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Author: Howard Wasserman

5

Know Hope . . . and Expletives

While everyone is running around worrying about that little election thing today, the Supreme Court will hear oral argument in FCC v. Fox Television Stations, considering the FCC’s policy on “fleeting” or “isolated” expletives in broadcasting. Officially, FCC v. Pacifica and the constitutional lunacy of the entire project of regulating indecent speech is not on the table. But, hey, today is a day for hope.

To that end, let me recommend this Atlantic essay by psychologist Steven Pinker. And this needs no introduction:

5

More on engaging “insane” views

Paul Gowder took the comments from my post about debating Westboro and the Phelps into his home forum. I wanted to respond more fully here. At one level, I think we are misunderstanding one another; at another, we are proceeding from different premises.

First, Paul writes that the Phelps message of “God hates fags” is a “foul, false, and offensive message.” True enough, but so are a lot of other messages and a lot of other speakers. Later, Paul argues that there is a difference between “non-mainstream but sane views (consider the various versions of anarchism, on both the socialist and the capitalist side) and completely nutso views.” As I said in the Comments, the whole point of my first post was to find the line between those two. Lots of messages are foul, false, and offensive and lots of messages–how do we decide which ones are OK to engage with?

Paul insists that “I know it when I see it” is close enough and, ultimately, all we have, since a meaningful objective line is impossible. And he probably is right. Of course, some people would have a very different views of the “sanity” of the Church’s views or, say, the views of the KKK or the views of many other speakers. This subjectivity works at the level of one individual’s choice about whom to engage with in a debate–my history professor’s flat refusal to sit down with deniers.

But it becomes problematic when it is the government doing the defining. And it is a short step from saying that a group is too insane to include in a debate than to saying it is too insane to be given access to a public forum where people will have to encounter that group’s expression–which will require a government definition. As I noted in the first post, that is the gravaman of the criticism directed at FIU by some faculty and students over allowing the Genocide Awareness Project onto campus–the group’s views are “non-mainstream-and-insane” and it was inappropriate to allow them onto campus and subject unwilling members of the FIU community to their “foul, false, and offensive” images of aborted fetuses and specious analogies.

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14

Defining what is beyond the pale of public debate

Last weekend, the Stonewall Legal Alliance at FIU College of Law hosted a day of panels on Florida’s Amendment 2, a ballot initiative amending the state constitution to define marriage as a union of one man and one woman and prohibiting creation of substantially equivalent unions. At the heart of the event was a debate between my friend and colleague Professor Jose Gabilondo (Stonewall’s faculty adviser) and Marge and Shirley Phelps of the Westboro Baptist Church–an anti-(inter alia) gay rights group best known for picketing at the funerals of fallen soldiers.

The invitation was met with anger and criticism from all sides. Some on the left argued the invitation gave Westboro legitimacy in the public debate that it did not deserve. Jose has told me that he received letters of protest from a number of groups, including the Anti-Defamation League and the Southern Poverty Law Center, as well as letters from individuals directly critical of him. Requests were made to both the COL and University administrations to intervene and rescind the invitation. And some campus student groups were urged by administrators not to attend the event so as to avoid being confronted by insulting words and ideas. Some on the right complained that inviting Westboro to present the pro-Amendment 2 position was stacking the rhetorical deck in the anti-amendment side’s favor, because the opponent is incapable of presenting the “true” intellectual arguments against same-sex marriage and can do nothing other than turn the event into a circus that will horrify observers into opposing the ballot proposal and make Prof. Gabilondo’s anti-amendment arguments look better.

Jose discusses the controversy here, including a strong defense of uniquely open intellectual exchange in a university setting, including the presence of non-”mainstream” speakers and views. (And, to the extent it matters, Stonewall invited a number of local and national amendment supporters, all of which declined the invitation.

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20

Berg v. Obama: Finding the proper defendants

One key to teaching procedural classes is to get students thinking about how to frame litigation when it is brought, incorporating all the doctrines and rules that we have been drilling into them. A good new example is Berg v. Obama, the lawsuit filed by a Pennsylvania lawyer to stop Barack Obama from being elected President on the ground that Obama is not a natural-born citizen. The lawsuit was dismissed last week, correctly, for lack of standing.

But let’s assume Berg had standing to challenge the deprivation of his constitutional right to vote for an eligible presidential candidate (since many commenters on this site have derided reliance on standing as a dodge by Obama and the court). It is worth thinking about how one could go about bringing such a lawsuit–whom to sue for what claims and what relief. Berg’s initial strategy was to sue Obama, the DNC, and the FEC–and only the latter two were targeted on the constitutional claims. The big problem (mentioned, but under-analyzed in the opinion) was that neither Obama nor the DNC is a state (or federal) actor, at least not for purposes of running for election. Moreover, I do not see how, even if a court were to find that Obama is ineligible for the presidency, the court could enjoin Obama from running for president. Enforcement of the prohibition on a non-natural-born citizen becoming President does not rest with the non-natural-born citizen–it is not a constitutional obligation to refrain from trying to become President. It is a duty on the federal and state government officials who control the machinery not to allow him to be selected as President or to take the oath and assume the office. It is true that, in any suit against some state or federal electoral official, Obama would intervene as a defendant under FRCP 24 to protect his interests. But that is different than making him a party in the first instance and having the injunction run against him.

So who should Berg have sued? Let’s have some fun. My thanks to my colleague Tom Baker, who wasted fifteen minutes talking through this with me.

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3

My Ox or Yours?

Dave’s post about the nonsense lawsuit against Barack Obama over his citizenship and presidential eligibility reminds me that procedure is fun because people’s normative (political, ideological) views of procedural rules often change unexpectedly when those rules work suddenly work against their interests. Consider, for example, the range of jurisdictional doctrines that limit public-law litigation as an institution for social and political change. These are beloved by political and judicial conservatives as ways to reign-in out-of-control activist judges, greedy lawyers, and disgruntled citizens trying to achieve through the courts what they cannot achieve through the popular political process. Andy Siegel has the best discussion of the Rehnquist’s Court’s opposition to the institution of litigation. But views shift suddenly when those doctrines block conservatives from using litigation in the same way.

The lawsuit against Obama is Exhibit A. As Dave notes, motions to dismiss for lack of standing have been filed and almost certainly will be granted, because Berg has nothing more than the undifferentiated interest of the public as a whole in a remedy for any violation that may be found. But one commenter on Dave’s post argues that the plaintiff obviously has a personal stake in the case, because Obama would become his president, and that a standing defense simply is the “standard dodge.” I would guess that many conservatives might echo that point. Of course, the rule against citizen standing is what prevents anti-war activists from suing to stop members of Congress from holding commissions in the Armed Forces Reserves or from forcing the CIA to fully report its expenditures to the public.–all outcomes that judicial and political conservatives tend to support.

Exhibit B is the federal lawsuit filed by the Ohio Republican Party against Ohio Secretary of State Brunner, alleging that Secretary Brunner violated the Help America Vote Act (“HAVA”) by not providing information to county election officials to allow for comparisons of registration roles and the purging of names that do not match. The Supreme Court reversed the issuance of a preliminary injunction, rejecting the GOP’s claim on the merits because HAVA does not contain the necessary explicit rights-creating language that establishes a privately enforceable statutory right (either through the statute itself or through § 1983). Again, the doctrine narrowing the types of statutes that create privately enforceable rights has been established in the context of halting a challenge to English-language requirements to obtain a drivers’ license or preventing a student from obtaining damages when his educational records were released in violation of federal privacy laws–a series of decisions applauded by conservatives wanting to stop “activist judges.” Michael Dorf has a good discussion of the politics of the case.

So does the political and ideological valence of these doctrines change when a different ox is being gored? Dorf applauds the unanimous Court’s ability to ignore (implicitly, unlike Bush v. Gore) the ideological interests and positions of the parties and apply the private-right-of-action doctrine in its established narrow scope. But if the response among some conservative commentators to the Obama suit (with the notion that Obama hiding something by defending on standing grounds) is any indication, there seems to be surprise and anger when these doctrines suddenly work against their interests.

4

FIU College of Law in the Roger Williams Survey

FIU College of Law (which opened in Fall 2002) is not yet a member of the AALS, which meant we were not included in the Roger Williams survey of faculty productivity at non-Top-50 law schools. So, as St. Thomas (MN) did last month, we ran our numbers. The result: a 4.590 faculty score, placing us around # 30, just behind Indiana-Indianapolis and just ahead of St. John’s, Tennessee, and Loyola-Chicago.

Not bad, especially since I had thought before we ran the numbers that our faculty might have a couple of built-in disadvantages, given the study’s methodology. First, we have a very bottom-heavy faculty–10 of our 22 tenure/tenure-track faculty are pre-tenure and five of those are in their second year teaching, and three of our senior faculty are newly tenured. Second, we have a lot of specialists doing legal history (including non-U.S./non-English legal history) and niche international work, stuff that tends to place in specialty journals and that also tends to be shorter. Third, several of our top senior people have focused almost exclusively on writing books (scholarly and casebooks) rather than law review articles over the past 3-4 years (although I wonder if the trend in the academy towards book projects makes this an issue across the board).

Anyway, I was happy to see us come out that well in a preliminary study. It gives us something to build on with a new dean (we are beginning a dean search as I write this) and in the never-ending search for new faculty.

5

$ 150 million worth of speech

The Obama Campaign announced Sunday that it raised $ 150 million in September, an obscene, record-breaking figure that more than doubles the previous record (which was Obama’s haul in August). This certainly justifies Obama’s decision to opt-out of public financing. What is especially interesting to me is that 3.1 million people have contributed to his campaign, including more than 630,000 new contributors in September. And the average donation was around $ 86. Of course, by definition “average” means there were donations of more than that, including several large fund-raising events, including one hosted by Barbra Streisand that netted $ 11 million.

But I would like to hear how these numbers–donors, new donors, average donation amount–compare with past primary and general elections. And what do these numbers tell us about the debate over campaign-finance rules and public funding? The theory of Buckley v. Valeo (which never has been entirely repudiated) is that making campaign contributions is a First-Amendment protected way of expressing support for a candidate, albeit a right subject to fairly close regulation and limitations in amount (a principle with which I generally agree). The theory of campaign-finance regulation has been that politicians will simply cozy-up to a small number of big-money donors who use large contributions to gain access and influence, resulting in various forms of corruption (indeed, that was the warning from the McCain Campaign in response to the Obama announcement).

But if a campaign can fund itself, at least in part, on smaller contributions from a substantial number of voters looking to do their part and have their say, do we come close (or at least closer) to a First-Amendment regime of “The People” speaking through their pocketbooks to support a candidate, without the same risk of corruption or influence-peddling? I think McCain’s criticism misses the mark because the corruption rationale works when a campaign receives $ 2 million from one contributor; it looks very different, and has a different effect, when the campaign receives $ 2 million from 20,000 contributors. The corruption criticism looks out of place when it becomes not a problem with the amounts of money people are able to contribute (which remain restricted), but of the number of people who are able to contribute, particularly in small amounts.

Can what Obama has achieved tell us anything about how candidate fundraising can work, especially with the power of the internet? Is Obama a unique candidate and no (or few) other candidate can generate this kind of excitement and support?

Updated and moved to top: Tuesday morning

Publius at Obsidian Wings links Obama’s expansive fundraising to Madison’s theory of republicanism. Recall that Madison argued that the way to limit the power of factions in a republic is to increase the size of the republic and thus the number of factions, preventing any one from seizing control. Similarly, dramatically expanding the size of the donor base, the Obama model (and Publius recognizes, as does one of our commenters, that Howard Dean started us down this road in 2004) prevents any one donor from gaining influence.

3

Someone is reading the blogs

In August at Prawfs, I criticized the Ninth Circuit decision in In re DRAM Litigation, which dismissed a claim under the Foreign Trade Antitrust Improvements Act (FTAIA) for lack of subject matter jurisdiction, rather than for failure to state a claim, which I believe was the more appropriate ground.

Well, today, I received an e-mail from the author of the opinion, Ninth Circuit Judge Raymond Fisher, and a copy of the revised opinion, which included the following footnote:

The district court granted defendants’ motion to dismiss, which was premised solely on jurisdictional grounds. It is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from

the federal courts when a plaintiff fails to establish proximate cause or as simply establishing a limited cause of action requiring plaintiffs to prove proximate cause as an element of the claim. Compare Empagran S.A. v.

F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir. 2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50 (2d Cir. 2007) (affirming dismissal on 12(b)(6) grounds). The Supreme Court’s decision in Empagran I provides little guidance because, although the district court had dismissed under Rule 12(b)(1), the Court did not explicitly address whether the issue was properly viewed as one of federal question subject matter jurisdiction or of a failure to state a claim under federal law. We decline to resolve the question, because it was not argued by the parties and in this case the result and analysis are the same. Accordingly, we assume without deciding that the district court correctly dismissed under Rule 12(b)(1).

Judge Fisher also graciously said that they welcome constructive feedback from academics. No citation for Prawfs or for my articles on the issue, unfortunately. But kind of nice to see that we can have some practical effect.

1

Thoughts on non-traditional legal writing

At Prawfs, Hillel Levin has a post asking for suggestions on where to place a short, somewhat tongue-in-cheek essay that nevertheless explores important legal ideas (I am looking forward to reading the paper). He is looking for suggestions as to where to place the article, noting that the writing game is somewhat “confining.” I added my two cents on possible outlets in the Comments, but I wanted to break out a broader point.

Hillel received a ton of good responses as to where he could place this article. And I think that suggests that the rules for legal writing in the academy are not as confining as Hillel’s post suggests. There actually are a lot of opportunities to write and publish short and fun pieces such as this one that make creative (and often important) legal points. Many journals will jump at them. The expansion of outlets, both in the number of journals as well as the addition of on-line supplements (that really were intended for precisely this sort of thing), means there is a place for this type of work. One of my great frustrations was my inability to place this piece (like Hillel’s, it was short, tongue-in-cheek, but, I think, hit on an interesting idea about the law) in some law journal forum, settling instead for FindLaw.

Of course, something like this does not “count” if you are at a school that counts publications and are just trying to meet the statutory minimum for promotion and tenure. But I think committed and successful scholars just keep writing, doing many different types of projects for many different forums, all of which form an overarching body of legal writing. The short piece that Hillel is describing is a perfect example of the sort of things that should be part of that corpus, in addition to the traditional books and big law review articles. And that is why I do not believe blogging is anathema to legal scholarship–it is another way of exercising the writing muscles.

4

Ugly political rhetoric v. Unlawful political rhetoric

Bloggers, and belatedly the mainstream media, have been sharply criticizing McCain and his campaign for the increasingly angry, ugly, and personal tone of their campaign rhetoric, which has played up the Obama-as-terrorist-Muslim-traitor-secret-communist, and which has prompted the over-the-top rage and hatred it has stoked and provoked in the crowds at McCain and Palin rallies. Video and reports from rallies shows audience members shouting “Kill him” and “Off with his head” and “terrorist” and “traitor” and “treason” during speeches and rallies. There are reports of racial epithets being shouted, at Obama and at members of the press. Susan Kuo offers some thoughts. The “kill him” shout-out has drawn interest from the Secret Service. And in a Town Hall today, McCain urged supporters to be respectful and not to be scared of Obama and apparently cut-off one town-hall questioner who claimed to be scared of Obama because he is an Arab. On the other hand, when McCain described Obama as a “decent family man,” the crowd booed. And, in response to Obama’s criticism of the divisiveness and ugliness of the rhetoric at these rallies, the McCain campaign said Obama was attacking McCain supporters and does not understand “regular people and the issues they care about”–which, to the McCain campaign, apparently includes whether Obama is a terrorist who should be tried for federal crimes.

Much of the noise has been virulent and ugly, playing, not subtly, to Obama’s scary “otherness.” Lowest-common-denominator, atmosphere-of-hatred-and-violence stuff. But I cannot buy the notion being floated that anything unlawful is happening. McCain and Palin have not come anywhere close to the constitutional line of incitement–no actual violence or unlawful conduct against Obama is temporally imminent or likely to occur as a result of McCain/Palin campaign statements. And I am fairly certain that no one in the campaign intends anyone to engage in violence against Obama. Nor do the random shouts in the crowd amount to true threats against Obama by McCain supporters. The Secret Service has a tendency, not unwarranted, to over-investigate everything when it comes to political leaders. But “kill him” shouted out at random in an impassioned crowd of thousands with Obama nowhere near the crowd, just does not amount to a threat. (Plus, it is not clear whether the shout was directed at Obama or Bill Ayers). In short, nothing I have seen or read about comes close to the line of unprotected speech.

This is not to defend either McCain’s choice of campaign rhetoric or the response of their supporters–and, it seems to me, it is of a qualitatively different tone than what is coming from the Obama campaign or its rally attendees. And it is appropriate to speak out against and denounce the tone of comments (and to praise McCain for trying to put the breaks on it) and to call for a more civil discourse. But ugliness is not unlawfulness. And whatever criticism the campaign warrants for engaging in personal attacks and riling up the crowd, charges of engaging in “borderline incitement” should not be among them.