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Category: Constitutional Law

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FAN 11.2 (First Amendment News) — C-SPAN: A Conversation with Justices Scalia & Ginsburg on the First Amendment

On C-SPAN: Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg join host Marvin Kalb at the National Press Club to talk about the First Amendment as well as the origins and contemporary meaning of freedom.

WASHINGTONOne sentence, just 45 words in length, proclaims and promises the freedoms that define American democracy. The First Amendment to the U.S. Constitution guarantees the right to freedom of religion, freedom of speech, freedom of the press, freedom of assembly and the right to petition one’s government. It is the duty of the justices of the Supreme Court of the United States to interpret the constitution and to rule on the legality of legislation.

On the next edition of The Kalb Report, Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg join journalist/scholar Marvin Kalb to offer their views of those 45 words in a rare glimpse behind the gavel and inside one of our nation’s vital branches of government.images

The Kalb Report will take place on April 17 at 6 p.m. in the main ballroom of the National Press Club, 529 14th St., NW, in Washington, D.C.

“I am honored to host this program with two justices of the Supreme Court and to discuss their interpretations of the First Amendment guaranteeing our national freedoms, including freedom of the press,” said Mr. Kalb. “I would also love to hear their views on the broader subject of freedom–what is its origin, and what does it mean today?”

The Kalb Report series is produced jointly by The National Press Club Journalism Institute, the George Washington University School of Media and Public Affairs, Harvard University’s Shorenstein Center, University of Maryland University College and the Philip Merrill College of Journalism at the University of Maryland.

For the 11th consecutive year, the series is underwritten by a grant from Ethics and Excellence in Journalism Foundation.

Since 1994, the partnership has produced 83 forums with guests including Walter Cronkite, Rupert Murdoch, Diane Sawyer, Roger Ailes, Katie Couric, Bill O’Reilly, Bob Costas, Hillary Clinton, Ken Burns, and Nobel Prize winner Elie Wiesel. In 2012, The Kalb Report was honored with both a Gold World Medal and the overall Grand Award in the New York Festivals International Radio Awards competition.

The Kalb Report series is distributed nationally by American Public Television. Oklahoma Educational Television Authority serves as the presenting station. The Kalb Report also airs on the public radio channels of Sirius—XM Satellite Radio, Federal News Radio in Washington, D.C. (1500 AM), District of Columbia Cable Television, University of Maryland Cable Television, and NewsChannel 8 in Washington, D.C. Each program is also streamed live at press.org and kalb.gwu.edu.

Moderator Marvin Kalb is Edward R. Murrow Professor Emeritus at Harvard University’s Kennedy School of Government. Over the course of his distinguished 30-year career in broadcast journalism, Mr. Kalb served as chief diplomatic correspondent for both CBS News and NBC News, and moderator of Meet the Press. He went on to serve as the founding director of Harvard’s Joan Shorenstein Center on the Press, Politics and Public Policy. Among his many honors are two Peabody Awards, the DuPont Prize from Columbia University, the 2006 Fourth Estate Award from the National Press Club and more than a half-dozen Overseas Press Club awards. Mr. Kalb has authored or co-authored 13 nonfiction books and two best-selling novels. His latest book is “The Road to War: Presidential Commitments Honored and Betrayed.”

Executive Producer Michael Freedman is a senior vice president and professor of the practice at University of Maryland University College, as well as a professorial lecturer in journalism at the George Washington University. Mr. Freedman is the former general manager of CBS Radio Network News, and former managing editor for the broadcast division of United Press International. He is the recipient of more than 85 honors for journalistic excellence including 14 Edward R. Murrow Awards.

Senior Producer Heather Date is an associate vice president at University of Maryland University College and former CNN producer. She is the recipient of the Alliance for Women in Media’s 2011 Gracie Award for Outstanding Producer of a News Program for her work on The Kalb Report.

Lindsay Underwood, a 2011 graduate of George Washington University’s School of Media and Public Affairs, is the associate producer of The Kalb Report.

Web Editor Bryan Kane is a senior at George Washington University.

The Kalb Report series is directed by Robert Vitarelli, a 39-year CBS News veteran and a Directors Guild of America Lifetime Achievement Award winner.

 

 

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Cliven Bundy and Popular Sovereignty

If you’ve been following the ranchers’ fight against the federal government and seen the latest news that armed ranchers have come to the aid of Cliven Bundy to keep the Bureau of Land Management from seizing his cattle grazing on federal lands, you will have noticed some commentators who praise their stand as a kind of “civil disobedience” (the National Review has even compared Bundy to Gandhi!). Others–including Senate Majority Leader Harry Reid–say Bundy is engaged in simple lawlessness, as he’s not paid ranching fees for decades and is flouting multiple federal court orders. Either answer, of course, is too simplistic.

In fact, the Bundy standoff is best understood as an organized effort to assert popular sovereignty.  But what kind of theory of power and community does the saga represent? In my quick and dirty take (subject to further refinement), rancher sovereignty appears to be a combination of the legacy of pioneer constitutionalism, a tactical resort to states’ rights, and a healthy dose of contemporary radical localism.

The aspect of rancher sovereignty that has received the most media attention is states’ rights. In some of Bundy’s statements, he has said that the land belongs to Nevada, but notice that it’s always done to undermine the federal government’s claim to the land.  He probably does believe that, relatively speaking, the state has more of a claim to the land than the feds. However, the rest of his statements and actions suggest he is only tactically relying on states’ rights.

In fact, rights foundationalism is most important to rancher sovereignty. Bundy contends that his family has made productive use of the land since the 1880s, and the fact that his labor has mixed with the land gives rise to a fundamental liberty/property right to continue using that land as he sees fit. That individual right, he asserts, trumps countervailing federal law and the Nevada State Constitution (to the extent it recognizes the supremacy of federal law). This sounds bizarre to anyone who has taken Constitutional Law I, but I assure you that this conception of rights is fairly widely shared. It derives from a natural law view of rights, one that has been deeply inflected by the American frontier experience. The belief system that once made sense in the world inhabited by ranchers living on open lands, when legal rules were openly flouted and productive use of land could ripen to legal title.

Moreover, there is a strong dose of radical localism.  Apparently, having lost repeatedly in the federal courts, he has turned to filing documents with not only state officials, but also the Clark County Sheriff, county commissioners, and even the district attorney.  These documents give emergency notice of a “range war against the police state” and demand the protection of state and local laws against the power of the national government.  Bundy states:

First I’m fighting this thing on paper. Then I’ll go after the contract cowboys. And then if I assume they’re (BLM) ready to go (confiscate the cattle) then I’ll go after them with the media, with ‘we the people’ and whatever else it takes….What I am organizing are lots of groups. They’ll come from hundreds of miles away. They’ll be multiple users; the hunters, campers, off-roaders, miners, sightseers, Tea Party people.

But it’s clear to Bundy that the sheriff is the most important actor in this constitutional theory. “The sheriff is the only one with the policing power and arresting power in Clark County,” he states. “The Clark County sheriff has more constitutional policing power in Clark County than the president of the United States and his army.”

Again, this statement will look absolutely ridiculous to anyone who practices law in the courts, as it inverts the entire structure of government created by the 1787 Constitution.  But that’s the point of the ideas of radical localism that persist among some members of the Tea Party, Patriot movement, and those who call themselves “sovereign citizens.”  Elevating the sheriff is the best way to subvert the hierarchical features of mainstream constitutionalism.  According to this theory of government, the county sheriff (not the U.S. Attorney General) is the highest law enforcement officer.  Some practitioners try to tie this view to older historical accounts of the township and shire; others are content that the sheriff evokes older American rule of law traditions.  Bundy himself in one interview has said he and his supporters refuse to accept the authority or jurisdiction of the BLM–and may even go so far as to deny the legitimacy of the federal government as a whole.

I said earlier that Bundy’s reliance on states’ rights was largely tactical, but there are tactical benefits to radical localism as well.  The approach aligns seamlessly with practical efforts to subvert the conventional constitutional order by taking over key local offices through elections and, failing that, appointing oneself as sheriff and deputizing true believers.

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FAN 11.1 (First Amendment News) — Winners of 2014 Hugh M. Hefner First Amendment Awards

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Hugh Hefner

The Hugh M. Hefner Foundation has just announced the winners of the 2014 Hugh M. Hefner First Amendment Awards. Christie Hefner established the Awards in 1979, in conjunction with Playboy magazine’s 25th anniversary, to honor individuals who have made significant contributions in the vital effort to protect and enhance First Amendment rights for all Americans. The awards will be presented on Tuesday, May 20, 2014, followed by a reception for past winners, journalists, government officials, and civic leaders at the Knight Conference Center at the Newseum in Washington, D.C.

A Lifetime Achievement Award will be bestowed on Norman Dorsen, who, for more than a half-century, has been at the forefront of the fight to advance fundamental freedoms and protect civil rights and civil liberties. Since 1961, Dorsen has taught as the Frederick I. and Grace A. Stokes Professor of Law at New York University School of Law. He is the co-director of the Arthur Garfield Hays Civil Liberties Program and was the founding director of NYU’s Hauser Global Law School Program in 1994. Dorsen served as General Counsel of the American Civil Liberties Union (1969-1976), and then as its president (1976-1991). Dorsen has argued many Court cases, wrote the brief for Brandenburg and appeared amicus curiae in theGideon case, the Pentagon Papers case and the Nixon Tapes case.

Award winners, many of whom are unsung heroes, come from various walks of life, including Muneer Awad (Government), former Executive Director of the Council on American-Islamic Relations Oklahoma Chapter, who successfully challenged the implementation of an amendment to ban Sharia and International law that violates the U.S. Constitution and targets Oklahoma’s Muslim-Americans.

Glenn Greenwald (Journalism), political journalist, lawyer, author, blogger and columnist, who published the first in a series of reports detailing NSA surveillance programs based on classified documents leaked by Edward Snowden.

Mary Beth Tinker and Mike Hiestand (Education), for organizing the Tinker Tour, a national free speech and free press tour to promote the First Amendment through the stories of young people. This past school year, the Tinker Tour traveled to schools in 31 states, the District of Columbia and two countries.

Thomas Healy (Book Publishing), author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (Henry Holt & Co., 2013). Professor Healy is a Professor of Law at Seton Hall and teaches Constitutional Law, the First Amendment and Federal Courts and Criminal Procedure.

Christopher Finan (Law), President of the American Booksellers Foundation for Free Expression, for presenting key issues of the impact of the attacks of 9/11 on First Amendment rights to middle and high school students in his book, National Security and Free Speech: The Debate Since 9/11(IDEBATE Press, 2013).

This year’s Master of Ceremonies will be Christie Hefner, Chairperson and founder of the Hugh M. Hefner First Amendment Awards.

{From April 16, 2014 press release}

Previous Winners: (go here)

Last FAN 11 Column (go here)

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FAN.11 (First Amendment News) — Encouraging Suicide, First Amendment Protected?

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{see news item after one immediately below re suicide case}

Barcelona, April 14, 2014. I’m walking down a narrow street in Spain when I come upon a large town square (Plaza de San Jaime). Turns out that it’s the site of the offices of the Generalitat de Catalunya (a national entity) — the perfect place for dissidents to gather to protest against this or that or for this or that. On this day, the protestors were preparing for a rally to champion their anti-monacrchist movement. Mind you, I don’t have a horse in this race, if only because I know next to nothing about the history and politics of Spain . . . other than Francisco Franco was a murderous tyrant. Still, the sight of dissent is, for me, a welcome one. That people may freely assemble and voice their grievances is always a good sign. Make of them what you will, but I stand firmly with them when it comes to exercising such rights of dissent. Of course, it’s always easier when you agree with the cause, but such a narrow mindset misses the point of peaceful dissent — that others may actually loathe what we hold dear and thus attempt to change our world. Those others may be anti-monarchists in Spain or anti-abortionists in South Carolina. Where freedom is the constituted form of government, free speech means that such dissidents deserve their day in the courtyard of public opinion. By that measure, I say bully for the guy with the rebellious flag, his fist-a-flyin’, who has the bravado to protest in front of the seat of power. 

Minnesota Court Rules that First Amendment Protects Encouraging a Suicide

My friend Professor Sherry Colb has just posted an informative and thoughtful piece on the Verdict blog concerning a recent ruling by the Minnesota Supreme Court in the case of State of Minnesota v. Melchert-Dinkel. The case involved a First Amendment challenge to a state statute that provided:“Whoever intentionally advises, encourages, or assists another in taking the other’s own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.” The free speech issue in the case was whether advising or encouraging or assisting suicide falls within one of the traditionally unprotected categories of speech. By a 4-1 vote, the Court held that the sections of the law in question violated the First and Fourteenth Amendments. Justice Alan C. Page dissented (two Justices did not participate).

Justice G. Bary Anderson began his majority opinion with the following statement: “After communicating with appellant William Melchert-Dinkel, Mark Drybrough and Nadia Kajouji each committed suicide.” Later, he added: “Posing as a depressed and suicidal young female nurse, Melchert-Dinkel responded to posts on suicide websites by Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Canada. In each case, he feigned caring and understanding to win the trust of the victims while encouraging each to hang themselves, falsely claiming that he would also commit suicide, and attempting to persuade them to let him watch the hangings via webcam. Drybrough, who was 32 years old at the time Melchert-Dinkel contacted him in 2005, had suffered from significant mental and physical health problems for many years . . . . His contact with Melchert-Dinkel began after the appellant responded to Drybrough’s posting in an online forum about suicide asking about methods to commit suicide by hanging without ‘access to anything high up to tie the rope to.’ Melchert-Dinkel described how to commit suicide by hanging by tying a rope to a doorknob and slinging the rope over the top of the door. . . . . On March 1, 2008, 19-year-old Nadia Kajouji of Ottawa, Canada, posted a message on a suicide website asking for advice on suicide methods that would be quick, reliable, and appear to be an accident to her family and friends. Five days later, Melchert-Dinkel responded, pretending to be a 31-year-old emergency room nurse who was also suicidal. Again, he presented himself as a caring and compassionate friend who understood Kajouji’s plight and wanted to help.”

Mark Drybrough hung himself to death while Nadia Kajouji jumped off a bridge, contrary to Melchert-Dinkel’s advice that she hang herself immediately. She, too, died as a result of her actions.

Professor Colb analyzed the relevant categories of unprotected speech — fraud, incitement, and encouraging criminal activity — to determine their fit, if any, to the facts of the case. She concluded that “advising or encouraging a suicide in a direct and targeted manner, which the law in question contemplates, does not fall within the protection of the First Amendment, as it represents incitement to imminent lawlessness.” By contrast, she noted: “In the very different context of physician-assisted suicide, for instance, my view would be that a doctor should be allowed to provide assistance to a patient but should never be allowed to try to persuade an ambivalent patient that he really should go ahead and end his own life.”

In a future column I hope to add a few thoughts of my own and invite some First Amendment types weigh in to see how they might analyze this case. Stay tuned. Meanwhile, take a look at Sherry’s more extended post on the case over at the Dorf on Law blog.

Another “Free Speech Zone” Falls. According to an Associated Press report: “The Virginia Community College System has agreed to suspend its student demonstrations policy in response to a lawsuit filed by Thomas Nelson Community College student Christian Parks. Both sides have asked a federal judge in Norfolk to put the case on hold until May 2 while a new policy and settlement details are negotiated.” Mr. Parks was represented by David Hacker of the Alliance Defending Freedom. Free speech zones like the Virginia Community College one are consistently defeated in court. Even so, according to  Greg Lukianoff (president of the Foundation for Individual Rights in Education), as of last November “one in five public four-year colleges we surveyed had unduly restrictive free speech zone policies.” (See here.) 

Conflict in DC Circuit — The Meat & Minerals Cases In FAN.9 I mentioned the  American Meat Institute v. AGRI (D.C. Cir., March 28, 2014) case. That’s the controversy involving  a federal rule that requires, among other things, country-of- origin labeling (“COOL”). Since that post, the Courts of Appeals for the District of Columbia has agreed to hear the case en banc. In a related matter, and as Professor Ruthann Robson has recently noted,the D.C. Circuit just handed down a significant decision in National Association of Manufacturers v. Securities and Exchange Comm’n. The majority opinion was authored by Senior Judge A. Raymond Randolph with Judge David Sentelle joining him and Judge Sri Srinivasan concurring in part. The panel held that a part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (15 U.S.C. § 78m(p)(1)(A)(ii) & (E)) ran afoul of the First Amendment. Read More

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Decanonization

I learned recently that once sainthood is conferred by the Catholic Church that status cannot be revoked.  Not so for Supreme Court opinions or canonical legal texts.  A great deal has been written about how authorities are canonized, but not much is written about the opposite–how are they delegitimized?  I haven’t thought this through fully, but here are some tentative ideas:

1.  “Ignoring.”  If a certain text or opinion stops getting attention, then its authority diminishes.  Consider in this context Bowers v. Hardwick, which was totally ignored by the Court’s opinion in Romer.  That was the way station for overruling Bowers in Lawrence v. Texas.

2.  “Yesterday’s News.”  Age can confer or detract from authority depending on how you frame the argument, but a precedent can be dispatched by just labeling it as old or obsolete.  To some extent this is what happened to the Warren Court cases on the Voting Rights Act in Shelby County.

3.  “Too Brief.”  Courts often attack precedent by saying that a prior court did not say much about an issue.  As if to say that the prior court wasn’t paying close attention, which may be true, but may also reflect the fact that at the time the issue wasn’t considered close.  Chief Justice Roberts did this last week in McCutcheon by rejecting contrary language in Buckley v. Valeo as “just three sentences.”

4.  Say that the precedent was wrong from the day it was decided.  This has been done many times.

I would have to look at more examples where precedents were overruled to get a better sense of this.

 

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Making Changes to Fundamental Law

Thanks to Deven, Gerard, and everyone else at Concurring Opinions for the warm welcome.  I plan to blog a bit about the new book, America’s Forgotten Constitutions, as well as some matters related to ongoing research.

A few words about the conception of the book.  It combines American history and legal theory in a way that I hope tells us some new things about events and ideas that have already received some scholarly attention.  It also analyzes some events in constitutionally significant terms when they previously have not received such treatment (e.g., the world federalist movement, the recent drafting of an Aryan constitution).  In doing so, the book seeks to shed light on certain recurring theoretical questions about our constitutional process, writ large.  The primary organizing themes are the dual meta-principles of written constitutionalism and popular sovereignty, combined by the Framers of the U.S. Constitution and unleashed on the population.  I’m interested in how average people adapt these basic principles to forge new relationships and communities, develop novel procedures for authorizing a constitution, and defend extra-legal tactics.

The book’s ambition is to go beyond current treatments of “popular constitutionalism”–so we can have an honest discussion about the energizing and dangerous aspects of our political tradition.  I pick eight examples where Americans wrote constitutions at various important moments in time, in order to explore these questions.  The colorful cast of characters consists of squatters, native Americans, slaveholders, abolitionists, socialists, world federalists, black nationalists, and white separatists.  I explore how the functions of writing and notions of sovereignty mutate after the Founding period.

Allow me to begin by suggesting that these constitution-writing episodes push us to reevaluate what we think we know about the procedure for making constitutional law.  Just to get the ball rolling, much of the literature identifies the following ways of altering fundamental law (let’s note but for now bracket the crucial lurking question of the relative legitimacy of each approach):

1.  Making foundational law during a true revolutionary moment, marked by political breakdown or some other break in historical time, when procedural questions are up for grabs along with substantive commitments.

2.  Formally amending a constitutional text (in the U.S. Constitution, according to the process outlined in Article V) without rejecting the continuing legitimacy of the legal order created.

3.  Creatively using conventional national institutions (say, by one party winning successive elections, enacting transformative laws, making key judicial appointments, winning landmark decisions through litigation).  Again, this is done without rejecting the authority of the overarching legal order.

4.  Gaining control of key bureaucracies (White House, OLC, DOD) or forging government-private relationships (such as Federalist Society-DOJ-Judiciary).  These social networks may not be lasting, but the goal is to achieve major shifts in substantive law rather than to overthrow an entire system.

5.  Creating a social movement that signals popular discontent, shapes public debate, forces national institutions to rethink governing commitments.

What are the protagonists in my stories doing?  For the most part, options # 2, # 3, and # 4 elude their grasp.  Typically, they compose a small group holding marginalized ideas, so it is not realistic to dominate any particular political party, win successive elections, or gain ideological control of key institutions.  Even where, as with the Confederates, they enjoyed a degree of access to formal power at the national level, they have given up on the possibility of making fundamental law within the conventional rules.  Option # 5 is possible for a few of my groups, but in the main they find themselves on the outliers of oppositional movements and trends.  In fact, the act of writing a constitution signals their differences with other dissenters in terms of state-building goals and tactics, not to mention the depths of their despondency that legal change through conventional means is possible.

None of my popular legal theorists believes that anything in the 1787 Constitution or our political tradition requires preapproval to write a new constitution; it merely dictates how rewrites of the existing one must be accomplished.  The right to write is inherent and fundamental.  They also agree that the people have the power to alter the basis and terms of political community.  Where they tend to differ is over tactics and procedures.

For some–let’s call them the classical revolutionaries–they believe themselves to be engaged in process # 1.  They confidently point to ample evidence of political breakdown, and argue that they are justified in authoring a new governing document and coming up with completely new protocols for deliberation and ratification.  This best captures the slaveholding statesmen who formed the Confederate States of America, though their theory of consent is vigorously disputed by Lincoln and other defenders of the 1787 Constitution.

At first blush, the classical situation also seemingly captures John Brown’s proposal for a new republican form of government and the Republic of New Afrika’s constitution created by the followers of Malcolm X after his assassination.  In both cases, people’s conventions determined that the original Constitution did not bind them, either because it was irreparably broken due to slavery and racial subjugation, or because the Framers never gained the rightful consent of the governed (i.e., slaves and former slaves).

Here’s where it gets complicated.  Most people don’t agree the country faces a true revolutionary moment.  Each dissident group gains supporters, but never enough regular folks to threaten the national legal order as a social movement, or enough elites to control any formal levers of power.  Each struggles with the question of violence as a tool for constitutional change, ultimately concluding that under extreme circumstances targeted violence is justified by the political tradition.  Force, they believe, can be constitutionally used to liberate slaves or defend against private and public acts of violence, inequality, and degradation.  Each group has national aspirations: in the case of John Brown, he hopes his constitutional vision will supplant the tottering slave-holding vision propped up by the High Court; for Imari and Gaidi Obadele, the goal is to convince the U.S. to give up the former slaveholding states so a black republic can be established.

As they await better conditions for revolutionary consolidation, created by themselves or others, they decide to start living out their constitutional principles.  In other words, their constitutions are not simply pieces of paper to be discussed one day if enough people are intrigued.  This shift toward social implementation is somewhat seamless for their respective communities because they espouse a strong dose of what I call “ethical sovereignty”–the notion that true legal authority derives from shared moral beliefs.  They begin to sustain law-based communities despite lacking control of territory and not completing the tasks of authorizing and implementing their constitutions.  In fact, while they see themselves as pursuing strategy # 1, I think both groups at some point transition into a different strategy of constitutional change: modeling an alternative community.  The Republic of New Afrika lasts longer than John Brown’s group, mostly because Brown decided to force the action at Harpers Ferry, and his execution decimates that nascent law-based community.  But New Afrikans are also better at it in that they reach more deeply into the recruitable population.

Once we see that dissenters can use imperfectly authorized constitutions to model alternative communities (let’s now call it strategy # 6), we start to notice other things.  Modeling derives from the same basic principles of popular sovereignty and written constitutionalism.  Modeling can stand alone or supplement any of the other strategies for constitutional change.  Innovative use of state and local laws (not simply national laws and institutions) can facilitate the formation of alternative constitution-based communities (more on this in a future post).  Suddenly, we start to notice a lot more groups of people writing constitutions, for all sorts of reasons and to varying degrees of success.

 

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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

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The Civil Rights Act of 1964

I just finished reading Clay Risen’s terrific book on the debate that culminated in the enactment of what he calls “The Bill of the Century.”  Here are some things that I learned:

1.  “Judge” Howard Smith, the segregationist chairman of the House Rules Committee, famously amended the Act to include “sex.”  I’ve always understood that this was a poison pill that failed to derail the bill.  It turns out, though, that Smith was a strong advocate for (white) women’s rights throughout his career.  So he may have been sincere (or at least have had mixed motives).

2.  Much of the debate early on centered on whether the Act should rely on the Commerce Clause or on Section Five of the Fourteenth Amendment.  The Commerce Clause was chosen for a couple of reasons, but one factor that I had not considered was that the Fourteenth Amendment was seen as a “Republican” way of handling the problem whereas the Commerce Clause was seen as the “Democratic” way.  That just shows how far we’ve come in the last fifty years.  Nobody today thinks of the Fourteenth Amendment in partisan terms.

3.  The book argues that LBJ gets too much credit for the passage of the Act, and that many other people (Hubert Humphrey, Mike Mansfield, Nick Katzenbach, Everett Dirksen) did more.  I think this assessment is correct, though I’m much more skeptical of the book’s implication that JFK would have gotten the Act passed had he not been killed.  Partly I suppose that’s because I’m not a JFK fan (for one thing, he gave us Justice Byron White, one of the worst modern Justices on a par with Blackmun and Burger.)

 

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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.