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FAN 11.5 (First Amendment News) — Oral Arguments in the Susan B. Anthony Case: Is it Ripe?

Today the Court heard oral arguments in Susan B. Anthony List v. Driehaus, the “false speech”/ “campaign lies” case. Judging from the oral arguments in the case (see below), it seems unlikely that the Court will reach the substantive First Amendment claims raised by the Petitioners.

FactsSBA-20_logo

Susan B. Anthony List is a pro-life group. It released a billboard political attack ad critical of then Congressman Steve Driehaus’s vote in favor of the federal health care bill: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Pursuant to Ohio Revised Code 3517.21(B), which prohibits making or distributing “false” statements about candidates for political office, Driehaus filed a complaint with the Ohio Elections Commission. He alleged that the Susan B. Anthony group violated state law by making a false statement about him and his voting record. The Ohio Election Commission found probable cause to believe the ad violated the statute. Driehaus challenged RC 3517.21 as an unconstitutional restriction on its speech.

Issues: The two main issues in the case are:

  1. Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and
  2. Whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

The Attorneys 

Michael Carvin

  • For Petitioners: Michael A. Carvin, Jones Day
  • For RespondentEric E. Murphy, State Solicitor for State of Ohio
  • For United States: Eric J. Feigin, Assistant to the Solicitor General

The Oral Argument (4-22-14) The full transcript is posted here. Selected excerpts are set forth below.

Questions to Mr. Carvin

Justice Ginsburg:  “the other organization [the Coalition Opposed to Additional Spending & Taxes] has never bee charged before the Ohio Election Commission. Is there any reason to believe anybody’s going to lodge  complaint against it?”

Justice Sotomayor: “How is that any different from ­­ how is that any different from the people in Younger, who the Court dismissed as having no standing because they hadn’t been prosecuted despite the same identical claim? They were chilled, they might intend to do something similar, et cetera.”

Justice Ginsburg: “There is a provision for an advisory opinion, and that’s a question that you are arguing strenuously that this statute violates the Constitution. You could have asked the Commission for an advisory opinion saying that the statute can’t be enforced, but you didn’t do that.”

Justice Ginsburg: “Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness.”

Chief Justice Roberts: “Do you want us to just forget about the disclaimer issue and the commission procedure issue or even the as ­applied issue?”

Questions to Mr. Feigin

Justice Kagan: ” I’m not sure I understood . . .  Is it sufficient that somebody has said, I’m going to bring an action against ­­ before the Commission, but there’s been no prior Commission determination as to this speech. And it’s just somebody saying, I’m going to go to the Commission and raise this with them if you start speaking in this way. Would that present a credible threat?”

Justice Ginsburg: “Are you arguing that the other organization, COAST, also has standing? Because you ­­ you seem to require for the credible threat for there to have been a proceeding before the Commission and there’s been nothing with regard to the other organization.”

Questions to Mr. Murphy

Chief Justice Roberts: “Are you prepared to represent to us that if they do the next election that they did in the last one, that yo will not take action against them?”

Justice Scalia: “Well, but the criminal prosecution isn’t all that they’re complaining about. They’re complaining about having ­­ having to be dragged through this same ­­ this same proceeding next time in the midst of an election campaign, and however minimal the finding that is ultimately made may be, they are going to be subject, for sure, to that proceeding in the next election campaign. And I don’t care if all the commission says is, you know, there is some reason to believe that they were lying. Even if it’s that minimal, you are forcing them, and it is pretty sure that it’s going to happen because somebody will complain, the candidate they are criticizing, you are forcing them to go through this procedure in the midst of an election campaign, right?”

Chief Justice Roberts: “. . . I’m not going to let you put your sign up on my billboard, I might be liable. So, I mean, they may have a certain fortitude and proceeding based on all the reasons that you’ve given, but they need third parties to help carry out their message and there is no reason to think those third parties have any commitment to their political message at all and the slightest whiff of, oh, this is going to be legal trouble, they say, forget about it.”

Chief Justice Roberts: “Well, no, but a defamation action, people sue everybody all the time. No one’s going to take that seriously. In fact, it’s probably going to redound to the benefit of SBA and COAST to say the congressman is, you know, bringing a defamation action. It highlights it, but it’s another thing to have the State involved making a determination that there’s probable cause that you lied.”

Justice Scalia: “The mere fact that a private individual can chill somebody’s speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it. That’s not ­­ that’s not the law.”

Justice Kennedy: “Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?”

Justice Breyer: “Why can’t a person say, you know, there are things I want to say politically, and the Constitution says that the State does not have the right to abridge my speech, and I intend to say them. And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm. Right? So why isn’t that end of the matter?”

Justice Breyer: “Why shouldn’t it be the harm? That is, whatever ­­ has any case said when somebody says, you want to speak in a campaign, and we have a law here that if you do we will throw you in jail and you really do want to speak and the law really does prevent you from speaking, why shouldn’t that be the end of it?”

Justice Ginsburg: “Mr. Murphy, you said there was no credible threat of prosecution, but what about the harm that is occurring? Mr. Carvin said it’s a very short time. They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement. And that just that alone is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?”

Justice Kagan: “Why isn’t, as Justice Ginsburg suggested, the relevant harm the probable cause determination itself? There are voters out there and they don’t know that probable cause is such a low bar as you describe it. They think probable cause means you probably lied, and that seems a reasonable thing for them to think and that’s a relevant harm and we should just ­­ you know, we don’t even need the prosecution to serve as the relevant harm. That seems quite enough.”

Justice Kennedy: “There’s a curious inversion here. Usually we’re concerned about citizen suits, too many people can challenge ­­ challenge the law. Here we’re concerned that many, many citizens can bring the challenge against the candidate. So it’s somewhat reversed. In other words, you have tens of thousands of private attorney generals waiting to pounce and get these people before the commission and have to follow discovery orders.”

Justice Sotomayor: “Do you know of the 500 cases that you mentioned earlier, how many actually ended up in full prosecutions?”

Chief Justice Roberts: “You gave us some answers about how many of the 500 resulted in criminal prosecutions. And all I want to know is how many of the 500 proceedings were mooted out by the fact that the election took place.

Justice Breyer: “What would you say as a lawyer ­­ you’re a lawyer for the Commission. You understand it better than I. I’m just making up an example. Do you think they’d prosecute this or not? Somebody walks in front of the House and a political opponent has a big sign that says murderer. No one asked. You said but he voted for legislation that led to the death of many cats. Would they prosecute that or not?”

Justice Alito: “Well, why don’t the statistics that you provided us portray a system that really limits core First Amendment speech without providing much of an opportunity for a judicial review if you’re correct about ­­ about Article III here where ­­ you have a system where thousands of complaints are filed, and yet in the end, there’s very few prosecutions. And you say, well, the filing of the complaint isn’t enough and the probable cause determination isn’t enough. So you have a system that goes on and on, year after year, where arguably there’s a great chilling of ­­ of core First Amendment speech, and yet you’re saying that basically you can’t get into Federal court.”

Justice Alito: “Well, Alvarez wasn’t about false statements in the abstract. It was a criminal prosecution for making particular false statements. And they were as hard factual statements as you will ever find. Did somebody receive the Congressional Medal of Honor or not?”

Justice Sotomayor: “But how are you going to prove ­­ how are you ever going to prove that one false statement cost somebody an election?”

Justice Scalia: “Do you think that the allegedly false statement here was a false statement of fact?”

Justice Scalia: “But I mean, we’re talking about whether this law imposes limitations upon the freedom of speech. And if you say whenever you do it, you are going to have a lawsuit, you’re going to be hauled before this commission. You may have a good case, you may not have a good case, but you have to justify yourself to this commission before you can ­­ before you can make the assertion.”

________________

The Briefs (Selected Briefs)

For additional briefs, go here and here.

Micheal Morley

Micheal T. Morley

Note: Notice that the case for the State of Ohio is being argued by the State Solicitor (Eric Murphy) but that the Attorney General of Ohio (Michael Dewine) has filed an amicus brief in support of neither partyand is being represented by Bradley A. Smith, a former FEC Commissioner and a campaign finance law expert.

Note also the amicus brief filed on behalf the NRC was authored by Michael T. Morley, who authored the merits brief and the reply brief in McCutcheon v. FEC.

The Opinions Below Read More

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“Yes, Prime Minister” on Ukraine

90px-Big_ben_closeupTHE PRIME MINISTER:  “Britain should not support law and justice?”

SIR HUMPHREY APPLEBY:  “Of course we should.  We just shouldn’t let it affect our foreign policy, that’s all.”

THE PRIME MINISTER:  “We should always fight for the weak against the strong.”

SIR HUMPHREY APPLEBY:  “Well, then why don’t we send troops to Afghanistan to fight the Russians?”

THE PRIME MINISTER:  “The Russians are too strong.”

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Did Abraham Lincoln Ever Say “Bill of Rights?”

120px-Lincoln_statueFor those of you who are Lincoln scholars, I have a question.  Did Lincoln ever refer to the first ten constitutional amendments as the Bill of Rights?  I know that he did not do so as President, as I’ve checked, but what about before that?  (In the Lincoln/Douglas debates, private letters, his one term in Congress, etc.)  I think we are near the point where all of Lincoln’s known writings are scanned and searchable, but I’m not sure if that is foolproof.

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Call For Papers

The University of Georgia School of Law will host the Seventh Annual Junior Faculty Federal Courts Workshop on October 10-11, 2014.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars include, at this time, Janet Alexander (Stanford), A.J. Bellia (Notre Dame), Heather Elliott (Alabama), Evan Lee (UC-Hastings), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Amanda Tyler (UC-Berkeley), and Steve Vladeck (American).

The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

The conference will begin with a dinner on Thursday, October 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.

Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014.

Please send abstracts to federalcourtsworkshop@gmail.com <mailto:federalcourtsworkshop@gmail.com> . Please contact Matt Hall <https://www.law.uga.edu/profile/matthew-i-hall>  or Kent Barnett <http://law.uga.edu/profile/kent-barnett-4>  with questions.

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Criticizing Justice Stevens

96px-John_Paul_Stevens_official_SCOTUS_portrait_cropJohn Paul Stevens has a new book out detailing six constitutional amendments that he would like to see ratified. Put another way, it’s about six constitutional cases that he lost. The book is not getting a good reception from some quarters, but I think the criticism is overdone. He’s 94 years old–cut the guy some slack.

Besides, the real reason to doubt Justice Stevens’ powers of analysis is that he thinks Shakespeare did not write Shakespeare’s plays. Lots of people have made this claim over the past four hundred years, but a lot of that rested on class snobbery (“How could a nobody like Shakespeare have written them? It must have been the Earl of So-and-So.”) In our egalitarian age, though, this argument has no place. Recant Justice Stevens! While you still can.

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FAN 11.4 (First Amendment News) — Liptak re Amending the First Amendment & Similar Proposals by Justice Stevens

If you have not yet seen it, take a look at Adam Liptak’s New York Times article titled “Justice Stevens’s Prescription for ‘Giant Step in Wrong Direction.’” It is quite good and in characteristic Liptak fashion elicits an important reply by way of an insightful question.  Here are a few excerpts:Unknown

Traces of Anger

There was a hint of anger in some of his remarks when I went to see him last week in his Supreme Court chambers. He said the Court had made a disastrous wrong turn in its recent string of campaign finance rulings. “The voter is less important than the man who provides money to the candidate,” he said. “It’s really wrong.

“Misleading” Message 

Chief Justice John G. Roberts Jr. started his controlling opinion with a characteristically crisp and stirring opening sentence: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” But that was misleading, Justice Stevens said. “The first sentence here,” he said, “is not really about what the case is about.”

Justice Souter’s (unpublished) Dissent

I asked Justice Stevens whether he, as the senior justice among the four dissenters, would have assigned the 2009 dissent.“I would and I did,” he said. And he more or less confirmed that the assignment went to Justice David H. Souter, as Jeffrey Toobin has reported in The New Yorker. “He was certainly a logical candidate to write the dissent,” Justice Stevens said of Justice Souter . . . . The draft dissent caused the majority to pause, Justice Stevens said, thanks to “the strong expression of the feeling among the dissenters that procedurally the case was not in the proper posture to reach the issue that they ultimately decided. I think it persuaded the majority that it would be better to have a re-argument so that they could not be accused of deciding something that had not been adequately argued,” he said. 

Amending the First Amendment — Prudent? 

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.” Or perhaps not

His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates. Justice Stevens said he would not go that far.“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”

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More On Justice Stevens’ Proposal to Amend the First Amendment

If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.

Last Scheduled FAN Column: click here

Next Scheduled FAN Column: Wednesday, April 23rd.

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Misunderstanding General Mills

On April 15, General Mills added language to its website which purported, “in exchange for benefits, discounts,” to subject consumers’ claims for use of General Mills products to arbitration and a class-waiver. General Mills, notably, was free to sue in court at will. When the Times noted the change, General Mills reversed course, stating:

[W]e never imagined this reaction. Similar terms are common in all sorts of consumer contracts, and arbitration clauses don’t cause anyone to waive a valid legal claim. They only specify a cost-effective means of resolving such matters. At no time was anyone ever precluded from suing us by purchasing one of our products at a store or liking one of our Facebook pages. That was either a mischaracterization – or just very misunderstood.

 Like Jeremy Telman, I found the emphasized sentence to be mysterious. There are only two ways to square the historic facts with “mischaracterization — or just very misunderstood” claim:

(1) General Mills thinks that “suing us” and “brining a claim in our bespoke arbitral forum” are the same thing; or

(2) General Mills believes that liking “one of our Facebook pages” isn’t the same as “joining our sites as a member [or] joining our online community.”

The first claim is sophistry, the second is frivolous. Roderick Palmore, GC of General Mills, Chicago Law grad, and head of compliance, had a bad week.

But what’s triply irritating about this whole saga is the lack of precision in the Times and elsewhere as to what, exactly, is wrong with the terms. General Mills is right to point out that many consumer contracts contain arbitral class action waivers, though many do not.  Contrary to the other speculation, there’s nothing per se illegal about provisions which shift costs in litigation. General Mills’ arbitration proceeding is actually quite generous about cost shifting, waiving a filing fee for disputes under $5000, and paying for the arbitrators themselves. Though proceduralists generally recoil from arbitration trumping procedure, what’s obviously at stake here isn’t individuals losing “their” right to sue, it’s class action lawyers losing their right to act as private attorneys general in quasi-regulatory cases. The ultimate question here – are class actions in federal court required for consumer protection – is harder than the commentariat has acknowledged.

But there is a legal problem with these particular Terms.  I don’t think they create a contract which binds consumers. Here’s the now-deleted triggering paragraph:

In exchange for the benefits, discounts, content, features, services, or other offerings that you receive or have access to by using our websites, joining our sites as a member, joining our online community, subscribing to our email newsletters, downloading or printing a digital coupon, entering a sweepstakes or contest, redeeming a promotional offer, or otherwise participating in any other General Mills offering, you are agreeing to these terms.

The problem is that most people who participate in such activities are probably not actively required to click to agree to these terms, and consequently aren’t bound to them under traditional (or Principles of Software Contracts) doctrinal rules. They will lack notice, and consequently not be contractually engaged. Even the FAA requires a contractually enforceable arbitration clause to subject claims to binding arbitration – such terms can’t be imposed absent agreement. That is, the terms are unenforceable not because of their content but because of the process of their adhesion.

General Mills obviously knows this. Indeed, I bet that Mr. Palmore has a memo in his file from some aGC, or associate at a law firm, saying so.  But he proceeded with the term rollout anyway because he knows that the issue will be required to be presented to an arbitrator first under the FAA. [Update: I'm informed that assent issues are instead usually reserved to courts in the first instance.]  Maybe that arbitrator will ignore the law!  And, he hopes, the in terrorem effects of the purported class-waiver of the clause will sufficiently deter plaintiffs in large false-labeling cases so as to make the terms’ eventual defeat cost-justified.

Or, to put it differently, contract law provides a clear path to enforceability of terms just like these. General Mills attempt to shortcut that path should be seen as an attempt to leverage consumers’ ignorance of the law, and lawyers’ risk aversion, to drive down claims. It’s bad – not good – news for consumer advocates that General Mills withdrew this sally. It would have been a excellent test case of the limits of Carnival Cruise and Concepcion.

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The Bill of Rights As a Legal Fiction

I’ve been thinking about the Bill of Rights lately.  Partly because I’m teaching a new seminar on it next Spring, and partly because I’ve written a draft paper on the Bill of Rights that I’ll be workshopping at Wisconsin next week.

In this post I want to raise the following question–What purpose is served by describing the first ten amendments as the Bill of Rights?  In other words, why do people say things like “The Bill of Rights says . . .” or “That violates the Bill of Rights.”  Strictly speaking, these phrases are meaningless.  A particular provision may say something in a given case, but there are virtually no instances in which the Bill of Rights is at issue.  As my paper notes, the only exceptions are cases like Maxwell v. Dow that addressed John Bingham’s view that the whole Bill of Rights applied to the States.  Moreover, people did not usually refer to the first set of amendments as the Bill of Rights until the twentieth century.

One thought is that “Bill of Rights” is used to elevate the less significant parts of the first ten amendments.  Suppose I am arguing that a government has imposed excessive bail on my client.  Talking about this as violating the “Bill of Rights” might sound stronger than saying “the Eighth Amendment” or the “Bail Clause.” Another thought is “Bill of Rights” gets used because it was drafted and ratified by the same generation that produced the Constitution.  What sets those amendments apart, you could say, is that they were part of the extended process that gave birth to the Constitution.

A third thought (that I’m leaning towards) is that the phrase “Bill of Rights” is just a necessary symbol that means “we care about individual rights.”  This notion is deeply embedded in the Anglo-American tradition, starting with the Magna Carta, going through the English Bill of Rights of 1689, and extending through the colonies.  It would be odd to draft a new constitution today (in another country) without having a Bill of Rights, even if the basic rights were protected elsewhere in the text.

More on this tomorrow . . .

 

 

 

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Clinical Law Review Workshop – Registration deadline is June 30, 2014

The Clinical Law Review will hold its next Clinical Writers’ Workshop on Saturday, September 27, 2014, at NYU Law School.

The Workshop will provide an opportunity for clinical teachers who are writing about any subject (clinical pedagogy, substantive law, interdisciplinary analysis, empirical work, etc.) to meet with other clinicians writing on related topics to discuss their works-in-progress and brainstorm ideas for further development of their articles. Attendees will meet in small groups organized, to the extent possible, by the subject matter in which they are writing. Each group will “workshop” the draft of each member of the group.

Participation in the Workshop requires the submission of a paper because the workshop takes the form of small group sessions in which all members of the group comment on each other’s manuscripts. By June 30, all applicants will need to submit a mini-draft or prospectus, 3-5 pages in length, of the article they intend to present at the workshopFull drafts of the articles will be due by September 1, 2014.

As in the previous Clinical Law Review Workshops, participants will not have to pay an admission or registration fee but participants will have to arrange and pay for their own travel and lodging. To assist those who wish to participate but who need assistance for travel and lodging, NYU Law School has committed to provide 10 scholarships of up to $750 per person to help pay for travel and lodging. The scholarships are designed for those clinical faculty who receive little or no travel support from their law schools and who otherwise would not be able to attend this conference without scholarship support. Applicants for scholarships will be asked to submit, with their 3-5 page prospectus, by June 30, a proposed budget for travel and lodging and a brief statement of why the scholarship would be helpful in supporting their attendance at this conference.  The Board will review all scholarship applications and issue decisions about scholarships in early July.The scholarships are conditioned upon recipients’ meeting all requirements for workshop participation, including timely submission of drafts.

Information about the Workshop – including the Registration form, scholarship application form, and information for reserving hotel rooms – is available on-line at:

http://www.law.nyu.edu/journals/clinicallawreview/clinical-writers-workshop

If you have any comments or suggestions you would like to send us, we would be very happy to hear from you. Comments and suggestions should be sent to Randy Hertz at randy.hertz@nyu.edu.

– The Board of Editors of the Clinical Law Review