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The Framers’ Coup: The Making of the United States Constitution

One book that I read during my trip was Michael Klarman’s account of the Constitution’s creation, which I highly recommend. The book provides a wonderful overview of the political crisis under the Articles of Confederation, the process that led to the Constitutional Convention, the Convention, the ratification debate, and the drafting of what we now call the Bill of Rights.

Klarman’s thesis is that the Framers were far more nationalist and antidemocratic than the average American in 1787, but their proposal was ratified in spite of this disparity for a variety of reasons. I agree with the first part of this claim–the Framers were ultra nationalists for their era–but I think the second claim about their skepticism about democracy is overblown.

One flaw in Klarman’s account is that the Framers omitted a bill of rights from their proposal. In a sense, they were more willing to trust the democratic process (direct or indirect) than their critics, who insisted that additional constraints were necessary to protect basic liberties. Thus, I’m not sure who was more skeptical of democracy–the Federalists or the Antifederalists–although this insight does depend on how much you think the Antifederalists contemplated judicial review.

A second issue is that I’m not sure that the state constitutions of that era were more democratic than the Federal Constitution, which is part of Klarman’s case against the Framers.  Some of the state constitutions were more democratic, but others were not. Klarman himself points out that many of the states had grossly malapportioned legislative districts (which helped the Federalists in the ratification conventions), for example.

Third, I am dubious about the thought that what the Framers said in Philadelphia represented their “real” views about democracy and that anything they said later was “phony” and designed solely to win support for the Constitution. This was true to some extent, but that cynical take ignores the idea that some of the Framers could have changed their views over the course of the debate.

In any event, you should read the book.  You’ll learn a lot.

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AALS Law and Film Selections At This Year’s Meeting @TheAALS @MacheteCine

The two AALS Law & Film selections at this year’s meeting in San Francisco are Anatomy of a Murder, Tuesday evening at 7 p.m.,and La Jaula de Oro, Thursday evening at 6:30. I will moderate the discussion for Anatomy of a Murder, the classic courtroom drama about the quest for the truth behind an Army lieutenant’s killing of the man he accuses of raping his wife.  Michael Olivas, Professor of Law, University of Houston Law Center, and a former AALS President, will moderate the discussion for La Jaula de Oro, a striking Mexican film about Central American undocumented immigrants and their dangerous journey to the United States. Special guest for the Thursday night presentation is the film’s producer, Luis Salinas. William S. Hein and Company is providing refreshments for both evenings.

Come find out why law and film matters!

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UC Davis Law Review, Issue 50:2 (December 2016)

Symposium — Disjointed Regulation: State Efforts to Legalize Marijuana

Keynote Speech — The Surprising Collapse of Marijuana Prohibition: What Now?
Richard J. Bonnie

Marijuana Legalization and Horizontal Federalism
Brianne J. Gorod

Legal Cannabis in the U.S.: Not Whether but How?
Sam Kamin

Tax Benefits of Government-Owned Marijuana Stores
Benjamin M. Leff

The Colors of Cannabis: Race and Marijuana
Steven W. Bender

The Economics of Workplace Drug Testing
Jeremy Kidd, Ph.D.

Marijuana Legalization and Pretextual Stops
Alex Kreit

Legalizing Marijuana and Abating Environmental Harm: An Overblown Promise?
Michael Vitiello

Drug War and Peace
Erik Luna

lawreview.law.ucdavis.edu

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FAN 136 (First Amendment News) 2016: The Year in Review, including “the best of”

This is the 43rd and last FAN post for this year. All the hyperlinked posts for this year are listed below by month. Also below are some highlights of the past year along with a few “best ofs” of 2016:

Selected Highlights

Deaths: Justice Antonin Scalia. See FAN 97.1: Justice Scalia Dies — Free-Speech Legacy (Feb. 13, 2016)

Supreme Court: The Court decided two First Amendment free speech cases:

Retirements: Steven Shapiro, the ACLU’s national legal director

Biggest First Amendment issue of 2016: Campus free-speech controversy (yet again!)

Beta launch of FIRE’s online First Amendment Library (Nov. 14, 2016)

Man of the Year

John Ellison, University of Chicago Dean of Students

Letter to the Class of 2020

Woman of the Year

Rhode Island Governor Gina Raimondo

vetoes overbroad “revenge porn” bill

___________________________________________

The First Amendment & The Best of 2016

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 Best Supreme cert. petition: Deepak Gupta, brief in Expressions Hair Design v. Schneiderman

 Best Supreme Court amicus briefs:

Best Supreme Court oral argument: Thomas Goldstein in Heffernan v. City of Patterson (2016)

Best lower court First Amendment opinionWomen’s Health Link, Inc. v. Fort Wayne Public Transportation Corp. (7th Cir., 2016, per Posner, J.)

Best lower court amicus briefWikimedia Foundation v. National Security Agency (4th Cir., 2016) (Chelsea J. Crawford, Joshua Treem, Margot E. Kaminski, Marc J. Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Barnett Lidsky, Neil M. Richards, & Katherine Jo Strandburg)

 Best new First Amendment organization: Knight First Amendment Institute (see here)

 Best group defending First Amendment rightsFoundation for Individual Rights in Education (FIRE)

 Best report: PEN America, And Campus for All: Diversity, Inclusion & Free Speech at U.S. Universities

 Best speech: Geoffrey Stone, “Free Speech on Campus: A Challenge of Our Times

 Best interview: Nico Perriono, The Daughters: Carlin, Pryor & Bruce Speak OutSo to Speak

 Best book: Stephen Solomon’s Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016) (see Salon discussion here)

Best documentaryCan We Take a Joke?

Best essays:

 Best law review articles:

Best scholarly conferenceBrooklyn Law Symposium: “Free Speech Under Fire — The Future of the First Amendment” (see also here)

Best conference for practitionersAbrams Institiute Conference on Commercial Speech (June 13, 2016)

Best new First Amendment blogIn A Crowded Theater

Best event: Newseum Institute: Pear v. United States (see also here)

Best funder of First Amendment:  John S. and James L. Knight Foundation (see here)

Best supporter of the First Amendment: Flying Dog Beer (see here and here)

→ The Year in Review: FAN Posts for 2016 ← 

January

FAN 92: Another License-Plate Case — Wooley v. Maynard Defense Raised in Cert. Petition (Jan. 6, 2016)

FAN 93: “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer (Jan. 13, 2016)

FAN 94: Brooklyn Law School to Host Symposium: “Free Speech Under Fire — The Future of the First Amendment” (Jan. 20, 2016)

FAN 95: “Fifty Shades of Grey” too Blue for Idaho? (Jan. 27, 2016)

February

FAN 96: Animal Rights Group Claims First Amendment Right to Lift Park Service Closure of Yellowstone Park During Bison Capture (Feb. 3, 2016)

FAN 97: Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern? (Feb. 10, 2016)

FAN 98: The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive? (Feb. 17, 2016)

FAN 99: Welcome to the Marketplace of Ideologies — Where Ideas go to Die (Feb. 24, 2016)

March

FAN 100: FIRE Spreads — Group to Launch Online First Amendment Library (March 9, 2016)

FAN 101: Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co. (March 16, 2016)

FAN 102: Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker (March 23, 2016)

April

FAN 103: Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era (April 6, 2016)

FAN 104: Documentary on Comedy, Campus Codes & Free Speech to Air at National Constitution Center (April 13, 2016)

FAN 105:  Forthcoming: Tushnet, Chen & Blocher, “Beyond Words” — The Art of Protecting Non-Speech as Speech” (April 20, 2016)

FAN 106:  The Heffernan Case, the Chief Justice’s Curious Vote, the Significance of Justice Scalia’s Absence, & the Importance of Motive (April 27, 2016)

May 

FAN 107:  FTC’s Power to curb misleading ads remains intact (May 4, 2016)

FAN 108: Senate Races Could Shape the Future of the First Amendment — Campaign Spending Wars in Play (May 11, 2016)

FAN 109: Abrams Institute to Host Event on Commercial Speech (May 18, 2016)

FAN 110:  Steve Shapiro to Step Down as ACLU’s Legal Director (May 25, 2016)

June

FAN 111: Flying Dog Brewery Launches First Amendment Society (June 1, 2016)

FAN 112:  “Is First Amendment “almost entirely without content”? Yes, writes Mark Tushnet” (June 8, 2016)

FAN 113: “Abrams Court” Breaks with Tradition & Allows Cameras in Courtroom (June 22, 2016)

FAN 114: 2015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied (June 29, 2016)

July

FAN 115: Profile: Jameel Jaffer to Head New Knight First Amendment Institute (July 6, 2016)

FAN 116: Farber on Scalia & the Abortion Protest Cases (July 13, 2016)

FAN 117: Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law (July 20, 2016)

FAN 118: University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents (July 27, 2016)

August

FAN 119: Snapshots of David Cole #2: Chipping Away at Citizens United (Aug. 17, 2016)

FAN 120: Snapshots of David Cole #2: Chipping Away at Citizens United (Aug. 24, 2016)

FAN 121: New York law to combat Citizens United is “constitutionally unsound” says NYCLU (Aug. 31, 2106)

September 

FAN 122: Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine (Sept. 7, 2016)

FAN 123: When you think of free speech, think of “45” — New book by Stephen Solomon (Sept. 13, 2016)

FAN 124:  Ellen DeGeneres raises First Amendment defense in defamation case (Sept. 21, 2016)

FAN 125: Forthcoming book spotlights First Amendment freedom & LGBT equality (Sept. 28, 2016)

October

FAN 126: Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times” (Oct. 5, 2016)

FAN 127: Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist” (Oct. 12, 2016)

FAN 128:  Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond (Oct. 19, 2016)

FAN 129: A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press (Oct. 26, 2016)

November 

FAN 130: “Porn Panic” Prompts Pushback (Nov. 2, 2016)

FAN 131: Forthcoming: Chemerinsky & Gillman on the importance of free speech on college (Nov. 10, 2016)

FAN 132: FIRE Launches First Amendment Online Library (Nov. 16, 2016)

FAN 133: Slants trademark case might be decided on statutory grounds (Nov. 23, 2016)

December

FAN 134:  “Anti-Semitism Awareness Act” ignites First Amendment controversy  (Dec. 7, 2016)

FAN 135: “Protect the Flag Act” Introduced in Congress” (Dec. 14, 2016)

→ Year in Review: FAN Posts for 2015 ←

 FAN 91: The Year in Review, including “the best of” (Dec. 30, 2015)

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FAN 135.1 (First Amendment News) First Amendment Salon: Jess Bravin Interviews ACLU’s David Cole

1a_salon_featured

The last First Amendment Salon has just been posted. It involved a dialogue between Jess Bravin (Supreme Court correspondent for the Wall Street Journal) and David Cole (Georgetown Law Professor and incoming National Legal Director of the ACLU).

The Salon, the eleventh, took place on December 8th at the law offices of Levine Sullivan Koch & Schulz in Washington,  D.C. and was video cast live to their offices in New York City.

The event was kindly filmed and audio recorded by the Foundation for Individual Rights in Education (FIRE), this in partnership with the Salons. The Salons also work in partnership with the Floyd Abrams Institute for Free Expression.

Thanks to the folks at FIRE, the Salons will now be available in podcast and video form and on various platforms:

  • David Cole & Jess Bravin Salon: podcast available here on FIRE’s So to Speak site.
  • David Cole & Jess Bravin Salon: podcast available here on iTunes
  • David Cole & Jess Bravin Salon: podcast available here on SoundCloud
  • David Cole & Jess Bravin Salon: podcast available here on Stitcher
  • David Cole & Jess Bravin Salon: video available here on First Amendment Library
  • David Cole & Jess Bravin Salon: video available here on YouTube
Anthony Dick raises a question

Anthony Dick raises a question regarding compelled expression

Complimentary beverages were kindly provided by Flying Dog Beer.

 

 

 

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FAN 135 (First Amendment News) “Protect the Flag Act” Introduced in Congress

On December 2, 2016, Congressman Michael R.  Turner (R-OH) introduced the “Protect the Flag Act” (H.R. 6433).  Section 2 of the proposed bill provides:

“(a) In General.—Federal funds may not be made available to an institution of higher education (as defined in section 102(a) of the Higher Education Act of 1965 (20 U.S.C. 1002(a))) that, pursuant to an official policy of the institution to prohibit the display of the flag of the United States by the institution, removes, censors, takes down, prohibits, or otherwise halts display of a flag of the United States.”

“(b) Reinstatement Of Eligibility.—The prohibition described in subsection (a) shall cease to apply with respect to an institution described in such subsection upon complete and proper reinstatement, by the institution in its official capacity, of the flag of the United States at any and all locations on campus property (including across multiple campuses, if applicable) from which a previously displayed flag of the United States was removed, censored, taken down, prohibited, or otherwise halted from display pursuant to an official policy of the institution to prohibit the display of the flag of the United States by the institution.”

The summary caption for the Bill states: “To render ineligible for Federal funds any institution of higher education that removes, censors, takes down, prohibits, or otherwise halts display of a flag of the United States.” Fifty-two other House Republicans have signed onto the measure.

A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)

A group of demonstrators, many carrying American flags, gathered on Nov. 27 outside the campus of Hampshire College in Massachusetts. (Instagram/@axle_maximus via Storyful)

According to a news story by Joseph Cohn wriitng for FIRE, the “bill was likely inspired by the recent controversy at Massachusetts’ Hampshire College in which the institution temporarily decided to stop flying the American flag. Hampshire’s decision came after their own American flag was stolen and burned amongst protests that the flag, a proud symbol to some, represented fear and exclusion to others. According to CNN, the school’s Board of Regents then decided to lower the flag to half-staff in order to ‘continue the campus discussion on the flag’s meaning,’ but some interpreted that decision as a protest of the election results. It was then that the college decided to not fly the flag at all, spurring harsh public criticism.”

See O’Reilly Factor video clip here (Watters’ World: Flag controversy edition).

According to a December 2, 2016 Boston Globe story, “Hampshire College, which prompted a firestorm by removing the Stars and Stripes three weeks ago, restored the banner to the campus on Friday as its president and students expressed hope that the controversy would inspire a forthright dialogue.”

Hampshire College President’s Comments

“We did not lower the flag to make a political statement,” Hampshire College President Jonathan Lash said. According to a news report in the Daily Wire, Lash added: “Nor did we intend to cause offense to veterans, military families or others for whom the flag represents service and sacrifice. We acted solely to facilitate much-needed dialogue on our campus about how to dismantle the bigotry that is prevalent in our society. We understand that many who hold the flag as a powerful symbol of national ideals and their highest aspirations for the country — including members of our own community — felt hurt by our decisions, and that we deeply regret.”

Congressman Michael Turner

Congressman Michael Turner

Congressman Turner’s Comments  

“I am proud to introduce legislation that will protect the American flag from censorship across the country,” Congressman Turner said in a statement to the Washington Examiner. “The American flag is a symbol of freedom throughout the world and should be respected as such. Recent action by Hampshire College to remove the American flag from its campus was a blatant act of censorship. Furthermore, Hampshire College’s decision disrespected our servicemembers, veterans, and the liberties our flag embodies. We must work to ensure that such acts of censorship are not supported by the government in the future.”

Though unlikely to pass this year owing to time constraints, the bill would be considered next year.

Headline: “Oklahoma To Require Anti-Abortion Signs In Public Restrooms”

Hayley Miller, writing in the Huffington Post, reports that “Oklahoma may require public restrooms in restaurants, hospitals, public schools, hotels and nursing homes to post signs with anti-abortion sentiments as part of a drive against the procedure.”

“The state’s board of health was due to discuss Tuesday regulations that would force any restrooms in buildings regulated by the Oklahoma Health Department to carry signs that state”:

There are many public and private agencies willing and able to help you carry your child to term and assist you and your child after your child is born, whether you choose to keep your child or to place him or her for adoption. The State of Oklahoma strongly urges you to contact them if you are pregnant.

State senator AJ Griffin

State senator A.J. Griffin

According to an Associated Press story, “the State Board of Health will consider regulations for the signs on Tuesday. Businesses and other organizations will have to pay an estimated $2.3 million to put up the signs because the Legislature didn’t approve any money for them. The provision for the signs was tucked into a law that the Legislature passed this year that requires the state to develop informational material “for the purpose of achieving an abortion-free society.” The signs must be posted by January 2018.”

“The anti-abortion group Oklahomans for Life requested the bill,” reports the St. Louis Post Dispatch. “The sponsor, Sen. A.J. Griffin, said she may revise the measure in the upcoming legislative session to more narrowly target it to exclude some facilities.”

“‘I do see how it is going to need to be tempered a tad,” said Griffin, a Republican from Guthrie. ‘We need to make sure we have something that’s reasonable and still effective.'”

[ht: David Horowitz]

Florida Abortion Law Challenged on First Amendment Grounds Read More

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Sofia Vergara, Frozen Embryos – and Trust Law?

MINOLTA DIGITAL CAMERA

MINOLTA DIGITAL CAMERA

The newest twist in the long-running dispute between Sofia Vergara and her former fiancé, Nick Loeb ,over their frozen embryos is not actually between Vergara and Loeb.   Instead, out of the blue, James Charbonnet, claiming to be the trustee of the frozen embryos, has sued Vergara in Louisiana.

Many couples have gone to court to fight about their frozen embryos. But, in addition to the fact that this case involves Vergara, there are a lot of strange things about this lawsuit. I’ll unpack just a few.

First, who cares about these embryos? Last year, Loeb sued Vergara in California, trying to make sure that the embryos they had created would not be destroyed. Vergara’s lawyers recently asked Loeb for the names of two former girlfriends who may have had abortions during his relationships with them; rather than provide the information, Loeb is dropping that particular lawsuit. The status of the embyros is unclear, as Vergara has said that she doesn’t want to get rid of the embryos, but she doesn’t want him to use them.

Second, why Louisiana? The embryos are in California, and so is Vergara; Loeb is in New York. So here’s why Louisiana is the chosen forum: Louisiana is the only state that accords status to an embryo as a “juridical person,” LSA-R.S. 9:123, so not only does it have legal status, it can be represented by an attorney.  In fact, a court can appoint a “curator,” a guardian, to protect the embryo’s rights. LSA-R.S. 9:126. And, indeed, the complaint requests that the court appoint Loeb as the “curator” for the embryos.

Third, what’s this about a trust?

The lawsuit complaint explains that the trust was created in Louisiana to provide for the health, education, maintenance, and support of its beneficiaries (complaint, Para. 78).  Nothing unusual about this standard — it is a common one in trusts.

But — the complaint also alleges that the trust was created in Louisiana to benefit the two female embryos (named “Emma” and “Isabella” in the lawsuit). And it claims the two embryos are “scheduled” to be the only beneficiaries of the trust. [Paras. 73-75]   This raises the issue of whether such a trust, set up only to benefit in vitro embryos, is valid. Anyone can create a trust and, in many states, a trust doesn’t even need to be in writing. But when someone (the settlor) creates a trust, black letter law requires that there must be a beneficiary. Even if the beneficiary is not “ascertainable’ when the trust is created, the beneficiary must come into existence within a specific time period.   Restatement (Third) of Trusts § 44 (2003). The complaint states that the two embryos “must be born alive in order to receive the inheritance due from the Trust.” (Para. 79) But we don’t know much else about the terms of the trust; unlike wills (or legal complaints), trusts are private documents that do not need to be filed in court.

And finally, what does the lawsuit seek? It requests that the court order that Vergara consent to let the embryos develop and be born.

I don’t know what the Louisiana court will do, although the suit seems far-fetched. I have taught trusts and estates for many years, I have co-authored one trusts and estates casebook and I’m in the midst of co-authoring a second. While I have seen plenty of lawsuits in which beneficiaries sue trustees, I have never seen a lawsuit in which a trustee sues to make sure that the beneficiaries are born (nor to appoint a “curator”). Because the embryos aren’t in Louisiana, nor have they ever been stored there, it doesn’t seem as though a Louisiana court would have any control over them. If they were living children, the Louisiana court would not have any authority over them because Louisiana is not their “home state”.

In speculating what this case is about, it is hard to ignore that one of the attorneys who filed the suit is a Senior Fellow in Legal Policy at the Charlotte Lozier Institute.  According to the Institute’s website, “We desire and seek that the benefits of modern medicine and the wealth of nations be put to the service of human life and that the scourges of abortion, physical disease, euthanasia and human exploitation will be diminished and ultimately overcome.”

So this functions as yet another publicity stunt to try to further an anti-abortion agenda. And it is a stark reminder of ongoing battles over a woman’s choice.

 

 

 

 

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FAN 134 (First Amendment News) “Anti-Semitism Awareness Act” ignites First Amendment controversy

The bill was proposed by Senators Bob Casey, a Pennsylvania Democrat, and Tim Scott, a South Carolina Republican, to “ensure the Education Department has the necessary statutory tools at their disposal to investigate anti-Jewish incidents,” according to a news release. The senators say the act is not meant to infringe on any individual right protected under the First Amendment, but rather to address a recent uptick in hate crimes against Jewish students. The bill is supported by the American Israel Public Affairs Committee, the Anti-Defamation League, the Jewish Federations of North America and the Simon Wiesenthal Center. . . . The bill has attracted criticism from groups including Palestine Legal and Jewish Voice for Peace, who say the proposed definition of anti-Semitism wrongly conflates any criticism of Israel with anti-Jewish sentiments. — Colleen Flaherty, Inside Higher Ed (Dec. 2, 2016)

* * * * 

View # 1: Opposition to the “Anti-Semitism Awareness Act”

Liz Jackson, a staff attorney for Palestine Legal in Oakland, recently published an op-ed in the Los Angeles Times. The piece was titled “The Anti-Semitism Awareness Act would damage free speech rights on campus.” Here are a few excerpts:

Liz Jackson

Liz Jackson

“[T]he U.S. Senate . . . pass[ed] a bill last week called the Anti-Semitism Awareness Act, which cracks down on the constitutional rights of college students and faculty to criticize Israel. The House will vote on it any day now.”

“The Anti-Semitism Awareness Act endorses the State Department definition of anti-Semitism, which includes ‘delegitimizing’ Israel, ‘demonizing’ Israel or holding Israel to a ‘double standard.’ The bill directs the Department of Education to consider this definition when investigating complaints of anti-Semitism on campus. But the bill does not add any new protections for Jewish students; the Civil Rights Act of 1964, and the Department of Education’s interpretation of the statute, already protects Jewish students against discrimination.”

“The State Department standard is highly controversial because it conflates criticism of Israeli policies with anti-Jewish hatred, shutting down debate by suggesting that anyone who looks critically at Israeli policy is somehow beyond the pale. It has no place on college campuses in particular, where we need students to engage in a vigorous exchange of ideas — especially around our world’s most intractable problems, such as Israel’s nearly 50-year military occupation of Palestine.”

“The University of California rejected the same definition in 2015 after an outcry from free-speech advocates across the political spectrum, newspapers, students, graduate student instructors, and Jewish and other civil rights organizationsJewish commentators, including the definition’s original drafter, Kenneth Stern, repudiated its use on college campuses.”

“As a Jewish student at Berkeley Law in 2010, I joined the campaign pushing the university to divest from companies complicit in Israel’s occupation and violations of Palestinian rights. I was shocked when Israel advocacy organizations claimed that our support for Palestinian equality was so distressing for some Jewish students that the university should not even let us debate the issue. . . .”

View # 2: In Defense of the “Anti-Semitism Awareness Act”

This from a press release from the Anti-Defamation League:

“The Anti-Defamation League (ADL) today hailed Senate passage of the Anti-Semitism Awareness Act, legislation which provides important guidance for the Department of Education and the Department of Justice for federal anti-discrimination investigations involving anti-Semitism, including on campus.”

unknown“The act addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of anti-Semitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful discriminatory conduct?”

“ADL played a central role in working with U.S. Senators Tim Scott (R-SC) and Bob Casey (D-PA) in crafting and promoting the legislation. The League also urged the House of Representatives to approve the legislation before adjournment later this month.”

“‘We welcome Senate passage of this important legislation, which will help the Department of Education and Department of Justice to effectively determine whether an investigation of an incident of anti-Semitism is warranted under federal education anti-discrimination laws,” said Jonathan A. Greenblatt, ADL CEO. “This act addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of anti-Semitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful, discriminatory conduct.'”

“. . . . This legislation uses a 2010 definition of anti-Semitism developed by the State Department’s Special Envoy to Monitor and Combat Anti-Semitism as a reference point that can be useful in their cases, including select instances when discriminatory anti-Semitic conduct may be couched as anti-Israel or anti-Zionist.  The legislation instructs the Department of Education to draw on this definition as part of its assessment of whether incidents are motivated by anti-Semitism when investigating possible violations of Title VI of the Civil Rights Act of 1964 based on individuals’ Jewish heritage or ethnicity. The legislation takes great pains to protect freedom of expression.”

“‘To effectively address reported anti-Jewish incidents that may violate federal education anti-discrimination laws, it is necessary to understand the evolving, current manifestations of anti-Semitism,” Mr. Greenblatt said. “The State Department definition includes useful illustrative examples and can be an important resource.  However, it is also vital to accurately distinguish protected speech – including disagreement and even harsh criticism of the government of Israel – from harassing, intimidating, and discriminatory anti-Semitism.'” . . . .

Related Articles

Josh Nathan-Kazis, Expert on Hate Opposes Campus Anti-Semitism Bill — Based on Definition He Created, Forward, Dec. 6, 2016 (“‘If this bill is passed, its proponents will have the ability to threaten federal funding at colleges and universities where political speech against Israel occurs, and where administrators then don’t try to stop it, or fail to put the university on record calling such speech anti-Semitic,’ Stern wrote. ‘Think of the precedent this would set.'”)

Lea Speyer, Responding to Backlash, Co-Sponsor of House Antisemitism Act Insists Legislation Will Not ‘Diminish, Infringe on’ First Amendment Rights, The Algemeiner, Dec. 6, 2016

Headline: “Purdue’s free-speech orientation program could go national”

Writing in The College Fix, Greg Piper reports that “Indiana’s Purdue University is making a strong play for best public university in the country, based on its demonstrated commitment to free speech.”

unknown“And now it’s getting interest in taking that approach to other schools, whose leaders may be tiring of giving in to student demands to censor and punish students, faculty and staff for their speech and nonthreatening behaviors.”

“The university has been approached by NASPA (Student Affairs Administrators in Higher Education) to present the “methodology” for its “free speech orientation program” – the first of its kind in the nation – at an upcoming conference, Director of Student Success Programs Dan Carpenter told the Foundation for Individual Rights in Education. . . .”

Related: David Schutte, Law School holds First Amendment rights event, The Cavalier Daily, Dec. 2016

White nationalist’s speech draws protests at Texas A&M University

Richard Spencer

Richard Spencer

Reuters reporter Lisa Maria Garza reports that “Texas A&M University students and activists protested against a speech on Tuesday by white nationalist Richard Spencer, who was filmed at a conference last month saying “Hail Trump”, drawing Nazi-like salutes from some spectators.”

“About 1,000 demonstrators waved flags, marched, sang songs and shouted through loudspeakers outside the Memorial Student Center on the campus, where Spencer was speaking, as state police in riot gear stood by, blocking them from entering.”

“Caitlin Miles, a 26-year-old graduate student, stood on top of a box and yelled over the sound of tambourines and trumpets, telling her fellow demonstrators not to engage with any Spencer supporters.”

“‘He has made a lot of remarks and promoted chants that hail back to Nazi slogans. This is a campus that sacrificed nearly half of its student body to fight Nazis,’ Miles told Reuters. . . .”

“The university in College Station, Texas, said its leaders explored whether it could legally prohibit Spencer’s event, but ultimately recognized its obligation to uphold free speech, university spokeswoman Amy Smith said. . . .”

Trump & the Flap over the Flag

screen-shot-2016-12-05-at-11-42-18-pm

Justice Antonin Scalia – Flag Burning Is Free Speech (2012 interview with CNN)

Robert Corn-Revere on Flag Desecration and Free Speech, Closeup, Newseum (02-28-08) (begins at 13:20 into discussion)

Robert Corn-Revere, Implementing a Flag-Desecration Amendment to the U.S. Constitution, First Amendment Center First Report (07.01.05)

  1. Kathleen Parker, Trump seems ready to burn down First Amendment, The Register-Guard, Dec. 6, 2016
  2. Kirsten Salyer, Burning Flags, Screaming ‘Trump’ and Our First Amendment, Time, Dec. 5, 2016
  3. Editorial, So now Trump is “endangering” the First Amendment, Hot Air, Dec. 5, 2016
  4. Erik Wemple, Pray for the First Amendment. Now., Washington Post, Dec. 4, 2016
  5. Scott Bomboy, Flag burning and the First Amendment: Yet another look at the two, Constitution Daily, Nov. 30, 2016
  6. Andrew Napolitano, Trump ‘offended’ the first amendment !!, Fox news, Nov. 30, 2016
  7. Alan Dershowitz, The First Amendment is not broken so let’s not try to fix it, Fox News, Nov. 30, 2016
  8. Mark Hensch, GOP rep: ‘No president is allowed to burn the First Amendment’, The Hill, Nov. 29, 2016
  9. Mark Hensch, House GOP leader on flag burning: ‘We’ll protect our First Amendment’, The Hill, Nov. 29, 2016
  10. Philip Bump, Donald Trump v. the First Amendment, Part 5, Washington Post, Nov. 29, 2016
  11. Max Kutner, Before Donald Trump Called for Flag-Burning Jail Time, Hillary Did, Newsweek, Nov. 29, 2016
  12. Ken Paulson, Trump tweet set Constitution ablaze, USA Today, Nov. 29, 2016

Justice Alito: Remarks at Federalist Society Conference Read More