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Category: Constitutional Law

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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.

California Voters asked to weigh in on Citizens United Read More

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Originalism in Noel Canning, Part II (“Happen”)

My last post talked about the original meaning of “recess.” Next is the “happen” question: For President to fill a vacancy during a recess, must the vacancy arise during the recess, or can it pre-date the recess? The question has been framed as whether “happen” in the Recess Appointments Clause means “arise” or “exist.” (As a reminder,the Clause grants the President power to “fill up all Vacancies that may happen during the Recess of the Senate.”) The majority may have the better of the argument here as well.

To the modern ear, “happen” sounds like it only means “arise.” But what about to the eighteenth-century ear? As the majority observes, Thomas Jefferson opined in 1802 that the phrase was susceptible of either meaning. Perhaps more important, since his direct claim might have been politically motivated, Jefferson actually used “happen” to mean “exist” in his own correspondence. Although Alexander Hamilton endorsed the arise view, he called it only the “most familiar and obvious sense” of the language, which is different from saying it is the exclusive meaning. Likewise, Attorney General Wirt opined in 1821 that, although “arise” was the more natural reading, “exist” was possible as well, “without violence to the sense.”

Dictionaries suggest that “exist” was a valid, albeit minority, meaning of “happen.” One ratification-era dictionary gives the definition “to be” (others provide only the arise meaning). The Oxford English Dictionary’s third definition is “to chance to be,” and it provides usage examples from before and shortly after the late eighteenth century. Ratification-era constitutions also give some support to the “exist” reading. Most, if not all, of the constitutions that grant recess appointment powers do not restrict them to vacancies that arise during a recess. If there was a gestalt sense of how recess appointment powers should operate, then, it appears to have reflected the “exist” view.

There’s more, but let’s move on to the concurrence. To support the “arise” view, it cites two early attorneys general, an 1803 scholarly interpretation, and early congressional practice. Not bad. One can quibble with some of this evidence—I’ll pick on one piece in a moment—but for now let’s assume it’s sound. Does it establish that the “arise” view was the sole meaning of the word happen? It seems hard to reach that conclusion unless one is compelled to choose an exclusive meaning for the term. Otherwise, it’s hard to justify dismissing the contrary evidence, which includes the views and usage of Thomas Jefferson, hardly an unlettered member of the founding generation. (The concurrence, in an unfortunate moment of overstatement, says that “no reasonable reader” would have understood the Clause the way Thomas Jefferson apparently did.)

If one must choose a single definition, then of course it’s reasonable to conclude that “arise” was the more natural or majority meaning. Was the Court compelled to choose? I don’t see why it was, and the concurrence doesn’t offer a reason. The Clause’s drafters had to balance the need for expediency against the desire for Senate involvement—the potential need to fill offices urgently, regardless of when vacancies arose, against the possibility of less Senate involvement than one generally might desire. It is not clear that they must have erred one way or the other. Neither choice is unreasonable, much less absurd.

Ultimately, then, I think the majority’s conclusion better reflects what we know of original meaning. The evidence suggests that the word was ambiguous, susceptible to two different readings. One seems clearly to have been a minority meaning, to be sure. But in the absence of a compelling reason to pick an exclusive position, it seems the proper approach as a matter of original meaning is to recognize that the text had two possible meanings, and leave it at that.

Now for the evidentiary quibble. As a general matter, I think the evidence for the “exist” view is weaker than commonly believed, and originalists should consider it more carefully. But here I’ll mention just one point: The concurrence leads with the opinion of Edmund Randolph, the nation’s first attorney general, and it seems to rely on him heavily. In an apparent attempt to bolster Randolph’s value as a source, the concurrence says that Randolph was “a leading member of the Constitutional Convention.” What the concurrence fails to note is that Randolph refused to sign the Constitution in part over objections to the presidential appointment power and recess appointment power. By the Virginia Convention, he had come to support ratification, but he still expressed hope that the appointment power and recess appointment power would be excised from the document, at least with respect to judges.

Is Randolph a reliable source of original meaning? Maybe. Or maybe when he had the opportunity to set precedents as the first attorney general, Randolph pursued his private agenda—including his opposition to recess appointments—irrespective of original meaning. Perhaps even contrary to original meaning.

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FAN 23 (First Amendment News) — Paul Smith & Erin Murphy Debate Campaign Finance Law

Paul Smith & Erin Murphy

Paul Smith & Erin Murphy

It was quite an evening as Paul Smith and Erin Murphy went back-and-forth in a lively exchange discussing the McCutcheon case, campaign financing law, and the First Amendment. Professor David Skover moderated as the two one-time case foes — Erin represented Shaun McCutcheon & Paul filed an amicus brief on the other side — debated the pros and cons of government regulation. In his own casual, confident, and witty way, Paul pushed his views while Erin took it all in stride, always calm, cautious, and pointed. The exchange took place at the Washington, D.C. offices of Levine, Sullivan, Koch & Schulz (there was a live videocast feed to the firm’s New York office). This was the latest First Amendment salon. The discussion ranged from the technical to the philosophical as the two advocates and the discussants teased out various arguments. In the end, Smith and Murphy came together with big smiles and a firm handshake (the pair worked on the same side in the recently decided Aero case.)

Among others, the discussants included: Lee LevineBenjamin GinsbergLaura Handman, James Swanson, Joel Gora, Adam Liptak, David Savage, Jess Bravin, Stephen WermielKatherine Bolger, and Jeff Bowman (former AA to FEC Chairman Scott Thomas).

John Seigenthaler (1927-2014) – the Man Who Loved Light 

“His commitment to the First Amendment was unflagging.” Ken Paulson

“A champion of the First Amendment, giant of journalism,  and a wonderful human being.”              – Judy Woodruff 

We lost John Seigenthaler last week — he was 86. I was privileged to have worked with John while I was at the Newseum’s First Amendment Center, first in Arlington, Va. and then in Washington, D.C. John founded the Center in 1991.

In a recent USA Today column, Ken Paulson (John’s friend and longtime colleague) observed:

John Seigenthaler

John Seigenthaler

“John was . . . the first editorial page editor of the then-new USA TODAY in 1982, developing the most balanced opinion pages in the country. For every USA TODAY editorial there would be a countervailing view. John embraced light instead of heat.”

“He was fueled by his passion for the First Amendment, the sense that every voice has value. He liked to tell the story of a liberal woman who found conservative radio deeply offensive. He told her ‘whenever I want to hush Rush, I turn the knob.’ With a pained expression she responded, ‘Then I get G. Gordon Liddy.’ John would roar with each retelling.”

“In 1991 John retired from his newspaper role to found the First Amendment Center. It was a role he was born to. Long an advocate for the underdog, John was a passionate champion for the five freedoms that few Americans knew much about and inevitably took for granted.”

Gene Policinski, a friend who worked with John since 1981, offered this life assessment of his colleague: “John’s passion for the First Amendment was driven by a belief in equality and in the ‘marketplace of ideas.’ He had a lifelong commitment to the idea that this nation would not just endure but would prosper if its citizens could freely discuss, debate, and decide public issues without the burden of the heavy hand of government.” (see here, too)

→ For more about John and his remarkable life, see:

High Court Agrees to Hear Sign Ordinance Case  Read More

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The Strange Doctrinal Legacy of Lawrence v. Texas

I’m currently working on a project concerning the doctrinal legacy of Lawrence v. Texas and continue to be amazed at the varied ways judges have read Justice Kennedy’s majority opinion. The Supreme Court’s opinions in the case have been cited over 700 times, but only rarely in an expansive manner. Justice Scalia’s parade of horribles, articulated in his dissent, has not been realized (particularly in regard to criminal laws). Laws criminalizing prostitution, public indecency, adultery, adult incest (even without blood relation), fornication, bigamy, bestiality, obscenity, and drug use have all survived Lawrence challenges.

However, in a few unanticipated areas Lawrence has had a notable effect. In one instance, Smithkline Beecham Corp. v. Abbot Laboratories (9th Cir. 2014), Judge Reinhardt on the Ninth Circuit cited Lawrence, along with other Supreme Court opinions regarding sexual orientation, in a Batson challenge case.  Reinhardt concluded that “heightened scrutiny applies to classifications based on sexual orientation and that Batson applies to strikes on that basis.” As a result, the court held that the decision to exclude a juror on the basis of sexual orientation violated Batson and ordered a new trial.

A stranger application, in my opinion, arose from a defamation lawsuit in Massachusetts. The First Circuit did not resolve the issue but described the district court holding in the case as follows:  “… the court held that imputing homosexuality cannot be considered defamatory per se…” Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005); Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004). The district court’s holding was particularly unusual because it did not need to reach the issue at all. The district court held, and the First Circuit agreed, that the plaintiffs had simply failed to state a defamation claim.

What strikes me as remarkable after reviewing all the cases that have cited Lawrence is that the majority opinion has primarily had effects in areas of law far outside of what was anticipated. Indeed, anti-sodomy laws, like the one at issue in Lawrence, are still enforced in several states (primarily in cases involving prostitution crimes and minors). So, does that mean that commentators were just really bad at predicting the effect of the new Lawrence doctrine? Or did Scalia’s dissent serve its function by encouraging courts to read Lawrence narrowly in the areas of law with which he was concerned?

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The Dilemma of Thomas Marshall

120px-Thomas_R._Marshall_in_his_Senate_office_croppedA theme that I’m thinking about exploring in a future work is the unsuccessful resolution of constitutional crises.  We focus on the people who raise their game at these times (the Framers, Abraham Lincoln, etc.), but perhaps we would learn more by studying folks like James Buchanan.  What was he thinking in 1860 when he did not stop secession?

The best example of this genre is Vice President Thomas Marshall, who was Woodrow Wilson’s #2 when Wilson had his stroke in 1919.  I have a soft spot for Marshall, as he was a Hoosier and is buried near where I used to live.  But he has a poor reputation, since he did not take charge when Wilson became disabled and thus allowed the country to drift at what turned out to be a crucial time (establishing a new international order after WWI).

My initial examination suggests that this account is not correct.  Marshall did lay out a path for taking over the presidency in private conversations with congressional leaders and some Cabinet members.  He said he would do so if there was some declaration by Wilson’s wife and doctor that he was disabled, and/or a joint resolution of Congress saying that the presidency was vacant.  (The “and/or” is important but unclear to me so far.)  Neither came (more on that later) and thus he felt he could not act.

In fairness, Marshall was in a tough spot.  First, Wilson’s wife and doctor did their best to conceal the truth about his health.  Second, Wilson didn’t like Marshall, thus he was less inclined to turn over power than he might have been.  Third, Marshall was concerned about setting a precedent whereby the VP and some Cabinet members could simply oust the President on health grounds.  In the absence of any law or clear guidance, his answer was actually a sensible one.  He wanted some clear (if unorthodox) institutional authority from Congress in the absence of a presidential resignation (temporary or not).  It’s worth adding that there is an allegation that opponents of the League of Nations in the Senate blocked a joint resolution because they thought their chances of defeating the Treaty of Versailles were better with a disabled Wilson in office, though I’m not sure if that is true.

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FAN 22 (First Amendment News) — New Documentary on Mr. First Amendment — Nat Hentoff

imagesPerhaps no person alive better embodies the spirit of the First Amend — robust, rebellious, free-flyin’ and straight-talking — than Nat Hentoff. Fuse the life spirit of Lenny Bruce together with that of the early Bob Dylan and add a dollop of Miles Davis’ jazz and Allen Ginsberg’s poetry and you’ll get a sense of Hentoff’s persona. There is also a Tom Paine quality about him — feisty in his defense of freedom, no matter how unpopular it makes him. Some liberals love him, some conservatives admire him, and some libertarians applaud him — but very few come along for the full Hentoff monty. And that’s the way he likes it! If you have an open mind and a tolerant side, you gotta love the guy . . . if only at a First Amendment distance.

If any of this strikes a chord in your free-speech consciousness, then check out the new documentary on Nat — The Pleasures of Being out of Step, directed by David L. Lewis. Here is a description of the documentary:

Pleasures profiles legendary jazz writer and civil libertarian Nat Hentoff, whose career tracks the greatest cultural and political movements of the last 65 years. The film is about an idea as well as a man – the idea of free expression as the defining characteristic of the individual. . . . Pleasures wraps the themes of liberty and identity around a historical narrative that stretches from the Great Depression to the Patriot Act. Brought to life by actor Andre Braugher, the narration doesn’t tell the story – it is the story, consisting entirely of writings by Hentoff and some of his subjects. With a potent mix of interviews, archival footage, photographs and music, the film employs a complex non-linear structure to engage the audience in a life of independent ideas and the creation of an enduring voice.

At the core of the film are three extraordinarily intimate interviews with Hentoff, shot by award-winning cinematographer Tom Hurwitz. The film also includes interviews with Floyd Abrams, Amiri Baraka, Stanley Crouch, Dan Morgenstern, Aryeh Neier, Karen Durbin, Margot Hentoff and John Gennari, among others. It features music by Duke Ellington, Miles Davis, John Coltrane, Bob Dylan and Charles Mingus, and never-before seen photographs of these artists and other cultural figures at the height of their powers.

 Here is the trailer.

→ Here is the bookThe Pleasures of Being Out of Step: Nat Hentoff’s Life in Journalism, Jazz and the First Amendment.

 Screenings have been in New York and are now happening on the West Coast.

Nat Hentoff on Bill Buckley's Firing Line

Nat Hentoff on Bill Buckley’s Firing Line

Hentoff Books

Some of Nat Hentoff’s books on free speech and related topics include the following:

→ As if that were not enough (and I left out all the jazz books), I gather that the 89-year-old Hentoff is working on a new book.

Video clips

See and hear the man himself on this Brian Lamb, C-SPAN (YouTube) interview with Nat (go here).

→ And go here, too, for Richard Heffner’s Open Mind interview with Nat.  (See also here for a Cato Interview)

→ One more — this is precious: The young Nat debating the young Bill Buckley on Firing Line.

Shaun McCutcheon Launches Litigation Group

The petitioner in the landmark McCutcheon v. FEC (2014) case has decided he wants to do more to further the cause of the First Amendment as he understands it. To that end, Shaun McCutcheon has launched a foundation – the Coolidge-Reagan Foundation.

→ Its purpose? “The Foundation is dedicated to defending, protecting, and advancing political speech.” Read More

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President Pro Tempore

As a follow-up to a prior post, I want to point out a constitutional oddity.  Article I states that the House of Representatives “shall choose their Speaker and other Officers” and that the Senate “shall choose their other officers, and also a President pro tempore.”  For much of our history, the Speaker of the House has been a strong political figure.  The President pro tempore of the Senate, by contrast, has never been important in the Senate.  Why did the office remain impotent, I wonder?

The Twenty Fifth Amendment also makes the President pro tempore (along with the Speaker) the officers who must receive communications regarding presidential disability. Now it is easy to see why you wouldn’t want the Vice-President to a responsible person (conflict-of-interest), but why not the Majority Leader?  By the 1960s, which is when the XXV Amendment was ratified, it was perfectly clear that the Majority Leader was the true leader of the Senate.  Worse still, the Majority Leader is still not in the line of presidential succession–the President Pro Tempore is.  It’s a weird setup.

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FAN 21.1 (First Amendment News) — Group Launches Litigation Campaign to Challenge Campus Speech Codes

L to Rt: Paul Gerlich & Erin Furleigh (Iowa St. U.), Robert Corn-Revere (DWT), Greg Lukianoff (FIRE) & Isaac Smith (Ohio U.)

L to Rt: Paul Gerlich & Erin Furleigh (Iowa St. U.), Robert Corn-Revere (DWT), Greg Lukianoff (FIRE) & Isaac Smith (Ohio U.)

July 1, 2014, National Press Club, Washington, D.C. Today, two powerhouses — one a free speech activist, the other a noted First Amendment lawyer — joined forces to challenge campus free speech codes that run afoul of the First Amendment. Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE) and Robert Corn-Revere, a partner at Davis Wright Tremaine (DWT), announced that the group and the law firm would work together in a litigation campaign to change the free speech culture on many campuses across the nation.

“Unconstitutional campus speech codes have been a national scandal for decades. But today, 25 years after the first of the modern generation of speech codes was defeated in court, 58% of public campuses still hold onto shockingly illiberal codes,” said Lukianoff. “For 15 years, FIRE has fought for free speech on campus using public awareness as our main weapon, but more is needed. Today, we announce the launch of the Stand Up for Speech Litigation Project, an expansive new campaign to eliminate speech codes nationwide.”

“We at Davis Wright Tremaine,” said Corn-Revere, “are honored to be asked to participate on the important work of helping to safeguard First Amendment and due process rights of America’s college campuses as part of FIRE’s Stand Up for Speech Litigation Project. It is a privilege to represent the courageous young women and men, and the faculty members, who have opted not to follow the path of least resistance, but instead have chosen to challenge the exercise of arbitrary and illegal authority. These are acts of civic virtue . . . .”

→ The DWT litigation team will include input from two seasoned First Amendment lawyers — Ronnie London and Lisa Zycherman.

Text of T-shirt banned at Ohio University.

Text of T-shirt banned at Ohio University.

The litigation campaign was launched to challenge speech codes at public institutions on behalf of students, student groups, and faculty members. Four lawsuits were filed today in federal district courts:

  1. Ohio University — Smith v. McDavis et al 
  2. Iowa State University — Gerlich & Fuleigh v. Leath et al
  3. Chicago State University – Berry & Bionaz v. Chicago State University Board of Trustees
  4. Citrus College — Sinapi-Riddle v. Citrus Community College et al

Three of the student plaintiffs in the lawsuits — Paul Gerlich and Erin Furleigh (Iowa State Univ.) and Isaach Smith (Ohio Univ.) — took part in the press conference. Mr. Smith and his group, Students Defending Students, were told by Ohio University officials that they could not wear certain T-shirts (see photo above) because such actions would violate a school policy that prohibits any “act that degrades, demeans, or disgraces” another student, in this case women. “I’m tired of having my university work so hard to stop people from speaking,” said Mr. Smith.

Ronald London (DWT)

Ronald London (DWT)

Over at Iowa State University the fight centered around another objectionable T-shrt, this time one that purportedly violated a school owned trademark (see here).  “I feel bad and I don’t think I should feel bad about it,” Ms. Furleigh complained about censorship against her and her group, the NORML chapter at ISU. “Our university administration has prevented us from even putting the word marijuana on our designs,” Furleigh added.

Lisa Zycherman, DWT lawyer

Lisa Zycherman (DWT)

The challenges concern:

  1. restrictions on the design of T-shirts for campus organizations at Ohio University and Iowa University,
  2. engaging in expressive political activities outside a “free speech zone” while seeking signatures for an anti-NSA petition at Citrus College, and
  3. retaliation against professors for statements on a blog, purportedly in violation of Chicago State University’s broad cyberbullying policy.

→ Starting with Doe v. University of Michigan in 1989, there has been a virtually unbroken string of victories in court challenges to various college campus speech codes.

Meanwhile, Mr. Corn-Revere and his DWT team await a decision in another campus speech case he argued in the 11th Circuit on June 13th of this year — Barnes v. Zaccari. 

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FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record

What a term it has been for the Roberts Court and free speech – Election campaign laws, union dues, government employee speech, abortion clinic buffer zones, and a presidential protest case. Also set out below are some related First Amendment events that occurred this Court Term along with a list of new books on free speech. Further down are some facts and figures concerning the Roberts Court’s overall record on free speech.

Disorder in the Court: Recall, too, that back in May there was a disruption inside the Court: “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech,” the protester said, “corporations are not people and that our democracy should not be for sale to the highest bidder.” Before he was arrested, Noah Newkirk of Los Angeles also got in a few more words of protest: “overturn Citizens United” and “the people demand democracy.” Even more incredible, it was captured on video and released on the Web.

35 Cases: This Term the Roberts Court decided five First Amendment free expression cases along with three related free speech cases. The Justices also denied review in a campaign finance case while granting review in “true threats” case. All in all, the Roberts Court has now decided 35 free speech cases on First Amendment grounds.

→ “In Group Bias”: And then there was the empirical study by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Sega entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Amending the 1st?: While much of this was going on, Justice John Paul Stevens released a book urging, among other things, that the First Amendment be amended. In the same vein, a Senate subcommittee first heard and then voted in favor of an amendment to the First Amendment.

→ New Books: Here are some of the new books that were published during this Court Term:

  1. Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
  2. Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
  3. Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
  4. Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
  5. Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
  6. Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
  7. Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court & The Constitution (2014)

→ Law Review: A Harvard Law Review Symposium on free speech was published recently.

→ Flashback: Cass Sunstein on the 50th Anniversary of NYT v. Sullivan

“[A]mid 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. . . . 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.” [Source: here]

→ The Play’s the Thing: Arguendo, a play about Barnes v. Glen Theatre, Inc. was performed earlier this year. 

Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.

Supreme_Court_US_20102013-14 Term: First Amendment Cases

  1. [JR: 5-4]          McCutcheon v. FEC
  2. [RBG: 9-0]      Woods v Moss
  3. [SS: 9-0]         Lane v. Franks (commentary)
  4. [JR: 9-0]         McCullen v. Coakley
  5. [SA: 5-4]         Harris v. Quinn (symposium)

→ Here is the lineup of Justices writing majority opinions this term in First Amendment free expression cases:

  • Chief Justice Roberts             McCutcheon v. FEC   (vote: 5-4) &
  •                                                McCullen v. Coakley   (vote: 9-0)
  • Justice Ginsburg                    Wood v. Moss              (vote: 9-0)
  • Justice Sotomayor                 Lane v. Franks            (vote: 9-0)
  • Justice Alito                           Harris v. Quinn            (vote: 5-4)

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