark for protected expression.

Free Speech Beyond Words is more philosophical (that is, probative), whereas The Taming of Free Speech is more political and (selectively) historical. With analytical rigor, Mark V. Tushnet, Alan K. Chen, and Joseph Blocher fill diverse forms of expression into assorted doctrinal boxes to avoid reaching the right judicial result for the wrong reasons.

Laura Weinrib’s book, by stark contrast, reveals how a single-concept form of First Amendment jurisprudence (of the liberal left variety) proves the truth of the dangers flagged in my two contentions.

Apparently, the author of The Taming of Free Speech  would consider the following statement heretical: “We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.” Thus did Roger Baldwin (1884–1981) of the American Civil Liberties Union (ACLU) view things in 1939. By Weinrib’s measure, that is what is wrong with our free-speech jurisprudence and the modern ACLU’s defense (sometimes incomplete) of it. The powerless (not the powerful), workers (not employers), and individuals (not corporations) deserve First Amendment protection . . . or so her history of the First Amendment would have us believe. While there is more than a dollop of truth here, her jurisprudential key would cabin much of the free-speech freedom we enjoy today, and this in furtherance of Weinrib’s class-based Industrial Workers of the World–like understanding of the First Amendment.

David Cole, the ACLU’s national legal director, is understandably doubtful: “a conception of speech rights that turns on assessments of which views advance the interests of the weak over the strong, or of whether the marketplace of ideas is skewed by inequality, risks giving state officials the power to censor views they disfavor” (New York Review of Books, 23 March 2017).

In the “Going Further” portion of their work, the authors of Free Speech Beyond Words turn to still other forms of expression that are not literally “speech” in order to discern some stopping point to prevent tagging everything speech—for example, from artistic and erotic dance to sports and culinary arts to the digital collection and dissemination of data. Do such forms of expression qualify for coverage under the First Amendment? If so, why? Surely, and as the authors correctly reveal, it cannot be on account of such conceptual touchstones such as the marketplace of ideas or the “checking function” theories of free speech. Good theories, bad applications. To help resolve a given issue, the authors test drive assorted free-speech theories to see how they work in the context of a given form of expression. The problem: this back-and forth form of analysis is indeterminate, as revealed in their examination of data collection and dissemination, which discusses at least three different and sometimes incompatible theories but finds no resolution short of micro case-by-case analysis. Another challenge: have the authors identified all of the applicable theories or only the traditional lineup of hierarchical theories? If not, those problems associated with my second contention might well loom large.

It is true: our First Amendment jurisprudence needs astute thinkers like Professors Tushnet, Chen, and Blocher to get us to reconsider where we have been, where we may be tending, and why.

And what of Professor Weinrib? Yes, there is welcome room for her (and the likes of Steve Shiffrin and his What’s Wrong with the First Amendment) in our grand debate parlor. For what kind of robust First Amendment would we have if not for doctrinal agitators who rail against our “overprotective” free speech jurisprudence?

In the end, one lesson to be gleaned from both of these fine books is that a vibrant First Amendment culture requires a demanding degree of openmindedness.

Take heed!

RONALD K.L. COLLINS , University of Washington, School of Law

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FAN 194.9 (First Amendment News) Ronald Collins Responds to Seidman’s “Can Free Speech Be Progressive?”

News item: Court renders 5-4 opinion in California abortion clinic free speech case — National Institute of Family and Life Advocates v. Becerra (per Thomas, J., for the majority, Kennedy, J., concurring, and Breyer, J., for the dissent).

_______________________

Ronald Collins (credit: Bruce Guthrie)

The online dialogue continues over at First Amendment Watch with today’s posting of my response to Michael Seidman’s “Can Free Speech be Progressive?

Additional posts will continue tomrrow:

Wednesday, June 27:              Richard Delgado
Thursday, June 28:                  Mike Seidman:  Rejoinder

Friday, June 29 onward:        Reader responses

Previous Responses 

_____________________

2017-2018 Term: First Amendment Free Expression Cases

Cases Decided 

  1. National Institute of Family and Life Advocates v. Becerra
  2. Masterpiece Cakeshop v. Colorado Civil Rights Commission
  3. Lozman v. City of Riviera Beach, Florida
  4. Minnesota Voters Alliance

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Flanigan’s Enterprises, Inc. v. City of Sandy Springs
  2. Nationwide Biweekly Administration, Inc., et al v. Perez
  3. CTIA v. City of Berkeley 
  4. Harris v. Cooper 
  5. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  6. Livingwell Medical Clinic, Inc. v. Becerra
  7. Berninger v. Federal Communications Commission

Review Denied

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Walker v. N.Y.C. Dep’t of Educ. et al.
  4. Shepard v. Florida Judicial Qualifications Commission 
  5. Morris v. Texas (dismissed for want of jurisdiction)
  6. Connecticut v. Baccala
  7. Tobinick v. Novella
  8. Muccio v. Minnesota
  9. Elonis v. United States
  10. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)

Free-Speech Related Cases: Cert. Pending

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)

Free-Speech Related Cases: Cert. Denied

0

Supreme Court Petitions For Rehearing

A random question–when was the last time the Supreme Court issued an opinion, granted a petition for rehearing on the case, and then issued another opinion reversing the prior judgment? I know that this happened in the 1920s, but I can’t think of any recent examples. Any thoughts?