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Category: Constitutional Law

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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)

Read More

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Quorum vs. Unanimous Consent

Here’s an obscure question that I’m wondering about.  The Constitution requires each House of Congress to have a majority for a quorum.  Now picture the following scene:

Senator X stands up in an empty chamber immediately after the Senate is gaveled into session.  She says to the Chair “I request unanimous consent that” something be done.  The Chair responds, “Without objection, so ordered.”  Action taken.

In that circumstance, isn’t the quorum rule being ignored?  Only two senators are there.  Is a quorum presumed unless someone objects and asks for a quorum call?  If so, that’s stretching the Constitution pretty far.  I suppose each chamber gets to decide what counts toward a quorum, as the House famously decided under Speaker “Czar” Reed that present members who refused to answer a quorum call should be counted, but should that extend to absent members?  Put another way, is the quorum rule an affirmative defense that some Senator must raise lest it be waived?

UPDATE:  A sharp-eyed reader points out that Tom Goldstein talked about this on Friday and said that a quorum is presumed.  (Thanks for telling me.)  The next question, then, is why is that constitutional?

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FAN 20.5 (First Amendment News) — Move to Amend First Amendment Continues

imagesAccording to a June 26, 2014 Bloomberg BNA news story by Nancy Ognanovich & Kenneth P. Doyle:

“Senate Majority Leader Harry Reid’s (D-Nev.) priority list for Senate action in July includes plans to schedule votes on a constitutional amendment to protect the authority of Congress to regulate campaign finance, as well as a separate campaign finance disclosure measure—known as the DISCLOSE Act—that failed in previous years, aides said. . . .”

Vote in Subcommittee: “The proposed campaign finance amendment to the Constitution was approved by the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights June 18th on a 5-4, party-line vote. The measure was set to be considered June 26th by the full Judiciary Committee, but was held over.”

Substituted language: “The subcommittee adopted a substitute to Sen. Tom Udall’s (D-N.M.) proposed amendment (S. J. Res. 19) offered by panel Chairman Richard Durbin (D-Ill.). The measure would allow Congress and the states to set ‘reasonable limits on the raising and spending of money by candidates and others,’ and would further permit Congress and the states to prohibit campaign spending by ‘corporations or other artificial entities.’”

See also this op-ed by Josh Blackman: “Democrats are Trying to Rewrite the First Amendment,” American Spectator, June 25, 2014

→ For earlier coverage of this proposed constitutional amendment, see:

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Thoughts on Noel Canning

I was pleased with the Court’s decision last week, though that just means that it came out the way that I would have decided it.  Here are a couple of observations going forward:

1.  All Noel Canning does is clarify the bargaining terms between the parties.  The Senate can now block all recess appointments by holding pro forma sessions.  A motion to hold that sort of session, though, can be filibustered.  Moreover, any Senator can turn a pro forma session into a real one by just showing up and insisting on being recognized by the chair.  Thus, a normal majority in the Senate cannot block recess appointments without cutting deals with the other party and with the President.

2.  The House can prevent the Senate from taking a recess by objecting.  This will only happen, though, if Congress is divided in its party loyalties.  While this is true now, that alignment is pretty rare.  It did not happen at all between 1933-1980, for example, though it did happen from 1981-1986 & 2001-2002 before recurring in 2011.  Still, that’s 12 years out of the last eighty or so.

3.  Somebody should write that Article about the President’s adjournment power in cases where the two Houses cannot agree on a recess.  Since the President has never exercised this authority, originalism reigns supreme!

We’ll see what Hobby Lobby has to offer in the morning.

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FAN 20.4 (First Amendment News) — 9 Comments on McCullen, the Abortion Buffer Zone Case

I thought it might be interesting to share excerpts from some of the commentary on McCullen v. Coakley. Here are 9 views on the case:

#1 — The American Civil Liberties Union

“This is a hard case and the majority opinion reflects the difficulty and importance of balancing two constitutional rights: the right of women to enter and leave abortion clinics free from the harassment, intimidation, and violence they have too often suffered in the past; and the right of peaceful protestors to express their opposition to abortion on the public streets outside abortion clinics.

We agree that a fixed buffer zone imposes serious First Amendment costs, but we also think the Court underestimated the proven difficulty of protecting the constitutional rights of women seeking abortions by enforcing other laws – especially regarding harassment – outside abortion clinics.

Today’s opinion makes it more important than ever that the police enforce the laws that do exist in order to ensure that women and staff can safely enter and leave abortion clinics.” Steven R. Shapiro (press release, June 26, 2014) (ACLU amicus brief here)

#2 – Judge Richard Posner

“Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society,” he wrote in Slate. “Strangers don’t meet on the sidewalk to discuss ‘the issues of the day.’ (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?). The assertion that abortion protesters ‘wish to converse’ with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.”

#3 – Laurence Tribe

“The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice.

In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.

. . . [N]either empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.” (New York Times, June 26, 2014)

#4 – Walter Dellinger

“This case is really about the unwilling listener who is forced to submit to lectures she does not want to hear at a time of stress. (It would be easy enough to a protester standing a mere 12 yards away to hold up a sign saying, “Talk to me about your choice.”) Like many of the court’s decisions, this one draws a line across society on social and economic grounds. The wealthy elite—like Supreme Court justices—rarely if ever have to make their way through crowds that surround them and berate them or even plead with them in softer voices. Those who work at the Supreme Court (or at law firms like mine) most often drive (or are driven) into underground garages at work or at doctors’ offices. It is students, secretaries, school teachers, and other ordinary people who have to get off the bus or the subway and push their way through hostile crowds of those who may get in their faces and do everything they can to impede their entrance into a clinic. The gauntlet of the final entrance is but the final step that follows from the relentless creation of hurdles that are effectively depriving the most vulnerable women of the right that was promised to them in Roe v. Wade.

The creation of a relatively small space free of protesters in front of a clinic hardly shuts off debate. In defense of the notion that the space is relatively small, I post here one of the maps in the brief for Planned Parenthood of Massachusetts and Planned Parenthood Federation of America (a brief on which I was co-counsel.)” (Slate, June 27, 2014)

#5 – Amy Howe

“Although we often think of Justice Anthony Kennedy as the pivotal vote on the Court in high-profile cases, yesterday it was Chief Justice John Roberts who played that role, writing an opinion that had the support of the four more liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan.” (SCOTUSblog, June 27, 2014)

#6 – Kevin Russell

“In today’s decision, the Court holds unconstitutional the Massachusetts law establishing a thirty-five-foot fixed buffer zone around abortion clinics in the state.  But did it, in the process, overrule Hill?  Certainly, the majority opinion by the Chief Justice does not do so expressly (in contrast with Justice Scalia’s dissent, joined by Justices Kennedy and Thomas, which overtly calls for Hill to be overruled).  Indeed, it is notable that outside of a brief mention in describing the background of the case (noting that Massachusetts had originally enacted a narrower buffer-zone provision modeled on the statute upheld in Hill), the majority opinion makes no mention of Hill at all.

The question is whether the reasons the majority gives today would effectively render buffer zones like Colorado’s unconstitutional, despite the result in Hill.  There’s a good argument that they would.

To be sure, there is one big difference between the laws in the two cases: Hill involved an eight-foot floating buffer zone around individuals within a hundred feet of abortion clinics, while this case involved a thirty-five-foot fixed buffer zone.  One might think that the sheer size difference could be determinative – one can still talk (albeit loudly) to someone eight feet away, and offer her literature; the decision today noted that this is much harder from the distance of thirty-five feet.” (SCOTUSblog, June 26, 2014)

#7 – Dahlia Lithwick

“While the decision is not monumentally awful in ways some progressives most feared, and certainly affords the state substantial latitude in its future attempts to protect women seeking abortions from harassment, more than anything it seems to reflect a continued pattern of “free speech for me but not for thee” or, at least, ‘free speech for people who think like me, that pervades recent First Amendment decisions at the court. More importantly, I don’t know where to locate this ruling in the burgeoning doctrine of “the right to be let alone” that Justices Alito and Thomas and Breyer have espoused, nor do I know how to reconcile it with the court’s persistent second-rate treatment of any speech that threatens to harass the justices themselves. . . .

In a gorgeously un-self-aware way, the same Supreme Court that severely limits speech and protest in a buffer zone all around its own building, extolls the unique and wonderful properties of the American boulevard in today’s opinion . . . .

But it is exhausting to keep hearing from the pro-life movement that women seeking abortions are magical pixie princesses, who must be—thank you Justice Kennedy—babied and soothed and gently counseled for the brief moments in which they contemplate abortion. As though these “difficult conversations” are really only for their own benefit. Unlike mourners, or voters, or Supreme Court justices, they simply need to be told what to do. That’s why this case is harder than a simple “yay, speech wins” reaction can capture: Privileging “gentle counseling” for some isn’t quite the same as promoting free speech for all.”  (Slate, June 26, 2014)

#8 – Hadley Arkes

“The outcome in McCullen v. Coakley may not be as bad as Justice Scalia thinks it sounds. For my own part, I think that Justice Scalia is inescapably right in seeing the statute in Massachusetts as part of a scheme to close down, in the public forum, speech that is critical of abortion. But that critique may distract us from seeing what has been accomplished in this case. John Roberts, in his opinion for the majority, has picked up on some of the critical points that Scalia himself made during the oral argument in McCullen v. Coakley — most notably, that it was quite wrong to describe the speech of Eleanor McCullen as a “protest.” For Roberts it was as critical here, as it has been for Scalia, to put the accent on the fact that Eleanor McCullen works by quietly offering information to women entering an abortion clinic.” (National Review, June 26, 2014)

#9 – Geoffrey Stone

“Critics of the decision regard [the plurality's] approach as fundamentally naïve and unrealistic about what actually happens when anti-abortion protesters gather near the entrances to these facilities. These critics maintain that the image of the grandmotherly woman calmly approaching a young woman heading into the clinic in order to have an abortion and asking her if they might chat a bit about whether this is really a good idea is wholly fanciful and blinks the reality of what actually happens at these moments. . . .

In their view, a clean, simple rule, like the one enacted by Massachusetts, is a perfectly reasonable way to deal with the world as it is, rather than the world as Chief Justice Roberts imagines it to be. In the view of the critics, the more ‘narrowly-tailored’ restrictions that Roberts would approve are not really responsive to the complex, highly emotional, and often intimidating and even dangerous situations that actually arise in these settings.

The critics maintain that requiring people to stand 35 feet away from the entrance, while still allowing them to speak from there, is a sound and reasonable compromise between the free speech rights of those who oppose abortion and the rights of those who wish to exercise their constitutional right to reproductive freedom free of intimidation by others.

Although reasonable persons can differ about how best to reconcile these competing interests, I am inclined to agree with the critics of the decision that it unnecessarily and inappropriately set aside a reasonable and sensible compromise that better adjusted the competing interests than the more ‘narrowly-tailored’ alternatives that Chief Justice Roberts held would pass constitutional muster.

. . . . [I]t is worth noting that this case must have been especially difficult for the Court’s four ‘liberals,’ all of whom are strong protectors of both the freedom of speech and the right of a woman to terminate an unwanted pregnancy. For them, Justice Roberts’ moderate, middle-ground probably gave them a resolution that, although perhaps not ideal, they could live with.” (Huffington Post, June 27, 2014)

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FAN 20.3 (First Amendment News) — The Roberts Court & Unanimous First Amendment Judgments

  • Who would have guessed the 9-0 vote in McCullen v. Coakley? Back in January there was this assessment from a veteran Court reporter:

Equally Divided: “Inside the Supreme Court, the questioning was fast and furious, with the justices apparently divided equally, and for the first time in memory, Chief Justice John Roberts asking no questions. The Chief Justice’s silence seemed to indicate that he likely will be the deciding vote in the case.” – Nina Totenberg, Jan. 15, 2014

That Catholic University Law Professor Mark L. Rienzi would have prevailed in his case in defense of the Petitioners seemed likely enough. But unanimous? The vote surely surprised many seasoned Court watchers.

Professor Mark Rienzi

Professor Mark Rienzi

Take note: It was the third time in one Term that the Roberts Court was unanimous in a free speech case, and also the first time that the Court was unanimous in sustaining a First Amendment free expression claim in two cases:

  1. Lane v. Franks (2014) [vote-9-0 on FA issue only, not on qualified immunity]
  2. McCullen v. Coakley (2014)

This is significant because in every other free speech case where there was a unanimous judgment the Court denied the First Amendment claim.  The 9 cases are:

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0]
  5. Locke v. Karass (2009) [vote: 9-0]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0]
  8. Reichle v. Howards (2012) [vote: 8-0]
  9. Wood v.Moss (2014) [vote: 9-0] [FA and qualified immunity]

A Princely Move?  

So what gives in McCullen? Not even a whisper of a separate opinion from any of the liberal Justices, especially the female ones. Could it be that the Chief Justice wanted unanimity enough that he stayed his hand in reversing Hill v. Coloradothis to secure four votes from the liberal bloc? Maybe Nina Totenberg was right; they were divided until, that is, the Chief Justice made his “Machiavellian” move. The result: the law is struck down, which pleases the conservatives, though on narrow grounds, which pleases the liberals. No one is really happy, but the judgment is unanimous . . . in an abortion case! 

Meanwhile, Justice Scalia (joined by Justices Kennedy, and Thomas) would have none of it:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. . . . This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. . . .  Just a few months past, the Court found it unnecessary to “parse the differences between . . . two [available] standards” where a statute challenged on First Amend­ment grounds “fail[s] even under the [less demanding] test.” McCutcheon v. Federal Election Comm’n . . . (plurality opinion) What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not. . . . In concluding that the statute is con­ tent based and therefore subject to strict scrutiny, neces­sarily conclude that Hill should be overruled. 

  One more thing: this is another First Amendment majority/plurality opinion by the Chief Justice (that makes 12). In that regard, he leads all other Justices by a wide margin.

NOTE: My next scheduled FAN column will provide detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this Term.

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