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Category: Constitutional Law

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Contested Ideas About Consent

One of the challenging things about studying popular constitutionalism is that theories of power, community, and tactics can be all jumbled together.

For instance, from what I can gather, Cliven Bundy appears to be a rancher who holds a strong, individualist view of property rights and espouses a theory of government in which the local somehow trumps the national (and likely the state as well).  Tactically, he favors the use of private force in defense of constitutional rights and powers (he also believes that he is entitled to the assistance of local and state authorities to resist the federal government).  For now, his statements justifying the use of force seem to be limited to repelling invasions of property (his cattle, money) and personal security (his body, the safety of his family), so they can be plausibly defended on self-defense grounds (in natural law or other ethical terms, not based on statute or a written constitution).  His vague call for a “range war” muddies his claim to principled use of extralegal tactics and opens him up to charges that he is advocating organized violence against the state, so you can bet his next words and actions will be carefully scrutinized (recall that John Brown was tried for insurrection, and black nationalists were often accused of such crimes).

What’s harder to figure out is Bundy’s theory of consent.  Every popular constitutionalist must present a coherent theory of consent to rebut arguments that simple lawlessness is being advocated.  Secessionists favored the “compact theory” of consent, which holds that each state agreed to the formation of the U.S. Constitution and that each state could withdraw its consent.  Abraham Lincoln and defenders of the Union rejected this approach, saying that the people in the several states gave their consent and that only the people as a whole could dissolve the bonds of political community.

John Brown argued that groups of Americans (slaves, freedmen, and abolitionists) joined by their conviction and shared tragedy could disaffiliate from the existing form of government without committing treason.  From there, group-based theories of consent flourished.  Modern black nationalists and white separatists argue that racial or ethnic identity provides the basis for giving or withdrawing consent.  Typically, disgruntled Americans signal their disaffiliation through a public act: meeting in convention and signing a public declaration.

What makes sovereign citizens and their ilk different is that they often argue that each individual has the power to withhold the consent of the governed. For many observers, this is a theory of consent that descends into anarchy.  There is also a more selective, and sometimes mysterious, quality to the extent of their disaffiliation. Often, such figures “declare independence” when pressed, during criminal trials or litigation over taxes or property rights. Others, without any prompting, file documents in traditional government offices announcing their unorthodox legal views, sometimes over and over again.

Bundy has said he “respect[s] the federal government” but also that it “doesn’t have its place in the state of Nevada . . . and Clark County, and that’s where my ranch is. The federal government has no power and no ownership of this land.” Unless someone sees an open and notorious act of disaffiliation from the federal government, at this point it looks like he is engaged in selective (issue by issue?) rejection of jurisdiction, backed by an account of political structure that is clearly subversive but not fully implemented.

The task of ascertaining one’s constitutional theory is further complicated when more mainstream figures start using the language of popular sovereignty.  It can be hard to figure out how much an elected official believes and how much the official is simply catering to attitudes that are perceived to be widely shared by constituents.  See, for example, this candidate for Governor of South Dakota, who favors state nullification of unjust federal laws, admires Bundy, and shares his belief that sheriffs are the highest law enforcement officials in the land.  Lora Hubbel plainly has not disaffiliated from state government, holds radical localist views of government, supports extralegal tactics, and holds the federal government in antipathy (but it’s unclear whether she believes she owes allegiance to the U.S. government).

So, the next time you hear a political aspirant, activist, or lawyer deploy arguments about popular sovereignty, ask that person: (1) what is the basis for making such claims; (2) what tactics are justified; and (3) to what government(s), exactly, does he or she owe allegiance?

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FAN .12 (First Amendment News) — Red Lion Revisited?

E. Joshua Rosenkranz

E. Joshua Rosenkranz

More than a quarter-century ago, Professor Laurence Tribe declared: “The first amendment’s sweeping guarantees have been most compromised in the realm of the most modern medium: electronic broadcasting.” (American Constitutional Law, p. 1004: 1988).

Perhaps mindful of that contention, in his petition for certiorari Joshua Rosenkranz (who heads  Orrick’s Supreme Court and appellate litigation practice) urges the Court to reconsider its unanimous ruling in Red Lion Broadcasting Co. v. FCC (1969), which upheld the Fairness Doctrine over a First Amendment challenge. (Note: Archibald Cox and Erwin Griswold successfully represented the Respondents in the case. The ACLU filed an amicus brief submitted by  Melvin L. Wulf and Eleanor Holmes Norton in which they supported the First Amendment claims.)

The case is Minority Television Project, Inc. v. FCC and Lincoln Broadcasting Co. Here is how Mr. Rosenkranz (a former Justice Brennan law clerk) begins his brief on behalf of a public television broadcaster challenging the federal law in question:

The world has changed dramatically since 1969. In the Vietnam era, top television ratings went to Doris Day, not Duck Dynasty. Back then, the color television was a novelty and high-powered computers, using tape reels and punch cards, filled up an entire room. Today, people carry the same computing power, and color video screens, in their pockets and manipulate inputs with their fingertips. Back then, conventional over-the-air broadcasting was the only way to reach the American family in their living room with audiovisual content on news or public affairs. And technology at the time permitted only a limited number of stations to harness the airwaves effectively. Now, innumerable speakers can reach American families in their living rooms, and just about everywhere else, with almost unlimited audio- visual content on public affairs, news, and everything else imaginable.

That dramatic change is central here. In 1969, in Red Lion Broadcasting Co. v. FCC, this Court invoked the “scarcity” of conventional over-the-air broadcasting opportunities to hold that the First Amendment permits the government to regulate broadcasters more intrusively than all other speakers. But Red Lion’s premise is now profoundly wrong. Conventional over-the-air broad- casters no longer control access to Americans’ eyes and ears. And in any event, there are exponentially more broadcasters now than ever before.

In other words, as times change so, too, should the law. But whatever the fate of Red Lion, he adds, given the Court’s ruling in Citizens United v. FEC (2010), the Justices should apply strict scrutiny review to judge the constitutionality of restrictions on paid political messages that are broadcast. Finally, assuming intermediate scrutiny were to apply, his clients should still prevail since “the only evidence before Congress supposedly linking the ban to the interest that the government seeks to advance consists of guess- work lacking any concrete factual support.” There you have it, from the bold to the modest.

However convincing such arguments may be in the abstract, they failed to convince the Ninth Circuit sitting en banc. The vote was 8-3 with Judge M. Margaret McKeown writing for the majority. The Court sustained the law under intermediate scrutiny analysis and likewise denied the Petitioner’s over-and-underinclusive challenges, along with a facial vagueness challenge and an as applied challenge.

Judge Consuelo Callahan joined the majority’s opinion “only insofar as it
upholds 47 U.S.C. § 339(b)’s prohibition against paid advertisements by for-profit entities.” She dissented, however, from the majority’s “acceptance of § 339(b)’s prohibition of advertisements on issues of public importance or interest and for political candidates.”

Chief Judge Kozinski

Chief Judge Kozinski

Enter Chief Judge Alex Kozinski in dissent. “The United States stands alone in our commitment to freedom of speech,” he starts out. “No other nation,” he adds, “not even freedom-loving countries like Canada, England, Australia, New Zealand and Israel—has protections of free speech and free press like those enshrined in the First Amendment.  These aren’t dead words on paper written two centuries ago; they live. In many ways, the First Amendment is America. We would be a very different nation but for the constant buffeting of our public and private institutions by a maelstrom of words and ideas, ‘uninhibited, robust, and wide-open.’”

From that high rhetorical platform, Judge Kozinski advanced some 11 weighty and related arguments:

  1. “The majority embraces every justification advanced by the government without the least hesitation or skepticism, and without giving proper weight to the true harms caused by the speech restrictions in question.”
  2. The rationale of Red Lion is no longer relevant.”I’m certainly not the first one to note that that rationale—whatever its merits at the time—no longer carries any force.”
  3. “We must . . .  be doubly skeptical: first, because the restriction is content-based and, second, because we have traditionally treated some of the prohibited speech with the greatest solicitude.”
  4. “[C]ommercialization, as that term is commonly understood, deals with commerce; it says nothing at all about advertising for political candidates or on issues of public interest.”
  5. “No one explains why political and issue ads are dangerous, if advertising for non-commercial entities (including product ads) isn’t. If legislators feared influence, why didn’t they worry about stations falling under the sway of non-commercial entities?”
  6. “Even if we look at the evidence developed after the legislation was passed—some of it decades later—there isn’t much to support the ban on political and issue ads.”
  7. “Issue ads can be quite important from a First Amendment perspective. Aside from generating revenue, which public television and radio stations can use to produce more and better programming, issue ads can help educate the public about some of the most significant questions of the day . . .”
  8. “[W]hat’s remarkable about the testimony presented to Congress is that they are nothing but concerns. The legislative record contains no documentation or evidence; there are no studies, no surveys, no academic analyses—nothing even as meaty as the
    rather anemic expert reports introduced by the government in our case. Sure, a lot of people worried that commercial advertising would wreck public broadcasting, but people worry about a lot of things that never come to pass. . . . It . . . seems wholly irrational to make undocumented claims about the likely behavior of public broadcast stations, were they allowed to air advertisements, without first considering the ways in which they differ from commercial entities.”
  9. “[S]tations that receive paid advertising revenue can acquire or produce programs that they could not otherwise afford. Thus, the loss of advertising revenue can’t be dismissed as simply a loss of money; it is, in fact, a loss of speech.”
  10. “[T]he evidence presented by the government in support of these speech restrictions simply doesn’t pass muster under any kind of serious scrutiny—the kind of scrutiny we are required to apply when dealing with restrictions on speech. Even if intermediate scrutiny applies—and I doubt that it does . . . — there is simply not enough there to satisfy a skeptical mind that the
    reasons advanced are rational, let alone substantial.”
  11. “Because ‘[t]he text of the First Amendment makes no distinctions among print, broadcast, and cable media,’ Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 812 (1996) (Thomas, J., concurring in the judgment in part), Red Lion and Pacifica represent a jarring departure from our traditional First Amendment jurisprudence.”

Amicus Brief 

Similar arguments along with others are offered in an amicus brief by Robert Corn-Revere filed on behalf of the Cato Institute. His central argument is that the Court “must abandon its technology-specific approach to the First Amendment, if only because to retain it would be tantamount to perpetuating a dangerous legal fiction. Furthermore, Corn-Revere maintains that “[c]ases upholding such regulations, like Red Lion, do not effect a minor adjustment in the applicable constitutional test. Instead, they represent “a complete conceptual reordering” of First Amendment principles and a “virtual celebration of public regulation” of the press. The difference in perspective is so radical it appears to come from “another world.” Lee C. Bollinger, Images of a Free Press 71-72 (1991). In this Bizarro World version of the First Amendment, up is down, black is white, and banning political speech is acceptable because of the “collective right” of viewers and listeners “to have the medium function consistently with the ends and purposes of the First Amendment.” Red Lion, 395 U.S. at 390. According to this philosophy, the government must destroy First Amendment rights in order to preserve First Amendment values.”

Will the Rosenkranz-Kozinski-Corn-Revere arguments ultimately prevail, or will Red Lion survive yet another 45 years of challenges? Stay tuned. Meanwhile, additional information concerning the history of the case is set out below.

The Law Challenged

47 U.S.C. § 399b, which prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates.

The Cases  

Read More

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FAN 11.5 (First Amendment News) — Oral Arguments in the Susan B. Anthony Case: Is it Ripe?

Today the Court heard oral arguments in Susan B. Anthony List v. Driehaus, the “false speech”/ “campaign lies” case. Judging from the oral arguments in the case (see below), it seems unlikely that the Court will reach the substantive First Amendment claims raised by the Petitioners.

FactsSBA-20_logo

Susan B. Anthony List is a pro-life group. It released a billboard political attack ad critical of then Congressman Steve Driehaus’s vote in favor of the federal health care bill: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Pursuant to Ohio Revised Code 3517.21(B), which prohibits making or distributing “false” statements about candidates for political office, Driehaus filed a complaint with the Ohio Elections Commission. He alleged that the Susan B. Anthony group violated state law by making a false statement about him and his voting record. The Ohio Election Commission found probable cause to believe the ad violated the statute. Driehaus challenged RC 3517.21 as an unconstitutional restriction on its speech.

Issues: The two main issues in the case are:

  1. Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and
  2. Whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

The Attorneys 

Michael Carvin

  • For Petitioners: Michael A. Carvin, Jones Day
  • For RespondentEric E. Murphy, State Solicitor for State of Ohio
  • For United States: Eric J. Feigin, Assistant to the Solicitor General

The Oral Argument (4-22-14) The full transcript is posted here. Selected excerpts are set forth below.

Questions to Mr. Carvin

Justice Ginsburg:  “the other organization [the Coalition Opposed to Additional Spending & Taxes] has never bee charged before the Ohio Election Commission. Is there any reason to believe anybody’s going to lodge  complaint against it?”

Justice Sotomayor: “How is that any different from ­­ how is that any different from the people in Younger, who the Court dismissed as having no standing because they hadn’t been prosecuted despite the same identical claim? They were chilled, they might intend to do something similar, et cetera.”

Justice Ginsburg: “There is a provision for an advisory opinion, and that’s a question that you are arguing strenuously that this statute violates the Constitution. You could have asked the Commission for an advisory opinion saying that the statute can’t be enforced, but you didn’t do that.”

Justice Ginsburg: “Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness.”

Chief Justice Roberts: “Do you want us to just forget about the disclaimer issue and the commission procedure issue or even the as ­applied issue?”

Questions to Mr. Feigin

Justice Kagan: ” I’m not sure I understood . . .  Is it sufficient that somebody has said, I’m going to bring an action against ­­ before the Commission, but there’s been no prior Commission determination as to this speech. And it’s just somebody saying, I’m going to go to the Commission and raise this with them if you start speaking in this way. Would that present a credible threat?”

Justice Ginsburg: “Are you arguing that the other organization, COAST, also has standing? Because you ­­ you seem to require for the credible threat for there to have been a proceeding before the Commission and there’s been nothing with regard to the other organization.”

Questions to Mr. Murphy

Chief Justice Roberts: “Are you prepared to represent to us that if they do the next election that they did in the last one, that yo will not take action against them?”

Justice Scalia: “Well, but the criminal prosecution isn’t all that they’re complaining about. They’re complaining about having ­­ having to be dragged through this same ­­ this same proceeding next time in the midst of an election campaign, and however minimal the finding that is ultimately made may be, they are going to be subject, for sure, to that proceeding in the next election campaign. And I don’t care if all the commission says is, you know, there is some reason to believe that they were lying. Even if it’s that minimal, you are forcing them, and it is pretty sure that it’s going to happen because somebody will complain, the candidate they are criticizing, you are forcing them to go through this procedure in the midst of an election campaign, right?”

Chief Justice Roberts: “. . . I’m not going to let you put your sign up on my billboard, I might be liable. So, I mean, they may have a certain fortitude and proceeding based on all the reasons that you’ve given, but they need third parties to help carry out their message and there is no reason to think those third parties have any commitment to their political message at all and the slightest whiff of, oh, this is going to be legal trouble, they say, forget about it.”

Chief Justice Roberts: “Well, no, but a defamation action, people sue everybody all the time. No one’s going to take that seriously. In fact, it’s probably going to redound to the benefit of SBA and COAST to say the congressman is, you know, bringing a defamation action. It highlights it, but it’s another thing to have the State involved making a determination that there’s probable cause that you lied.”

Justice Scalia: “The mere fact that a private individual can chill somebody’s speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it. That’s not ­­ that’s not the law.”

Justice Kennedy: “Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?”

Justice Breyer: “Why can’t a person say, you know, there are things I want to say politically, and the Constitution says that the State does not have the right to abridge my speech, and I intend to say them. And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm. Right? So why isn’t that end of the matter?”

Justice Breyer: “Why shouldn’t it be the harm? That is, whatever ­­ has any case said when somebody says, you want to speak in a campaign, and we have a law here that if you do we will throw you in jail and you really do want to speak and the law really does prevent you from speaking, why shouldn’t that be the end of it?”

Justice Ginsburg: “Mr. Murphy, you said there was no credible threat of prosecution, but what about the harm that is occurring? Mr. Carvin said it’s a very short time. They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement. And that just that alone is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?”

Justice Kagan: “Why isn’t, as Justice Ginsburg suggested, the relevant harm the probable cause determination itself? There are voters out there and they don’t know that probable cause is such a low bar as you describe it. They think probable cause means you probably lied, and that seems a reasonable thing for them to think and that’s a relevant harm and we should just ­­ you know, we don’t even need the prosecution to serve as the relevant harm. That seems quite enough.”

Justice Kennedy: “There’s a curious inversion here. Usually we’re concerned about citizen suits, too many people can challenge ­­ challenge the law. Here we’re concerned that many, many citizens can bring the challenge against the candidate. So it’s somewhat reversed. In other words, you have tens of thousands of private attorney generals waiting to pounce and get these people before the commission and have to follow discovery orders.”

Justice Sotomayor: “Do you know of the 500 cases that you mentioned earlier, how many actually ended up in full prosecutions?”

Chief Justice Roberts: “You gave us some answers about how many of the 500 resulted in criminal prosecutions. And all I want to know is how many of the 500 proceedings were mooted out by the fact that the election took place.

Justice Breyer: “What would you say as a lawyer ­­ you’re a lawyer for the Commission. You understand it better than I. I’m just making up an example. Do you think they’d prosecute this or not? Somebody walks in front of the House and a political opponent has a big sign that says murderer. No one asked. You said but he voted for legislation that led to the death of many cats. Would they prosecute that or not?”

Justice Alito: “Well, why don’t the statistics that you provided us portray a system that really limits core First Amendment speech without providing much of an opportunity for a judicial review if you’re correct about ­­ about Article III here where ­­ you have a system where thousands of complaints are filed, and yet in the end, there’s very few prosecutions. And you say, well, the filing of the complaint isn’t enough and the probable cause determination isn’t enough. So you have a system that goes on and on, year after year, where arguably there’s a great chilling of ­­ of core First Amendment speech, and yet you’re saying that basically you can’t get into Federal court.”

Justice Alito: “Well, Alvarez wasn’t about false statements in the abstract. It was a criminal prosecution for making particular false statements. And they were as hard factual statements as you will ever find. Did somebody receive the Congressional Medal of Honor or not?”

Justice Sotomayor: “But how are you going to prove ­­ how are you ever going to prove that one false statement cost somebody an election?”

Justice Scalia: “Do you think that the allegedly false statement here was a false statement of fact?”

Justice Scalia: “But I mean, we’re talking about whether this law imposes limitations upon the freedom of speech. And if you say whenever you do it, you are going to have a lawsuit, you’re going to be hauled before this commission. You may have a good case, you may not have a good case, but you have to justify yourself to this commission before you can ­­ before you can make the assertion.”

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The Briefs (Selected Briefs)

For additional briefs, go here and here.

Micheal Morley

Micheal T. Morley

Note: Notice that the case for the State of Ohio is being argued by the State Solicitor (Eric Murphy) but that the Attorney General of Ohio (Michael Dewine) has filed an amicus brief in support of neither partyand is being represented by Bradley A. Smith, a former FEC Commissioner and a campaign finance law expert.

Note also the amicus brief filed on behalf the NRC was authored by Michael T. Morley, who authored the merits brief and the reply brief in McCutcheon v. FEC.

The Opinions Below Read More

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Did Abraham Lincoln Ever Say “Bill of Rights?”

120px-Lincoln_statueFor those of you who are Lincoln scholars, I have a question.  Did Lincoln ever refer to the first ten constitutional amendments as the Bill of Rights?  I know that he did not do so as President, as I’ve checked, but what about before that?  (In the Lincoln/Douglas debates, private letters, his one term in Congress, etc.)  I think we are near the point where all of Lincoln’s known writings are scanned and searchable, but I’m not sure if that is foolproof.

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FAN 11.4 (First Amendment News) — Liptak re Amending the First Amendment & Similar Proposals by Justice Stevens

If you have not yet seen it, take a look at Adam Liptak’s New York Times article titled “Justice Stevens’s Prescription for ‘Giant Step in Wrong Direction.’” It is quite good and in characteristic Liptak fashion elicits an important reply by way of an insightful question.  Here are a few excerpts:Unknown

Traces of Anger

There was a hint of anger in some of his remarks when I went to see him last week in his Supreme Court chambers. He said the Court had made a disastrous wrong turn in its recent string of campaign finance rulings. “The voter is less important than the man who provides money to the candidate,” he said. “It’s really wrong.

“Misleading” Message 

Chief Justice John G. Roberts Jr. started his controlling opinion with a characteristically crisp and stirring opening sentence: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” But that was misleading, Justice Stevens said. “The first sentence here,” he said, “is not really about what the case is about.”

Justice Souter’s (unpublished) Dissent

I asked Justice Stevens whether he, as the senior justice among the four dissenters, would have assigned the 2009 dissent.“I would and I did,” he said. And he more or less confirmed that the assignment went to Justice David H. Souter, as Jeffrey Toobin has reported in The New Yorker. “He was certainly a logical candidate to write the dissent,” Justice Stevens said of Justice Souter . . . . The draft dissent caused the majority to pause, Justice Stevens said, thanks to “the strong expression of the feeling among the dissenters that procedurally the case was not in the proper posture to reach the issue that they ultimately decided. I think it persuaded the majority that it would be better to have a re-argument so that they could not be accused of deciding something that had not been adequately argued,” he said. 

Amending the First Amendment — Prudent? 

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.” Or perhaps not

His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates. Justice Stevens said he would not go that far.“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”

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More On Justice Stevens’ Proposal to Amend the First Amendment

If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.

Last Scheduled FAN Column: click here

Next Scheduled FAN Column: Wednesday, April 23rd.

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The Bill of Rights As a Legal Fiction

I’ve been thinking about the Bill of Rights lately.  Partly because I’m teaching a new seminar on it next Spring, and partly because I’ve written a draft paper on the Bill of Rights that I’ll be workshopping at Wisconsin next week.

In this post I want to raise the following question–What purpose is served by describing the first ten amendments as the Bill of Rights?  In other words, why do people say things like “The Bill of Rights says . . .” or “That violates the Bill of Rights.”  Strictly speaking, these phrases are meaningless.  A particular provision may say something in a given case, but there are virtually no instances in which the Bill of Rights is at issue.  As my paper notes, the only exceptions are cases like Maxwell v. Dow that addressed John Bingham’s view that the whole Bill of Rights applied to the States.  Moreover, people did not usually refer to the first set of amendments as the Bill of Rights until the twentieth century.

One thought is that “Bill of Rights” is used to elevate the less significant parts of the first ten amendments.  Suppose I am arguing that a government has imposed excessive bail on my client.  Talking about this as violating the “Bill of Rights” might sound stronger than saying “the Eighth Amendment” or the “Bail Clause.” Another thought is “Bill of Rights” gets used because it was drafted and ratified by the same generation that produced the Constitution.  What sets those amendments apart, you could say, is that they were part of the extended process that gave birth to the Constitution.

A third thought (that I’m leaning towards) is that the phrase “Bill of Rights” is just a necessary symbol that means “we care about individual rights.”  This notion is deeply embedded in the Anglo-American tradition, starting with the Magna Carta, going through the English Bill of Rights of 1689, and extending through the colonies.  It would be odd to draft a new constitution today (in another country) without having a Bill of Rights, even if the basic rights were protected elsewhere in the text.

More on this tomorrow . . .

 

 

 

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FAN 11.3 (First Amendment News) — The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term

Over at SCOTUSblog, Lyle Denniston writes of  the Roberts Court’s continued “fascination with free speech and the First Amendment.” Indeed it is so. Having now decided 31 First Amendment free expression cases and sustaining such constitutional challenges in 14 of them, the Roberts Court has already carved out its own special (and often controversial) niche in the history of our free speech jurisprudence. DuSupreme_Court_US_2010ring that period, Chief Justice John Roberts has led the way with 11 majority or plurality opinions, followed by Justices Anthony Kennedy and Antonin Scalia with five such opinions each. Only two majority First Amendment free expression opinions have been authored by the Court’s women Justices–Golan v. Holder (2012) by Justice Ruth Bader Ginsburg and Milavetz, Gallop, & Milavetz v. United States (2010) by Justice Sonia Sotomayor. And Justice Elena Kagan’s sole First Amendment free expression opinion is her dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

Tomorrow the Court will hear oral arguments in the Susan B. Anthony List v. Driehaus case. Assuming that the Petitioners can get past the ripeness issue (which is a First Amendment concern), the case could prove to be yet another important one concerning not only false speech, but also speech expressed in the election context.

Meanwhile, we await a ruling in McCullen v. Coakley, another abortion protest bubble zone case that could obliterate or significantly undermine the Court’s 1999 ruling in Hill v. Colorado. Should the Court sustain the First Amendment claim in that case, Justice Kennedy (who dissented in Hill) might well author the majority opinion.

Against that general backdrop, here is a snapshot of the free expression cases (both First Amendment and otherwise) before the Roberts Court this term.

Decided Cases

Cert Granted

Already Argued & Ruling Pending 

Awaiting Argument 

Selected Pending Cases: Petition Stage

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Justices Scalia & Ginsburg on the First Amendment

Screen Shot 2014-04-20 at 8.20.08 AM

In case you missed it, you can go to YouTube and see Marvin Kalb’s interview with Justices Antonin Scalia and Ruth Bader Ginsburg. The C-SPAN interview focused on the two Justices’ views on select First Amendment free speech and press issues. Here are a few highlights:

Justice Scalia: Re: newspapers: “I don’t read the [Washington] Post.”

Re: NYT v. Sullivan“I don’t recall whether it was unanimous; I’m not sure it was. [At this point Mr. Kalb interjected: "It was; it was 9 nothing."] Even so, it was wrong. The issue is not whether it’s a good idea to let . . . anybody [Justice Scalia paused here and began his sentence anew] What New York Times versus Sullivan holds is that if you are a public figure — and it’s been a matter of some doubt what it takes to become a public figure, and certainly any politician is a public figure — if you are a public figure, you cannot sue somebody for libel unless you can prove, effectively, that the person knew it was a lie. So long as he heard from somebody, you know, it makes it very difficult for a pubic figure to win a libel suit. I think George Washington, I think Thomas Jefferson, I think the Framers would have been appalled at the notion that they could be libeled with impunity. And when the Supreme Court came out with that decision, it was revising the Constitution. Now, it may be a very good idea to set up a system that way, and New York State [Alabama] could have revised its libel laws by popular vote to say that if you libel a public figure, it’s okay unless it’s malicious. But New York State [Alabama] didn’t do that. It was nine lawyers who decided that is what the Constitution ought to mean, even though it had never meant that. And that’s essentially the difference between Ruth and me concerning a ‘living constitution.’ She thinks that’s all right and I don’t think it’s all right.” 

Note: As Justice Scalia is aware, the precise issue in Sullivan involved public officials, whereas the public figure issue was addressed subsequently in other cases such as as Curtis Publishing Co. v. Butts (1967). See Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan 65-107 (2014).

Justice GinsburgRe: NYT v. Sullivan: The opinion “is now well accepted. . . .I think the Founding Fathers would have agreed with it in the 1960s.”

Re tweets & Twitter: “A great danger for people who use those devices is you can’t take it back. You know, once you let it out, it’s there for everybody to see for years.”

Re televising Supreme Court arguments: “I think it’s probably inevitable” and “there’s so much pressure for it.” Nonetheless, she was “very much concerned of misportraying” what occurred in court.

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More On Justice Stevens’ Proposal to Amend the First Amendmentjustice-stevens 

If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.

Last Scheduled FAN Column: click here

Next Scheduled FAN Column: Wednesday, April 23rd.

 

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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.

 

 

15

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.