Author: Ronald K.L. Collins

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The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness

This is the second installment of a biographical profile of Seventh Circuit Judge Richard Posner. The first installment can be found here. Beginning next week, a five-part Q & A series along with an interview with the author of a forthcoming Posner biography will be posted.

Note: Some of the links used below will open only in Firefox or Chrome but not in Safari. // Revised: 11-26-14 (10:50 pm)

The Friendly Connection

“Friendly and Posner have been cited by name by the U.S. Supreme Court, the U.S. Courts of Appeals, and the U.S. Districts Courts more often by far than any other circuit court judges.”  — William Domnarski (2011)

While much is known about Judge Posner’s high regard for Justice Holmes, much less attention has been devoted to his great respect for Judge Henry Friendly (1903-1983). For Posner, Friendly’s “photographic memory combined with his analytical power, energy, speed, and work ethic” produced “the most powerful legal reasoner in American legal history.” Or as Posner put it in a 1986 tribute: Judge Friendly’s “opinions have exhibited greater staying power than that of any of his contemporaries on the federal courts of appeal.” (99 Harv. L. Rev. 1724)

Between 1982 and 1986, the two jurists shared some 15,000 words in correspondence to one another (their letters have been preserved in the Harvard Law Library). Early on, in a May 12, 1982 letter to Posner, the 78-year-old Friendly praised the 43-year-old jurist: “I could not have dreamed of finding so perceptive a reader as you.” As Mr. Domnarski has aptly noted, “[s]oon Posner was comfortable enough to reveal some uncertainty in his work and ask for criticism that might help him. ‘On a more serious, even dismal, note,’ he writes, ‘I am enclosing a recent opinion I did on primary jurisdiction. I hope I got it right, but I felt a little unsure of the boundary between exhaustion and primary jurisdiction; and I would as always appreciate any comments, however critical, if you have time to read it. Pay no attention to it if I’m trespassing too much on your time.’”

A few years later, Judge Friendly was even more impressed with both the volume and quality of Posner’s judicial opinions.

Judge Friendly on Posner’s Judicial Opinions

“Every one is a masterpiece of analysis, scholarship, and style,” he declared in a September 19, 1984 letter. “About a year ago I said you were already the best judge in the country; having uttered that superlative, I am baffled on how to better it. If I could think of a way, I would use it.”

They wrote back and forth on topics ranging from railroad law to diversity jurisdiction and beyond. “Friendly and Posner were apparently so drawn to each other’s work,” says Domnarski, “that they wanted to see the other in action by having Posner come to Friendly’s Second Circuit and sit by designation. Posner had at first wanted Friendly to come to the Seventh Circuit to sit to take advantage of the rule allowing senior circuit judges such as Friendly to sit by designation in other circuits upon request and approval by the visited circuit’s chief judge.” Unfortunately, it never happened, though Posner did manage an occasional visit with Friendly whenever he came to New York and had the time.

Around Christmas of 1984, Judge Friendly inquired about Posner’s possible “elevation” to the Supreme Court. Even back then, Posner thought it doubtful. As he expressed it in a December 26, 1984 letter: “I have become an object of mysterious fascination to a segment of the press, which is doing a pretty good job of portraying me as a weirdo on the basis of some of my pre-judicial academic writing (misrepresented) and a handful of my opinions (misunderstood). Of course there is precious little I can do about any of this, but I am consoled by the thought that eventually the press will lose interest in me and move on to intrinsically livelier topics.”

Screen Shot 2014-11-21 at 9.33.44 AMAssuredly, Henry Friendly knew well what it meant to be a great judge but nonetheless passed up for a seat on the High Court. In a January 10, 1985 letter, he tried to console Posner: “These things are annoying but all this will pass. Unhappily this may not be without injury to your immediate prospects for elevation but I gather that you did not think these were very high in any event. You are wise to have acquired immunity for Supreme Court fever – a disease that has ruined many a judge.”

By 1986 it was over; Henry Friendly – old, depressed, and lonely – took his life. It was a great loss to the legal world. Worse still, his brand of judging was vanishing into the vapor of a past-tense world. Law, Posner wrote that same year, “is becoming increasingly politicized, bureaucratized, and specialized, and rising workloads are depriving more and more judges of time for reflection, discussion, and outside reading. These trends, which are unlikely to be reversed soon, bode ill for the continuation of our tradition of great judges. We may not see the likes of Henry Friendly again. The fullness of time may reveal that his passing marked the end of the classic period of American law.” (99 Harv. L. Rev. 1724,1725).

Friendly & Posner – their names sit well together. In some respects it is unsurprising that the two should have bonded as they did. They shared a common commitment to solving the riddles of the law in ways that lesser judges never do. Given their cerebral firepower and will to make the law more beholding to pragmatic reasoning, they stood almost alone in the camps of jurists.  Because of that, they also shared a common identity as the most highly regarded jurists of their time, though neither ever elevated to the Supreme Court.

As it turned out, Henry Friendly’s reputation struggled to survive the ravages of time (see, for example, Adrian Vermeule’s review of the David Dorsen’s biography of Friendly). Even so, traces of the Friendly legacy find new and invigorated meaning in the person and writings of Richard Posner, buttressed of course by the latter’s unique judicial temperament, stylistic writings skills, and economic modes of analysis.

Beyond their respective biographies (existing and forthcoming), someday someone will write a book of a collection of profiles of the great federal judges who influenced the law but never sat on the High Court (a book similar to G. Edward White’s The American Judicial Tradition). When that book is done, profiles of Henry Friendly and Richard Posner are certain to be included, if only because they helped to shape the law in ways that most Supreme Court Justices never have. And yet, when he was nominated, relatively little attention was paid to Richard Posner; it was as if all that he had already written were typed in invisible ink. He was just another nominee . . . or so it seemed to the Senate when it confirmed him.

Richard Posner’s Confirmation Hearing

Posner’s confirmation hearing took place on a Friday afternoon, in a joint session with four other nominees, and with only Chairman Strom Thurmond and the conservative Howell Heflin of Alabama in attendance. Posner’s part of the hearing took but a few minutes, and he was quickly confirmed without debate.  — Herman Schwartz, Packing the Courts (1988)

Judging Risks: Global Warming, Terrorism, & Abortion Protestors

UnknownHe crosses the street with Darwinian caution. While he may not be entirely risk averse, he is surely risk attentive . . . even though a side of him greatly admires Holmesian heroism of the kind the captain so valiantly displayed in the Civil War. In this general regard and others, one can turn to Posner’s book Catastrophe: Risk and Response (2004) to get an up close sense of his views on cost-benefit analysis.

Global Warming: Mindful of such matters, a decade ago Posner expressed serious concerns about global warming. In Catastrophe, he stressed that “a wait-and-see policy would be perilous.” Though he would surely shun an environmentalist name tag (too herd mentality like), the libertarian jurist cautioned: “Eventually, and perhaps sooner than later, the atmospheric concentrations may reach a level that triggers abrupt, catastrophic global warming – the kind that ended the Younger Dyras. No one knows what that trigger point is or when it will be reached (if ever), but it will be reached sooner if we do nothing, starting now, to reduce emissions.”

In reflecting on the respective environmental and economic factors, Posner was sensitive to the well-being of future generations:

Posner the “Environmentalist” 

Although there is a strong case for taking measures against global warming now rather than waiting decades to do so, the question remains what measures to take – how much cost to incur – and the answer depends in part on the weight to be given to the welfare of future generations, since it is most likely that the costs of global warming will be borne primarily by them.”

In that regard, he made a strong case for being “more future-regarding.” To put it another way, the law may belong to the living, but its impact will be on those yet to be born, to whom a duty is surely owed.

Terrorism: Lest Judge Posner be mistaken for a pie-in-the-sky liberal, his ideas on terrorism and civil liberties might readily prompt those of that ilk to pause before applauding him. Here again, his views on risk management are articulated in Catastrophe, and also in his Not a Suicide Pact: The Constitution in a Time of National Emergency (2006).

Posner has little patience for civil libertarians who hold that courts should actively police the constitutional boundaries between national security and civil liberties. “The strategy of civil libertarians,” he wrote in Catastrophe, “is to oppose the slightest curtailment of civil liberties. Their strategy may serve their fund-raising and other organizational goals, but it is questionable from an overall social welfare standpoint.” (See “Geoffrey Stone Debates Judge Richard Posner on Civil Liberties,” ACSblog, October 3, 2005, and “Legality and National Security,” Judge Posner’s remarks to ABA Standing Committee, May 9, 2006)

In United States v. Daoud (2014), a case involving a convicted American terrorist who attempted a “violent jihad” by way of bombing a building, Posner put his academic views to legal use. In Daoud the court denied the defendant access to secret warrant applications that allowed FBI surveillance of him. “The Foreign Intelligence Surveillance Act,” wrote Posner, “is an attempt to strike a balance between the interest in full openness of legal proceedings and the interest in national security, which requires a degree of secrecy concerning the government’s efforts to protect the nation.” And then with characteristic bluntness he added: “Terrorism is not a chimera.” (The court later elaborated on its reasoning in a heavily redacted classified opinion.)

Posner Hypotheticals

Were it known that a terrorist was driving toward Chicago with a bomb, would you think it an improper restriction of civil liberties to stop and search all cars approaching Chicago, even though there would be no probable cause to suspect any given driver of carrying a bomb? Or suppose a kidnapper has buried his victim alive and refuses to tell the police where. A policeman punches him in the face to make him talk. Would you think the policeman had acted improperly?  (Source here.)

In a nutshell, Posner’s view is this: “Most judges know little about national security; the danger of catastrophic terrorism is real; and a constitutional decision forbidding a counterterrorist measure is almost impossible to change. It is better to leave these matters to be sorted out by the executive and legislative branches of government, where the relevant expertise resides.” Whether that is entirely so is, to be sure, open to debate as Jeffrey Rosen pointed out in his 2004 review of Catastrophe.

On a related front, there is also the question of the Wikileaks and Edward Snowden and their respective revelations of government excesses taken in the name of national security. Here again, Posner is not without an answer; he has his own take on whistleblowers and classified information. In November of 2011, while speaking at the Chicago Humanities Festival, Judge Posner told the audience: “I don’t think disclosure of classified information has ever been significantly harmful to American foreign policy and national security objectives. And indeed in many cases has helped them. On the other hand, I don’t think the efforts of the government to stifle revelation of classified material is consequential.”

Abortion Protestors: Harms, however, do not have to be catastrophic for Judge Posner to believe they may trump some claim of constitutional liberty. Take, for example, his criticism of the unanimous judgment in the recent Supreme Court buffer zone abortion clinic case. “Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society,” he wrote in Slate. “Strangers don’t meet on the sidewalk to discuss ‘the issues of the day.’ (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?).”

Unwilling to leave it there, Posner cut to the realist quick: “The assertion that abortion protesters ‘wish to converse’ with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.”

Oh, how he abhors the sanctimonious! — be they conservative moralists or Ivy League ones.

Academic moralists pick from an à la carte menu the moral principles that coincide with the preferences of their social set. They have the intellectual agility to weave an inconsistent heap of policies into a superficially coherent unity and the psychological agility to honor their chosen principles only to the extent compatible with their personal happiness and professional advancement.Richard Posner, October 1997 (Harvard Law School).

The Art of Critical Thinking Read More

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The Maverick – A Biographical Sketch of Judge Richard Posner: Part I

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Below is the first installment in a multi-part series of posts on Seventh Circuit Judge Richard Posner. The first two installments consist of an unconventional biographical profile of the Judge. These posts will be followed by a series of posts consisting of the Judge’s candid and often unexpected responses to numerous questions I posed to him along with those of 24 noted legal figures. In the process, Judge Posner bursts into the breach with frankness about his views on privacy, the exclusionary rule, NYT v. Sullivan, intellectual property rights, law and economics, constitutional interpretation, legal education and scholarship, and the politicization of the judiciary. With Posnerian resolve, he also speaks of his own life, his onetime thoughts on being a Supreme Court Justice, his cherished feline, and even his favorite rock stars. Given all that, we selected “Posner on Posner” as the title for this series.

Note: Some links will open only in Firefox or Chrome but not in Safari. 

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A man[’s] . . . thinking should be

cosmopolitan and detached. He should

be able to criticize what he reveres and loves.

                                                – Oliver Wendell Holmes, Jr., February 4, 1901

He is like no other. Cool, calm, and calculating (in a methodical sense, that is). To watch him, one might think him shy, if only because of the way he averts his blue eyes when speaking. His complexion is fair (sun sensitive), which makes for a striking contrast to the dark suits he often dons. His appearance is ordinary, highlighted only by a blue Oxford linen shirt and wide-framed rectangular glasses. He speaks in a measured manner and while his voice can be monotonic, his oral style can fluctuate from serious to humorous. At times, his expression is flat, though once and a while a chuckle erupts, prompted by some folly he underscores or some hypocrisy he exposes while discussing this or that point or person. His public conversations with others can seem singular; they smack of a man thinking aloud.

Candor is his calling card, print is his preferred medium, and the moves of the mind are his raison d’être. One is reminded, in a fleeting philosophical sense, of Ludwig Wittgenstein. The “atypical . . . manner and character” of both men only adds to the resemblance. That said, there is one big difference: He is no parlor philosopher; he is a man who lives to transform ideas into action.

To some, he is an irritating gadfly. To others, he is a cold-blooded pragmatist. To many, he is an enemy of liberalism, while to many others he is a foe of conservatism. To more sensitive types, his economics-grounded “thinking is inevitably without compassion and often cruel.” To more cerebral types he is “our most prominent rationalist.” To those whose world is divided along uncompromising ideological lines, his views on the Second Amendment are horrendous and tyrannical, even if he is quite libertarian when it comes to legalizing marijuana, “cocaine, heroin, methamphetamime, LSD, and the rest of the illegal drugs.” To still others, he is a mental maverick gunning for any kind of specious arguments (especially self-righteous ones) that pass for gospel. And to yet others, he is the only one who dares to describe law as it is here on mortal earth rather than how it might be in some utopian salon. In that realist respect, there is even a Machiavellian streak in him.

He is, to be sure, an acquired taste. Even to those who know him, there is a distant quality about his personality. Perhaps because of that, those who know him appreciate his wit and playfulness all the more. Not one to hand out a diplomatic compliment, merit is the measure that rules his life.

Past as Prelude

Richard A. Posner, Harvard Law Review photo

Richard A. Posner, Harvard Law Review photo

He is Richard Posner. At 75, the New York City born jurist shows no signs of slowing down. If anything, his cerebral game is as good or better than it was in 1959 when he graduated summa cum laude from Yale College at age 20 (he was an English major with an avid interest in Yeats) or when he graduated first in his class from Harvard Law School in 1962 (he was President of the Harvard Law Review). 

His credentials as a young man all signaled future greatness – law clerk to Justice William J. Brennan (1962-63 Term), assistant to Commissioner Philip Elman of the Federal Trade Commission (1963-65), and assistant to Solicitor General Thurgood Marshall (1965-67). In that capacity and others, he wrote some 40 briefs and argued ten cases before the Supreme Court. The cases he argued were:

  1. Consolo v. Federal Maritime Commission (1966) (audio here)
  2. Accardi v. Pennsylvania Railroad Co. (1966) (audio here)
  3. United States v. Von’s Grocery Co. (1966) (audio here)
  4. First National Bank v. Walker Bank (1966) (audio here)
  5. Illinois Central R. Co. v. Norfolk & W.R. Co. (1966) (audio here)
  6. Honda v. Clark (1967)(audio here)
  7. United States v. Arnold, Schwinn & Co. (1967)
  8. Will v. United States (1967)
  9. Volkswagenwerk Aktiengesellschaft v. Fed. Mar. Comm’n. (1968)
  10. National Broiler Marketing Association v. United States (1978) (Frank H. Easterbrook was on the brief for the government on the other side)

Posner also served as general counsel on President Johnson’s Task Force on Communications Policy (1967-68). Soon enough the legal academy beckoned him, first as an associate law professor at Stanford (1968-1969) and later as a professor at the University of Chicago Law School (1969-1981). It was during that time that at age 34 he published his momentous work, Economic Analysis of the Law (1973) (now in its 9th edition).

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The virtual Posner

As if all of that were not enough, “Posner augmented his professional life . . . found[ing] Lexecon Inc., a [profitable] consulting firm that tried to put into practice [his law and economic] theories. A large portion of Lexecon’s early business, when he was still a partner, was advising companies as to whether their competitive practices would run afoul of antitrust laws.” In late October of 1981, after his time in the legal academy, Posner then pursued a judicial path as a Ronald Reagan appointee to the Seventh Circuit. In the process, he traded wealth for fame – not what one typically expects from a unapologetic cost-benefit capitalist.

One more thing: In 2006 the ever-colorful Judge stared as an avatar in Second Life, an online virtual community.

The Brennan Clerkship

I was a little disappointed in the Supreme Court. I had a

more elevated opinion of it as a law student than it merited.

                                                                            Richard Posner

To return to his clerkship with Justice Brennan: It came to him via Paul Freund (1908-1992), the famed Harvard professor of constitutional law. In those days it was customary for certain law professors to select law clerks for some of the Justices, this even without a prior clerkship. Young Posner (age 23) was one of Freund’s two picks.

Once he arrived in Washington, D.C., Posner went to work on a variety of jobs for Justice Brennan. It has been reported that during that time he “wrote up an opinion arguing the reverse of Brennan’s [initial sense of the] decision.” Things worked out, nonetheless, and the clerk’s opinion proved “so compelling that Brennan and the Court changed their minds and adopted it.” That unanimous opinion, replete with 83 footnotes, was Sanders v. United States (1963), a habeas corpus case.

Posner also had a hand in writing another habeas case, Fay v. Noia (1963). And then there was NAACP v. Button (1963), a First Amendment civil rights case he authored. For Harry Kalven (1914-1974), the renowned First Amendment scholar, the Button opinion was an important one. “The Court,” he wrote in The Negro and the First Amendment (1965), “offers a generous view of the range of First Amendment protection, a view which seems to me to be indisputably correct although the Court had never previously been given an appropriate occasion for announcing it.” Kalven found it “exciting” that the opinion appeared to break “new ground.”

In a 2013 interview Posner reminisced about his clerkship at the Court: “The most significant experience of my clerkship was happening to work on a case assigned to Justice Brennan, an antitrust case called United States v. Philadelphia National Bank (1963) [the vote was 5-1-2 with Justice White not participating and Justice Harlan dissenting]. And working on that greatly stimulated my interest in antitrust law, and my time in Washington after the clerkship – I was there for another five years – I was mostly concerned with antitrust issues. So that was, I’d say, the most significant experience I had at the Supreme Court.”

Four Brennan-Posner opinions – there is a certain irony here, namely, that these opinions were written by a law clerk who when he became a judge refused to permit his own law clerks to write his judicial opinions. Then again, as Judge Posner once quipped, “Life is full of surprises . . . .”

judgeposner_2010Mind Games — A Multidimensional Man

Richard Posner is a man of the mind. He welcomes the challenges of complexity; he takes pride in showing the hollowness of legal abstractions; and he loves to simplify the complex without leaving it senseless. Speaking in a soft but nonetheless deliberate tone, he delights in exposing babble masquerading as legal argument, and can be rather relentless when counsel persists in being evasive (see, e.g., here).

In a legal world divided, on the one hand, by jurists who demand the rigidities of rules in matters of interpretation, and jurists who, on the other hand, insist on the flexibility of standards, Posner readily sidesteps ideological boundaries. As he sees it, such disputes are better understood as psychological in character than logical in nature. He prefers a more pragmatic contextual approach. To draw upon his own words in MindGames Inc. v. Western Publishing Co. (2000): “some activities are better governed by rules, others by standards.” Thus, in MindGames the Court declined to be bound by a 1924 rule regarding new businesses and lost profits.

Another Posnerian trait: He is not oblivious to the obvious, even when others are. And he does not hesitate to speak sternly when the circumstances warrant it, as in a class actions case (Eubank v. Saltzman) involving a lawyer who took far too many liberties. There, Posner used the opportunity of the controversy to demonstrate the factual oddities and ethical problems with the case, this while offering several learned yet pragmatic observations about this body of the law and its efficient operation. He did much the same in another class action case (Redman v. Radio Shack Corporation) in which he was quite critical of a settlement that offered Radio Shack customers about $830,000 worth of coupons while offering the lawyers who negotiated it $1 million. He was equally outspoken in a recent copyright case (Klinger v. Conan Doyle Estate, Ltd.). And his edgy wit and probing reasoning were much apparent in a pair of recent same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker) in which he was particularly hard on the counsel for the state during oral arguments in those cases.

Color him with many stripes. Posner relishes the study of economics; he savors the lure of literature; he delights in clearing the air polluted by scandalous politics; he enjoys applying his free-market thinking to explain the various economic crises of our time; he relishes the chance to confront head on those issues that bedevil cultural critics; and he loves his life in the law (be it jurisprudence, antitrust, intellectual property, regulatory law, patent law, labor law, criminal law, or constitutional law). In a world increasingly bereft of public intellectuals, he rises from the lifeless ashes like a modern-day Phoenix. True to that cerebral calling, Posner has personal opinions, often controversial, on everything from sexual behavior to judicial behavior and beyond to subjects as diverse as terrorism, global warming, aging, moral and literary theory, and even the risks of catastrophic harm due to an asteroid colliding with the earth.

Unconventional Appeal Read More

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FAN 41 (First Amendment News) Three Harvard Law Review essays discuss Justice Breyer’s free speech jurisprudence

  • Judge Breyer has a unique zig-zag style. Ralph Nader (confirmation hearing statement, July 15, 1994)
  • I do not rest my conclusion upon a strict categorical analysis. – Justice Stephen Breyer (concurring in United States v. Alvarez, June 28, 2012)
  • The single most important area of Breyer’s work on the Court has been his opinions on the First Amendment, in which he has developed a unique and pathbreaking approach to issues of freedom of speech. — Paul Gewirtz (Yale Law Journal, 2006)
Justice Stephen Breyer

On the one hand . . . but then on the other

When it comes to free speech, he is darling of the Liberal Left . . . or some on the Left, or of some on the Left in the legal academy, or of those on the Left who abhor rulings such as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014). To others, he is the Justice who got the First Amendment right (albeit in dissent) in cases such as Holder v. Humanitarian Law Project (2010) and Garcetti v. Ceballos (2006). Many of those same defenders shy away from their praise when it comes to opinions such as the one Justice Breyer authored in Randall v. Sorrell (2006).

In his pragmatist approach, one will readily discern the vernacular of ad hoc balancing, of  “competing constitutional concerns” or “First Amendment interests . . . on both sides of the legal equation.” Mindful of such concerns, he asks: Are the “restrictions on speech disproportionate when measured against their speech-related benefits”? And why? What is the purpose of such balancing? He responds: to “facilitate a conversation among ordinary citizens that will encourage their informed participation.” To that end, government may limit speech in the supposed service of “preserving a democratic order” or for the purpose of promoting and protecting  “collective speech.” In this way an others, and dating back to his 1997 concurrence in Turner Broadcasting System, Inc. v. FCC II, Stephen Breyer has set out to rewrite First Amendment jurisprudence.

In light of his two decades of service on the Supreme Court, I thought I would offer some background information on how the Justice has decided First Amendment free expression cases (29 are listed below), his thoughts on free speech generally, and how scholars and lawyers have viewed his jurisprudence in this area. A sketch of all of that is set out below by way of select references to various sources.

HLR Essays in Honor of Justice Breyer 

The November issue of the Harvard Law Review has a collection of essays in honor of Justice Stephen Breyer’s twenty years of service on  the United States Supreme Court. The following three essays concern the Justice’s free speech jurisprudence:

Let me pose a hypothetical

Let me pose a hypothetical: “Candidate Smith — we can only give him $2,600 — has a lot of supporters.”

Active Liberty: Justice Breyer on Free Speech

In his 2005 book, Active Liberty: Interpreting our Democratic Constitution, Justice Breyer devoted a chapter (pp. 39-55) to the question of free speech.

Roberts Court Era: Justice Breyer’s Majority or Plurality Opinions in Free Expression Cases

In what follows, S indicates that a majority of the Court sustained the First Amendment claimed whereas D means that it was denied.

Separate Opinions: Below is a list of separate opinions authored by Justice Breyer in free expression cases decided during the Roberts Court era:

a pensive moment

the pensive pragmatist

Justice Breyer’s Pre-Roberts Court Opinions: Selected Cases 

First Circuit Free Expression Opinions Read More

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FAN 40.1 (First Amendment News) Banzhaf responds to Corn-Revere on FCC Redskins Flap

Professor John Banzhaf

Professor John Banzhaf, III

In an earlier post I profiled Robert Corn-Revere’s WSJ op-ed entitled “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.” The op-ed was written in critical response to a petition filed by George Washington Law Professor John Banzhaf to the Federal Communications Commission concerning the use of the Washington Redskins’ name on broadcast airwaves. At the end of my blog profile I invited Professor Banzhaf to respond, which he has now done. His response is set out below.

Robert Corn-Revere apparently objects that I have asked the FCC not to renew the broadcast license of a station that repeatedly and unnecessarily broadcasts a word which has been found in several legal proceedings to be a racial slur even when applied to an NFL team – “R*dskins,” the so-called R-word, equivalent to the N-word so hateful to African Americans, and never used on the air – and is even so defined in most dictionaries. But, in an apparent attempt to prove some point, he describes at length a major life-saving step I persuaded the FCC to take, and (perhaps deliberately) overlooks several obvious points.

In 1966 I persuaded the FCC with one filing (far shorter than the one now in question, and one which many likewise called “frivolous” at the time) to apply a largely unknown and moribund principle – the “Fairness Doctrine” — to cigarette advertising. The result was that anti-smoking messages were broadcast on radio and TV for the first time — hundreds of millions of (1968) dollars worth. This caused the country’s first major drop in cigarette consumption; estimated by itself to have saved millions of lives. It also led directly to a ban on cigarettes commercials; something which saved even more lives, and hundreds of billions of dollars in health care costs. [See  Banzhaf, et al. v. Federal Communications Commission, et al. (D.C. Cir., 1968, per Bazelon, C.J.)]

imagesThose who seek to hide behind the First Amendment argued then, as Corn-Revere does now, that both moves — first forcing stations to broadcast statements against smoking, and then banning them from running cigarette commercials — violated Free Speech, but I successfully defended both decisions in court. Thus, I was able to persuade the FCC to make one of its most important and significant decisions ever — one which saved millions of lives and got rid of cigarette commercials — yet Corn-Revere criticizes the fact that the FCC granted my request, apparently because the Fairness Doctrine was later abandoned. Yet this makes as much sense as criticizing the Special Prosecutor legislation (which I also had a hand in bringing into effect) — which helped save the country from a major constitutional crisis during Watergate — because it likewise was eventually allowed to expire.

He also fails to mention another FCC filing of mine that forced the major TV stations in DC — and eventually around the country – to begin featuring African Americans as reporters and in other significant on-air positions. That one, like the one he now criticizes and seeks to belittle, was likewise based on allegations of racism. Corn-Revere also fails to note how many of my other agency petitions, likewise derided as “frivolous” and/or publicity stunts at the time, were granted and were successful: in getting women admitted, for the first time, to the Cosmos Club and to formerly all-male state-supported military academies; in restricting and ultimately banning smoking on airplanes; in changing labels on foods, birth control pills and elsewhere; in striking down various forms of sex-based price discrimination, etc.

Although Corn-Revere opines (citing no authority) that my petition has no legal basis, three former FCC commissioners (including a former Chairman), as well as almost a dozen broadcasting law superstars, have publicly stated that such broadcasts are probably illegal under current law. The current FCC Chairman has stated that my petition will be taken seriously and evaluated on its merits, something he would not have said if it were obviously “a publicity stunt, not a serious legal argument.” And other broadcast law attorneys who oppose the petition have been forced to admit that it will at the very least likely hold up the license renewals of the stations for a considerable period of time, impacting their credit ratings, their ability to sell or transfer assets, etc.

Given that at least one TV station lost its license based upon allegations of racism, and that the FCC previously ruled that racial slurs constituted “profanity” (which cannot be broadcast during prime time), the tremendous value of a station’s broadcast license, and my track record in persuading the FCC and many other agencies to take unprecedented steps in response to imaginative petitions many said had no chance of success, given all that the question is: Should stations ignore this new movement and continue to bet the farm (their FCC licenses), simply to be able to say “R*dskins” rather than “DC” or “Washington” when providing the sports scores or otherwise talking about this NFL team?

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FAN 40 (First Amendment News) Steve Shiffrin & Bob Corn-Revere debate “What’s Wrong with the First Amendment?”

Bob Corn-Revere & Steve Shiffrin (with Joel Gora in background)

Bob Corn-Revere & Steve Shiffrin (with Joel Gora in background)

For those who savor good give-and-take talk about the First Amendment, last Wednesday evening was a memorable one as Professor Steven Shiffrin debated Robert Corn-Revere with Ashly Messenger moderating. The topic: “What’s Wrong with the First Amendment?” Why that title? Because that’s the working title of Professor Shiffrin’s next book.

The New York city event was the third in a series of First Amendment salons held at the offices of the law firm of Levine, Sullivan, Koch & Schulz. The program was introduced by Lee Levine, who announced that this was the first salon done in conjunction with the Floyd Abrams Institute for Freedom of Expression at Yale Law School. The event was video cast live to the firm’s office in Washington, D.C. and to the Abrams Institute in New Haven.

Among others, those attending the event included: Floyd Abrams, Sandra Baron, John Berger, Joan Bertin, Vince Blasi, Kali Borkoski, Karen Gantz, Joel Gora, Laura Handman, David Horowitz, Maureen Johnston, Adam Liptak, Greg Lukianoff, Tony Mauro, Wes Macleaod-Ball, David Savage, David Schulz, Paul Smith, and James Swanson.

The exchange was robust as the Cornell professor took articulate and passionate exception to several of the Roberts Court’s First Amendment rulings, including United States v. Stevens, Brown v. Entertainment Merchants Association, and United States v. Alvarez – all cases in which Corn-Revere had an amicus’ hand in defending the free speech claims. No potted plant, the First Amendment lawyer fired back with facts, figures, and history as the two men debated the pros and cons of balancing vs strict scrutiny approaches to free speech decision-making. The animated discussion was always friendly and at times even funny as the two traded witty retorts.

The dialogue was enriched as Vince Blasi, Katherine Bolger, Joan Bertin, Paul Smith, James Swanson, and Floyd Abrams, among others, weighed in. As the discussion developed one could almost see minds bouncing back-and-forth as Ms. Messenger pressed the two seasoned First Amendment experts. The evening ended on a high note as Shiffrin and Corn-Revere laughed and shook hands. (Re earlier salons, see here and here.)

Coming soon: book by Seana Shiffrin 

UnknownThe Shiffrin name has long been a familiar one in First Amendment circles — a name that has both invited and provoked thought. Now comes another Shiffrin, UCLA philosophy and law Professor Seana Shiffrin, who is a scholar in her own right — someone quite attune to jurisprudential nuance.

If the case of United States v. Alvarez (2012) — the Stolen Valor case — caught your attention, and if you were intrigued by Chief Judge Alex Kozinki’s separate opinion in the case when it was before the Ninth Circuit, then Speech Matters: On Lying, Morality, and the Law (Princeton University Press, Dec. 21, 2014) by Seana Shiffrin is a book for you. And it is more, philosophically much more.

Here is the publisher’s description of the forthcoming book: “To understand one another as individuals and to fulfill the moral duties that require such understanding, we must communicate with each other. We must also maintain protected channels that render reliable communication possible, a demand that, Seana Shiffrin argues, yields a prohibition against lying and requires protection for free speech. This book makes a distinctive philosophical argument for the wrong of the lie and provides an original account of its difference from the wrong of deception.”

“Drawing on legal as well as philosophical arguments, the book defends a series of notable claims — that you may not lie about everything to the “murderer at the door,” that you have reasons to keep promises offered under duress, that lies are not protected by free speech, that police subvert their mission when they lie to suspects, and that scholars undermine their goals when they lie to research subjects.”

“Many philosophers start to craft moral exceptions to demands for sincerity and fidelity when they confront wrongdoers, the pressures of non-ideal circumstances, or the achievement of morally substantial ends. But Shiffrin consistently resists this sort of exceptionalism, arguing that maintaining a strong basis for trust and reliable communication through practices of sincerity, fidelity, and respecting free speech is an essential aspect of ensuring the conditions for moral progress, including our rehabilitation of and moral reconciliation with wrongdoers.”

Table of Contents

Chapter 1: Lies and the Murderer Next Door 5

Chapter 2: Duress and Moral Progress 47

Chapter 3: A Thinker-Based Approach to Freedom of Speech 79

Chapter 4: Lying and Freedom of Speech 116

Chapter 5: Accommodation, Equality, and the Liar 157

Chapter 6: Sincerity and Institutional Values 182

I plan to say more about this book in the coming year. Stay tuned.

UnknownNew book by Danish editor of newspaper that published cartoons of Mohammad

The author: Fleming Rose 

The book: The Tyranny of Silence (Cato Institute, Nov. 14, 2014)

Description: “When the Danish newspaper Jyllands-Posten (Viby, Denmark) published the cartoons of the prophet Mohammed nine years ago, Denmark found itself at the center of a global battle about the freedom of speech. The paper’s culture editor, Flemming Rose, defended the decision to print the 12 drawings, and he quickly came to play a central part in the debate about the limitations to freedom of speech in the 21st century. Since then, Rose has visited universities and think tanks and participated in conferences and debates around the globe in order to discuss tolerance and freedom. In The Tyranny of Silence, Flemming Rose writes about the people and experiences that have influenced the way he views the world and his understanding of the crisis, including meetings with dissidents from the former Soviet Union and ex-Muslims living in Europe. He provides a personal account of an event that has shaped the debate about what it means to be a citizen in a democracy and how to coexist in a world that is increasingly multicultural, multi-religious, and multi-ethnic.”

See Fleming Rose here re his recent appearance on The Last Word with Lawrence O’Donnell.  

1-A groups urge school district to select books “solely on sound educational grounds” Read More

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FAN 39 (First Amendment News) More license plate cases come to High Court

The next great First Amendment battleground, it turns out,

is on the back of your car. — Adam Liptak (2009)

North CarolinaThe Second, Fourth, Fifth, Sixth, Seventh, Eight, and Ninth Circuits have all rendered rulings in First Amendment speciality license plate cases. Now, two of these cases have found their way to the Court’s cert. docket — one out of North Carolina, the other out of Texas.  In both cases the First Amendment claim prevailed in the lower courts. As noted below, the Court has declined to review such claims in four different cases coming to it from the federal circuit courts. The latest challenges are:

 Berger v. American Civil Liberties Union of North Carolina

Issue: Whether the government speech doctrine permits the state of North Carolina to promote its “Choose Life” message through a specialty license plate program over which it exercises complete and effective control without also offering a pro-choice specialty plate.

Counsel: Scott W. Gaylord for Petitioners, Christopher A. Brook for Respondents

→ Walker v. Texas Division, Sons of Confederate Veterans

Issues:  (1) Whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the Confederacy or the Confederate battle flag in a negative or critical light

Counsel: Jonathan F. Mitchell (S.G. of Texas for Petitioner), R. James George, Jr., for Respondents

See also: “Lawrence Walters comments on the First Amendment issues surrounding confederate flag license plates” (Fox News on YouTube)

Spectrum of Issues

  1. Government Speech or Private Speech?
  2. What kind of forum? — Traditional public, designated public, or non-public?
  3. Viewpoint Neutrality and Reasonableness?

Circuit Court Rulings 

First Amendment Claim Sustained

First Amendment Claim Denied

Related Cases  Read More

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CJ Katzmann weighs in with new book on statutory interpretation

cover-197x300While there seems to be no end to books, articles, essays, blog posts and symposia on constitutional interpretation, relatively little attention is paid to the all-too-important issue of statutory interpretation. Well, that is changing with the advent of a new book by the Chief Judge of the Second Circuit Court of Appeals. The work is aptly titled Judging Statutes (Oxford University Press) and its author is Robert Katzmann. It is already drawing impressive attention as evidenced by the following:

Among other scholarly venues, there have already been programs on the book at the following places:

Of course, Judge Katzmann does not, by any measure, occupy this field alone. His chief scholarly rivals are Justice Antonin Scalia and Mr.  Bryan A. Garner, who two years ago published the much-noticed Reading Law: The Interpretation of Legal Texts. To be sure, the Chief Judge has a different interpretive take, though he approaches his subject with diplomacy, nuance, and a comprehensive knowledge of how the federal legislative process works. (Another leading book in this area is Legislation and Statutory Interpretation by William Eskridge, Philip Fricky and Elizabeth Garrett.)

Federal appeals judge Robert Katzmann’s new book [is attracting impressive attention]. Justices Ruth Bader Ginsburg and Sonia Sotomayor were in the front row of the audience on Tuesday at a Georgetown University Law Center event marking the Sept. 11 publication of Katzmann’s book Judging Statutes. . .  . The Justices’ presence signaled that, as Georgetown Law dean William Treanor put it, Katzmann’s book is ‘already having incredible influence, even as it is just being published.'” -- Tony Mauro

 In case you missed it, check out my Q & A interview with Chief Judge Katzmann over at SCOTUSblog.

(Full disclosure: I have known Robert Katzmann for many years.)

→ Coming soon: POSNER ON POSNER (a five-part Q & A series prefaced by an unconventional two-part biographical essay). 

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FAN 38.1 (First Amendment News) FIRE bursts on out in NYC — Free speech celebration draws committed crowd

FlameandFIRE-390x195EXPLOSIVE. That is as good as any a word to describe the high energy level at the 15th Anniversary dinner of FIRE (Foundation for Individual Rights in Education), the group founded by Harvey Silvergate and  Alan Charles Kors in 1999. People were yelling “FIRE” in the crowded hall all evening long.

Some 280 people came together on Thursday evening last week at the Mandarin Oriental Hotel in NYC. They gathered to show their enthusiastic support for this non-partisan free speech group. Contrary to the mood of our times, liberals, conservatives and libertarians joined together in common cause to endorse FIRE’s campaign to contest unconstitutional campus speech codes.

Guests included Radley BalkoJoan BertinPaul BloomRobert Corn-Revere, Alan Dershowitz, Norman DorsenDonald DownsJoel Gora, Jonathan HaidtWendy Kaminer, Roger KimballMichael McConnellKirsten Powers, Lenore SkenazyNadine Strossen, Matt Welch, and Karen Gantz Zahler, among others.

Morgan Freeman

Morgan Freeman

Students speak out

Aided by film clips on two big screens (see video here), four student activists who challenged campus speech codes spoke of their experiences. They were: Merritt Burch, Morgan Freeman, Chris Lee, and Robert Van Tuinen.

Two Speakers: A First Amendment Lawyer & a Cognitive Scientist 

There were two speeches, which further fired up the audience. The first speech was by the noted First Amendment lawyer Floyd Abrams. His remarks were entitled “Free Speech is in Trouble on Campus.” Here is an excerpt:

[O]nly FIRE … would think of and then respond to the explosion of unconstitutional speech codes that limit student and faculty speech as it did just last month by threatening over 300 colleges with litigation challenging such rules. And only FIRE would do the detailed work of reading each speech code so it could announce that 58% of public colleges and universities are, right now, acting unconstitutionally in limiting sometimes discomforting but First Amendment protected speech, on campus, and then follow that up by actually commencing lawsuits in this area. .  . . FIRE, from the day it was created, has understood this and sought to expose it and deal with it. We are in the midst of an epidemic and FIRE is providing an antidote. 

→ Steven Pinker (the  noted experimental psychologist, cognitive scientist, linguist, and popular science author and Harvard professor) spoke after Abrams.  His remarks were titled “Three Reasons to Affirm Free Speech.” Here is an excerpt from his remarks:

Free speech is the only way to acquire knowledge about the world. Perhaps the greatest discovery in human history—one that is logically prior to every other discovery—is that all of our traditional sources of belief are in fact generators of error and should be dismissed as sources of knowledge. These include faith, revelation, dogma, authority, charisma, augury, prophesy, intuition, clairvoyance, conventional wisdom, and the warm glow of subjective certainty.

Greg Lukianoff — The FIRE Man

Greg Lukianoff

Greg Lukianoff

He is like no other — Lukianoff, FIRE’s president, is a man full of ideas, energy, and the smarts to make it all work. Author, pamphleteeractivist, and Stanford Law graduate, this 40-year-old who grew up in Danbury, CT is changing the world around him by bringing the First Amendment to the doorstep of college bureaucrats bent on squelching freedom of speech and conscience. And Lukianoff and FIRE are winning; they have prevailed (either by a court victory or a settlement) in every one of the challenges they have brought — and they are busily preparing many more. Beyond the courtroom, Lukianoff regularly takes his free-speech message to the pubic, either by testifing before Congress or appearing on the O’Reilly Factor, the CBS Evening News, or by publishing an op-ed in this or that newspaper. Regardless of one’s ideological stripes, he is always prepared to make a strong case for the First Amendment.

Meanwhile, Greg Lukianoff and his colleagues at FIRE have cases pending against the following six colleges:

  1. University of Hawaii at Hilo
  2. Western Michigan University
  3. Chicago State University
  4. Citrus College
  5. Iowa State University, and
  6. Ohio University

 Full disclosure: I attended as a guest of the Davis Wright Tremaine law firm, which works with FIRE in litigating campus speech code cases.

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FAN 38 (First Amendment News) Abrams Institute to host conference on Net Neutrality

abrams-logoOn November 3rd, the Floyd Abrams Institute for Freedom of Expression will host a conference entitled Net Neutrality: From Debate to Policy Decisions. The conference will take place at the Century Association located at 7 West 43rd Street in New York City. The event starts with breakfast at 7:30 a.m. and ends promptly at 9:20 a.m. Here is a description:

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality. 

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality.

Panel speakers

 Registration

A fee of $35 per person will be charged to cover the cost of the continental breakfast. Go here to register. The registration deadline is Thursday, October 30th.

 CLE Credit 

One and one half (1.5) CLE credit hours in Professional Practice (corporate) will be available for this program, which is transitional and non-transitional in nature. Preregistration is required for CLE credit.

* * * * 

 Related Articles

→ Upcoming AALS Panel Discussion

Petition to Watch 

At its Conference on October 31, 2014, the Court will consider the following free speech petition:

Issues: (1) Whether compelling a noncommercial pro-life speaker to declare it lacks a medical license passes strict scrutiny; and (2) whether a compelled speech law is unconstitutionally vague if the city can deem speakers as needing to comply, because of their “appearance,” without any ability for the speaker to know whether it must comply.
(Hat tip to Maureen Johnston)
Lithwick takes swipe at Roberts Court
Dahlia Lithwick

Dahlia Lithwick

In a new essay titled “The Courts’ Baffling New Math,” the ever feisty Dahlia Lithwick, the Supreme Court commentator for Slate, argues:

“The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the Court with the utmost reverence and solicitude.”

Later in the same essay, Lithwick adds:

“This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?”

Three Replies Read More

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RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).