0

See You in 2017

I am leaving on an extended overseas trip tomorrow and won’t be back until January.  During that time, I plan to spend as little time online as possible.  Have a wonderful holiday season.  What could possibly happen while I’m away?

10

Foreign Emoluments Clause

Recently there has been a discussion about whether the Foreign Emoluments Clause applies to the President.  Here is the text:

“No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The argument that this does not apply to the President centers on the fact that Article II subjects the President to impeachment and removal for (among other things) bribery. From this, you could draw two conclusions.  One is that the only remedy for a President taking foreign bribes is impeachment, which requires more votes than an Act or resolution of Congress. The other is that presidents can take gifts from foreign states so long as they are not bribes.

Here’s a problem though.  Article One says that an impeachment conviction may carry with it “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” This last phrase is the same as the one in the foreign emoluments clause. If the phrase does not include the President, then doesn’t it follow that the Senate cannot bar an impeached and convicted official from being elected President if he is eligible?  Maybe the Senate should not be able to forever bar someone from the White House, but I’m not sure why.

UPDATE:  Let’s turn this idea around.  If the Senate cannot disqualify somebody who is convicted from being President, then that strongly supports the reading that the F. Emoluments Clause does not apply to the President.

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FAN 133 (First Amendment News) Slants trademark case might be decided on statutory grounds

The Slants band

The Slants band

The briefs are still being filed in Lee v. Tamthe disparagement trademark case. While the briefs for the Petitioner are in

those for the Respondent have yet to be submitted.

John C. Connell

John C. Connell

No doubt, First Amendment arguments will demand a lion’s share of attention in those briefs. But will the Court ultimately go that far in deciding the case, or might it take refuge in the doctrine of constitutional avoidance and decide the controversial case on statutory grounds?

→ Enter John C. Connell, counsel of record for the Respondent (with him on the brief: Stuart Banner, Eugene Volokh, Ronald Coleman & Joel MacMull). In his brief, Mr. Connell devotes considerable attention to the following argument: “The Lanham Act’s disparagement clause does not bar the registration of respondent’s trademark.” Here are some excerpts from the Respondent’s brief related to this issue:

  1. Statutory Claim Preserved: “Under section 2(a) of the Lanham Act, does THE SLANTS ‘disparage  . . . persons, living or dead’? At every stage of this litigation, Simon Tam has argued that section 2(a) does not bar the registration of his trademark. He is thus entitled to defend the judgment below on this ground.”
  2. Pressing Need to Decided Statutory Issue: “Section 2(a)’s disparagement clause has existed for 70 years, but the Court has never interpreted it. The PTO has been left to develop its own disparagement jurisprudence, which has wandered ever farther from the statute’s text and from any reasonable understanding of what Congress intended. This case provides an opportunity for the Court to guide the PTO back to the text of the statute.
  3. No Statutory Disparagement: “Simon Tam and his band members are not disparaging Asian- Americans. They are doing precisely the opposite; they are appropriating a slur and using it as a badge of pride. Simon Tam is not a bigot; he is fighting big- otry with the time-honored technique of seizing the bigots’ own language. “Slant” can certainly be used in a disparaging way, but Tam is not using it that way. Even the most cursory awareness of the Slants’ music and the way it is packaged makes that clear.”
  4. PTO Misapplied Statutory Test: “Rather than considering the full context surrounding Simon Tam’s use of THE SLANTS, the PTO simply looked up the word ‘slant in several dictionaries. Rather than asking whether THE SLANTS disparages Asian-Americans generally, the PTO quoted the views of a blogger and a few self-styled spokespeople for Asian-Americans, to conclude that ‘a substantial composite of the referenced group find the term objectionable.’ Had the PTO followed the statute . . . the result would have been different.”
  5. Statute does not apply to “Collective Entities”: “The PTO also erred in construing section 2(a)’s bar on the registration of marks that may disparage ‘persons, living or dead’ to include marks that disparage non-juristic collective entities like racial and ethnic groups. In fact, the quoted phrase includes only natural and juristic persons. . . . Section 2(a)’s disparagement clause bars the registration of marks—such as JOHN SMITH IS EVIL—that disparage natural persons. It also bars the registration of marks—such as MICROSOFT IS EVIL—that disparage juristic persons. But the disparagement clause explicitly does not bar the registration of marks that disparage collective entities that are not juristic persons.”
  6. Original Purpose of Disparagement Clause: “The purpose of the disparagement clause was not to protect the civil rights of racial and ethnic minorities. Rather, the purpose appears to have been to bring American trademark law into conformity with the language of a recent treaty. In 1931, the United States ratified the Inter-American Convention for Trade Mark and Commercial Protection. 46 Stat. 2907 (1931). Article 3.4 of the Convention provided for the denial of registration to trademarks ‘[w]hich tend to expose persons, institutions, beliefs, national symbols or those of associations of public interest, to ridicule or contempt.’ One of the primary purposes of the Lanham Act was, as the House and Senate re- ports both explained, ‘[t]o carry out by statute our international commitments.’ Indeed, the full title of the Lanham Act was ‘An Act to provide for the registration and protection of trade-marks used in commerce, to carry out the provisions of certain international conventions, and for other purposes.’ . . .  Congress would not turn its attention to protect- ing the rights of racial and ethnic minorities for many years to come. When it did, beginning with the Civil Rights Act of 1957, Congress would refer to race and ethnicity explicitly, unlike in the Lanham Act. Section 2(a) thus protects natural and juristic persons against disparagement; it does not protect racial and ethnic groups.”

Such arguments may carry the day and thus could prevent the Court from reaching the First Amendment issues. Let’s see how oral arguments play out.

* * * *

Here are the Briefs in support of neither party:

See also Erica Goldberg, Lee v. Tam: Offensive Trademarks at the Supreme Court: Speech Rights and Government Prerogative (A Series): Part One: The Weighty Legal QuestionsIn a Crowded Theater, Oct. 24, 2016

True Threats to Press Freedom?

 Emily Bazelon, Billionaires vs. the Press in the Era of Trump, New York Times, Nov. 22, 2016 (“Once installed in the White House, Trump will have a wider array of tools at his disposal, and his record suggests that, more than his predecessors, he will try to use the press — and also control and subdue it.”)

Brent Griffiths, Trump to reporters: ‘You’ll be happy’ with my views on the First Amendment, Politico, Nov. 22, 2016 (“President-elect Donald Trump vowed that reporters would be ‘happy’ with his stewardship of the First Amendment under his presidency, despite past promises to make it easier to sue them. ‘I think you’ll be happy, I think you’ll be happy,’ Trump told New York Times reporters, editors and columnists gathered at the newspaper’s Times Square headquarters on Tuesday.”)

unknown Joe Concha, Breitbart News planning lawsuit against ‘major media company,’ The Hill, Nov. 15, 2016 (“Breitbart News Network, a pro-America, conservative website, is preparing a multi-million dollar lawsuit against a major media company for its baseless and defamatory claim that Breitbart News is a ‘white nationalist website,’” the statement reads.”Breitbart News cannot allow such vicious racial lies to go unchallenged, especially by cynical, politically-motivated competitors seeking to diminish its 42 million monthly readers and its number one in the world political Facebook page. Breitbart News rejects racism in all its varied and ugly forms. Always has, always will,” the statement continues.)

Peter Scheer, Can the First Amendment survive President Donald Trump?, Cal Coastal News, November 21, 2016 (“To get back at the New York Times, the Trump administration can go after its biggest shareholder, Mexican telecom magnate Carlos Slim. To get back at CNN, the Trump administration can have antitrust regulators in the Justice Department and FTC put the brakes on the proposed merger of Time-Warner (CNN’s owner) and AT&T.  And the same pain can be visited upon scores of other US firms, not limited to media, which, having criticized Trump’s policies, find themselves in the government’s crosshairs.”)

Susan Seager, Melania Trump’s ‘Revenge Lawyer’ Apparently Doesn’t Understand First Amendment, Law Newz, Nov. 19, 2016 (“Charles Harder, the Beverly Hills lawyer who destroyed Gawker as an act of revenge bankrolled by Silicon Valley mogul Peter Thiel and is now the attack-dog-lawyer for Melania Trump, wants to take down mainstream reporters and a 52-year-old Supreme Court decision. Problem is, like many tough-talking celeb lawyers, Harder misunderstands the law.”)

Ashly Cullins, Trump’s First-Amendment Nemesis Explains How He’ll Defend Any Defamation Lawsuits (Q&A), The Hollywood Reporter, Nov. 17, 2016  (“After then-candidate, now President-elect Donald Trump threatened to sue The New York Times and his sexual assault accusers for defamation in October, attorney Ted Boutrous turned to Twitter to tell the paper, and anyone else finding themselves in a similar situation, that he’d take on any free speech case brought by Trump, pro-bono. . .”

Question: What are some of the weapons that might be used against the press?

Boutrous’ Reply: “Subpoenas to reporters, going after whistleblowers, having an administration that’s even worse at responding to Freedom of Information Act requests, denying press credentials to news organizations, seeking prior restraints to stop publication of newsworthy information, and continuing to attack journalism and undermine its legitimacy from the bully pulpit of the presidency. We need vigorous, aggressive journalism as a democracy. The framers of the Constitution knew that people need to have accurate, factual information. If you have the president telling people that the best journalism in the world is wrong and evil, that is very harmful.”

Steve Benen, First Amendment faces unusual threats following Trump’s win, MSNBC, Nov. 14, 2016 (” One of the president-elect’s top aides raised the prospect of legal action against a critical senator; the president-elect himself is dishonestly attacking one of the nation’s top news outlets; Trump’s team is already taking new steps to limit press access; and the incoming Republican administration has taken aim at protesters voicing dissent in the wake of last week’s elections. If this is what we’re seeing in the first week – two months before Trump officially takes power – the First Amendment and its proponents are in for a very rough ride.”)

Mirren Gidda & Zach Schonfeld, Donald Trump’s Threat to Press Freedom: Why It Matters, Newsweek, Nov 12, 2016 (“Less than a month before the U.S. presidential election, the Committee to Protect Journalists issued an unprecedented statement denouncing the then-Republican nominee. ‘[Donald] Trump has insulted and vilified the press and has made his opposition to the media a centerpiece of his campaign,’ said the committee, a New York-based organization that promotes press freedom. ‘A Trump presidency would represent a threat to press freedom in the United States.’ With little more than two months before Trump takes the oath of office, the threat to the media—and the public’s right to know—is reality.”)

John Daniel Davidson, Mainstream Journalists Don’t Care About Free Speech Until Donald Trump Attacks It, The Federalist, Nov. 15, 2016 (“Trump’s cavalier attitude toward free speech isn’t unique. In fact, it’s a fundamental feature of the political Left. For all its wailing about free speech in the wake of Trump’s election . . . , the media spent eight years enabling and at times encouraging the Obama administration’s denigration of the First Amendment.”)

Hanging noose in yard unprotected by First Amendment Read More

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There Isn’t a Constitutional Deus Ex Machina

One unfortunate tendency since the election is for people to think that there is some magical clause in the Constitution that will prevent Donald Trump from becoming President or that will make his presidency a short one.  Faithless electors will vote for Hillary! Trump will be violating the Foreign Emoluments Clause! (which, let’s face it, hardly anybody thought about until 2016). Perhaps we will hear other candidates soon.

There may well be valid constitutional objections to specific things that the President-elect proposes, for many things there will be none.  (Rescinding some of President Obama’s executive orders, for example.) Public opinion will be the only check on these sorts of actions, either on the Administration itself or through the Congress.

7

Justice Thomas on the Electoral College

My first thought after the election was that my next big project should be on the Electoral College. My second thought (after some research) was that there was nothing new to say.  The flaws in that system are pretty obvious, but it’s also obvious that the odds of moving to something else are slim. (I can say some new things about the history of the EC, but nothing that moves the needle.)

Then there was a third thought:  Do we need to rethink some premises about constitutional law in given that the Electoral College has now produced a popular-vote loser as President in two of the last five elections?  Let’s think about something that Justice Thomas said in his dissent in U.S. Term Limits v. Thornton, which held that states could not impose term limits on members of Congress.

The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President-surely the most national of national figures-is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, § 1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where “the Votes shall be taken by States, the Representatives from each State having one Vote”); Arndt. 12 (same).

In short, the notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them. The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify. See Art. V (providing that proposed amendments shall take effect upon ratification by three-quarters of the States). At the same time, however, the people of each State retained their separate political identities. As Chief Justice Marshall put it, “[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.” McCulloch v. Maryland, 4 Wheat. 316, 403 (1819).

This is the only example I can find of a Supreme Court opinion (albeit a dissent) that reasons from the Electoral College to some conclusion.  There are opinions that reject doing so, most notably the “one-person, one-vote” that said states could not replicate the structure of the Senate or the EC. I wonder, though, what happens if we take Justice Thomas’s idea further, but I need to give that more thought.

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University of Toronto Law Journal – Volume 66, Number 4, Fall 2016

utlj-logo

University of Toronto Law Journal – Volume 66, Number 4, Fall 2016

FOCUS FEATURE: ARTIFICIAL INTELLIGENCE, BIG DATA, AND THE FUTURE OF LAW

In this Focus Feature, we argue that machines will perform many of the tasks currently performed by lawmakers, judges, and lawyers. However, rather than offer a dystopian vision of a legal world run by machines, we suggest that the changes will be mostly beneficial. … Anthony Casey and Anthony Niblett explore how the dichotomy of rules and standards will vanish in a world of such vast information. Rules are simplistic and precise, but they are rarely ideal because they do not factor in particular circumstances. They are often too strict or too loose. Standards are vague and create costly legal uncertainty and risk aversion. …  Benjamin Alarie explores the transition from an analogue world with slow and costly communication to a digitally connected world with real time and nearly costless communication, and he predicts that it will bring with it significant societal advantages. In the long run, Alarie predicts the advent of ‘legal singularity.’ With the realization of legal singularity, a complete specification of tax law (and, indeed, all of the other areas of law) is predicted. …  Albert Yoon argues that the technology will augment, rather than replace, lawyers. Lawyers will need to adapt as particular tasks become automated. Yoon argues that in the same way that electronic spreadsheets changed the nature of accounting, the effect of augmenting technologies will be a net positive for the legal services industry. Innovative law firms will be able to provide cheaper, faster, and more accurate legal advice. (excerpt from “Law in the future”)

Law in the future
Benjamin Alarie, Anthony Niblett, and Albert H Yoon

Self-driving laws
Anthony J Casey and Anthony Niblett

The path of the law: Towards legal singularity
Benjamin Alarie

The post-modern lawyer: Technology and the democratization of legal representation
Albert H Yoon

ARTICLES
Acquisitive prescription and fundamental rights
Neil Duxbury

Rethinking original ownership
Yael R Lifshitz

Quantifying Dunsmuir: An empirical analysis of the Supreme Court of Canada’s jurisprudence on standard of review
Robert Danay

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.

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And Where Were the Lawyers? The White Working Class and the Prospects for a Progressive Resurgence

The inevitable post-election recriminations have begun and a consistent theme on policy blogs is the Democratic Party has sold its soul or at least sold out the white working class base that used to fuel Democratic turnout. A prominent critique came from Thomas Frank, whose new book, Listen, Liberal: Or, What Ever Happened to the Party of the People (2016), was published in March as the primaries were still in full swing. Frank is best known for What’s the Matter with Kansas? (2004), which argued that the Republican Party had strung the working class along with social issues like abortion, while delivering tax cuts for the wealthy and undercutting measures that might have better served Kansas’ economic interests. In this book, he levels his sights at Democrats, recounting the McGovern campaign’s snubbing of union leaders on its way toward losing almost every state in the country, Bill Clinton’s apostasy as he embraced NAFTA, financial deregulation, welfare “reform,” and federal policies that helped launch mass incarceration. Obama fares a bit better, but still failed to take on either Wall Street or Republican intransigence, proposing instead a “Grand Bargain” that progressives labelled the “Great Betrayal” as it would have cut further into working class economic security. And Hillary Clinton, for all she tilted left in this election, tried to get the Republican Party to own Trump’s racism and misogyny, but not to get Trump to own the Republican policies that have so undermined working class and rural prosperity. Frank’s indictment, as far as it goes, seems prophetic.

To that end, Naomi Cahn, Nancy Levit and I have begun an analysis of the relationship between antidiscrimination law and anti-equality efforts and how efforts for economic justice (including the campaign Bernie Sanders led) became separated from the fight for racial and gender justice.  In the era of the “party of the people,” the two were seen as inextricably linked.  A half century ago, John F. Kennedy came to office in the middle of a recession and adopted classic Keynesian measures, which, unlike Barrack Obama, he could get through Congress without implacable Republican opposition.  By 1962, the economy was humming, stocks were up, corporate profits were soaring, yet, the unemployment rate remained stubbornly high.   As Charles Murray shows in Coming Apart: The State of White America, 1960-2010 (2012), white working class male unemployment in those days came down well ahead of the national unemployment rate.  Kennedy saw African-Americans as the key group left out of the general recovery, and in 1963 he proposed as three legs of the same stool: further economic stimulus for the country as whole, antidiscrimination laws that became Title VII, and further investment in minority education and training.  Lyndon Johnson continued these efforts, seeing both antidiscrimination law and the war on poverty, which targeted both white Appalachia and heavily African-American inner cities, as the necessary tools to realize the long standing federal commitment to full employment policies.

All of these measures effectively came to an end with the election of Richard Nixon, the high inflation produced by Arab oil embargo and Vietnam War era spending, and the birth of the Reagan coalition.   With them came a redefinition of Democratic thinking, often led by lawyers.  After all, both Clintons and Obama were not only law school graduates, but for at least brief periods, law professors.  In the seventies and eighties, lawyers, seeing little prospect for a renewed war on poverty, doubled down on antidiscrimination efforts.  Lawsuits succeeded in dismantling all white and all male workplaces, and affirmative action in higher education opened the doors to a new generation of minority professionals.  Within the legal academy, the most exciting new development was law and economics, featuring a math-free-for-lawyers version of Chicago School economics.   By the nineties, the principal alternatives were Critical Race Theory and Feminist Legal Theory, movements that at least initially were more inclined to dismiss economic analysis than to engage it.  Taken together and goaded on by Richard Nixon, who knew these measures would divide Democrats, economic development and antidiscrimination efforts have moved along separate tracks ever since.

Today’s Democrats come to power often committed to racial and gender inclusion, but not to economic transformation, at least not on progressive terms.  Bill Clinton’s New Democrats bought into the need to “reinvent government,” with a principle focus on deregulating financial institutions.   When Barrack Obama became President in 2009, just as the Great Recession was proving how disastrous those policies had been, there was no Cabinet in waiting ready to implement transformational Democratic policies.  Instead, Obama leaned heavily on Republican Fed Chairman Ben Bernanke’s study of the mistakes of the thirties’ Great Depression.   Where he was ready to act as a progressive was on the principle of universal health care, the result of a half century of Democratic advocacy.  Once Republicans took control of Congress in 2010, Obama knew he could get no further legislation through Congress, and he saw no point in making the case for infrastructure spending, regional economic development (remember the sequester?) or even standard Keynesian theory.  Yet, while Republican obstructionism contributed greatly to economic stagnation in Trump Country, Democrats made no effort to hold Republicans accountable in ways that would resonate with average voters.  In the wake of Trump’s election, the most popular reader’s comment in the New York Times was:  “The G.O.P. obstructed progress for eight years and convinced people government is broken. They broke it. America bought it.”

If Democrats are to regroup, they must create a new identity for Democrats that allows the party to be seen as the champion of the people against a Republican coalition that represents elite economic interests while selling out its base.  Donald Trump, the Manhattan billionaire whose first order of business will be to increase his own wealth, is the perfect foil for these efforts.  The fight requires three steps.

First, once the dust settles, the case to be made against Trump will be the Great Betrayal.  A Republican Congress will push tax cuts for the wealthy and the deregulation of banks, health insurance companies, and polluters who will rip off the Trump base and put Florida under water.  Donald and his cronies will make sure they get their cut, and Paul Ryan will solemnly announce that there is no money left after the giveaways to fund serious infrastructure spending or the even the current level of Social Security and Medicare.

Democrats should lay down the gauntlet for Trump: work with us to enact bipartisan infrastructure spending on a scale bigger than the Obama stimulus or concede that you were lying to the base.  Recognize that regional economic development requires spending tax dollars and that ending Obamacare will eliminate regional hospitals.  The opportunities to claim that Trump is nothing more than the agent of Manhattan billionaires will be endless and they can start with the Supreme Court.  Perhaps the most systematic bias of Republican judges is their pro-business orientation.   The most important Senate confirmation questions should be: do corporations have constitutional rights that allow them to use corporate funds to influence elections?   Do white collar criminal defendants have an enforceable obligation to know when their companies’ books have been rigged in ways that inflate their bonuses or will the Supreme Court let them walk just because they looked the other way?   What is the right response when those who run scams like Trump U attempt to intimidate the judiciary and pressure state attorney generals?  The Trump base has no clue that political calls for “conservative” justices signal efforts to insulate the business class from accountability.  Someone should tell them.

Second, every good movement needs a villain, and progressives need to unite Bernie’s efforts to hold Wall Street accountable with Hillary’s proposals for management reforms.  Both embrace the same notion: the financial incentives that permit Trump-like executives to skew business decisions for their own benefit (remember the Trump bankruptcies that did not bankrupt him) are counterproductive as well as immoral.  The time has come to call for a management revolution that identifies the Republican ideology that drives “secular stagnation” as a system that lines the pockets of those in Manhattan and Malibu and fattens their offshore bank accounts at the expense of investment in the future. The Koch Brothers may own Wichita and pollute Texas, but they live in New York.  The Democratic Party needs to combine understandable villains with legal theories that explain how the system is stacked.

Finally, the left needs to rethink the divide that started in the seventies between the causes of racial and gender justice and policies that advance greater economic equality.   With the help of the press, Trump will end up owning every sixteen year old boy’s racist and misogynist utterances.  Yet, an emphasis on economic justice for all communities must be seen as a necessary complement to racial justice.  After all, the policies that hurt the white working class have been a disaster for African-Americans and Latinos.  For Democrat to once again be the party of the people requires identifying Republican policies as the cause of American economic decline and President Trump as their enthusiastic agent.

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FAN 132 (First Amendment News) FIRE Launches First Amendment Online Library

This past Monday some 100 people came to the Washington, D.C. scenic offices of Jones Day where the Foundation for Individual Rights (FIRE) hosted an event to launch the First Amendment Library, the only such online library in the nation.

This from the press release: “FIRE’s First Amendment Library is a free, online database of First Amendment-related materials, including illustrated timelines, educational materials, unique articles, and more than 900 Supreme Court cases concerning the First Amendment. The content available in the library serves as the foundation for an an easy-to-use, ever-expanding resource for students, law clerks, lawmakers, judges, lawyers, journalists, and anyone else who wants to learn about the First Amendment.”

“The First Amendment Library is a one-of-a-kind knowledge hub for all things relating to our Constitution’s first freedoms,” said FIRE Executive Director Robert Shibley. “FIRE is excited to share this resource with the world, and we hope that it will generate more interest in the First Amendment and its important history.”

Greg Lukianoff, Ron Collins & Robert Shibley

Greg Lukianoff, Ron Collins & Robert Shibley

The program was introduced by Greg Lukianoff (FIRE’s president & CEO), Robert Corn-Revere (First Amendment Lawyer), and Robert Shibley (FIRE’s executive director).

Here are a few samples of some of the contents of the online library:

The online library will be updated regularly and expanded greatly in the months and years ahead. For example, in the coming weeks new content will be added concerning everything from the 1734 trial of John Peter Zenger to the list of First Amendment free expression cases decided by the Roberts Courts to First Amendment briefs filed in the Supreme Court by noted appellate lawyers.     

Board of Advisors

  • Floyd Abrams
  • Erwin Chemerinsky
  • Robert Corn-Revere
  • Lucy Dalglish
  • Charles Haynes
  • Lee Levine
  • Michael McConnell
  • Paul McMasters
  • Martin Redish
  • Catherine Ross
  • Nadine Strossen
  • Laurence Tribe
  • Melvin Urofsky
  • Eugene Volokh
  • James Weinstein

Some of those attending the event: Jim Caruso, Susan Cohen, Anthony Dick, Lee Levine, Ronnie London, Tony Mauro, Robert M. O’Neil, Sigrid Fry-Revere, Catherine Ross, Ilya Shapiro, Mel Urofsky, and Lisa Zycherman.

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Campus “grievance culture” tested in S.C. case 

The case is Abbott v. Pastideswhich is currently before the U.S. District Court for the District of South Carolina (Columbia Division). The current posture of the case concerns the Plaintiffs’ consolidated opposition to the Defendants’ motion for summary judgment and Plaintiffs’ cross-motion for partial summary judgment. The information set out below is from the Plaintiffs’ memorandum in support of their cross-motion.

University of South Carolina

  University of South Carolina

Facts: Here is how counsel for the petitioners summarized the facts: Plaintiffs in this case wanted to start a dialogue with their fellow students about the growing number of free speech controversies on American college campuses but learned the sad lesson that you can’t even talk about free speech these days without getting into trouble. They held a Free Speech Event at the University of South Carolina where they described recent cases in which freedom of expression had become a controversial issue. The event went well, but when a few students complained that they were offended and felt “triggered,” the University promptly began an investigation of the speakers, even though their event had been fully explained to USC officials and approved in advance.

University of South Carolina’s Student Non-Discrimination & Non-Harassment Policy (see here)

“Grievance culture” — “This case . . . illustrates how campus bureaucracies can favor grievance culture over the free exchange of ideas, and why structuring rules to nurture and encourage complaints about speech contributes to a mistaken belief by some that there is an American right not to be offended. Such misconceptions have been fostered by constitutionally unsound directives from the Office of Civil Rights of the U.S. Department of Education (“OCR”) and the U.S. Department of Justice (“DOJ”) that purport to establish a blueprint for regulating free expression on college campuses. USC unfortunately got entangled in this mindset and adopted policies to regulate student speech based on broad and nebulous terms using procedures that favor those who complain over the rights of speakers.”

Plaintiffs’ First Amendment Arguments

I. Defendants’ Investigation of the Free Speech Event Violated Plaintiffs’ First Amendment Rights in Ways that Preclude Qualified Immunity & Compel Judgment for Plaintiffs’

A.  Plaintiffs’ First Amendment Rights Are Clearly Establishes

B.  Forcing Plaintiffs to Justify Their Exercise of Free Speech and Threatening Sanctions Violated Their First  Amendment Rights

        1.  Defendants Misstate Controlling First Amendment Principles

        2.  Defendants’ Investigation Burdened Plaintiffs’ First Amendment Rights

II. USC’s Non-Discrimination & Non-Harassment Policy is Facially Invalid Because it is Vague, Overly Broad, & Fails to Incorporate Sufficient Safeguards for Free Expression

A. USC’s Non-Discrimination and Non-Harassment Policy (STAF 6.24) is Vague and Overly Broad

1. STAF 6.24 Restricts Speech Using Amorphous and Undefined Terms

2. The “Limiting Clause” of STAF 6.24 Cannot Rehabilitate a Constitutionally Defective Policy

3. USC’s Policy Fails to Implement the Required Constitutional Standard

 B. USC’s Reliance on DOJ and OCR Guidance is No Defense, & Instead Illustrates the Constitutional Deficiencies of its Policy

C. The Court Should Grant Plaintiffs’ Motion for Summary Judgment

→ Counsel for Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman

Related Documents & Articles

Ross Abbott, Why I Sued the School, The Daily Gamecock, March 2, 2016

Complaint and Exhibits (additional documents from PacerMonitor here)

For a discussion of the case, see The Academy Uncensored: Abbott v. Pastides 

Read More

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UC Davis Law Review, Issue 50:1 (November 2016)

Articles

Miranda 2.0
Tonja Jacobi

Unearthing Summary Judgment’s Concealed Standard of Review
Jonathan Remy Nash

The Hostile Poison Pill
Christine Hurt

Bad Medicine: Parents, the State, and the Charge of “Medical Child Abuse”
Maxine Eichner

Externality Entrepreneurism
Lisa Grow Sun & Brigham Daniels

Conspiracy as Contract
Laurent Sacharoff

Appealing to Congress
Justin Collings

Note

The Electronic “Sign-in-Wrap” Contract: Issues of Notice and Assent, the Average Internet User Standard, and Unconscionability
Erin Canino

lawreview.law.ucdavis.edu