2

Justice Hugo Black’s KKK Speech

Given the commentary about Judge Kavanaugh’s testimony last week, I thought I might compare that performance to Justice Hugo L. Black’s 1937 radio address answering the charge that he had once been a member of the Ku Klux Klan. Justice Black, unlike Judge Kavanaugh, had already been confirmed by the Senate when the national press revealed that he had once been in the KKK. There were calls for Black to resign or be impeached, so he took to the radio to respond.

In his speech, Black stated: “During my recent absence on a short vacation abroad, a planned and concerted campaign was begun which fans the flames of prejudice and is calculated to create racial and religious hatred.” This was nonsense, but note that every Justice or would-be Justice who gets into trouble (such as Justice Black, Justice Thomas during his hearings, or Judge Kavanaugh) tends to reach for conspiratorial language.

Justice Black then summarized his Klan participation this way: “The insinuations of racial and religious intolerance made against me are based on the fact that I joined the Ku Klux Klan about fifteen years ago. I did join the Klan. I later resigned. I never rejoined. What appeared then, or appears now, on the records the organization, I do not know. I never have considered and I do not now consider the unsolicited card given to me shortly after my nomination to the Senate as a membership of any kind in the Ku Klux Klan. I never used it. I did not keep it. Before becoming a Senator I dropped the Klan. I have had nothing whatever to do with it.” This was not candid  given Justice Black’s Klan membership and the role that the group played in his election to the Senate in 1926. Granted, Justice Black was not testifying under oath about these issues, but it’s hard to say that he told the truth. In private, he thought this this nothing more than an effort by FDR’s enemies to destroy his reputation.

And yet Black became one of the greatest Justices in the history of the Court. Food for thought.

3

Recusal Practice in the Supreme Court

Whether Judge Kavanaugh is confirmed or not, I think it’s fair to say that he’ll be getting a lot more recusal motions based on his Senate testimony responding to the allegations against him. This raises a question, which is whether the Supreme Court should formulate clearer standards for recusals. As of now, there are none. Each Justice gets to decide for himself or herself when to recuse, and when they do they do not explain why.

To some extent, this lack of transparency makes sense. If people know that a Justice will recuse in a particular circumstance, then they can try to game the system. Nonetheless, I think when a Justice declines to recuse when a motion is brought, an explanation should be required. (Justice Scalia, for instance, did so when challenged in case involving Vice President Cheney because they went duck hunting together.) No doubt Judge Kavanaugh would prefer to reject recusal motions based on his testimony without comment, but I hope the Court develops a contrary norm.

4

The Syllabus in a Supreme Court Opinion

With the Court’s new Term underway, here’s a question that I’ve wondered about for a long time. Supreme Court opinions are prefaced by a syllabus (not prepared by the Justice writing the opinion) summarizing the decision qualified by the statement that the syllabus is not authority. Does anyone bother reading these anymore?  I don’t. I just read the opinions. Or I look at commentary on the opinions. Or the Westlaw notes. Perhaps, though, practitioners find these summaries useful. If not, though, the Court is probably wasting resources and delaying opinion releases unnecessarily by sill doing them.

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Constructing Early Case Reports

My draft paper on Corfield discusses Justice Washington’s original notes without explaining why he kept these notes. When I do a revision, I will rectify that by showing that he kept the notes so that an official report could be written later. In those days, there was no official reporting system for circuit cases. Washington’s correspondence indicates that he shared his notes with different individuals to create these reports (and not all of his colleagues did the same).

In those letters, Washington was careful to say that his jury charges or opinions should be published verbatim (whether they were correct or not on the law) but the arguments of counsel should be edited to look better. A kind of professional courtesy, I suppose.

1

Electric Scooters

I thought I would do some counter programming given the hearing today and talk about electric scooters. Suddenly they have sprung up in cities across America, including mine. This is a great publicity coup for their manufacturer, a startup called Bird. There have, though, already been some fatal accidents involving these devices, which could be attributed to car drivers being unfamiliar with them, inexperienced riders of the scooters, or the lack of any proper regulation.

The question of whether to allow (or how to regulate) these scooters is an interesting one that almost every state or city must consider. Here’s my question though. Does Bird face significant liability for, in essence, springing this as a surprise on people, which in turn can be said to have caused accidents? Was that negligence?

4

Justice Kennedy Really Screwed Up

First, he waited until the last day of the Term to announce his retirement. This shortened the timeframe for deliberating on a Supreme Court nomination and for vetting a nominee.

Second, he retired effective July 31, 2018. Thus, we now again face the prospect of a shorthanded Supreme Court, maybe for two years or more.

Alas.

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FAN 200 (First Amendment News) Special 200th Issue: 15 Women & Their Views on Free Speech

To commemorate the 200th issue of First Amendment News, I invited women from various professions (lawyers, law professors, and a journalism professor) to draft original essays on any aspect of free speech law. Why only women? Fair question. My answer has to do with the fact, as I perceive it, that by-and-large those who receive the most attention in the First Amendment arena are men. I leave it to others to explain if and why that might be so — some of the contributors to this symposium do just that. However that may be, of this I can say with a good measure of certainty: the essays that follow are diverse, thoughtful, somtimes provocative, original, and often mind-opening.  I extend my thanks to the 15 contributors for their sympsoium essays and to Kellye Testy for kindly agreeing to write the Foreword.  

→ Related: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018 (Aug. 7, 2018)      

→ With this issue First Amendment News ends its long and rewarding affiliation with Concurring Opinions. I want to thank my colleagues here for their valuable and generous support. I especially want to thank Professor Dan Solove who years ago dared to invite me to be a part of his team. Happily, Dan and his colleagues have agreed to allow me to continue to contribute to Concurring Opinions.

Starting sometime in October, FAN’s new host will be the Foundation for Individual Rights in Education (FIRE). Among other things, you can expect more news along with a variety of digital improvements. From time to time, FAN will also host or co-host live and online symposia and may even conduct a study or two. One thing will, however, remain constant: my commitment to being a fair broker of content. So stay tuned — some of the best is yet to come. — RKLC    

_______Symposium_______

Foreword

Kellye Testy, “Prior Restraint: Women’s Voices and the First Amendment

15 Contributors  

Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder

Mary Anne Franks, “The Free Speech Fraternity

Sarah C. Haan, “Facebook and the Identity Business

Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech

Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”

Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place

Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories

Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency

Helen Norton, “Taking Listeners’ First Amendment Interests Seriously

Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra

Ruthann Robson, “The Cyber Company Town

Kelli Sager& Selina MacLaren, First Amendment Rights of Access

Sonja West, “President Trump and the Press Clause: A Cautionary Tale

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FAN 200 (First Amendment News) Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”

Helen Norton is Professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law at the University of Colorado Law School. Professor Norton’s scholarly and teaching interests include constitutional law, civil rights, and employment discrimination.  Two of her more recent publications are: “The Government’s Manufacture of Doubt,” 16 First Am. L. Rev. 342 (2018) and “The Government’s Lies and the Press Clause,” 89 U. Colo. L. Rev. 453 (2018).

___________________

Let’s say you’ve learned that you’re 10 weeks pregnant.

Professor Helen Norton

You may have several children already, or none. You may be a teenager or you may be in your 40s. You may have a job–or maybe you just lost one. You may or may not be married. You may have health insurance; you may not. You may know that you don’t want an abortion. You may know that you do. You may be unsure. In any event, you are now considering your next steps.

Turns out that many folks have something to say to you about what you should do next. What do you want from those speakers? If you’re like many (if not most), you want accurate information that informs, but does not coerce, your decision-making. You don’t want to be lied to, you don’t want relevant information withheld from you, and you don’t want to be bullied. Here, then, you probably want to know the risks and benefits of your options, their costs, and the qualifications of the folks offering to serve you. You probably want to know what services are available from other sources, and at what cost.

For these reasons, California, like a number of other jurisdictions, required facilities that seek to serve pregnant women to disclose certain information to those women. First, it required those facilities licensed under state law to provide women with notice that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” This tells women about additional options, and their cost. Second, the state required unlicensed facilities to notify women that “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” This tells women about the qualifications of those seeking to serve them.

But last June a 5-4 Supreme Court preliminarily enjoined California’s law, holding that it likely violated the free speech rights of crisis pregnancy centers, organizations often affiliated with or operated by those opposing abortion. Most, if not all, of these centers do not offer referrals or any other services related to birth control or abortion, and many have no professional health care providers on staff. In so holding, the Court ignored what women as listeners would find helpful in making important decisions about their health and lives. Focusing instead on the centers as speakersand what they do and don’t want to say to the pregnant women they seek to influence, the Court demonstrated its continuing failure to protect listeners’ autonomy, enlightenment, and self-governance interests – values at the heart of the Free Speech Clause.

As I explain in more detail in a forthcoming essay, the Court need not, and should not, have done so. In certain settings, law sometimes puts listenersfirst when their First Amendment interests collide with those of speakers. And collide they often do. Sometimes speakers prefer to tell lies when their listeners long for the truth. Sometimes listeners hope that speakers will reveal their secrets, while speakers resist disclosure. And at other times, speakers seek to address certain listeners when listeners wish simply to be left alone. When speakers’ and listeners’ First Amendment interests conflict, whose should prevail?

(credit: Gavin Ortlund)

A “listener-centered” approach to certain free speech problems outside of public discourse understands the First Amendment to permit the government to regulate the speech of comparatively knowledgeable or powerful speakers when that expression frustrates their listeners’ interests. (“Public discourse” involves the universe of speech key to democratic self-governance like campaign and other political speech, where courts have historically privileged speakers’ autonomy interests in saying what they want to say.)

Why put listeners first in environments of expressive inequality? When speakers enjoy certain advantages of information or power over their listeners, they can mislead or muscle their listeners in ways that strike us as unfair and sometimes dangerous. When we take seriously the First Amendment interests of listeners who suffer disadvantages of information or power in these relationships, we improve the quality of the communicative discourse. We also recognize listeners as ends in themselves–rather than as mere means through which speakers seek to achieve their own ends.

And a listener-centered approach still leaves those speakers free to make a wide range of expressive choices: it does not force speakers to mouth opinions that they don’t hold, nor does it prohibit them from sharing their opinions or additional accurate information of their choosing in non-coercive settings

Consider the following clashes between speakers’ and listeners’ First Amendment interests:

Lies often advance the speaker’s autonomy interests in saying what he wants to say at the expense of his listeners’ interests in receiving accurate information to inform their decision-making. A listener-centered resolution of this conflict understands the First Amendment to allow the government to require comparatively knowledgeable or powerful speakers to tell the truth when they choose to speak on certain matters even if they would prefer to dissemble. For this reason, law generally requires commercial actors to speak accurately when they extol their products’ attributes to consumers, professionals to accurately list the risks of their recommended course of action, to their patients and clients, and a corporation’s leaders to portray its economic situation truthfully when describing its prospects to shareholders.

A knowledgeable speaker’s secrets and non-disclosures can also threaten listeners’ interests while enhancing his own. A listener-centered approach understands the First Amendment to permit the government to require comparatively knowledgeable and powerful speakers to make accurate disclosures about issues material to listeners’ decision-making, even if those speakers would prefer not to. Think, for example, of the government’s requirements that commercial speakers affirmatively disclose the health or safety dangers posed by their products.

The Supreme Court’s traditional commercial speech doctrine long exemplified a listener-centered approach. In a setting where commercial actors hold more information about their goods and services than their consumers, the Court interpreted the First Amendment to permit the government to regulate commercial speech that frustrates listeners’ interests while protectingcommercial speech that serves them. The Court thus treats commercial speech that is false, misleading, or related to illegal activity (like advertisements for illegal drugs) as entirely unprotected because listeners have no constitutionally protected interest in receiving that information. At the same time, the Court generally protects truthful and non-misleading commercial speech from government regulation because that expression can provide great value to consumers’ decisionmaking. For instance, the Court has applied intermediate scrutiny to strike down laws prohibiting sellers from publishing accurate information about legal products or services, like the price of prescription drugs or the alcohol strength of beer.

The professional speech setting also shows how law can serve listeners’ First Amendment interests sometimes by protecting expression from the government’s regulation, and at other times by regulating it to ensure its trustworthiness and thus its value to listeners. We support listeners’ interests in quality professional advice when we interpret the First Amendment to protect lawyers’ and doctors’ speech from governmental restrictions that are inconsistent with professional standards – like the federal law that forbade federally-funded legal services lawyers from representing clients challenging welfare law even though professional standards generally require lawyers vigorously to pursue their client’s plausible claims.

Then there is the Florida law that banned doctors’ discussions of gun safety with their patients even when professional standards encourage such conversations to prevent accidental injuries. At the same time, we also promote listeners’ interests in quality professional advice when we understand the First Amendment to permit the government to regulate professionals’ speech to ensure its trustworthiness. Examples include professional responsibility rules that regulate professionals’ speech to protect clients’ interests, such as those that require lawyers to disclose potential conflicts of interest and that prohibit lawyers from knowingly making false statements of material fact or law.

Here I’ve discussed the value of a listener-centered approach to certain free speech problems in several settings: commercial, professional, and reproductive health care (and elsewhere I’ve also explored a listener-centered approach to workplace speech). All involve offers or exchanges outside of public discourse where the speaker has more information (and sometimes power) than his listeners. In each of them, the speaker seeks to shape his listeners’ choices in his preferred direction: to persuade them to buy what he’s selling; to settle rather than sue or to wait rather than operate (or vice versa); or to continue a pregnancy. All involve the speaker’s delivery of information that is objectively verifiable: the attributes of a particular product; the professional consensus about a course of medical treatment or legal action; and the existence and extent of available reproductive health care services. And all involve listeners who are making decisions (often life-shaping decisions) about their own property or health. When we take the side of listeners in these relationships, we promote their First Amendment interests by enabling them to receive accurate information that informs, but does not coerce, their decision-making.

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FAN 200 (First Amendment News) Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder”

Jane Bambauer is a Professor of Law at the University of Arizona. Professor Bambauer’s research assesses the social costs and benefits of Big Data, and questions the wisdom of many well-intentioned privacy laws. Her articles have appeared in the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies. Professor Bambauer’s own data-driven research explores biased judgment, legal education, and legal careers. One of her recent publications is Information Libertarianism, 105 Cal. L. Rev. 335 (2017) (with Derek E. Bambauer).

_________________

Professor Jane Bambauer

It’s obvious to anybody with a passing familiarity with Narcissistic Personality Disorder that President Trump has it. Yet psychiatrists and psychologists have been constrained to some extent by the “Goldwater Rule,” leaving Omarosa to make the most forceful public statements to date about Trump’s mental health.

Section 7.3 of the American Psychiatric Association code of ethics states the rule as follows:

On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.

Section 7.1 also advises psychiatrists to refrain from making public statements with authoritative conviction, admonishing them not to use the phrase “psychiatrists know that…”

The American Psychological Association’s code has similar language, and shortly after Donald Trump’s inauguration, that association reminded its members that

When a psychiatrist comments about the behavior, symptoms, diagnosis, etc. of a public figure without consent, that psychiatrist has violated the principle that psychiatric evaluations be conducted with consent or authorization.

Consent is the weasel word. The concept is perfectly applicable to invasive procedures and other direct interventions, but when it is used to constrain other people from talking to each other, it has been stretched beyond its use.

Jeannie Suk Gersen has written an excellent summary of the Goldwater Rule’s origins and constitutional infirmities. As she explained, the AMA’s and APA’s guidelines are explicitly transcribed into some state licensing laws. Others could very well investigate complaints based on the violations of the professional codes of ethics, so the threat of state action is real.

These constraints led some members of the psych professions to propose bold work-arounds. Bandy Lee, organizer of the “Duty to Warn” conference at Yale on the topic of Donald Trump’s mental illness, claimed that members of the profession can and should exercise their duty to warn about Trump’s “dangerousness” without diagnosing him. This proposal is based on a flawed understanding of the Tarasoff doctrine (not to mention a dubious assumption that psychologists’ assessment of a person’s dangerousness is unrelated to an opinion on “behavior, symptoms, diagnosis, etc.”). One contributor to the symposium even suggested that psychologists and psychiatrists should exercise their danger-based powers to detain Trump against his will. Presumably, if a profession cannot even comment on the mental health of a president within the bounds of ethics, it also cannot initiate a coup by overturning a fair, democratic election.

The free speech issues are blatant enough, but the case law on “professional speech” has enough incoherence to make the Goldwater Rule plausibly defensible. Consider Pickup v. Brown, a Ninth Circuit case that decided (wrongly, in my opinion) that a law banning psychologists from practicing “Sexual Orientation Change Efforts” on youth clients was nota speech regulation. Never mind whether the law could pass the requisite level of scrutiny, the court said scrutiny was unnecessary.

The court divided therapist’s communications into two buckets:

(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself;

(2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word.

Get it? Dialectical therapy is a “treatment,” not speech.

With the right evidence, I suspect SOCE bans could survive scrutiny, but Pickupis a dangerous case for permitting a restriction on communications to fly under the radar of constitutional review by asserting that some communications get a technical exemption.  “Diagnosis,” in the case of the Goldwater Rule, is a good candidate for the same treatment as “treatment”. Indeed, much of the Food & Drug Administration’s authority over information technologies depends on it.

Chief Justice John Roberts

Under Chief Justice John Roberts, the Court has done good work shaping free speech doctrine so that it looks beyond labels. The Court has applied scrutiny to regulations that target communication and influence even when the text of the law avoids using obvious references to speech. [Expressions] Campaign finance laws are a good (if controversial) example—those laws are superficially about money and donations, but purpose and underlying theory of campaign finance reform is entirely related to managing communications to voters. But the Court has undercut its work by overextending free speech coverage in Janus. That case involved labor laws that compelled all public employees who are represented by unions to pay union fees. In both form and substance, the law addressed an economic free-rider problem, not a communication problem. But the Court treated the law as a regulation on speech because labor contracts require negotiation, and negotiation requires talking. Janus will be a low point in the Roberts Court’s free speech legacy because it provides ammunition to the argument, mostly specious, that since everything is expressive, the First Amendment should be limited to X (to political speech, to vulnerable speakers, to vulnerable listeners, etc.).

(credit: The New York Times)

There could be more fodder from the regulation of products, too. Free speech challenges to bans on readily executable code for 3-D printed guns should lose. Computer code is made up of words, yes, and those words can communicate an idea to other people who read the same programming language. But everyobject and action has embodied information. A traditionally manufactured gun can also teach. It could be put on display with labels showing how it was made. But gun bans that pass Second Amendment scrutiny could still treat the display gun  as contraband. Likewise, code that will be used principally to make guns rather than to engage in the marketplace of ideas can be regulated the same way physical guns are, as long as they are regulated the same way for the same reasons.

This quick survey leaves a lot of nuance out, but to the extent we can agree that the First Amendment applies when communications are targeted by state action, the Goldwater Rule (as incorporated in state licensing laws) should trigger First Amendment scrutiny.

Moreover, the Goldwater Rule should not survive this scrutiny, even at an intermediate level for professional speech. While diagnosing third parties who are not in a direct relationship with a psychologist or psychiatrist could be error-prone in some circumstances, there are plenty of circumstances in which psychiatrists get enough information from a third party’s self-disclosure. Donald Trump is one such case, but he’s not even the archetype. Many non-famous people leave evidence of their delusion and mischief in emails, social media posts, and voicemails. For disorders in the “dark triad,” these may be as useful or more useful than an in-person session. A patient who is in close contact with a malignant narcissist is better off getting counsel from a psychologist or psychiatrist who does not have to pussy-foot around a clear analysis and remote diagnosis of a client’s septic tormentor.

So, psychologists could successfully challenge any government attempt to punish them for diagnosing Donald Trump. Does that mean they should?

(credit: The Blue Diamond Gallery)

Yes, I think so, but not for the reasons that participants of the “Duty to Warn” conference thought. Their motivation to diagnose Trump was to warn the republic that the president is unstable. But Trump was conspicuously unstable during the election, too. Right now, national politics are controlled by Republicans, and Republican politics are ruled by Trump supporters. And Trump supporters still love their leader because, not despite, of his destructiveness and rancor. You know the fable of the frog and the scorpion? The psychologists at the Duty to Warn conference want to yell, “HE’S A SCORPION! HE’S A SCORPION!” but Trump voters will respond, with a snicker, “damn right; he’s OUR scorpion!” And then they will adjust their little MAGA hats on their littlescorpionheads. (By the way, the populist left could develop its own collective narcissism. Like Trump supporters, the prevailing orthodoxy revolves around oppression by power hierarchies, both real and imagined. And they, too, can be played by Putin.)

Instead of diagnosing Trump to issue a warning, psychiatrists and psychologists should do it for another reason. They should do it to help advise people who are in Trump’s sphere of influence. As Vladimir Putin seems to understand, grandiose narcissists can be manipulated because they are so single-minded and exhausted. I suspect the aides who sprinkle Trump’s briefing with his name have gotten some coaching. Indeed, while the popular media criticizes the president for spending his time and energy on cartoonishly grand missions like the Space Force and cartoonishly frivolous things like Twitter flame wars with celebrities, these are exactly the sorts of things that we should hope take up his presidency. They are the presidential equivalent of giving a toddler some pots and pans to bang on.