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Tax Returns and Ballot Access

I want to weigh in on the debate over whether states can constitutionally insist that presidential candidates must make some of their tax returns public in order to get on the ballot.  My tentative conclusion is that this would be unlawful under the Equal Protection Clause.

Let’s start with some basic principles. U.S. Term Limits v. Thornton that a state cannot impose upon congressional candidates substantive requirements for ballot access beyond the three that are in Article One of the Constitution. While Article Two’s text on the qualifications for the Presidency parallels the Article One requirements at issue in Thornton, state legislatures have more discretion over presidential elections because they can appoint electors in any manner that does not otherwise violate the Constitution (for example, a state legislature can just directly choose electors without holding any popular election). As a result, when it comes to presidential candidates and tax returns, the issue reduces (in my mind) to whether there is rational basis that connections the mandatory release of a tax return with ballot access.

I think the answer is no.  Here are my reasons.  First, it’s clear that these proposed statutes are directed at one man–Donald Trump. They will apply to all presidential candidates, but we all know that they might as well be called the “Make it Harder For Donald Trump to be Reelected” Act. This raises a red flag. Second, I have a hard time understanding the link between compulsory tax return release and ballot access. States have many procedural ballot access requirements (get signatures from voters, get them from certain places, pay a fee, etc.), that are, if modest, plausibly related to ether defraying the costs of election administration or establishing whether someone is a viable candidate. Requiring the release of tax returns has nothing to do with these things. What, then, is the rational basis for such a law, especially given that tax return disclosure does implicate privacy rights.  (I can’t, for example, get the President’s old tax returns through a FOIA request.)

Will this ever be litigated? I don’t know. Arguably the only states that might enact such a law are the ones that the President has no chance of winning next time. So he might just choose not to release his returns anyway. Or by 2020 his returns might be quite simple (“I earned my salary as President plus some money from passive investments.”) and thus releasing them will be no big deal.

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FAN 148 (First Amendment News) Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

DinnerLocation TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

  • Floyd Abrams
  • Emily Bell
  • Mona Bicket
  • Vince Blasi
  • Sarah Cleveland
  • Heather Gerken
  • Tom Ginsburg
  • Jameel Jaffer
  • Larry Lessig
  • Catherine MacKinnon
  • Robert Post
  • Albie Sachs
  • Fred Schauer
  • David Strauss
  • Cass Sunstein
  • Laura Weinrig

Owen Fiss on Harry Kalven Read More

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FAN 147.1 (First Amendment News) Music is their medium; the name is their message — The Slants perform @ Flying Dog Brewery

Text of the First Amendment above door in Flying Dog Brewery

The beer was flowing / the crowd was roaring/ the free-speech lawyers were showing / as the First Amendment Society (Erin Weston, Executive Director) brought The Slants to the Flying Dog Brewery in Frederick, MD. for a performance during the band’s East Coast tour. Flying Dog’s CEO Jim Caruso introduced The Slants.

Recall, this is the Asian rock-dance band whose case (Lee v. Tam) was argued before the Court on January 18, 2017. The issue is whether the disparagement provision of the Lanham Act, which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

The band, the amicus lawyer (Ilya Shapiro) & the brewer (Jim Caruso)

The Slants were in fine fighting form as they filtered their message through melodic modes mixed with razor-cut messages in Fight Back, one of the songs from their latest EP — The Band Who Must not be Named (In Music We Trust Records, 2017).

The Portland, Oregon synth-pop group melodiously veered through such free-speech anthems as their From the Heart:

Sorry if our note’s too sharp
Sorry if our voice’s too raw
Don’t make the pen a weapon
And censor our intelligence
Until our thoughts mean nothing at all

lead singer Ken Shima

Sorry if you take offense
You made up rules and played pretend
We know you fear change
It’s something so strange
But nothing’s gonna get in our way

There’s no room
For your backwards feelings
And backyard dealings
We’re never gonna settle
We’re never gonna settle

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
Know it’s a rock n roll nation
We sing from the heart
We sing from the heart

Sorry if we try too hard
To take some power back for ours
The language of oppression
Will lose to education
Until the words can’t hurt us again

First Amendment guys Bob Corn-Revere & Ilya Shapiro

So sorry if you take offense
But silence will not make make amends
The system’s all wrong
And it won’t be long
Before the kids are singing our song

There’s no room
For your backwards feelings
And your backyard dealings
We’re never gonna settle
We’re never gonna settle 

No, we won’t remain silent
Know it’s our defining moment
We sing from the heart
We sing from the heart
No we won’t be complacent
know it’s a rock n roll nation
We sing from the heart
We sing from the heart

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Symposium on Carol Sanger’s “About Abortion”: Introduction & Commentaries

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

Related

Professor Carol Sanger

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Ratification of Constitutional Amendments

As I think about what my next big project might be, one thought is that lawyers know little about what was said in the state legislatures about the amendments to the Constitution. We know a lot about the state ratification debates on the Constitution itself (at least for the states that kept some information) but after that the quality of the historical record drops off dramatically.  I’m not sure if that is because state legislatures did not keep notes of their debates (say, during the eighteenth and nineteenth centuries), if the debates were lackluster, or if nobody has bothered to do the research. Surely, for the more recent amendments there are complete state legislative accounts, and I’m sure that people would like to know, for example, what was said there about the Twenty-Fourth or the Twenty-Fifth Amendments.  But there is no single place to find a summary of those discussions. David Kyvig’s terrific book on constitutional change is the closest example, but that is still far from what I’m thinking about.

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UCLA Law Review Vol. 64, Issue 3

Volume 64, Issue 3 (March 2017)
Articles

Contagion Without Relief: Democratic Experimentalism and Regulating the Use of Antibiotics in Food-Producing Animals  Emilie Aguirre 550
Too Big to Disclose: Firm Size and Materiality Blindspots in Securities Regulations George S. Georgiev 602
The Stream of Violence: A New Approach to Domestic Violence Personal Jurisdiction Cody J. Jacobs 684
Rethinking Misdemeanor Neglect Irene Oritseweyinmi Joe 738

 

Comment

Thirty Years After Al-Khazraji: Revisiting Employment Discrimination Under 1981 Sarah Khangahi 794
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Obsolescence Watch–Clinton v. Jones

Consider this passage in light of the litigation pending against the President and what will surely be filed over the next couple of years:

“[I]n the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.”

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Pauli Murray

I just wanted to note this new biography of Pauli Murray, one of the leaders in the fight for gender and racial equality.  The book was discussed in this week’s New Yorker and tells a remarkable story. Here is the Abstract:

Throughout her prodigious life, activist and lawyer Pauli Murray systematically fought against all arbitrary distinctions in society, channeling her outrage at the discrimination she faced to make America a more democratic country. In this definitive biography, Rosalind Rosenberg offers a poignant portrait of a figure who played pivotal roles in both the modern civil rights and women’s movements.
A mixed-race orphan, Murray grew up in segregated North Carolina before escaping to New York, where she attended Hunter College and became a labor activist in the 1930s. When she applied to graduate school at the University of North Carolina, where her white great-great-grandfather had been a trustee, she was rejected because of her race. She went on to graduate first in her class at Howard Law School, only to be rejected for graduate study again at Harvard University this time on account of her sex. Undaunted, Murray forged a singular career in the law. In the 1950s, her legal scholarship helped Thurgood Marshall challenge segregation head-on in the landmark Brown v. Board of Education case.

When appointed by Eleanor Roosevelt to the President’s Commission on the Status of Women in 1962, she advanced the idea of Jane Crow, arguing that the same reasons used to condemn race discrimination could be used to battle gender discrimination. In 1965, she became the first African American to earn a JSD from Yale Law School and the following year persuaded Betty Friedan to found an NAACP for women, which became NOW. In the early 1970s, Murray provided Ruth Bader Ginsburg with the argument Ginsburg used to persuade the Supreme Court that the Fourteenth Amendment to the Constitution protects not only blacks but also women – and potentially other minority groups – from discrimination. By that time, Murray was a tenured history professor at Brandeis, a position she left to become the first black woman ordained a priest by the Episcopal Church in 1976.

Murray accomplished all this while struggling with issues of identity. She believed from childhood she was male and tried unsuccessfully to persuade doctors to give her testosterone. While she would today be identified as transgender, during her lifetime no social movement existed to support this identity. She ultimately used her private feelings of being “in-between” to publicly contend that identities are not fixed, an idea that has powered campaigns for equal rights in the United States for the past half-century.