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Author: Ronald K.L. Collins

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FAN 10.1 (First Amendment News) The 2014 Jefferson Muzzles are Here! — 2015 Candidates in Wings

Since 1992, the Thomas Jefferson Center for the Protection of Free Expression has celebrated the birth and ideals of its namesake by calling attention to those who in the past year forgot or disregarded Mr. Jefferson’s admonition that freedom of speech “cannot be limited without being lost.”

Announced on or near April 13—the anniversary of the birth of Thomas Jefferson—the Jefferson Muzzles are awarded as a means to draw national attention to abridgments of free speech and press and, at the same time, foster an appreciation for those tenets of the First Amendment.TJCenter-copy

As the Center sees it, because the importance and value of free expression extend far beyond the First Amendment’s limit on government censorship, acts of private censorship are not spared consideration for the dubious honor of receiving a Muzzle.

So, Ladies and Gentlemen, by way of the Thomas Jefferson Center, I present you the

2014 Jefferson Muzzles

Re: 2013 Muzzles, go here

On a related point, see David Berstein’s “Brandeis University’s Double Standard on Honorary Degrees,” Volokh Conspiracy, April 9, 2014.

If Josh Wheeler and the folks at the Jefferson Center are considering candidates for the 2015 Muzzles, check out John L. Smith’s column entitled “Government in full force to corral cattle, First Amendment,” Las Vegas Review-Journal, April 7, 2014. As Smith  put it:

Perhaps I’ve led a sheltered life, but . . . I had never set foot in a First Amendment Area. On Saturday, the lot was otherwise empty. There were no fiery voices of libertarian protest, no throng of angry Nevada ranchers with rifles in their pickups, not even a gaggle of curious tourists or a covey of head-scratching reporters. Of course, the fact the free-speech pen was located several miles from Bundy’s ranch and even farther from the federal government’s corral of “trespass cattle,” the lack of attendance was understandable. (By Monday, the voices of peaceful protest would increase considerably a few miles up the road near the banks of the Virgin River.)

Adds Smith: “A sign marks a ‘First Amendment area’ to designate where protesters can protest near Bunkerville.” See lonely “First Amendment Area” below in pic. Turns out that sometime later a protester ventured out with an American flag and placard that read: “The First Amendment is not an area.”

web1_bundy_040114JL_09_4Last FAN.10 Column: (“Justice Stevens’ Proposal to Amend the 1st Amendment”) go here

Next Scheduled FAN Column: April 16th

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Fan.10 (First Amendment News) — Justice Stevens’ Proposal to Amend the 1st Amendment

justice-stevensWhile the Justices busily prepared their respective opinions in the McCutcheon campaign finance case, one of their Brethren was preparing to release a book that calls on Americans to reverse some of his former colleagues’ constitutional handiwork. The forthcoming book is Six Amendments: How and Why We Should Change the Constitution (Little, Brown & Co., pp. 170). The author is Justice John Paul Stevens.

This short book is offered up against the backdrop of Justice Stevens’ co-authored opinion in McConnell v. FEC (2003), his dissents in Colorado Republican Federal Campaign Committee v. FEC (1996), Randall v. Sorrell (2006),  Davis v. Federal Election Commission (2008), and Citizens United v. FEC (2010), his criticism of that case in his Five Chiefs: A Supreme Court Memoir (2011), and in his various criticisms of the Court’s campaign finance jurisprudence in his print and TV interviews along with his public addresses. Moreover, it is highly likely that Justice Stevens is just as critical of the Court’s recent 5-4 decision in McCutcheon v. FEC. In short, John Paul Stevens is a man on a constitutional mission.

Quite apart from Citizens United, Justice Stevens has long had serious reservations about vindicating First Amendment claims in most campaign finance cases. Coming onto the Court shortly after Buckley v. Valeo (1976), he witnessed firsthand what Justice William Brennan and his colleagues had wrought in sustaining several of the First Amendment claims urged by  Senator James L. Buckley, presidential candidate Eugene McCarthy, and the ACLU. It left him, he recalled in Five Chiefs, with an “extreme distaste” for that precedent. That distaste, he added, “never abated, and I have felt ever since that the Court would have been best served by inserting itself into campaign finance debates with less frequency.”

Given that, he thinks it is time to resort to Article V for a constitutional remedy. Admittedly, it is (and should be) difficult to amend the Constitution. From 1789 to April 2014, some 11,539 amendments have been proposed, but only twenty-six have been ratified. But that fact has not deterred the retired Justice from Hyde Park, Chicago. Here, then, is the text of the 43 words Justice Stevens would add to the Constitution in order to amend the First Amendment.

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

(Though the publication date is not until April 22, the text of the above language, which has been confirmed to be the final text, has heretofore appeared here and here and here.)

Reactions from Select 1st Amendment Scholars & Lawyers

Professor Martin Redish, a noted First Amendment scholar who teaches at Justice Stevens’ alma mater, takes exception to this proposed constitutional amendment: “As much as I respect Justice Stevens, I believe that his proposed amendment is sorely misguided.”

  1. “Its inescapable impact would be to reduce dramatically the flow of information and opinion to the voters about political campaigns, thereby substantially undermining core goals of the First Amendment and its role as a facilitator of democracy. The simple fact is that speech costs money, and by limiting the amount of money that candidates and supporters can spend the provision would necessarily limit the flow of often valuable expression which could help the voters perform their governing function in the voting booth.”
  2.  ”Moreover, Justice Stevens’ proposal would have the inescapable effect of locking in non-monetary inequalities—for example, incumbency, political connections or fame— perversely, in the name of equality. These are inequalities that have traditionally been diluted by opponents’ use of money to equalize the voters’ awareness of the candidates.”
  3.  ”Finally, the provision would create an interpretive nightmare. How much money is “reasonable”? Would it differ from state to state? From campaign to campaign? And who gets to decide? Would courts invoke strict scrutiny or rational basis review of the legislature’s judgment? To give the authority of determining how much is “reasonable” to a state legislature invites the fox to watch the hen house: legislators who will stand for reelection will naturally attempt to shape the limits in a way that facilitates their continued victory. Also on an interpretive level, enormous uncertainty would be created by the task of determining who is a “supporter” of a candidate. And even if courts were somehow able to establish coherent interpretive standards for that word, is it appropriate for the Constitution to engage in what amounts to viewpoint-based discrimination by giving preferences to those who are neutral over those who have chosen to support a particular candidate?”

“In sum, Justice Stevens’ proposal would bring about all of these nightmares—political, social, and interpretive. We would be left with a doctrinal morass and a substantial disruption of the flow of information and opinion fundamental to the operation of the democratic process. To be sure, there are problems with our current campaign system, but as Madison warned in Federalist No. 10, sometimes the cure is worse than the disease.”Unknown

Professor Steven Shiffrin, another noted First Amendment scholar, takes a different view: “The proposal of Justice Stevens directly speaks to the major evil confronting our elections and our democracy. Nonetheless, I worry that conservatives on the Court, as they have in the past, will make a distinction between commentary on issues and election commentary allowing the former, but not the latter. They have previously ruled that commentary was about issues rather than candidates even when the purpose and effect of the commentary was to influence the outcome of an election. This loophole could seriously undermine the purpose of the proposed amendment.”

Such comments notwithstanding, Justice Stevens is “confident that the soundness” of his proposal “will become more and more evident, and that ultimately [it] will be adopted.” The purpose of his forthcoming book, he tells us, “is to expedite that process and to avoid future crises before they occur.”

Not surprisingly, Robert Corn-Revere, a noted First Amendment lawyer, was also skeptical of the Justice’s amendment idea: “The idea of proposing an amendment to reverse Supreme Court decisions one doesn’t like is not new – witness the myriad amendments that purported to ‘fix’ the First Amendment in the wake of the flag burning cases Texas v. Johnson and U.S. v. Eichmann.  But such a thing is rare when it comes from a retired Supreme Court justice, and even more surprising is the degree of latitude the proposed language would give government to restrict our most basic rights. I would have hoped Justice Stevens’ long experience with Fourth Amendment jurisprudence would have suggested the danger of giving the courts power to decide which abridgements are ‘reasonable.’”

Two Opposing Views

John Nichols & Robert McChesney, Dollarocracy (2013): “Every major reform period in American history…has been accompanied by numerous amendments to the Constitution, amendments that were deemed unthinkable until almost the moment they were passed. If the problems faced at this point in the American journey are going to be solved, history suggests constitutional amendments will be a significant part of the process”

– Laura W. Murphy, director, ACLU Washington Legislative Office (June 2012): “If there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally ‘break’ the Constitution.”

Other Proposed Amendments to the First Amendment re Campaign Finance Issues

Read More

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FAN 9.3 (First Amendment News) — S. Ct. Denies Review in Campaign Finance Case

Just 25 minutes ago the Supreme Court denied review in Iowa Right to Life Committee, Inc. v. Tooker.  

Though Erin Murphy and Bobby Burchfield were in the limelight for their victory in McCutcheon, James Bopp (the noted campaign finance lawyer) was hardly out of the picture. He had, after all, another campaign finance case up his sleeve, and what seemed to be a good one at that.Unknown

The claims in Iowa Right to Life were twofold: (1) Whether an Iowa ban on political contributions by corporations (and certain business entities), but not by unions, violates the Equal Protection provision of the Fourteenth Amendment, and (2) Whether such a corporate-contribution ban runs afoul of the First Amendment. The facts of the controversy involved an attempt by the Iowa Right to Life Committee (a non-profit corporation) to contribute $100 to Brenna Findley, a candidate for Iowa Attorney General. Iowa law, however, prohibits such corporate contributions, but does not bar unions from making political contributions. This disparity in treatment notwithstanding, the U.S. Court of Appeals for the Eighth Circuit upheld the law and later declined to rehear the case en banc, whereupon James Bopp petitioned the Supreme Court to hear the case.

After suggesting that there was a conflict of law in several lower courts and that the Supreme Court should grant review to reconcile them, Bopp argued that “corporations and unions are similarly situated regarding their interest in making political contributions. Yet in Iowa, corporations, but not unions, are banned from making political contributions. Iowa must justify this disparate treatment. And Iowa must do so under strict scrutiny, both because fundamental rights are involved and because the corporate-contribution ban is content-based.” On the First Amendment side of the constitutional ledger, Bopp had to work around a hostile 2003 precedent, Federal Election Commission v. Beaumont, a case which he argued and lost to none other than Paul Clement (the co-counsel in McCutcheon). That ruling, decided before the advent of the Roberts Court, established that a direct contribution prohibition to nonprofit advocacy corporations is consistent with the First Amendment. For his part, Bopp argued forcefully that “Beaumont is on shaky precedential ground in the light of Citizens United.”

But it all proved to be of no constitutional moment: cert. denied.   

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Symposium on McCutcheon v. FEC

Over at SCOTUSblog they have been posting pieces on the Court’s latest campaign finance case, McCutcheon v. FEC.Shaun McCutcheon  The posts are a part of an online symposium they are doing. Here is the lineup:

Pics: (AP photo of Shaun McCutcheon & Roll Call photo of Fred Wertheimer)

Meanwhile, check out Rick Hasen’s Election Law Blog, which has been posting a steady list of articles on the McCutcheon case and related matters.

 

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E-Book on McCutcheon Case Just Published

At the risk of being accused of shameful promotion, I am nonetheless delighted to say that my book with David Skover was released yesterday and is now available as an e-book on Amazon, Barnes & Noble, and Google Play. The book is titled When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment and was available 36 hours after the Court rendered its ruling in McCutcheon v. FEC. davidskoverThis is the first book to be released in the SCOTUS-Books-in-Brief series.

This is also my fifth book with David (going back to 1996) and the ride has been an incredible one. As a co-author he is all things wonderful and wondrous and none of those books would have been possible but for his incredible talents and work ethic. So, a BIG NOD to my co-author. One more thing: the book is dedicated to Nadine Strossen, “The First Lady of Liberty,” as we tag her. I can think of no one who has been a greater champion of liberty than Nadine. All that said, here is a dollop of yet more of shameless promotion:

Book Description

Top Five Books: Publication Date: April 2, 2014WMS-cover2

80,000 words, e-book: $2.99

“A brilliant discussion of campaign finance in America…a must for all who care about the American political system.” —Erwin Chemerinsky

“Thorough, dispassionate, and immensely readable.” —Floyd Abrams 

“A must read for anyone interested in constitutional law, free speech, or elections. An original and welcome brand of narrative scholarship.”  —Adam Winkler

“Informative. Reliable.  Accessible. This is the best book on the general topic. And a great read, too!” —David M. O’Brien

On April 2, 2014, the U.S. Supreme Court struck down aggregate limits on how much money individuals could contribute to political candidates, parties, and committees. The McCutcheon v. FEC decision fundamentally changes how people (and corporations, thanks to Citizens United) can fund campaigns, opening the floodgates for millions of dollars in new spending, which had been curtailed by campaign finance laws going back to the early 1970s.

WHEN MONEY SPEAKS is the first book to explain and dissect the Supreme Court’s controversial ruling in McCutcheon, including analysis of the tumultuous history of campaign finance law in the U.S. and the new legal and political repercussions likely to be felt from the Court’s decision. The book is cast in narrative form, replete with accounts of the players who made the case what it has become. Also included are photos of the key players — the lawyers, activists, and Shaun McCutcheon, too. The authors also did extensive interviews (up to and including the day of the ruling) with several of the key figures in the case.

McCutcheon has been billed as “the sequel to Citizens United,” the decision giving corporations the same rights as individuals to contribute to political campaigns. Lauded by the right as a victory for free speech, and condemned by the left as handing the keys to our government to the rich and powerful, the Court’s ruling has inflamed a debate that is not going to go away anytime soon, with calls for new laws and even a constitutional amendment on the left—while those on the right (including Justice Clarence Thomas in his concurring opinion) call for an end to all contribution limits. Two of the nation’s top First Amendment scholars—Ronald Collins and David Skover—have produced a highly engaging, incisive account of the case, including exclusive interviews with petitioner Scott McCutcheon and other key players, as well as an eye-opening history of campaign finance law in the U.S.

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FAN.9.2 (First Amendment News) More on Yesterday’s McCutcheon Case

By way of more updates on yesterday’s First Amendment ruling in McCutcheon v. FEC, below are some commentaries and what have you on the case. (This column will be updated periodically for a short time.)

Vote to Reverse:  5-4 (sustaining First Amendment claim)

Plurality Opinion:  Chief Justice John Roberts (joined by Justices Scalia, Kennedy & Alito)

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

Dissenting Opinions: Justice Stephen Breyer joined by Justices Kagan, Ginsburg, & Sotomayor.

Commentaries:

For a very informative explanation of the monetary significance of McCutcheon and how that translates to real politics, see Chris Cillizza’s  ”Winners and losers from the McCutcheon v. FEC ruling,” Washington Post, April 2, 2014.

E-Books 

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FAN.9.1 (First Amendment News) — McCutcheon Wins: Supreme Court strikes down aggregate limits law

Only minutes ago the U.S. Supreme Court handed down its ruling in McCutcheon v. FEC, the aggregate limits campaign finance case.

Link to opinion is here.

Vote to Reverse:  5-4 (sustaining First Amendment claim)

Plurality Opinion:  Chief Justice John Roberts (joined by Justices Scalia, Kennedy & Alito)

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

Dissenting Opinions: Justice Stephen Breyer joined by Justices Kagan, Ginsburg, & Sotomayor.

The issues before the Court were: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

Commentary: SCOTUSblog (Amy Howe): “The Court rules in the Chief’s opinion that the aggregate limits do not further the permissible government interest in preventing quid pro quo corruption or the appearance of such corruption.”

 Lawyers: Supreme Court

For Appellant Shaun McCutcheon: Erin Murphy (lead counsel) & Paul Clement

For Appellant RNC: James Bopp, Jr. (NB: Though the NRC brief was prepared by Mr. Bopp, Ms. Murphy argued the case for both McCutcheon and the RNC)

For Senator Mitch McConnell (amicus): Bobby Burchfield 

For Appellee: Solicitor General Donald Verrilli, Jr.

Oral Arguments 

Resources & Related Materials 

  • Lower Court opinion (per Judge Janice Rogers-Brown) (argued by James Bopp, Jr., for Appellant)

Selected Supreme Court Briefs

  • Cert. Petition of Shaun McCutcheon & RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant Shaun McCutcheon (Michael T. Morley, counsel of record)
  • Reply Brief of Appellant Republican National Committee  (James Bopp, Jr., counsel of record)
  • Amicus Brief of Sen. Mitch McConnell (Bobby Burchfield, counsel of record)
  • Amicus Brief of the Cato Institute in support of the Appellant (Ilya Shapiro, counsel of record)
  • Amicus Brief of Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in support of the Appellant (J. Joshua Wheeler, counsel of record)
  • Brief of Appellee FEC (S.G. Donald Verrilli, Jr., counsel of record)
  • Amicus Brief of Brennan Center for Justice in support of Appellee (Daniel Kolb, counsel of record)
  • Amicus Brief of Americans for Campaign Reform in support of Appellee (Charles Fried)
  • Amicus Brief of Democratic Members of the U.S. House of Representatives in support of Appellee (Paul M. Smith, counsel of record)
  • Amicus Brief of Representatives Chris Van Hollen & David Price in support of Appellee (Seth Waxman, counsel of record)
  • Amicus Brief of Professor Lawrence Lessig in support of Appellee (Douglas T. Kendall, counsel of record)
  • For Additional Briefs, go here (ABA site)

Books, Symposia & Articles

  • SCOTUSblog Symposium on McCutcheon (forthcoming, 2014) (contributors: Jan Witold Baran, Richard Hasen, Burt Neuborne, Ilya Shapiro, & Fred Wertheimer)
  • SCOTUSblog Symposium on McCutcheon (Aug., 2013) (contributors: Erwin Chemerinsky, Ronald Collins, Robert Corn-Revere, Joel Gora, Justin Levitt, Tamara Piety, David Skover, & Adam Winkler)
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FAN.9 (First Amendment News) — Sunstein on Sullivan & its “Dark Side”

In the wide-open, robust, and uninhibited world of the First Amendment, nothing is sacred, not even the hallowed opinion in New York Times, Inc. v. Sullivan (1964). Case in point: Justice Antonin Scalia’s originalist reservations about Justice William Brennan’s constitutional handiwork in that landmark case. But alas, the conservative jurist is not alone. Enter the sometimes liberal Harvard Law Professor Cass Sunstein, who has recently authored an op-ed titled “The dark side of the First Amendment” (Bloomberg, March 26, 2014).Unknown

Some two decades ago, in his Democracy and the Problem of Free Speech, Professor Sunstein labeled the Sullivan case as “one of the greatest cases of modern free speech law.” Even so, he made it clear in that book and in later works that his understanding of the Sullivan principle was a cabined one. Later, in an August 21, 1995 review essay in The New Republic, he spoke of the question of causation, among other things. There Sunstein maintained that “it isn’t necessary to demand proof of causation before encouraging greater responsibility on simple prudential grounds.” In that regard, he argued that cultural questions should not be confused with constitutional ones when it comes to questions of causation. It is against that backdrop that we return to his views on Sullivan, which are at once somewhat laudatory and at the same time rather cautionary.

On the occasion of the 50th anniversary of Sullivan, Sunstein writes: “amid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.” (emphasis added).  Later on in his op-ed, he was more modest in his critique: “False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” (emphasis added). Having said all of that, in the end he conceded that “the Court got the balance right” in Sullivan. What are we to make of this?

A few preliminary responses, first my own, and then some from a colleague. If I read him correctly, Professor Sunstein seems to be saying that constitutionally speaking Sullivan is a good thing, but culturally speaking it is not, or may not be so wonderful. Fair enough, for general discussion purposes anyway. That said, it must be remembered that we pay a price for liberty. So much for the constitutional side of the equation. On the cultural side, however, Sunstein seems to make his case on the back of a weak causation claim (recall: “it isn’t necessary to demand proof of causation . . . .”). That leads me to wonder: Is it unreasonable to expect that any meaningful cultural critique of Sullivan be related in some actual sense to questions of proof of causation? In other words, should cultural critiques be oblivious to what science can tell us, or at least suggest to us? Granted, one might understandably deplore the state of “discourse” in modern America.  But faulting Sullivan is another matter. More importantly, what is sorely missing from Professor Sunstein’s cultural critique is a critique of the culture writ large. By that measure, Sullivan may make for a convenient scapegoat, but little more, at least standing alone.

By way of another look, American University law professor Stephen Wermiel, who co-authored the seminal biography of Justice Brennan and more recently co-authored a book on Sullivan and its legacy, offered the following comment on Professor Sunstein’s article:

“Professor Cass Sunstein joined the fiftieth anniversary celebration of New York Times v. Sullivan, but bemoaned the ability of “talk show hosts, bloggers and users of social media” to “spread ugly falsehoods in an instant,” adding to “a climate of distrust and political polarization.” But Sunstein’s concerns lay too much blame on the shoulders of Sullivan. That unanimous ruling did not create a society in which free-flowing criticism, replete with occasional falsehoods, is rampant. That culture already existed; Sullivan only helped to fit it all into a robust constitutional democracy. To the extent that Sunstein’s criticism turns on the proliferation of instant means of communication, he gives too little weight to the access that victims of social media have to respond. Moreover, Justice Brennan, the author of Sullivan, was not alone in his belief that society benefits from “robust and wide-open debate.” It was, after all, the more judicially modest Justice John Harlan who 1971 observed that the ability of society to handle the cacophony of free speech is a sign of strength, not weakness.”

Returning to the constitutional side of the ledger, in his latest book (Conspiracy Theories and other Dangerous Ideas) Professor Sunstein further elaborates on his ideas about the virtues of “minimalist” judging, which makes one wonder if he would have indeed signed onto what Justice Brennan wrote in Sullivan. My guess: no.

Watch your calendar: The petition in Elane Photography, LLC v. Willock is scheduled to be considered at the Court’s April 4th Conference.

Note: I plan to have immediate and updated postings re McCutcheon v. FEC, the campaign finance First Amendment case now awaiting a ruling from the Supreme Court.

Journalists & “qualified First Amendment privileges”

Joel Kurtzberg of Cahill Gordon & Reindel has just filed a cert. petition in the case of Risen v. United States in which two issues are presented: (1) Do journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial?, and (2) should a federal common law privilege be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial? Read More

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The Law Clerk Hiring Process – An Interview with Federal Judge Thomas Ambro

Thomas Ambro is a judge on the United States Court of Appeals for the Third Circuit and sits in Wilmington, Delaware. He was confirmed by the Senate by a 96-2 vote and has served on the Third Circuit since 2000. Judge Ambro received both his undergraduate and law degrees from Georgetown University. He was a law clerk for former Delaware Supreme Court Chief Justice Daniel Herrmann (1975-1976). Thereafter, Judge Ambro was with the firm of Richards, Layton & Finger in Wilmington, Delaware, where he was known nationally in two areas—legal opinions in commercial transactions and bankruptcy. Judge Ambro is a former Chair of the Business Law Section of the ABA. He is also a member of the American Law Institute and the National Bankruptcy Conference.

Welcome, Judge Ambro, to our corner of the blogosphere here at Concurring Opinions. It is an honor for us to have you contribute to this blog.Unknown

Question: How many law clerks do you have, and how long are their terms?

Answer: I have four law clerks per term. Generally those who clerk with me serve only one term. Because of the timing of exceptional post-clerking job opportunities, a few clerks have served less than a full-year term. For scheduling reasons, some have served up to a few months longer.

Question: Tell us a little bit how the clerkship application process works. For example, when do you first start accepting applications and up to what point do you stop considering them?

Answer: When the hiring protocols were in effect, I would receive applications from putative clerks via  OSCAR (Online System for Clerkship Application and Review) when those applications were released. All applications would be from persons who had completed at least their 2L year in law school. Because the hiring plan for federal law clerks has been discontinued, applications now come in randomly, and they are often from applicants in their 2L years.

I stop considering applications when the four law clerk positions for a term have been filled. Thereafter, the judicial assistant in our chambers alerts OSCAR of this fact.

I review the applications sent to me, whether online or in the mail. If I am interested in a particular application, I either wait for the letters for recommendation to come in (if they do not accompany the application) or begin calling the recommenders. Often an application is preceded by one or two recommenders alerting me of an applicant and inquiring whether I have a position available for the term to which the applicant is applying. In any event, if I remain interested, I call the applicant to set up a time to meet. For the four spots in a given term, it is uncommon that I would have more than a half dozen interviews with potential applicants.  In addition, the interviews with me and with my clerks are lengthy. Thus, it is rare if I do more than one interview of an applicant in a day.

Question: How much do you rely on OSCAR?

Answer: With the demise of the hiring plan, many applications come by mail. Thus, in a technical sense, I rely on OSCAR less than I did when the hiring plan was in effect. Nonetheless, I find OSCAR very helpful in every respect I can think.  In addition to saving reams of paper, it is both easy to use, highly efficient, and much appreciated.

Question: How far in advance do you select your clerks?  Some federal judges are now hiring two years in advance?  What is your current practice?

Answer:  Right now (March 2014) I have all positions filled for the 2014-’15 and the 2015-’16 terms.  I also have two clerks committed for the 2016-’17 term. My typical lead time for a clerk is two years. That may mean that a clerk will be at least a year removed from law school when she or he begins working in my chambers. That time is usually spent in another clerkship (almost always a District Court clerkship, though on two occasions it has been another Circuit Court clerkship), with a law firm, or sometimes both another clerkship and work in a law firm. Read More

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My Textualist Moment — the Use of the Words “Person” or “Persons” or “People” in Our National Bill of Rights

There has been much talk lately about whether corporations are or should be “persons” under the First Amendment, both for free speech and free exercise purposes.images

In a textualist moment, this got me to thinking about the wording of our federal Bill of Rights and what light it might shed on this. Let’s start with the First Amendment. Its focus is a limitation on the powers of Congress and makes no mention of persons until the reference to “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The Second Amendment mentions people in a similar way: “the right of the people to keep and bear arms, shall not be infringed.”

The Third Amendment uses the word “Owner” but not person or persons or people.

The Fourth Amendment is quite explicit: It speaks of the “right of the people” and the rights of “persons.” So, too, with the Fifth Amendment and its reference to “person.”

The Sixth Amendment mentions the rights of “the accused” and likewise uses the male pronoun “his” and “him” in this regard.

The Seventh and Eighth Amendments are silent on the personhood question.

The Ninth Amendment, of course, refers to the rights “retained by the people.”

And the Tenth Amendment reserves rights to “the states respectively, or to the people.”

There you have it. What to make of it? Well, I leave that to others to decide since I am not a bona fide textualist fundamentalist, though I do think text matters as a part of the constitutional calculation of things. Y tu? What do you think? (Feel free to respond in either your individual or corporate capacity.)