The House of Truth and Justice Holmes

I just finished Brad Snyder’s fascinating new book on “The House of Truth.” The book is about the men who lived or visited this house near Dupont Circle in Washington DC during the 1910s, most notably Justice Oliver Wendell Holmes, Felix Frankfurter, Walter Lippmann, and Gutzon Borglum (the sculptor of Mount Rushmore). There is a lot to chew over, both in terms of how Snyder traces the evolution of progressive thought, the personalities involved, and the events swirling about them.

My strongest impression from the book, though, is that it changes my view on Holmes somewhat.  I’ve always had a negative opinion of him, in part because of Buck v. Bell, but also because of his broad pronouncements about the virtues of majoritarianism. Brilliant guy, great writer, but not a person whose legal values were worth emulating. True, he wrote some excellent dissents in First Amendment cases, but I thought of that as the exception rather than the rule.

Why do I feel differently?  Snyder points out that Holmes did more than any other Justice of the time on behalf of African-American rights.  (Perhaps a more precise way of putting this is that the post-1919 more-liberal Holmes did.) Moore v. Dempsey, a 1923 case written by Holmes, was the first Supreme Court decision that ordered a lower federal court to reexamine (though habeas) a state trial that convicted several African-American defendants.  The Court held that there were serious questions raised about whether the petitioners got a trial at all.  Holmes also commented, in an order rejecting the plea of Sacco and Vanzetti for Supreme Court review, that what they got (as flawed as it was) was far more than what many African-Americans were getting.

I want to give this more more thought, but then again that’s what quality books do.


Some History on Trade and Tariffs

I tend to think that when someone says “This is how it should be” or “As it was, so it shall be” there’s a good chance that the claims are incorrect. Marc Levinson’s book, An Extraordinary Time, hits an area, where I have had that gut feeling that something isn’t correct, quite well. Can the US and the world reach the levels of growth that happened after WWII and ended around 1973? Short answer not likely. The book goes into the various technocrat approaches to fixing the economy, and then the book shows that none of those really hold up. A quote from Paul Samuelson sums up “The third quarter of the Twentieth Century was a golden age of economic progress. It surpassed any reasoned expectation. And we are not likely to see its equivalent anytime soon again.”

One specific area, the use of tariffs to protect American jobs, jumped out for me. After resisting pressure for tariffs on bolts, nuts, and screws (yes a major area it seems), in 1978 the Carter Administration caved and imposed a 15% tariff that lasted three years. US manufacturers raised their prices so that tariff protection cost was passed to consumers. One study estimated that limiting imports from Asia (the target of the tariff) cost $550,000 per job “saved” while the average job in that industry made $23,000 per year. And the tariff did not save the industry. By the mid 1980s sales of the US industry in that sector had lost about 15%.

When it came to autos, trade limits with Japan saved 44,100 US jobs. That is great. But one study says that the cost to consumers was $8.5 billion, because of higher prices “or $193,000 per additional job–approximately six times the annual pay of an American autoworker.” And Japanese automakers still sold their cars at the higher prices and so made “perhaps $7 billion in added profit” which was re-invested in building plants in the US and developing higher-end cars. That is they seem to have become more competitive.

I note these details, not because I am an avid free-trade person. I note them not because I think those who are displaced by the way society and industry change should be shoved aside or chewed up. I note them, because it seems to me that some of the core points about trade policy hold up, if we want lower consumer prices. Remember that part of being able to buy lower cost and super cool TVs, cars, etc. means our dollars are able to buy other things too. There are oceans of ink on the way trade and costs ought to spur overall good things. I leave that for others and other posts.

For this post, the core issue is what happens when large swaths of society, be they in the vast plains or the former industrial giants or in cities and suburbs, aren’t able to have jobs and so their place in society is unstable? Levinson’s book goes to the many times the US and other countries have tried to solve such riddles. The answers are not clear. But the book’s ability to show how looking to politicians and policy to save us has not worked as crisply as we may hope or believe is good tonic going forward. That is regardless of who is in power, look at the solution, look at whether it has been tried, see what happened, and ask whether there is a better way to address the problem; one that might give aid to those threatened and still tee up better businesses for the future.


FAN 143 (First Amendment News) The Turner Broadcasting case, Justice Kennedy & one of his then law clerks — Neil Gorsuch  

A 1990 Harvard yearbook shows Neil Gorsuch, second row from the top on the left.

Vancouver, Canada. Neil Gorsuch clerked for Justice Anthony Kennedy (earlier for Justice Byron White) during the 1993-1994 Court Term.

In that Term the Court decided Turner Broadcasting System, Inc. v. FCC (June 27, 1994). Justice Kennedy wrote the majority opinion in Turner. The issue in Turner was whether the Cable Television Consumer Protection and Competition Act’s “must carry” rules violated the First Amendment. On that score, Justice Kennedy’s opinion stressed, among other things, that “the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation, whatever its validity in the cases elaborating it, does not apply in the context of cable television.” Thus, “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations.”

Of course, we do not know what, if any, involvement young Gorsuch might have had in the case as one of Justice Kennedy’s law clerks.  What we do know, however, is that dating back to his college days at Columbia, Neil Gorsuch had an abiding interest in the First Amendment. (Professor Eugene Volokh clerked at the Court that same Term; he worked for Justice Sandra Day O’Connor.)


  • In a 1994 law review article, Professors Monroe Price and Donald Hawthorne wrote: “Driven by its fixation on content-neutrality, the Turner Broadcasting Court, far from recognizing the importance of the distinction between commercial and non-commercial broadcasters, deemed it immaterial and practically non-existent. . . . We suggest that Justice Kennedy’s rigid doctrinal approach can potentially endanger all substantive government regulation of the electrnic media, especially measures designed to aid non-commercial programmers.”
  • “The Court in Turner,” wrote Henry Geller,  “determined that the Red Lion scheme is confined to broadcasting. Cable and other new electronic delivery systems . . . come under traditional First Amendment jurisprudence. That is, they are to receive strict scrutiny First Amendment protection when the government regulation is content-based and to come under the intermediate O’Brien standard when the regulation is content-neutral.”
  • Robert Corn-Revere, who wrote on the case in 1994, noted that the “debate in Turner Broadcasting regarding the applicable First Amendment standard for cable television brought to a head an ongoing dispute of the past two decades.” Analyzing the opinion, he added that Turner “did not end the debate, [but] may mark a judicial shift toward a more traditionalist approach to electronic means of communication.” That shift came a few years later in United States v. Playboy Entertainment Group, Inc., which Corn-Revere argued. The Turner case formed a key part of Playboy’s opposition to the government’s claim that broadcast indecency standards should be applied to cable.  The Court agreed with Playboy’s position and struck down the law (Section 505 of the Telecommunications Act of 1996), focusing on the technological difference “between cable television and the broadcasting media, which is the point on which this case turns.” 

* ** * * 

 See also: FAN, #141: Judge Neil Gorsuch — the Scholarly First Amendment Jurist

→ Alex J. Harris, who clerked for Judge Gorsuch on the 10th Circuit, is now clerking for Justice Kemmedy.

Senate Judiciary Committee Members 

The Senate Judiciary Committee’s hearings on Judge Gorsuch are set for Monday, March 20th. Senator Chuck Grassley (R-Iowa) chairs the Committee. Those on the committee are:

Republicans (11): Orrin G. Hatch, Lindsey Graham, John Cornyn, Michael Lee, Ted Cruz, Ben Sasse, Feff Flake, Mike Crapo, Tom Tills, & John Kennedy.

Democrats (9): Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Al Franken, Christopher A. Coons, Richard Blumenthal  & Mazie Hirono

Tomorrow in LA: First Amendment Salon on Judge Gorsuch & the First Amendment

Jim Newton of the LA Times

It will the twelfth First Amendment Salon and the first one of 2017; it will address the topic of Judge Neil Gorsuch and freedom of expression.  The salon dialoge will feature Jim Newton (acclaimed author & editor, editorial page, L.A. Times) interviewing Eugene Volokh (noted First Amendment scholar and Gary T. Schwartz Distinguished Professor of Law, UCLA). Kelli Sager (First Amendment specialist & partner, Davis Wright Tremaine) will introduce the discussants.

Tomorrow’s salon will take place at the Los Angeles offices of Davis Wright Tremaine. As always, the salon is co-hosted by Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Live webcasts will be to the D.C. and New York offices of Davis Wright Tremaine with the video of the event to be posted soon on FIRE’s online First Amendment Library (see additional links to the salons below)

Call for Proposals: FIRE’s 2017 Faculty Conference (travel, lodging  & honoraria) Read More


Former Gorsuch clerks who went on to work for Supreme Court Justices — two of them serving this Term

If Judge Neil Gorsuch is confirmed, he will soon be working with some familiar faces — two of his former law clerks are currently clerking on the Court (for Justices Anthony Kennedy and Elena Kagan).

All in all, five sitting Justices have hired Gorsuch Clerks.

Justice Antonin Scalia hired more Gorsuch clerks (4) than any of his colleagues.

Here is the lineup of the 13 Gorsuch clerks who went on to clerk on the Supreme Court:

  • Antonin Scalia [4]  — Michael E. Kenneally (2016- then to Samuel Alito), Michael Kenneally (2015-16 Term), Eric C. Tung (2012-13 Term), Matthew S. Owen (2010-11 Term)
  • Samuel Alito [3] — Michael E. Kenneally (1st with Scalia), Lucas Walker (2015-16 Term), Michael H. McGinley (2014-15 Term)
  • Elena Kagan [2] — Gerard J. Cedrone (2016-17 Term), Jason C. Murray (2013-14 Term),
  • Clarence Thomas [2] — Katherine C. Yarger  (2013-14 Term), Allison B. Jones (2010-11 Term)
  • Sonia Sotomayor [1] — Jane E. Kucera (2011-12)
  • Anthony Kennedy [1] —  Alex J. Harris (2016-17 Term)

Frontal Lobe or A Softer Take on The Twenty-Fifth Amendment and Mental Illness

Gerard makes a good point about the Twenty-Fifth Amendment, but there may a related idea that helps (and shows the limits of the Amendment). Perhaps the President, as with many folks as we age, has a front lobe problem. These ideas apply to many more than the President.

There is some evidence that our frontal lobe decays as we age; when that happens executive control goes down and we are less able to manage many things. This abstract for the paper Aging, Executive Functioning, and Social Control says it all rather well

Aging is associated with atrophy of the frontal lobes of the brain, which are the seat of executive functions. Because successful social functioning often requires executive control, aging can lead to unintended social changes via deficits in executive control. In this article I review evidence that, due to losses in executive control, aging leads to increased prejudice and social inappropriateness and, under certain circumstances, increased depression and problem gambling. I then discuss theory and research suggesting possible interventions that might ameliorate unwanted social changes brought about by executive decline.

Yes. The part of our brain that is “the seat of executive functions, which include tasks such as planning and controlling thought and behavior” decay with age. This change can lead to “poor executive functioning, including reduced ability to inhibit irrelevant or unwanted thoughts.” How does this play out? It seems a variety of things can happen.

Prejudice: “Automatic or unintentional stereotypic thoughts appear to be common in most people (Devine, 1989), and it might be that older adults have greater difficulty inhibiting these stereotypic thoughts despite their efforts to avoid being prejudiced. Thus, older adults might also be more prejudiced than younger adults because they can no longer inhibit their unintentionally activated stereotypes.”

Inhibition and Social Inappropriateness: “findings suggest a dissociation between knowledge of social rules and the ability to follow them that is consistent with other types of frontal lobe damage.”

Inhibition and Depression: As I read the paper, the results are not settled except that “age-related inhibitory deficits might also contribute to late-onset depression by impairing control of excessive rumination (a tendency to focus on one’s problems without engaging in active problem solving,
which exacerbates and prolongs depression).” The paper is clear that the key issue is “those older adults who rely on inhibitory control to stop themselves from ruminating (either chronically or when confronted by negative life events) are likely to develop problems with rumination if they have poor executive control.”

Inhibition and Gambling: Again not conclusive: “Analogous to the case with late-onset depression, poor inhibitory ability is unlikely to lead to gambling problems in all or even most older adults. Rather inhibitory deficits might lead to gambling problems only among those who struggle with their
impulse to gamble. That is, people who gamble and who are impulsive by nature might be at risk for developing gambling problems as they age, due to losses in the ability to restrain their urge to gamble.”

SOLUTIONS: Apparently we are able to exercise and control earlier in the day rather than later.

Another paper notes the limits of the above findings, and both call for longitudinal studies to understand how things change as we age.

Nonetheless, although arm-chair psychology has problems, the list above seems to map rather well to President Trump’s behaviors. None of that excuses them. Unlike our parents, or us as we age, the President’s statements, orders, and actions have consequences that affect hundreds of millions, if not, billions of people. If the above is useful or interesting, I expect someone could and will track the President’s habits and look at time of day. As Gerard noted, it is unlikely these traits will rise to incapacity. And yet, as with our elders and us as we age, at some point, someone gets to run tests and see whether everything is working well. Again for the Office of the President whether we want such tests seems to be answered as no. Both or any party is not to be trusted with such a tool. But that is a problem for another time.


FAN 142 (First Amendment News) 8th Cir. Upholds 1st Amendment challenge to trademark licensing rule


Paul Gerlich & Erin Furleigh (credit: FIRE)

Seattle. “Then-students Paul Gerlich and Erin Furleigh were officers with Iowa State University’s chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) when they filed their lawsuit in July 2014, through the Foundation for Individual Rights in Education’s (FIRE’sStand Up For Speech Litigation Project. The group had multiple T-shirt designs rejected by the university and was subject to unusually heavy, politically motivated scrutiny when applying to use ISU logos under the school’s trademark policy.”

Yesterday, “the Eighth Circuit held that ISU administrators had engaged in unconstitutional viewpoint discrimination, violating Furleigh and Gerlich’s First Amendment rights.” (FIRE press release)

The case is Gerlich v. Leath, which was handed down by a three-judge panel of Eight Circuit. The opinion for the court was written by Judge Diana E. Murphy. Here is how it opens:

Judge Diana Murphy

“Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws had several of its trademark licensing requests denied because its designs included a cannabis leaf. Two members of the student group subsequently filed this 42 U.S.C. § 1983 action, alleging various violations of their First and Fourteenth Amendment rights. The district court granted plaintiffs’ summary judgment motion in part and entered a permanent injunction against defendants. Defendants appeal, and we affirm.”

In deciding the case, the court ruled that the ISU NORML chapter had Article III standing to sue under both Rosenberger v. Rector & Visitors of Univ. of Va. (1995) and Widmar v. Vincent (1981).

The court held that the government cannot grant or withhold government benefits based on officials’ political preferences — including use of trademarks. It drew a clear line against expansion of the “government speech” doctrine to matters involving student speech on university campuses. — Robert Corn-Revere (lead counsel for Plaintiffs)

Limited Public Forum Issue: The court then sustained the Plaintiffs’ motion for summary judgment on their as applied First Amendment challenge. In that regard, Judge Murphy noted: ‘If a state university creates a limited public forum for speech, it may not “discriminate against speech on the basis of its viewpoint.’ Rosenberger. A university ‘establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ Christian Legal Soc. Chapter of the Univ. of Cal. v. Martinez (2010). A university’s student activity fund is an example of a limited public forum. See Rosenberger. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.”

Lisa Zycherman (one of Plaintiffs’ lawyers)

Viewpoint Discrimination: “The defendants’ rejection of NORML ISU’s designs,” she added, “discriminated against that group on the basis of the group’s viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is ‘the specific motivating ideology or the opinion or perspective of the speaker.’ Rosenberger.”

“. . . . The instant facts are somewhat similar to those in Gay & Lesbian Students Ass’n v. Gohn (8th Cir. 1988). In that case, the University of Arkansas made funding available to student groups but denied funding one advocating for gay and lesbian rights. We concluded that the university had engaged in viewpoint discrimination.  In reaching this conclusion our court relied on the fact that the university followed an unusual funding procedure that was specific to the gay and lesbian group, some of the decision makers ‘freely admitted that they voted against the group because of its views,” and ‘[u]iversity officials were feeling pressure from state legislators not to fund’ the group. Id.

The court rejected ISU’s denials that its actions were politically motivated. The court pointed to e-mail communications among school officials that showed they reacted within hours of receiving inquiries from legislative staff and political appointees. ISU’s President, Steven Leath, testified at his deposition that he was concerned about “political public relations implications” of the NORML ISU t-shirt designs, and “my experience would say in a state as conservative as Iowa on many issues, that [it] was going to be a problem.”  Leath also testified that “anytime someone from the governor’s staff calls complaining, yeah, I’m going to pay attention, absolutely.”

Ronald London (one of Plaintiffs’ lawyers)

Government Speech Claim: Finally, the Court rejected ISU’s claims that the administration of the trademark licensing regime should be considered government speech. The government speech doctrine does not apply if a government entity has created a limited public forum for speech, wrote Judge Murphy relying on Pleasant Grove City. As noted above, she added, “ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.”

“Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. . . . [Even when analyzed under the three-factors announced in Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (2015), those] factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.”

Lawyers for the Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman.  Local counsel was Mike Giudicessi.

Three of Professor Eugene Volokh’s students — Ian Daily, Eric Sefton and Sydney Sherman — and Volokh filed an amicus brief on behalf of the Student Press Law Center arguing in favor of this result.

Headline: “Breitbart’s Milo Yiannopoulos inspires Tennessee ‘free speech’ bill” Read More


Hibernation Time

Today I got the tap on the shoulder from my publisher saying that the clock has started to run for the next round of edits on my Bill of Rights book.  So I’ll be posting less frequently for the next month or so.


The Ninth Census and the Fourteenth Amendment

In prior posts I’ve outlined part of my argument that the laws regulating the apportionment of representatives among the states violate Section Two of the Fourteenth Amendment.  Before getting back to explaining that analysis and some of my research, I thought I’d discuss this fun find.

The first census conducted after the Fourteenth Amendment was ratified was run in 1870 by the Department of the Interior. In the instructions given to the census takers, they were asked to count the number of men who were citizens and over the age of 21 who were unable to vote pursuant to the language of Section Two. Here was the explanation given in those instructions:

Many persons never try to vote, and therefore do not know whether their right to vote is not abridged. It is not only those whose votes have actually been challenged, and refused at the polls for some disability or want of qualification, who must be reported . . . but all who come within the scope of any State law denying or abridging suffrage to any class or individual on any other ground than participation in rebellion, or legal conviction of crime. Assistant Marshals, therefore, will be required carefully to study the laws or their own States in these respects, and to satisfy themselves, in the case of each male citizen of the United States above the age of twenty-one years, whether he does or does not come within one of these classes.


FAN 141 (First Amendment News) Judge Neil Gorsuch — the Scholarly First Amendment Jurist

Free speech works; it works better than any form of censorship or suppression; and in exercising vigorously, the truth is bound to emerge. — Neil Gorsuch (1986)

Last Saturday’s march was more a demand for the overthrow of American society than a forum for the peaceable and rational discussion of these people and events. — Neil Gorsuch (1987)

Judge Neil Gorsuch

Seattle — “Judge Gorsuch is a serious, accomplished jurist who will defend a robust First Amendment.” There is truth there, in David Keating‘s assessment of the First Amendment opinions of Judge Neil Gorsuch. As the epigraph quote reveals, there was a free-speech sentiment in the mix of the man that traced back at least to his college days at Columbia University. To draw again from that time: Columbia  University “has a responsibility to make the political, philosophical, and ethical experience here as diverse and varied as the cultural and ethnic experience,” he wrote.

If one scans what we now know of the arc of Judge Gorsuch’s views on the First Amendment and free expression, it is readily apparent than he has long and informed commitment to the First Amendment. Should that continue, and it seems likely to, he could well become the First Amendment point-person on the Court.

Wasn’t the First Amendment written for the explicit purpose of protecting dissenting voices, allowing them the freedom to ‘recruit’ others to their opinions? Don’t we call this the marketplace of ideas — implying that ideas are bought by converts and sold by believers, thus using the very language of recruitment? Free speech is dangerous to dictators because it promises to recruit opposition; effective free speech is the best recruiting policy. — Neil Gorsuch (1987)

The Judge as Scholar 

Whatever one thinks of Judge Gorsuch’s jurisprudence overall and his free-speech jurisprudence in particular, which is sketched out below, one thing is undeniable: he is jurist who values the scholarly virtues and someone who appreciates the value of nuance.  Moreover, there is a welcome clarity in his First Amendment free-expression opinions, which is unusual in a decisional law world bogged down by unnecessary ambiguity.

Professor Eugene Volokh (who co-clerked with Gorsuch at the Supreme Court) agrees: “Neil Gorsuch is an excellent judge, who consistently produces readable, careful, thoughtful, even scholarly opinions.”

Only in an atmosphere where all voices are heard, where all moral standards are openly and honestly discussed and debated, can the truth emerge. — Neil Gorsuch (1987)

Highlights of Free-Speech Opinions Authored by Judge Gorsuch 

Right of Petition: “We write today to reaffirm that the constitutionally enumerated right of a private citizen to petition the government for the redress of grievances does not pick and choose its causes but extends to matters great and small, public and private. Whatever the public significance or merit of Mr. Van Deelen’s petitions, they enjoy the protections of the First Amendment.” (Van Deelen)

More on the Right of Petition: “[T]he right of a private citizen to seek the redress of grievances is not limited to matters of ‘public concern . . . .” (Van Deelen)

The Promise of Self-Government: “The promise of self-government depends on the liberty of citizens to petition the government for the redress of their grievances. When public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise.” (Van Deelen)

Right to Petition & the Sons of Liberty: “to petition the government for the redress of tax grievances . . . has been with us and clearly established since the Sons of Liberty visited Griffin’s Wharf in Boston. Defendants respond by pointing us again to the line of cases from Kansas district courts, arguing that it ‘muddied the water’ sufficiently that a reasonable official would not have known that private citizens have a First Amendment right to petition on private as well as public matters. But every case discussing the public concern test in the Supreme Court has made pellucid that it applies only to public employees.” (Van Deelen)

Public Employess & Matters of Public Concern: “The public concern test . . . was meant to form a sphere of protected activity for public employees, not a constraining noose around the speech of private citizens. To apply the public concern test outside the public employment setting would require us to rend it from its animating rationale and original context.” (Van Deelen)

Campaign Contribution Cases: “political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate—both expressly protected First Amendment activities.” (Riddle)

Level of Scrutiny in Campaign Contribution Cases: “the Court has yet to apply strict scrutiny to contribution limit challenges—employing instead something pretty close but not quite the same thing.” (Riddle)

First Amendment & Equal Protection Intersection: “Of course, all these teachings have come in the context of First Amendment challenges to contribution limits—and in this appeal we are asked to decide a Fourteenth Amendment claim. In the Fourteenth Amendment’s equal protection context, the Supreme Court has clearly told us to apply strict scrutiny not only to governmental classifications resting on certain inherently suspect grounds (paradigmatically, race) but also governmental ‘classifications affecting fundamental rights.'” (Riddle)

Defamation: “Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.” (Bustos)

Defamation & Misstatements: “But to say that the misstatement must be material only raises questions of its own — material to whom? And for what purpose? The answer to these questions takes us back to and can be found in the interest the American defamation tort is intended to protect — the plaintiff’s public reputation. Because this is the particular purpose the defamation tort is aimed at, we assess the materiality of a misstatement by comparing the damage it has done to the plaintiff’s public reputation to the damage the truth would have caused. . . . By requiring a significant impact on the plaintiff’s public reputation when compared to the truth, the material falsehood requirement works as a screen against trivial claims.” (Bustos)

Parody & Defamation: “[Per the law in our Circuit,] the First Amendment precludes defamation actions aimed at parody, even parody causing injury to individuals who are not public figures or involved in a public controversy.”  (Mink)

Parody & Matters of Private Concern: “[T]he Supreme Court has yet to address how far the First Amendment goes in protecting parody. And reasonable minds can and do differ about the soundness of a rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern. One might argue, for example, that such a rule unnecessarily constitutionalizes limitations that state tort law already imposes. . . . Or that such a rule may unjustly preclude private persons from recovering for intentionally inflicted emotional distress regarding private matters, in a way the First Amendment doesn’t compel. See, e.g., Catherine L. Amspacher & Randel Steven Springer, Note, Humor, Defamation and Intentional Infliction of Emotional Distress: The Potential Predicament for Private Figure Plaintiffs, 31 Wm. & Mary L.Rev. 701 (1990); Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L.Rev. 601, 662 (1990) (arguing that the First Amendment does not “absolutely protect[] all verbal means of intentionally inflicting emotional distress, all forms of racial, sexual, and religious insults, so long as the offending communications do not contain false factual statements”).” (Mink)

“He was not an ideologue,” said M. Adel Aslani-Far, a former writer and editor for the [Columbia Spectator]. “At his core was that things should be thought through and presented and argued, not in a confrontational sense, but in the lawyer-judge sense.”

 First Amendment Free-Speech & Right of Petition Opinions Authored by Judge Gorsuch

  1. Riddle v. Hickenlooper, 742 F. 3d 922 (10th Cir., 2014) (Gorsuch, J. concurring)
  2. Bustos v. A & E Television Networks, 646 F.3d 762 (10th Cir. 2011) (libel and privacy)
  3. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) (Gorsuch, J. concurring) (searches of work product)
  4. Van Deelen v. Johnson, 497 F. 3d 1151 (10th Cir. 2007)

Free Expression-Related Opinion Authored by Judge Gorsuch 

  1. A.M. v. Holmes850 F.3d 1123 (10th Cir., 2016) (Gorsuch, J., dissenting) (contesting validity of arrest of 7th-grade student who traded fake burps in class)

 Free-Speech-Related Opinions in Which Judge Gorsuch Joined

  1. Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) (sex offender disclosure law uphelod over 1-A challenge)
  2. Cory v. Allstate Ins.583 F.3d 1240 (10th Cir., 2009) (denying defamation claim)
  3. Meshwerks, Inc. v. Toyota Motor Sales USA, Inc, 528 F. 3rd. 1258 (10th Cir., 2008) (applying “idea/expression dichotomy” in copyright law case)
  4. Alvarado v. KOB-TV, 493 F.3d 1210 (10th Cir. 2007) (rejecting emotional distress & privacy claims)
  5. Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007) (rejecting right of privacy claim against media Ds.)

The above compilation was based in part on the case listings and analysis contained in David Keating’s Make the First Amendment Great Again? Trump’s Potential Supreme Court Nominees’ Views on Free Speech, Center for Competitive Politics.

Commentators on Judge Gorsuch & His Free-Speech Jurisprudence

Marjorie Heins

Marjorie Heins: “However questionable his views may be on other civil rights and civil liberties issues, Judge Gorsuch’s opinions have demonstrated a firm commitment to First Amendment freedom of speech.”

“President Trump, who has frequently displayed his hostility to free speech and who reportedly has a very short attention span, probably did not read Judge Gorsuch’s First Amendment opinions; if he had, he might not have nominated him.”

David Keating

David Keating: “Judge Gorsuch’s record suggests he will be a strong defender of free speech rights if confirmed to the Supreme Court. He wrote or joined opinions on a wide variety of topics related to free speech, including campaign finance, petition clause and defamation cases. Each time, he ruled for free speech. He applies real scrutiny in constitutional challenges and is a terrific writer. Not only are his opinions a joy to read, they are clear.”

“It’s ironic that President Trump nominated a judge who wrote or joined four opinions in cases brought against the media. Each time Gorsuch ruled for the media defendants.”

News Items & Commentaries re Judge Gorsuch & Free Speech

  1. Aidan Quigley, At Columbia, Gorsuch blasted progressive protesters, defended free speech, Politico, Feb. 1, 2017
  2. Reporters Committee for Freedom of the Press, Special report on Supreme Court nominee Neil Gorsuch, Feb. 2017
  3. David Keating, Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech, The Insider, Jan. 27, 2017

The Court’s 2016-2017 First Amendment Free Expression Docket Read More


Section Two and the Political Question Doctrine

Let’s assume I can convince you (which I haven’t yet) that the federal apportionment statutes are unconstitutional because they ignore Section Two of the Fourteenth Amendment. Still, is that a political question that is not justiciable? If so, then my next paper won’t be of much practical value.  I think, though, that Section Two does not present a political question even though there are three or four lower federal court opinions (all more than fifty years old) saying that it does.

First, the only Supreme Court case where a Section Two claim was presented rejected that claim on the merits.  In McPherson v. Blacker, the Court held that state legislatures have broad authority to determine the method used to choose presidential electors. One of the issues that was addressed was whether Section Two of the Fourteenth Amendment limited that power directly, and the Court said no.  (So did the Michigan Supreme Court in the decision below.) There was no suggestion that Section Two raised a political question.  As a result, the subsequent lower court decisions that went the other way (none of which cite Blacker) are, in my view, just wrong on this point.

Second, these lower court decisions all predate Baker v. Carr (which reformulated the political question doctrine) and all involved Section Two in a collateral way that is distinguishable from the kind of challenge that I am contemplating.  In one Second Circuit decision, a man convicted for refusing to answer census questions argued that the census was unconstitutional because it did not ask questions about voting eligibility pursuant to Section Two.  The Court affirmed the conviction saying that Section Two presented a political question, but another way of looking at the case was that the entire census is not invalid (and the duty to respond is not erased) no matter what you think of Section Two.  In a D.C. Circuit case, a man convicted of failing to respond to a subpoena from the House of Representatives argued that the subpoena was invalid because that Congress was not elected consistent with Section Two. The Court rejected that with a political question argument, but on the merits that claim was very weak (what about every statute enacted by that Congress–was that also invalid?) And in a Fourth Circuit case, a man who was not allowed to run for Congress in Virginia argued that the state was not entitled to the number of representatives because of its poll tax.  Once again, this was called a political question, but on the merits no court was going to take this seriously at a time when the poll tax was adjudged constitutional (in 1945).

Third, there is a big difference between saying that something is not justiciable and that there should just be significant deference given by courts on the merits.  My view is that Congress cannot bar consideration of Section Two of the Fourteenth Amendment as it currently does. Once some consideration is permitted, though, then exactly how that is done or what standards are used rest within Congress’s discretion with few exceptions.  The Court has ruled on other cases involving the apportionment process for the House of Representatives and deferred to what Congress did–the same would probably be true here.

Tomorrow I’ll go back to the statutes are try to tie this together.

UPDATE:  Now I’m not so sure that the McPherson part of this post is correct.  The better reading may be that no Section Two claim was presented in that case.  I need to obtain the briefs, which will take some time.