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Author: Ronald K.L. Collins

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Dr. King on the First Amendment & the right to protest

Screen Shot 2014-08-14 at 11.21.51 PMMartin Luther King, Jr., April 3, 1968:

All we say to America is, “Be true to what you what you say on paper.” If I lived in China or even in Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for rights. 

See YouTube clip here.

→ See also the following books and articles:

  1. Harry Kalven, The Negro and the First Amendment (1965)
  2. David Garrow, Protest at Selma:Martin Luther King, Jr. and the Voting Rights Act of 1965 (1978)
  3. Andrew Mach, “Martin Luther King Jr.: 8 peaceful protests that bolstered civil rights,” Christian Science Monitor, Jan. 15, 2012
  4. Burke Marshall, “The Protest Movement and the Law,” 51 Virginia L. Rev. 785 (1965)
  5. Clark McPhail, David Schweingruber & John McCarthy, “Policing Protest in the United States: 1960-1995” in Policing Protest (1998) by  Donatella D. Porta, et al, eds.
  6. Lewis F. Powell, Jr., “A Lawyer Looks at Civil Disobedience,” 23 Wash. & Lee L. Rev. 205 (1966)
  7. Nicholas Katzenbach, “Protest, Politics and the First Amendment,” 44 Tulane L. Rev. 439 (1970)
  8. Ronald Krotoszynski, Jr. “Celebrating Selma: The importance of context in public forum analysis,” 104 Yale L. J. 1411 (1995)
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Now may be the moment . . .

Heed their rising voices.

heed-rising-voicesIn light of recent events in Ferguson, Missouri, that admonition seems as relevant today as it was when it was when it appeared on March 29, 1960 in a New York Times political advertisement directed at the Montgomery, Alabama police. Of course, it was that advertisement that gave rise to the celebrated ruling in New York Times Co. v. Sullivan (1964).

The analogy to the events surrounding the killing of young Michael Brown and the famed First Amendment case is more apt than may first appear. How so?  Well, let us start here: It is important to remember that the First Amendment victory in Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.

Know this: Racial injustice cannot endure the light of the First Amendment; police abuse cannot continue unabated when subjected to the scrutiny of a camera; and governmental indifference cannot persist when the citizenry assembles in a united front to oppose it. Put another way, the link between free-speech liberty and racial equality is vital to the health of our constitutional democracy.

Frank Pasquale’s recent post (“The Assault on Journalism in Ferguson, Missouri) ably points out why citizens of all political stripes should be concerned about what has been going on in Ferguson. His sober post is a timely reminder of the importance of the First Amendment in the affairs of our lives, be they in Ferguson or Staten Island or elsewhere.

(CNN) – The New York City medical examiner’s office Friday confirmed what demonstrators had been saying for weeks: A police officer’s choke hold on a man being arrested for selling loose cigarettes killed him. (Aug. 2, 2014)

So, now may be the moment to reunite the liberty and equality principles. What does that mean? Among other things, it must mean this:

  1. The press — traditional and modern — must be free to continue to exercise its rights in a robust manner.
  2. Citizens should be able to freely exercise their constitutional right to peacefully assemble and protest.
  3. More transparency should be demanded of government, be it in matters concerning the investigation of the killing of Michael Brown or the need for police identification badges to be plainly visible.
  4. And demands must be made of state and local officials that clear and specific measures be taken to respect and protect the lawful exercise of any and all First Amendment rights.

To that end, press groups, civil rights and civil liberties groups, along with political and religious groups should seize this opportunity, borne out of tragedy, to reinvigorate our First Amendment freedoms employed in the service of racial justice. In that way, perhaps some of the admirably defiant spirit of New York Times v. Sullivan may find its way back into the hearts and minds of people of good will who refuse to sit silent while law-abiding citizens of Ferguson stagger through clouds of teargas.

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FAN 27 (First Amendment News) — Humanitarian Law Project petition before High Court

Seventeen and a half years for translating a document? Granted, it’s an extremist text.                                                                                      – David Cole

Tarek Mehanna may not be a very nice person. But the narrowing of his liberties has consequences for us all.                             – Rachel Levinson-Waldman

The case is: Mehanna v. United States.

Tarek Mehanna

Tarek Mehanna

The issue is: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.

→ Summary of relevant facts as stated by the appellate court: “In 2004, the defendant, an American citizen, was 21 years old and living with his parents in Sudbury, Massachusetts. On February 1, he flew from Boston to the United Arab Emirates with his associates, Kareem Abuzahra and Ahmad Abousamra. Abuzahra returned to the United States soon thereafter but the defendant and Abousamra continued on to Yemen in search of a terrorist training camp. They remained there for a week but were unable to locate a camp. The defendant then returned home, while Abousamra eventually reached Iraq.

“The second cluster of activities was translation-centric. In 2005, the defendant began to translate Arab-language materials into English and post his translations on a website — at-Tibyan — that comprised an online community for those sympathetic to al-Qa’ida and Salafi-Jihadi perspectives. Website members shared opinions, videos, texts, and kindred materials in online forums. At least some offerings that the defendant translated constituted al-Qa’ida-generated media and materials supportive of al-Qa’ida and/or jihad.”

→ The charges against the Defendant included:

  • one count of conspiracy to provide material support to al-Qa’ida;
  •  one count of conspiracy to provide material support to terrorists knowing or intending its use to be in violation of 18 U.S.C. § 956 and  § 2332
  • one count of providing and attempting to provide material support to terrorists, knowing and intending its use to be in violation of 18 U.S.C. § 956 and § 2332
  • and one count of conspiracy to kill persons in a foreign country

→ ACLU of Massachusetts press release re trial verdict: “Mehanna Verdict Compromises First Amendment, Undermines National Security,” Dec. 20, 2011: “Under the government’s theory of the case, ordinary people–including writers and journalists, academic researchers, translators, and even ordinary web surfers–could be prosecuted for researching or translating controversial and unpopular ideas. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.”

Op-Ed Commentaries 

On Appeal before First Circuit

In an opinion by Judge Bruce Selya, a three-judge panel of the First Circuit denied the Defendant Tarek Mehanna‘s First Amendment challenge. Here is how Judge Selya (former chief judge of the United States Foreign Intelligence Surveillance Court of Review) began his opinion:

Terrorism is the modern day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government’s efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.

And here is how Judge Selya closed his opinion in ruling against the Defendant Tarek Mehanna:

Cases like this one present a formidable challenge to the parties and to the trial court: the charged crimes are heinous, the evidentiary record is vast, the legal issues are sophisticated, and the nature of the charges ensures that any trial will be electric. In this instance, all concerned rose to meet this formidable challenge. The lawyers on both sides performed admirably, and the able district judge presided over the case with care, skill, and circumspection. After a painstaking appraisal of the record, the briefs, and the relevant case law, we are confident — for the reasons elucidated above — that the defendant was fairly tried, justly convicted, and lawfully sentenced.

→ Amici on behalf of the Petitioner in the First Circuit included:

  • Alex Abdo, Hina Shamsi, Matthew R. Segal, and Sarah R. Wunsch on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts
  • Pardiss Kebriaei, Baher Azmy, and Amna Akbar on brief for Center for Constitutional Rights
  • Nancy Gertner, David M. Porter, and Steven R. Morrison on brief for National, Association of Criminal Defense Lawyers
  • E. Joshua Rosenkranz and Orrick, Herrington & Sutcliffe LLP on brief for Scholars, Publishers, and Translators in the Fields of Islam and the Middle East
Judge Bruce Selya

Judge Bruce Selya

The government was represented by Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice.

→ Sabin Willett is the counsel of record representing the Defendant Tarek Mehanna in his petition to the Court. In his petition, Mr. Willett’s First Amendment arguments include the following:

  1. “In Humanitarian Law Project, the Court addressed the important question of whether speech could be criminalized as provision of material sup- port in the form of a “service” to an FTO. Deciding that such speech can be unlawful when it takes the form of directly-interactive teaching, the Court interpreted §2339B as imposing criminal liability for speech that is a “service” if that speech is sufficiently “coordinated” with the FTO. This Court did not further define ‘coordination,’ nor hold that all “coordinated” speech could be criminalized consistent with the First Amendment. . . . Outside the narrow factual context of Humanitarian Law Project, the legal contours of ‘coordination’ remain a riddle. The word does not appear in any relevant section of the statutes. The decision uses “coordination” to describe the specific conduct found unlawful in that case, but provides no general definition, and leaves open that some levels of ‘coordination’ may be lawful.”
  2. “Petitioner argued below that a constitutional definition of ‘coordination’ requires an inquiry into the relation of the speaker to the FTO, and cannot be based in the content of his speech. If an FTO directs the defendant to write, the defendant’s compliance might provide a service that the Constitution does not protect, but that service would lie in compliance, not content.”
  3. Certain counts of the Petitioner’s conviction violated his right of association.

→ The government’s brief in opposition can be found here.

Historical Aside re Humanitarian Law Project

The case for the government was argued by Solicitor General Elena Kagan

The case for the Humanitarian Law Project was argued by Professor David Cole

Transcript of oral argument here

Interview with Robert Post re his latest book Read More

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Robin Williams — The Man Who Made Us Laugh & Defended the Right to Do So

It is a very sad day when a very funny man takes his own life. Depression takes its deadly harvest.Screen Shot 2014-08-11 at 10.47.34 PM

And so we must suffer the loss of one of America’s greatest comedians, Robin Williams.

In the weeks and months ahead, many a wreath will be laid in his honor and many will share their stories of how this remarkable and witty stand-up comedian left his special imprint on their lives.

As I think back on him, I am reminded of that life flow that stirred within him in Good Morning Vietnam (1987). Remember the opening scene when as a DJ for Armed Forces Radio Service Williams screamed into the early a.m. microphone: “Goooooooooooooooood morning, Vietnam! This is not a test, this is rock-n-roll! Time to rocket from the delta to the DMZ. Is that me or does that  sound like an Elvis Presley movie? Viva Da Nang. Viva Da Nang, Da Nang me, Da Nang me. They’re gonna get a rope and hang me. Hey, is it a little early for being that loud? Too late: Oh, it’s 0-600. What does the O stand for? Oh my God it’s early!”  (see YouTube video here).

If I may add my own humble memory of Robin: In 2003, I helped to organize a group of comedians, lawyers, professors and others to petition Governor George Pataki to posthumously pardon Lenny Bruce. When we approached Robin Williams (via Penn & Teller as I recall), he agreed immediately to lend his name to the cause. Why? Because he believed in comedy and free speech . . . and in Lenny Bruce, too.

Robin Williams was a free spirit in the best of the American tradition. And he gave vibrant life to the First Amendment and in the process was amazingly funny.

Long may his memory last.

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F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.

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FAN 26 (First Amendment News) — Akhil Amar on the “First” Amendment

First: First?

Less cryptically, the first and main question that I shall explore . . . is whether [the First] Amendment is genuinely first — first in fact, first in law, and first in the hearts of Americans. In the process of exploring this question, I also hope to shed some light on the meaning of this amendment in particular and the nature of constitutional interpretation in general. Akhil Amar

Professor Akhil Reed Amar

Professor Akhil Reed Amar

Akhil Amar, the Sterling Professor of Law and Political Science at Yale, is well known in the worlds of constitutional law and history. His six books include The Bill of Rights: Creation and Reconstruction (1998) and America’s Unwritten Constitutions: The Precedents & Principles We Live By (2012). Among Professor Amar’s many honors is his 2012 National Archives dialogue with Justice Clarence Thomas. More recently, he has returned to his study of constitutional history by way of a new scholarly essay.

The essay is entitled “The First Amendment’s Firstness,” which appears in the UC Davis Law Review. The work derives from the Central Valley Foundation/James B. McClatchy lecture on the First Amendment, which Amar delivered on October 16, 2013 at the University of California at Davis Law School (see video of lecture here). Below I summarize the Essay by a series of questions and answers based on the author’s observations and conclusions.

Question: “Do the actual words ‘the First Amendment’ or ‘Amendment I’ themselves appear in what we all unselfconsciously refer to as ‘the First Amendment?’”

Answer: No.  The answer has to do with what is known as the “correct copy” of the Constitution.

Question: What, then, was the official (“correct”) name of what we now call the First Amendment?

Answer: The official title was “Article the Third” — no “First” and no “Amendment.” In this regard, what is crucial is the text that was first submitted to and then ratified by the states, which is not the same as the commonplace copy contained in all our books and those pocket-size constitutions some carry with Hugo Black-like pride.

Question: In terms of their importance, how significant is the ordering of the ten amendments in the Bill of Rights?

Answer: Not significant at all. Says Amar: “the ultimate textual ordering of the first set of amendments was a remarkably random thing.” Moreover, he adds: “the initial ordering of the proposed amendments in the First Congress had little to do with their intrinsic importance or relative rank. Rather, the amendments were originally sequenced in the First Congress so as to track the textual order of the original Constitution. Thus an amendment modifying congressional size came first, because that issue appeared first in the original Constitution . . . .”

Question: “who says that the official text of the Constitution must govern for all purposes — even for all legal purposes”?

Answer: Here is how Amar answers his question: “The brute fact that millions of copies of the U.S. Constitution . . . include the words ‘Amendment I’ or something closely approximating these words alongside the amendment’s meat — ‘Congress shall make no law . . .’ — should arguably suffice for us to treat these technically unratified words as if they had indeed been formally voted upon in 1789–91.”

Question: Does the fact that the Reconstruction Amendments were officially captioned “XIII,” “XIV,” and “XV” have any constitutional significance with reference to the Bill of Rights?

Answer: Yes. “The Reconstruction Amendments invite/compel us to read the earlier amendments in a new way,” says Amar.  In other words, at that pinpoint in ratification time “Article the Third” became “Amendment I.” Moreover, adds Amar, “a great deal of what we now think about ‘the Bill of Rights’. . . owes a greater debt to the vision of the Reconstruction generation than to the Founders’ world-view.”

In the process of answering these and other related questions, Professor Amar goes on to examine the First Amendment’s “firstness” by way of structural, historical, doctrinal, and cultural considerations.  Having done so, he raises a more fundamental question:

Might the very strength of the amendment today, its very firstness, be grounds for concern? Precisely because we all love the First Amendment — because it truly is first in our text and first in our hearts — is there a danger that all sorts of less deserving ideas and principles will cleverly try to camouflage themselves as First Amendment ideas when they are really wolves in sheep’s clothing?

Against that backdrop, he questions the First Amendment validity of decisions affirming free speech rights related to alcohol and tobacco advertising, pornography, animal cruelty, and campaign finance. Furthermore, he stresses the importance of “the deeply democratic and egalitarian structure of this free-speech principle, properly construed” — though for Amar freedom of the press “is less intrinsically democratic.”

There is, of course, more to say about this thought-proving essay, which I urge you to read . . . even if some of its claims might raise your ideological eyebrows.

Sam Walker to Launch Civil Liberties Web Site Read More

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FAN 25.1 (First Amendment News) — Mass. Gov. signs abortion buffer zone bill

The bill, titled an Act to Promote Public Safety and Protect Access to Reproductive Health Care Facilities, was signed earlier today by Massachusetts Governor Deval Patrick.

Pro-choice demonstrators in front of Supreme Court

Pro-choice demonstrators in front of Supreme Court

The law, which is effective immediately, allows a police to order a person who “impedes” access to a reproductive health facility to stand at least 25 feet away from the entrance (or driveway) of the facility. The officer’s order will remain in place for eight hours or until the facility closes for the day (whichever is earlier). The law defines “impede”  as making it impossible or very difficult to access the clinic. If the person does not obey the order, he or she will face criminal penalties (a fine and potential jail time).  The penalties increase with each transgression. There are also penalties for threatening to harm or harming a person going to or from the facility and penalties for attempting to stop a car from accessing or leaving the facility.

The new law comes in the wake of the Supreme Court’s recent ruling in  McCullen v. Coakley, which struck down a 2007 Massachusetts buffer zone law as violative of the First Amendment.

In a prepared statement, Governor Patrick said: “I am incredibly proud to sign legislation that continues Massachusetts leadership in ensuring that women seeking to access reproductive health facilities can do so safely and without harassment, and that the employees of those facilities can arrive at work each day without fear of harm.”

“This bill,” said Attorney General Martha Coakley, “takes an important step toward protecting the rights of women and public safety around reproductive health facilities. We now have new tools to help ensure access to these facilities free from intimidation and threats.”

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FAN 25 (First Amendment News) — High Court again asked to intervene in state judicial elections

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Lanell Williams-Yulee

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Williams-Yulee v. The Florida Bar. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge. (See here re video and transcript of oral arguments in Florida Supreme Court.)

A petition for certiorari has been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

→ Flashback: FAN 15, “Free Speech & Judicial Elections: The Return of Kaus’ Crocodile,” May 14, 2014

Facts – Here is how Judge Chris Helinger, a referee for the Florida State Bar described the key facts in the case: “The Florida Bar alleges that on or about September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter wherein the Respondent personally solicited campaign contributions. The Respondent admits that she reviewed and approved the September 4, 2009 letter. The Respondent further testified that prior to approving the letter she reviewed Canon 7C(1) of the Code of Judicial Conduct regarding solicitation of funds. However, the Respondent testified that she interpreted the Canon to only apply if there was another candidate in the race. At the time the solicitation letter was sent no other candidate had been announced. Canon 7C(1) states that the prohibition of personal solicitation of campaign funds apply to any candidate for ‘judicial office that is filled by public election between competing candidates.’” In that regard, the Florida Supreme Court noted: “[T]he referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation [which she claims was the result of a good faith mistake based on a misunderstanding of the Canon] was published in a newspaper article on November 3, 2009.”  (Source: here)

Offending Mass-Mail Solicitation Letter 

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

Elect Lanell Williams-Yulee For County Court Judge Group 10 and Campaign Fundraiser

Dear Friend:

I have served as a public servant for this community as Public Defender as well as a Prosecutor for the past 18 years. Having been involved in various civic activities such as “The Great American Teach In,” Inns Of Court, Pro Bono Attorney, Metropolitan Ministries outreach program, as well as a mentor for various young men and women residing within Hillsborough County, I have long worked for positive change in Tampa. With the support of my family, I now feel that the time has come for me to seek elected office. I want to bring fresh ideas and positive solutions to the Judicial bench. I am certain that I can uphold the Laws, Statutes, Ordinances as prescribed by the Constitution of the State of Florida as well as the Constitution of the United States Of America.

I am confident that I can serve as a positive attribute to the Thirteenth Judicial Circuit by running for County Court Judge, Group 10. To succeed in this effort, I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support In meeting the primary election fund raiser goals. Thank you in advance for your support.

Sincerely,
/s/
Lanell Williams-Yulee, Esq.

(Source: here)

See YouTube video of TV political ad here.

State Judicial Elections 

As Professor Richard Briffault has observed: “The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states.” Consistent with the American Bar Association’s Model Code of Judicial Conduct, states such as Florida have enacted laws or rules barring judicial candidates from personally soliciting campaign contributions.

Conflicts in Lower Courts  Read More

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New & Forthcoming Books on Supreme Court

Erwin Chemerinsky's forthcoming book

coming in September

Over at SCOTUSblog I have a post re new and forthcoming books on the Supreme Court. One of those books is a work by Dean Erwin Chemerinsky, The Case Against the Supreme Court (Viking, September 25, 2014).  Here is a description of the book:

Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country’s leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and Citizens United, are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times.

I hope to have more on this book and perhaps even an interview with the author.  Stay tuned.

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FAN 24 (First Amendment News) — Stephen Barnett: The Little-Known Man Behind the Well-Known Words

We live by falsehoods. They feed the myths of the great figures whose words are etched in our collective memory as if they were tablets from on High. We know those words; we are moved by those words; and those words define who we are or yearn to be.

Words fitly selected and artfully strung together can change minds and even alter the arc of history. Take, for example, the following words:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 

Of course, they are the words of Justice William Brennan — the famous words from his celebrated opinion in New York Times Co. v. Sullivan.

Stephen Barnett

Stephen Barnett

Those words have had a profound impact on the direction of American law and culture. Their importance transcends the mere holding of the case and all the black-letter law that followed them. Talk about doctrine as much as you will; stress the importance of this or that theory of constitutional interpretation as you like; and laud or condemn either judicial activism or judicial restraint as you see fit; but in the end, nothing really matches a tantalizing metaphor or an alluring string of words.

This brings me to my point: For all the kudos that have been and continue to be bestowed on him, the naked fact is that Justice Brennan did not author the words that further enhanced his First Amendment reputation. Let me repeat: he did not write the words that made him yet more famous in free speech circles. One of his law clerks did.

His name? Stephen R. Barnett (1935-2009). Before venturing further, let me say this: I know, this is not news. Seth Stern and Stephen Wermiel flagged this historical point on page 224 of their comprehensive biography of Justice Brennan. Though Tony Lewis did not mention this particular fact in his Make No Law: The Sullivan Case and the First Amendment (1991), he did, nonetheless, mention young Barnett and his recollections of the internal history of the case.

While it is certainly true that Stern and Wermiel shed light on the Barnett authorship, the fact is that Professor Barnett’s great contribution to First Amendment history is otherwise ignored in virtually all academic literature, including casebooks.

→» So, here is the news part, if I may take the liberty: Let’s stop the charade — if judges insist on having their law clerks write their opinions, then credit for those opinions or for notable passages within them must be allowed, if only after a designated period of time not to exceed twenty years after the termination of the clerkship. Though I might be open to reconsidering the matter, for now I am inclined to say that confidentiality agreements should be deemed contrary to public policy if they deny that possibility. I say this as a former law clerk who continues to respect fair norms of confidentiality. (Of course, in my case it was easy since Justice Hans Linde, not his law clerks, wrote all of his opinions.)

Justice Brennan was a great jurist even if he did not write the famous passage from Sullivan or even if he did not author NAACP v. Button (his clerk Richard Posner did). That said, let’s raise a glass to Steve Barnett and let’s credit him whenever we quote that “robust” language from Sullivan.  

» One more thing, by way of a related point — You know these words: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The author? Justice Oliver Wendell Holmes, of course, writing in Schenck v. United States (March 3, 1919).

But hold on. As Professor Lucas Powe has observed, in “the summer of 1918, Benjamin W. Shaw, defending (unsuccessfully until appeal) an Espionage Act case, uttered the following during his closing argument to the jury”:

‘Under all of the facts and circumstances disclosed by the evidence in this case, how can it be said that he wilfully [sic] said and did the things alleged? How can the words used under the circumstances detailed in the evidence have the tendency to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?” 

John Fontana, “12 American State Trials 897, 932 (John D. Lawson, editor) (F.H. Thomas Book Co., 1920) (emphasis added), quoted in L. A. Powe, “Searching for the False Shout of ‘Fire,’” 19 Constitutional Commentary 345, 352, n. 61 (2002), discussed in Ronald Collins, The Fundamental Holmes  (2010), p. 234.

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