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FAN 157.1 (First Amendment News) Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews

Music is the best way we know how to drive social change: it overcomes social barriers in a way that mob-mentality and fear-based political rhetoric never canSimon Tam

The Slants (credit: Anthony Pidgeon/Redferns, via Associated Press)

A major First Amendment victoryNational ACLU

The far-reaching importance of this case cannot be overstatedNational Law Journal

The opinion: Matal v. Tam (June 19, 2017) (Oral Argument Transcript)

Counsel for RespondentJohn C. Connell

Coursel for PetitionerMalcolm L. Stewart (Deputy Solicitor General)

Briefs Filed in CaseParties & Amici

Video Interview: Extended Interview: The Slants’ Simon Tam (KOIN 6, June 19, 2017)

SCOTUSblog Symposium 

  1. The cacophony of trademarks is not government speech
  2.  Increasing First Amendment scrutiny of trademark law after Matal  v. Tam
  3.  Free speech comes to trademark law
  4. The First Amendment silences trademark
  5.  The Constitution prohibits government’s “happy-talk” requirement for trademark registration

FIRE: So to Speak Podcast 

Cato Podcast: The Michael Berry Show

Rolling Stone Magazine

Balkinization

Constitutional Law Prof Blog

Volokh Conspiracy

Bloomberg View

The Federalist

Forbes

Slate

In A Crowded Theater

This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.Simon Tam

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FAN 157 (First Amendment News) Today: Senate Judiciary Committee to hold hearing on campus free speech

“After a string of high-profile and sometimes violent instances of censorship this past school year, free speech on campus has become a pressing concern for many Americans,” said FIRE Legislative and Policy Director Joe Cohn. “We are pleased that the Senate Judiciary Committee is taking this issue seriously and hope this hearing will raise new awareness on Capitol Hill of the problems posed by campus censorship.”

Today, at 10:30 a.m. ET, the United States Senate Committee on the Judiciary will hold a hearing titled:

The hearing will be live streamed on the committee’s website.

Presiding: Chairman Charles Grassley

Ranking Member: Dianne Feinstein

Those testifying are:

  1. Zachary R. Wood
  2. Frederick M. Lawrence
  3. Isaac Smith
  4. Fanta Aw
  5. Eugene Volokh
  6. Richard Cohen
  7. Floyd Abrams

STATEMENT OF FLOYD ABRAMS BEFORE THE SENATE COMMITTEE ON THE JUDICIARY

June 20, 2017

Chairman Grassley and Ranking Member Feinstein: I appreciate the opportunity to appear this morning to comment on the status – or, I could say, the sad state – of freedom of speech on college campuses around the nation.

About two years ago, I gave a speech in Philadelphia at Temple University in which I tried to answer the question of what the single greatest threat to free speech was in the nation. And where it was. I concluded then, as I do now, that the locale of the threat was on our college campuses and that the nature of the threat was nothing less than the suppression of free speech on our campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, disturbing.

That is so notwithstanding ever-increasing focus on the problem, as illustrated by this significant hearing. Put plainly, the problem arises less because of a desire of university administrators to limit speech on campus – there is some of that, but it is not the dominant cause – than the conduct of a minority of students who will simply not tolerate the expression of views which they view as socially harmful or destructive.

A critic of recent speech-destructive behavior on campus has an overstuffed menu of choices to choose to discuss. Shall I focus on Evergreen, Middlebury or Berkeley? Or Milo Yiannopoulos or Ann Coulter? On the cancellation of previously made invitations to speakers such as Christine Lagarde, the first woman to head the IMF? Or the loud and strident interruptions to speakers – former New York City Police Commissioner Ray Kelly was one of many – to the point that the speech simply could not proceed?

Let me start instead with two examples. The President of California State University Los Angeles cancelled a speech by an editor of Breitbart, the conservative publication, who was about to speak on a topic that he had entitled as “When Diversity Becomes a Problem.” The explanation for the cancellation was—this one is worth saying slowly—“the need for free exchange of ideas.” According to the president of the university, the speaker could appear (but only appear) as part of a group of people with varying viewpoints on diversity. He could not speak alone, as left-wing speakers such as Cornel West and Angela Davis had spoken at CSU, with no request, let alone requirement, that the “other” side be heard simultaneously.

And, speaking of California, just yesterday (June 19th) a complaint was filed in federal court in San Francisco on behalf of Jewish students at San Francisco State University arising in part out of the misconduct of other students who effectively shut down a speech by the Mayor of Jerusalem by the use of amplified sound and loud and virulent anti-Semitic chants. The complaint sets forth in painful and exhaustive detail the disruption and the conscious decision of the university administration to order police to stand down and allow the shouting students to shut down the event and prevent the Mayor from delivering his scheduled speech, as well as the administration’s decision not to discipline any of the students, or the student group which prevented the speech from being delivered.

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

In fact, in those days, what was viewed as the most dangerous threat to freedom of speech on campus was the power that wealthy and politically regressive alumni sometimes exercised on some campuses. For an artistic look at that sort of danger, have a look at an old [1942] movie called “The Male Animal,” with Henry Fonda playing the role of a professor at risk of losing his position because he read a letter to his English class from Bartolomeo Vanzetti, an anarchist convicted—quite possibly unjustly—of murder in a most celebrated trial of the 1920s. Colleges were also under siege during the McCarthy era and many behaved badly, dismissing scholars for their supposed political views.

But today there are new censors – sometimes students, sometimes with outside support — who seek to place new limits on what may be said on campus. What can one say in response to this other than to quote from the statement of the American Association of University Professors that, in the clearest language, observed that “[o]n a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” Oliver Wendell Holmes, Jr. put it well, when he was a Harvard undergraduate before the Civil War and was a student editor of Harvard Magazine. “We must,” he wrote in 1859, “have every thought brought before us when we are young, and we may as well at once prepare for it.”

The on-campus crisis is not limited to disinviting speakers. Wendy Kaminer, writing in the Washington Post, described a panel she was on at Smith College that dealt with freedom of speech. At one point, Smith’s President, Kathleen McCartney, had observed, tongue in cheek, “We’re just wild and crazy, aren’t we?” When a transcript was prepared, Kaminer writes, the word “crazy” was replaced by the words “[ableist slur.”] When one her fellow panelists mentioned that the State Department had, at one time, banned the words “jihad,” “Islamist” and “caliphate”, the transcript substituted the words [“anti-Muslim/Islamophobic language.”] I know this sounds more like a script for Saturday Night Live than on-campus reality, but it’s all real. As was the predictable reality that when Ms. Kaminer turned to Huckleberry Finn and discussed Huck’s savior and the book’s leading (and, by far, most attractive figure) by name—perhaps you can recall it– she was challenged by other panelists for doing so and later accused in the Huffington Post with committing “an explicit act of racial violence”.

The problem is not unique to our country. Just as the First Amendment, which applies only to the government and thus not privately funded institutions, and what I think of as the spirit of the First Amendment, which should be taken account of in all universities, has not sufficed to prevent such speech destructive activities here, the same has been true in other nations that pride themselves on the protection of free expression. The Observer has reported on one English university that banned supposedly “racist” sombreros and native American dress; and of another where a debate on abortion was cancelled by College Censors (that’s their official name) on the ground that they wanted to protect “students’ emotional wellbeing” by “avoiding unnecessary distress, particularly for any residents who may have had an abortion.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, seem to want to see and hear only views they already hold. And to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Holmes, to whom I referred earlier, in one of his most famous opinions, long ago observed that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress” we have seen speech stifled time and again on campuses in our country.

I don’t mean to suggest that there are no hard cases about what should be permitted on a campus and what not. Incitements to violence are no more protected by the First Amendment on campus than anywhere else. And as the University of Chicago advised the entering class of 2020 at the same time it eloquently defended free speech on campus, “freedom of expression does not mean the freedom to harass or threaten others.”

Nor should students be condemned for feeling and speaking passionately against what they perceive to be racist speech or conduct. Indeed it is important that student activism should generally be encouraged and protected, just as criticism of that activism should be protected, just as I wish we had had far more of all of it when I was in college and that I had participated in it. The absence of such speech was a loss to me, my generation and our nation.

Most campus activism in public universities is protected by First Amendment and in private universities by internal commitments by universities to abide by First Amendment norms. We need more students, not fewer, to become involved with the public issues of the day and on campuses. Their doing so is indispensable if society is to change for the better. If students disagree with the views of a speaker, they should engage with it, picket it, even walk out on it. I do not, in that respect, agree with the criticism voiced by Fareed Zakaria, among others, of students who peacefully walked out at Notre Dame when Vice President Pence was beginning a speech there. Doing so is not only one form of First Amendment protected conduct but a long-recognized and honored one. What is unacceptable is preventing speech from occurring, not protesting it.

Have students changed? Have their views? I have read a disturbing study, by the Higher Education Research Institute at UCLA, based on surveying the views of over 141,000 full-time first year students at colleges around the country.

  • About 71% of them said that they agreed “strongly” or “somewhat” that “colleges should prohibit racist/sexist speech on campus”;
  • about 43% of them said that they agree “strongly” or “somewhat” that “colleges have the right to ban extreme speakers from campus”;
  • and only 64% said that they “strongly “or at least “somewhat” agree that “dissent is a critical component of the political process.”

Put another way, over a third of the entering students polled did not agree that dissent is a critical component of the political process.

Another study concluded that while only 12 percent of my generation (don’t ask what ages I’m talking about) think the government should be able to punish speech viewed as offensive by minority groups, around a 25% of the immediately succeeding generations thought so, and 40 percent of millennials (people 18-34) think so. I know you can read that in two ways. One is the optimistic way. The younger people are, the more unwilling they are to simply accept the existence of often outrageous, even destructive speech. The other way is to conclude that the younger a generation is, the less knowledgeable it is about (or, worse yet, unwilling to accept) the essence of the First Amendment. In that respect, another study concluded that nearly a third of college students could not identify the First Amendment as the one that even deals with freedom of speech. Maybe both are correct. But wouldn’t it be better if we all condemned racist or sexist speech but we all also knew and celebrated the freedom provided by the First Amendment, especially if we know what it says and what it means.

Of course, “extreme” speech is sometimes upsetting, sometimes painful to hear—if you choose to do so. Racist or sexist speech is harmful to the body politic and painful to those at whom it is aimed and those who listen to it. But the First Amendment is rooted in the notion that government (including the administrators of state universities) is not to be trusted to determine what is “extreme” speech, what is “sexist” speech, or the like. Or to punish it, even if they think they can define it. Former President Obama, I think, put it well when he said this: “I’ve heard of some college campuses where they don’t want to have a guest speaker who is too conservative or they don’t want to read a book if it has language that is offensive to African-Americans or somehow sends a demeaning signal towards women. I’ve got to tell you, I don’t agree with that, either. I don’t agree that you, when you become students at colleges, have to be coddled and protected from different points of view.”

A final note. I understand why any university leadership seeks to avoid any potential conflict on campus about speech that some students finds deeply offensive. Why would it not? What university administration would not seek to avoid such any such clash, especially since our nation still has so much to answer for with respect to its historic mistreatment of racial and other minorities? And at a time where serious steps must still be taken, on campus and off, to address ongoing manifestations of racism, sexism, anti-Semitism or the like.

But the answer to the suppression of almost any speech, the First Amendment answer, cannot be to limit expression but to discuss it, not to bar offensive speech but to answer it. Or to ignore it. Or to persuade the public to reject it. I know that’s easy to say but it’s got to be the way we respond to speech which we abhor. What is unacceptable is to suppress the speech. That is why I welcome this hearing the opportunity you have given me to participate in this hearing.

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Reconsidering Qualified Immunity

Justice Thomas wrote an important concurring opinion today in Ziglar v. Abbasi. He argues there that the Court should (in an appropriate case) reconsider qualified immunity law by asking whether the decisions in this area should be more closely tied to the common law of official immunity when Section 1983 was enacted in 1871.  This would mean less immunity (overall) than is given now.

I emphatically with the need for reconsideration, and probably with Justice Thomas’s analysis on the merits (though I’d want to think about that some more). At a minimum, this might stimulate further research into Reconstruction-era tort law.

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FAN 156 (First Amendment News) Special Post: The Espionage Act at the 100 Year Mark: Commentaries by Bambauer, Chemerinsky, Stone & Vladeck

There are citizens of the United States . . . born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue. . . . 

I urge you to enact . . . laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. — Woodrow WilsonState of the Union Address, December 7, 1915

[T]he newspaper or individual who criticizes or points out defects in policies . . . with the honest purpose of promoting remedial action and warning against danger is not a public enemy. — Editorial, New York Times,  April 13, 1917

Today marks the 100th anniversary of the Espionage Act of 1917 (18 U.S. Code Chapter 37). In light of that, I have collected some background materials about the Act followed by several original comentaries on it, which follow the introductory materials below.

Origins

  • Assistant Attorney General Charles Warren drafts a bill “for suppressing or punishing disloyal and hostile acts and utterances.”
  • Bill introduced in the House as H.R. 291
  • Bill passes in the House on May 4, 1917 (261–109)
  • Bill passes the Senate on May 14, 1917 (80–8)
  • President Woodrow Wilson signs bill into law on June 15, 1917.

August 1917 cover of Masses Magazine

First Amendment Online Library Timeline of Espionage Act & Related Acts

 The Masses cases:

  • Masses Publishing Co. v. Patten, 244 F. 535 (S.Dist.N.Y., 1917) (per Hand, J.)
  • ruling re stay of appealed order, 245 F. 102 (per Hough, J., 1917), and
  • Circuit Court ruling reversing District Court,  246 F. 24 (2nd Cir., 1917) (per Rogers, J. for the majority  with Ward, J. concurring)

FAN 148, Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Controversial Provisions of the Act: “The Espionage Act put into law a penalty of up to 20 years imprisonment for anyone convicted of interfering with military recruitment. The law also presented the penalty of levying fines of up to $10,000 for those convicted. The law also gave additional powers to the post office. Specifically, the law allowed the Postmaster General to confiscate any mail that might be deemed seditious or treasonable.” (source: This Day in History)

Domestic Issues of Concern: “There were quite a number of concerns the Wilson administration had about certain groups that were in opposition to the war. Public criticism of the war was definitely a major concern of the government. Since a significant number of troops would be needed to carry out the war effort, a draft was imposed. Among the concerns the government had was the notion that constant criticism would make recruitment and even conscription difficult.” (source: This Day in History)

Enforcement: “Enforced largely by A. Mitchell Palmer, the United States attorney general under President Woodrow Wilson, the Espionage Act essentially made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country’s enemies. Anyone found guilty of such acts would be subject to a fine of $10,000 and a prison sentence of 20 years.” (Source: Totally History)

See also David Greene, As the Espionage Act Turns 100, We Condemn Threats Against Wikileaks, Electronic Frontier Foundation, June 14, 2017

Historical Resources

→ Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 Harvard Law Review 932 (1919)

Karl N. Llewellyn, Free Speech in Time of Peace, 29 Yale Law Journal 337 (1920) (student comment)

Walter Nelles, In the Wake of the Espionage Act, The Nation (December 15, 1920)

Masthead from Masses magazine

Commentaries by Derik Bambauer, Erwin Chemerinsky, Geoffrey Stone & Stepehen Vladeck 

Backwards and Forwards

by Derek E. Bambauer

Many thanks to Ron Collins for the invitation to reflect on the centennial of the Espionage Act!

I want to argue that the Espionage Act is not only problematic on its own terms, but that it has paved the way for a newer set of worrisome statutes and dubious cases. These newer measures, like the Act itself, respond to an exaggerated sense of danger from internal and external threats. Courts and lawmakers alike have largely engaged in ahistorical analysis: they have failed to learn the lessons from the past. They underrated the perceived risk of subversive political speech in wartime in the early twentieth century, and they fail to question whether terrorism is a sufficiently existential threat today to warrant impingements on speech. I conclude that there are two possible responses, neither particularly promising.

To give the problems with the Espionage Act and its progency some currency, consider the current fight against the terror group ISIS in the Middle East. ISIS has taken a surprising amount of territory, and has become infamous for its horrific treatment of captives. There have been domestic attacks by individuals or small groups who claimed an association with or allegiance to ISIS. However, while these attacks are horrifying, even significant terror attacks are not existential threats to the United States.

But the perceived threat from ISIS has generated a disproportionate response, and one that frequently targets speech. For example, the assistant attorney general for national security said that people who are “proliferating ISIS social media” could be prosecuted under 18 U.S.C. 2339A (the material support statute). His contention was that disseminating ISIS’s point of view counts as providing “technical expertise” to a terrorist group. In 2012, the government successfully prosecuted Tarek Mehanna as a terrorist, in part because he translated al Qaeda writings and videos into English. The First Circuit Court of Appeals, in affirming his conviction, called terrorism the “modern-day equivalent of the bubonic plague” and an “existential threat” – an embarrassing example of hyberbole. And the Supreme Court has failed to rein in restrictions on speech justified as necessary for the war on terror. In Holder v. Humanitarian Law Project, the Supreme Court rejected a First Amendment challenge to the material support statute, highlighting the fact that completely independent political advocacy is not covered by the law’s prohibitions. (The challenge, of course, is determining when someone is “completely independent.”)

The material support statute is also problematic in that it defers decisions about what content should be criminalized to the executive branch. The State Department is empowered to determine which entities constitute terrorist groups. Coordinated political advocacy with groups on the list is a crime; advocacy for violent but not listed groups is safe. One person’s terrorist is another’s freedom fighter. There’s also the risk of one-way advocacy: if terrorist group calls for people to advocate on its behalf, and someone does so, does that count as coordination? And, of course, the Justice Department has charged Edward Snowden under the Espionage Act itself, and continues to investigate whether to prosecute WikiLeaks and Julian Assange under it.

These efforts seem similar to prosecutions in the early twentieth century under the Espionage Act that ultimately elucidated the weak form of the “clear and present danger” test. For example, Charles Schenck was convicted for distributing pamphlets for American Socialist Party that read “Assert your rights – do not submit to intimidation” – hardly stuff to stir the blood. The Socialist Eugene Debs was convicted for giving a speech titled “Socialism is the Answer.” And Jacob Abrams was an anarchist convicted for his criticism of the U.S. decision to defend Russia against the Bolsheviks.

There were similar trends during the Cold War. The Communist Eugene Dennis received his conviction for knowingly advocating the overthrow of the U.S. government by force. The Supreme Court called the Communist Party a “permanently organized, well-funded, semi-secret organization.” These cases demonstrate at least two parallels to current events. The first is a conception of political (largely foreign) enemies as an existential threat. The second is that the magnitude of this threat justifies restrictions on political speech and advocacy that would ordinarily be at the heart of First Amendment protection.

I can see two tentative responses to these problems, one pessimistic and one mildly optimistic.

The pessimistic channels Geoffrey Stone: we must accept as inevitable that there will be limits on political advocacy, especially in wartime, even if that war is a long twilight struggle rather than a declared conflict. This has the interesting side effect of making First Amendment less exceptional – there turns out to be an implicit balancing test even with “core” political speech. It might also be a useful descriptive exercise to examine the pendulum swing of First Amendment liberties – is it temporal in nature, or does it relate primarily to subject matter?

The optimistic idea is to draw upon the historical parallels elaborated above: neither socialists nor Communists proved an existential threat to U.S. politics and institutions, despite the heated fears of the moment. This requires more work on our collective part: we have to hold the government to its burden when it seeks to restrict speech, first by questioning the characterization of information as a threat, and second by carefully policing the line between conduct and speech when regulations are proposed or promulgated. That will require political courage – always in short supply – and legal analysis grounded in history.

The Espionage Act ought to teach us that these are vital assets in our self-governance, but it’s not clear we have yet learned the lesson.

A Loaded Gun

By Erwin Chemerinsky

The Espionage Act of 1917 is a loaded gun waiting for the federal government to use it to punish speech. Indeed, throughout its history, it has been used to punish speech that should be deemed constitutionally protected. I especially worry that the Obama administration has set a precedent for the Trump administration, which has shown great hostility to the press. Since the enactment of the Espionage Act of 1917, twelve prosecutions have been brought under it for disclosures of information and nine of those were during the Obama administration.

The Espionage Act, by its very terms, is directed at restricting speech. The law makes it a crime to convey information with the intent to interfere with the operation of the armed forces or to promote the success of its enemies. The Act also makes it a federal crime to convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. Yet another provision gives the Postmaster General the authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.

The Act has been used to punish speech. Most famously, it was used to punish speech during World War I that the First Amendment never should have allowed to be punished. In Schenck v. United States, the Court considered the conviction of two individuals – Charles Schenck and Elizabeth Baer – who were prosecuted for circulating a leaflet arguing that the draft violated the Thirteenth Amendment as a form of involuntary servitude. The leaflet was titled, “Long Live the Constitution of the United States.”   It said, ‘‘Do not submit to intimidation,’’ and ‘‘Assert Your Rights,’’ but did not expressly urge violation of any law; it advocated repealing the draft law and encouraged people to write to their representatives in Congress to do so.

There was not any evidence that their leaflet had any effect in causing a single person to resist the draft. Nonetheless, they were prosecuted and convicted and sentenced to jail for violating the 1917 Act. The Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upheld their convictions and sentences; he dismissed as irrelevant that the leaflet had no effect.

A week after Schenck was announced, the Court upheld convictions under the 1917 Act in two other cases, Frohwerk v. United States and Debs v. United States.   Jacob Frohwerk was the publisher of a German language newspaper, Missouri Staats-Zeitung. He was prosecuted for a dozen articles published between June and December 1917. Again, the speech was the antithesis of shouting fire in a crowded theater or that which would pose a clear and present danger.   Without doubt, any court today would regard it as expression protected by the very core of the First Amendment. It took the jury only three minutes of deliberation to convict Frohwerk of violating the 1917 Espionage Act and the judge sentenced him to 10 years in prison for his writings. The Supreme Court affirmed.

Albert Burleson was appointed Postmaster General by Woodrow Wilson

In Debs v. United States, the Court affirmed the conviction of Socialist Party leader Eugene Debs who had been sentenced to jail for ten years for violating the 1917 Act. Debs was a national political figure, having run for President in 1900, 1904, 1908, and 1912. Debs was convicted for a speech that was primarily advocacy of socialism, but it included some mild criticism of the draft. At one point in a long speech, Debs remarked that he had to be ‘‘prudent’’ and not say all that he thought, but that ‘‘you need to know that you are fit for something better than slavery and cannon fodder.’’ For this mild statement Debs was convicted of attempting to incite disloyalty in the military and obstruct the draft. Again, the Supreme Court affirmed.

Moreover, during World War I, the Postmaster used the authority under the statute to seize magazines and newspapers. Albert Burleson, a reactionary racist from Texas who despised labor unions and the people who supported them, began a campaign to root out magazines and newspapers that promoted socialist or radical causes.

The subsequent use of the Espionage Act reinforces reasons for great concern. It is the statute used to prosecute Daniel Ellsberg and Chelsea Manning. It is a law that can be used to punish those who provide information to the press and to those who disseminate information. The Act is so broadly written that there is no way to know the speech that it has chilled over the years. I have great fears of how it might be used in the next four years with a President who has shown such great hostility to the press.

When Can a Government Employee Leak Classified Information?

by Geoffrey R. Stone

The Espionage Act of 1917, as amended over the years, forbids government employees to disclose classified information to any person who is not authorized to have access to it. For this reason, most prosecutions of government leakers of classified information have relied upon the Espionage Act. The Act recognizes no defense for government employees who leak such information. This is one of Edward Snowden’s justifications for refusing to return to the United States to face prosecution. He maintains that the absence of a defense that would exonerate government leakers of classified information whose acts do more good than harm is unjust. As we look to the future, a central question is whether the Espionage Act should be amended to recognize such a defense.

Edward Snowden (credit: The Guardian)

At first blush, there is obvious logic in Snowden’s position. After all, if someone does more good than harm, shouldn’t they be free to do the good? Moreover, this seems especially sensible in the context of classified information, because the test for classification is whether the disclosure of the information might “reasonably be expected to harm the national security.” There is no balancing at all of good versus harm. The standard does not take into account the possible benefits of the leak and it does not require that the harm be likely, imminent, or grave.

Moreover, the government quite predictably tends to over-classify information. The simple rule is: Better be safe than sorry. In addition, we know from experience that public officials have on occasion abused the classification system in order to hide from public scrutiny their own misjudgments, incompetence, and venality.

In light of these concerns, it might seem logical to amend the Espionage Act to permit a government employee legally to disclose classified information whenever she can demonstrate that the benefit of the disclosure outweighed the actual harm to the national security. Why shouldn’t Edward Snowden have such a defense, if he can prove the case? After all, granting such a high level of deference to the government in these situations significantly overprotects government secrecy at the expense of both official accountability and informed public debate. Even worse, in some situations the leaker might disclose the existence of programs that are themselves unlawful. In that case, how can it possibly be right to make it a crime for the government employee to disclose the information to the public?

The government’s response to all this is fairly straightforward. First, except in extraordinary circumstances like self-defense, we don’t give individuals a right to break the law because, in the circumstances, committing the crime might do more good than harm. For example, if X steals someone’s purse because he needs money to feed his children, he could easily argue that his theft did more good than harm, but that is not a defense. One could, of course, multiply that hypothetical endlessly.

Second, there are more than a million government employees and private contractors who have access to classified information. The government will argue that it would be reckless in the extreme to permit each of those individuals to think that it is permissible for them to disclose classified information whenever they conclude that the good would outweigh the harm. Even if in some instances they might be right, often they will be wrong – especially because individual government employees and contractors are rarely in a position to understand how the information they plan to disclose might damage the national security. Thus, the government will argue, the only sensible thing to do is to take that option away from these employees. Finally, the government will point out that in order to prove in court that a leak caused substantial damage it would often have to reveal even more classified information, often including sources and methods, which would make such inquiries especially problematic.

So, what’s to be done? It seems unlikely that the Supreme Court will recognize a First Amendment right of government employees to leak classified information. The implementation of a constitutional rule that permits leaks would just be too messy for the Court to impose or to implement. As a legislative matter, though, it would make sense to create some internal mechanism through which these employees can raise their concerns, especially if they believe the programs at issue to be unlawful. To-date, though, there seems to be little interest in such an option. Another possibility, of course, is simply to tighten up the standards and procedures for classification. No one doubts that we currently live in a world of gross over-classification.

Are there cases one can imagine in which even under existing law it would seem implausible to punish a leaker? Suppose an FBI agent learns from a classified document that at the direction of the Russian government the FBI assassinated the president? I rather suspect that if she leaked that information, assuming it is accurate, she would not go to jail.

It’s (Long-Past) Time to Modernize the Espionage Act

by Stephen Vladeck 

For a law that turns 100 today, and that’s only been materially amended once in a century, the Espionage Act has sure enjoyed a popular resurgence of late. President Barack Obama used it to prosecute more leakers than all previous Presidents put together. Critics of Secretary Hillary Clinton’s unauthorized use of a private e-mail server sought desperately to make the (legally unconvincing but politically damaging) argument that she had violated the statute. And when former FBI Director Jim Comey revealed just last week that he had been responsible for leaking a memo memorializing a conversation he had with President Trump, commentators quickly gravitated toward the Act as proof that, if any laws were broken as part of Comey’s termination, it was the old chestnut herself through Comey’s transgression.

U.S. Army Intelligence WW I Poster Warned Americans About German Spies.

What all of these recent stories have in common is the absence of actual “espionage”— the conduct that motivated Congress to enact the law in the first place. The Act was written on the eve of the United States’s entry into World War I, and, as importantly, before the emergence of either the modern terminology for national security classification or the Supreme Court’s modern First Amendment and vagueness jurisprudence. But because Congress has resisted decades of calls to revisit it, it remains on the books mostly as initially enacted—a statute aimed at German spies. Its clunky and capacious language paints with the same brush three distinct offenses:

  1. classic espionage,
  2. leaking, and
  3. the retention or redistribution of national defense information by third parties.

Part of why it’s so problematic that the Espionage Act treats these three very different sins as the same crime is because of its outdated (and outmoded) language. We now have a sophisticated series of Executive Orders that define and regulate the scope of “classified” national security information, and that have, unlike the Espionage Act, regularly been updated to respond to changes in technologies and threat vectors. One would think it is those provisos, and not a century-old statute, that better reflect the true contemporary scope of “information relating to the national defense.”

And, along with classification, we also now have a far-more-sophisticated understanding of the problem of over-classification—and why it’s so problematic that courts have refused to recognize “improper classification” as a defense to an Espionage Act prosecution. Thus, the more information that has become classified, the easier it has become to violate the Espionage Act through conduct that bears increasingly less resemblance to spying.

Finally, we also now have First Amendment jurisprudence that recognizes at least some circumstances (albeit virtually none thus far involving national security information) in which the disclosure of certain previously confidential material might be of such surpassing public concern as to be protected by the First Amendment even when it might otherwise be unlawful. But the 100-year-old verbiage of the Espionage Act doesn’t account for any of these developments. That may be why, 37 years ago (before it qualified for Medicare), the Act was decried by Anthony Lapham, then the General Counsel of the CIA, as the “the worst of both worlds.” As he then explained to Congress:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

Modernizing the Espionage Act won’t be easy. But 100 years in, it’s long past time for Congress to do so.

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Introducing the Equality Law Scholars’ Forum & Call for Proposals

In the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) introduce the Equality Law Scholars’ Forum to be held this Fall. This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.

We will select three to four relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.

This year’s Forum will be held on November 17, 2017 at Berkeley Law School.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 14, 2017.

Full drafts must be available for circulation to participants by October 27, 2017.

Proposals should be submitted to: Tristin Green, USF School of Law, tgreen4@usfca.edu. Electronic submissions via email are preferred.

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UC Davis Law Review, Issue 50:5 (June 2017)

Articles

Wrongful Benefit & Arctic Drilling
Nicolas Cornell & Sarah E. Light

The Materiality of Sponsorship Confusion
Matthew B. Kugler

When Patents Claim Preexisting Knowledge
Sean B. Seymore

Choosing Marriage
Kaiponanea T. Matsumura

The Absurdity of Crime-Based Deportation
Kari Hong

Amending Patent Eligibility
David O. Taylor

Reconceptualizing the Whistleblower’s Dilemma
Miriam H. Baer

Note

Penalties and Reasonable Cause: Have You Exercised Ordinary Business Care and Prudence?
Russell A. Sternshein

lawreview.law.ucdavis.edu

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Call for Papers from the University of Arizona School of Law

National Conference of Constitutional Law Scholars

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

  • Jamal Greene
  • Aziz Huq
  • Pamela Karlan
  • Frank Michelman
  • Cristina Rodriguez
  • Reva Siegel
  • Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan (acoan@email.arizona.edu). For logistical questions or to register for the conference, please contact Bernadette Wilkinson (bwilkins@email.arizona.edu). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

Conference Organizers

Andrew Coan, Arizona

David Schwartz, Wisconsin

Brad Snyder, Georgetown

The Rehnquist Center

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

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Calling All SCOTUS Clerks: Illuminating New Book on the Fourth Amendment and Its Original Meaning as a Guide for Carpenter

On June 5, 2017, the Supreme Court announced that it will review United States v. Carpenter, a case involving long-term, retrospective tracking of a person’s movements using information generated by his cell phone. As EFF’s Andrew Crocker and Jennifer Lynch write, “This is very exciting news in the world of digital privacy. With Carpenter, the Court has an opportunity to continue its recent pattern of applying Fourth Amendment protections to sensitive digital data. It may also limit or even reevaluate the so-called ‘Third Party Doctrine,’ which the government relies on to justify warrantless tracking and surveillance in a variety of contexts.”

SCOTUS clerks will surely be reading much Fourth Amendment literature and caselaw in preparation for their work on the Carpenter case. I’d like to nominate David Gray’s brilliant addition to the canon The Fourth Amendment in an Age of Surveillance (Cambridge University Press 2017).

From the book jacket:

The Fourth Amendment is facing a crisis. New and emerging surveillance technologies allow government agents to track us wherever we go, to monitor our activities online and offline, and to gather massive amounts of information relating to our financial transactions, communications, and social contacts. In addition, traditional police methods like stop-and-frisk have grown out of control, subjecting hundreds of thousands of innocent citizens to routine searches and seizures. In this work, David Gray uncovers the original meaning of the Fourth Amendment to reveal how its historical guarantees of collective security against threats of ‘unreasonable searches and seizures’ can provide concrete solutions to the current crisis. This important work should be read by anyone concerned with the ongoing viability of one of the most important constitutional rights in an age of increasing government surveillance.

Here is a video of Prof. Gray talking about the book: https://www.youtube.com/watch?v=pHUNRndaYIo

 

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The Myth of Barry Goldwater

I want to address an inaccurate story that keeps getting thrown around in discussions about presidential impeachment or resignation. The story goes something like this. Richard Nixon was bound and determined to stay in office. Then he got a visit from some Republican Senators, led by Barry Goldwater. They informed Nixon that they would not support him any longer and, by doing so, convinced the President that he should resign. Why aren’t there more profiles in courage like Goldwater, people say now, who will stand up to their party leaders?

The answer is that Goldwater was no profile in courage. The famous visit came a few days before Nixon’s resignation. Watergate had gone on for more than two years at that point.  During most of that time, Goldwater supported the President. Only after the Supreme Court ordered Nixon to give his tapes to the special prosecutor and Nixon released the “smoking gun” tape did Goldwater get the “courage” to go to the White House and tell Nixon he should resign.

More important, this meeting did not, in fact, convince Nixon to resign. We know from many accounts that he was already considering that step before the Senators showed up. Part of the confusion, I think, stems from the fact that his resignation speech offered his “lack of political support in the Congress” as the reason for his resignation, which may have led people to think that he only learned this from the Goldwater visit.  But that’s ludicrous–everyone in Washington knew that his support collapsed after the release of the critical tape.

Basically, Goldwater was just the undertaker at the funeral.  The political body was already dead.

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Official Immunity at Common Law

A healthy discussion is now underway about the legality and scope of qualified immunity. This is an area of law that should be substantially revamped, but given its deep roots in recent precedent that will be difficult.  Still, consider what the common law thought about this question, as crisply stated in a circuit opinion by Bushrod Washington from 1805 that addressed a maritime prize case:

The common law doctrine, as to torts, committed by officers acting under authority of law, is certainly very rigid. They act at their peril; and if they by mistake act wrong, there are but few cases in which they can be excused. But a reason may exist for this severity, in cases happening on land, which does not exist where similar cases occur at sea. In the former, the means of obtaining correct information are more within the power of the officer; and the officer may, in most cases, if he doubts as to the fact, insist upon being indemnified by the party. But at sea this cannot be done.