Category: First Amendment

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FAN 36 (First Amendment News) Forgotten Free Press Advocates — The Women Lawyers in NYT v. Sullivan

These three women were active in ACLU First Amendment work during those early years and had an enormously powerful and lasting impact on the law we enjoy today. — Joel Gora (longtime ACLU lawyer)

The news follows, but before it does I want to say a few words about three remarkable women and their roles in New York Times Co. v. Sullivan (1964). They are:

  1. Harriet Pilpel (1911-1991)
  2. Nanette Dembitz (1913-1989)
  3. Nancy F. Wechsler (1916-2009)
Harriet Fleischl Pilpel

Harriet Fleischl Pilpel

Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in the Sullivan case. Beyond the single sentence they receive in the Supreme Court Reports and in Anthony Lewis’ Make No Law: The Sullivan Case and the First Amendment (1991), the women are virtually unknown players in the First Amendment world. As their respective stories reveal, there is more, much more, to be said about the people in the landmark case and how it came to be so. (BTW: Doris Wechsler — the wife of Herbert Wechsler, the attorney for the Times — helped write the merits brief in Sullivan and is listed on it. She sat in the lawyers’ section when Sullivan was argued in the Supreme Court.)

Recently, I had occasion to say a few words about some of those people in connection with a conference hosted by the University of Oregon School of Journalism and Communications and the Law School, a conference to commemorate the 50th anniversary of Sullivan. That is how I came upon the ACLU brief filed in Sullivan.

The lead attorneys for the ACLU and the New York Civil Liberties Union were Edward S. Greenbaum (of the famed Greenbaum, Wolff & Ernst firm) and Harriet Pilpel. Melvin L. Wulf, Nanette Dembitz, and Nancy Wechsler were of counsel.

Here is how things began: Mel Wulf, the ACLU attorney, contacted Greenbaum and asked if his firm would file a brief on behalf of ACLU. Greenbaum agreed and, as Wulf recalls, Nancy Wechsler wrote the first draft along with help from Harriet Pilpel. Nanette Dembitz added her own comments, whereafter Wulf did the final read and edit. Greenbaum, the lead attorney, had little or no meaningful input on the brief. The ACLU brief was 37 pages long (plus appendix) and made three basic arguments:

  1. Alabama’s exercise of its long-arm jurisdiction over the Petitioners violated the First Amendment and the due process clause of the Fourteenth Amendment
  2. Alabama’s defamation law as applied to criticism of public officials on matters of public concern violated the First Amendment as applied to the states by way of the Fourteenth Amendment
  3. The trial judge denied the Petitioners due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment

Those arguments were teased in a variety of ways — e.g., Alabama’s use of its defamation laws was analogous to the Alien and Sedition acts; there was no reasonable basis for presuming malice or damages; and the trial was so rife with racial prejudice against the Petitioners as to deny them equal protection. More could be said about the brief, but for now let me leave it there so as to return to my sketch of the three women who contributed to the ACLU brief.

 Harriet Pilpel was an accomplished public-interest advocate with sterling credentials: A graduate of Vassar College and Columbia Law School (1936, second in her class), she went to wotk for the firm of Greenbaum, Wolf & Ernst. Later, she served as general counsel for both the ACLU (1979-1986) and Planned Parenthood. In 1982 she joined the law firm of Weil, Gotshal & Manges. During her career, she participated in 27 cases that came before the Supreme Court. She argued on behalf of Planned Parenthood in Poe v. Ulman (1961). She wrote yet other briefs for Planned Parenthood in cases such as Griswod v. Connecticut (1964, with Nancy Wechsler), Roe v. Wade (1973, with Nancy Wechsler), and Carey v. Population Services International (1977). Pilpel was also on the briefs for the Appellees in Harris v. McRae (1980).

In the free speech context, Pilpel was co-counsel with Edward Greenbaum in Farmers Union v. WDAY (1959), a statutory interpretation defamation case.

Harriet was very helpful in supporting my initial run for the ACLU National Board of Directors (a very competitive process), and she also debated Catharine MacKinnon about pornography at an ACLU Biennial Conference.Nadine Strossen

Read More

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FAN 35.2 (First Amendment News) — Former NSA Director counsels against going after James Risen

Hey, I knew we were playing up against the line.

. . . I don’t understand the necessity to pursue Jim.

– General Michael Hayden

On Sunday October 12th, James Risen of the New York Times appeared on 60 Minutes. He was interviewed by Lesley Stahl. Below are some selected excerpts from that installment of the CBS news program.

Stahl:  Will you divulge your source?

James Risen on 60 Minutes with Lesley Stahl

James Risen on 60 Minutes with Lesley Stahl

Risen:  No, never; I’m not going to talk.

Stahl: Sometimes you get yourself in trouble.

Risen: [Chuckles] Yea, the government has been after me for a while now. . . .

Stahl: What was your first reaction when you realized that the New York Times was onto the NSA story?

General Michael Hayden: First reaction was this is not good news. . . . [The NSA surveillance practices] were warrantless but not unwarranted. It would have been irresponsible for NSA not to have done this in the immediate aftermath of the attacks of 9-11. . . . Hey, I knew we were playing up against the line. . . . Jim is going to go to jail, why? Because Jim wants to protect his sources. . . .

Stahl: What kept you from walking out [when your editors initially held back your story]? Read More

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FAN 35.1 (First Amendment News) — Creative Freedom & the First Amendment

On Wednesday, October 22, Freedom House and the Motion Picture Association of America, in support of Free Speech Week, will host a discussion on Creative Freedom and the First Amendment. The event will be held in Washington, D.C.

image001Panelists

Using current on-screen examples, the discussion will focus on how movies and television shows in the United States are powerful instruments that inform and enlighten us, advancing debates on crucial social and cultural issues. The creative freedom the First Amendment protects is fundamental to the ability of storytellers to tell these stories through television and film in America.

 Free Speech Week is an annual, non-partisan national event celebrating the value of freedom of speech.

→ For more information about the Creative Freedom event, contact Ivory Zorich at ivory_zorich@mpaa.org

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FAN 35 (First Amendment News) Clear & Present Danger in the states — Holmes’s Legacy

Suppose that a code were made and expressed in language sanctioned by the assent of the courts.  – Oliver Wendell Holmes (1870)

Judge Oliver Wendell Holmes, Jr.

Judge Oliver Wendell Holmes

46 States & 209 statutes 

Incredibly, commentators have long overlooked one of Holmes’s greatest contributions to American law, namely his contribution to state statutory law. Today, 46 states have codified, in one form or another, Holmes’s clear-and-present-danger formula for either civil or criminal liability. This codification, found in 209 state statutes, is not limited to criminal advocacy cases. State lawmakers have tapped Holmes’s famous formula for any variety of purposes, including but not limited to the following categories of regulation:

  • Parental rights
  • Food and drug safety
  • Witness protection
  • Bullying in schools
  • Gun safety
  • Therapist and counselor privilege
  • Building safety
  • Environmental reports
  • Banking law
  • Involuntary commitment
  • State-municipal loans
  • Treatment of the elderly

Because this body of statutory does not concern free speech cases involving criminal advocacy, Schenck and its progeny leading to and beyond Brandenburg v. Ohio need not govern the interpretative meaning of the clear-and-present-danger formula. In other words, state courts are largely free, consistent with other legal constraints, to give such statutes whatever interpretative gloss they wish.

Re Freedom of Expression

Of the 209 state laws that currently employ the clear-and-present-danger language, 40 have done so in matters relating to freedom of expression and/or assembly. Examples of such laws include the following:

  • Regulation of the content of student newspapers
  • Regulation of speech advocating the overthrow of the government
  • Regulation of speech related to the incitement of riots
  • Criminal contempt with respect to publication of court proceedings
  • Regulation of criminal syndicalism
  • Regulation of reading materials of the mentally ill
  • Regulation of free assembly
  • Regulation of expression in public places where alcohol is served
  • Regulation of prison inmate correspondence

422 State Court Opinions Read More

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34.4 (First Amendment News) Freedom of Expression Scholars Conference — Call for Papers

abrams-logoThe Abrams Institute for Freedom of Expression and the Information Society Project at Yale Law School invite applications for the third annual Freedom of Expression Scholars Conference.  The conference will be held on May 2-3, 2015, at Yale Law School.

 The conference brings scholars together to discuss their works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy.  The past two conferences were great successes, with many interesting conversations, dozens of papers presented, and upwards of 50 scholars attending. Diversity of views welcome.

The conference offers participants an opportunity to receive substantive feedback through group discussion. Unlike a traditional conference, authors do not give formal presentations of their work.   Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants.  This format permits substantive and lively discussion of ideas and writings that may be inchoate or not yet fully developed.

Because of the format of the conference, participants will be expected to read and be prepared to discuss at least one paper per session, and to attend the entire conference.  In the past, there have typically been eight sessions, running from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening for those already arrived in New Haven.

 Participation in the conference is by invitation only, but we welcome paper submissions–and applications to participate as a discussant–from a wide range of scholars.  Please feel free to share this call for submissions with any colleagues that may be interested.

Titles and abstracts of papers should be submitted electronically to jonathan.manes@yale.edu no later than February 20, 2015.

→ Those interested in participating as discussants or participants without submitting a paper should also contact jonathan.manes@yale.edu by February 20, 2015.

 Workshop versions of accepted papers will be due on April 3, 2014 so that they can be circulated to discussants and conference participants in advance.

The conference announcement is online here.  Information about prior conferences, including attendees and the titles of workshopped papers, is available here and here.  As before, we are expecting that scholars will ask their home institutions to cover travel expenses.

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FAN 34.2 (First Amendment News) — Court agrees to hear judicial campaign solicitation case

The case is Williams-Yulee v. The Florida Bar. This morning the Court agreed to review the case.

Lanell Williams-Yulee

Lanell Williams-Yulee

The issue is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge. (See here re video and transcript of oral arguments in Florida Supreme Court.)

petition for certiorari was filed by Andrew PincusCharles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

Facts – Here is how Judge Chris Helinger, a referee for the Florida State Bar described the key facts in the case: “The Florida Bar alleges that on or about September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter wherein the Respondent personally solicited campaign contributions. The Respondent admits that she reviewed and approved the September 4, 2009 letter. The Respondent further testified that prior to approving the letter she reviewed Canon 7C(1) of the Code of Judicial Conduct regarding solicitation of funds. However, the Respondent testified that she interpreted the Canon to only apply if there was another candidate in the race. At the time the solicitation letter was sent no other candidate had been announced. Canon 7C(1) states that the prohibition of personal solicitation of campaign funds apply to any candidate for ‘judicial office that is filled by public election between competing candidates.’” In that regard, the Florida Supreme Court noted: “[T]he referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation [which she claims was the result of a good faith mistake based on a misunderstanding of the Canon] was published in a newspaper article on November 3, 2009.”  (Source: here)

Offending Mass-Mail Solicitation Letter

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

Elect Lanell Williams-Yulee For County Court Judge Group 10 and Campaign Fundraiser

Dear Friend:

I have served as a public servant for this community as Public Defender as well as a Prosecutor for the past 18 years. Having been involved in various civic activities such as “The Great American Teach In,” Inns Of Court, Pro Bono Attorney, Metropolitan Ministries outreach program, as well as a mentor for various young men and women residing within Hillsborough County, I have long worked for positive change in Tampa. With the support of my family, I now feel that the time has come for me to seek elected office. I want to bring fresh ideas and positive solutions to the Judicial bench. I am certain that I can uphold the Laws, Statutes, Ordinances as prescribed by the Constitution of the State of Florida as well as the Constitution of the United States Of America.

I am confident that I can serve as a positive attribute to the Thirteenth Judicial Circuit by running for County Court Judge, Group 10. To succeed in this effort, I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support In meeting the primary election fund raiser goals. Thank you in advance for your support.

Sincerely,
/s/
Lanell Williams-Yulee, Esq.

(Source: here)

 →See YouTube video of TV political ad here.

State Judicial Elections

As Professor Richard Briffault has observed: “The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states.” Consistent with the American Bar Association’s Model Code of Judicial Conduct, states such as Florida have enacted laws or rules barring judicial candidates from personally soliciting campaign contributions.

Andrew Pincus, counsel for Petitioner

Andrew Pincus, counsel for Petitioner

Conflicts in Lower Courts 

↓ On the one hand, the Third and Seventh Circuits along with the high courts of Arkansas,Oregon, and now Florida have ruled that such solicitation bars do not run afoul of the First Amendment.

↑ On the other hand, the SixthEighthNinth, and Eleventh Circuits have ruled otherwise. (Note the irony: Florida is in the Eleventh Circuit.)

Differing Rules for Sitting Judges vs Judicial Candidates? In light of the above, counsel for the Petitioner notes: “It is not in fact certain that that the Seventh Circuit or the supreme courts of Arkansas and Oregon would align with the Florida Supreme Court in this case. Unlike here [those cases] involved solicitations by sitting judges. In the Ninth Circuit’s view, the constitutional balance may differ in cases involving incumbent candidates as compared with ‘non-judge candidates.’ [citations omitted] But we are skeptical of any constitutional distinction between incumbents and non-incumbents, which would subject competitors in a single election to different First Amendment rules.”

First Amendment Arguments Read More

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FAN 34.1 (First Amendment News) — 1-A Salons and Floyd Abrams Institute join to host dialogues on free expression

PRESS RELEASE

abrams-logoThe First Amendment Salon is pleased to announce that it has formed an association with the Floyd Abrams Institute for Free Expression at Yale Law School.

The Abrams Institute is administered by the Yale Information Society Project, directed by Yale Law Professor Jack Balkin. The Institute is both practical and scholarly. It includes a clinic for Yale Law students to engage in litigation, draft model legislation, and give advice to lawmakers and policy makers on issues of media freedom and informational access. It promotes scholarship and law reform on emerging questions concerning both traditional and new media. And it holds scholarly conferences and events at Yale on various First Amendment issues.

“I’m delighted,” Floyd Abrams commented, “that the Abrams Institute and the First Amendment Salon will be working together to explore areas in which there is continuing conflict as to the degree and nature of First Amendment protection. The First Amendment Salon has already played a major role in doing so and I’m hopeful that together we can  increase still more the impact of debates about the First Amendment in today’s American society.”

The co-chairs of the Salon are Ronald Collins (University of Washington Law School), Lee Levine (Levine Sullivan Koch & Schulz) and David Skover (Seattle University Law School). The members of its advisory board are:

Unknown“The idea behind the salon,” Levine explained, “is to engage members of the First Amendment community – lawyers, academics, journalists, and activists – in an ongoing discussion about some of the key free speech issues of our times. We thus welcome this unique association with such a distinguished Institute committed to the same mission.”

The Salon hosts a regular series of no-charge, 90-minute discussions concerning contemporary Supreme Court cases, books, articles, legal briefs, memoranda or timely topics. The by-invitation discussions take place at the offices of Levine Sullivan Koch & Schulz in Washington, D.C., and New York as well as at the Abrams Institute in New Haven. The salons are privately video cast to the respective venues so as to allow for an exchange of views by people in different locales.

“Part of our mission is to bridge the gap between First Amendment legal scholars and practitioners. This association represents an important step in that direction,” Ron Collins said.

Previous featured participants in First Amendment Salons have included: Floyd Abrams, Erin Murphy (Bancroft), Steven R. Shapiro (ACLU), David Skover, Paul M. Smith, and Nadine Strossen.

The next salon is set for November 5th in N.Y.C. with a videocast to the Abrams Institute in New Haven. It will feature an exchange between Steven Shiffrin (Cornell Law School) and Robert Corn-Revere on the topic: “What’s Wrong with the First Amendment?” The dialogue will be moderated by Ashley Messenger (NPR associate counsel).

“The marketplace of ideas finds a welcome home in these salons,” said David Skover. “As a graduate of Yale Law School (1978), I am excited that my Alma Mater is engaged in the future of the First Amendment Salon,” he added.

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FAN 34 (First Amendment News) Hybrid PACS — yet another case goes to High Court

I am posting this column a few days early since I will be traveling this week, but next week I’ll return to the scheduled Wednesday postings.

* * * *

Contributions earmarked solely for use in independent expenditures by “hybrid” political committees that engage in both independent expenditures and direct contributions to candidates appears destined to be a coming campaign-finance law battleground. — Judge Edith Brown Clement (2014)

Dan Backer

Dan Backer

The cases seem endless — that is, all those campaign cases that are finding their way to courts. One gets dizzy just drying to keep up with all of them as they are listed weekly on Professor Rick Hasen’s Election Law blog.

Recall, last week I posted a story about a campaign finance case that James Bopp, Jr. filed with the Supreme Court on Friday. Before the digital ink on that case could dry, voila, a new campaign finance case found its way to the Court only moments ago.

The case: Stop This Insanity Inc Employee Leadership Fund et al v FEC.  

The two issues in the case are: (1) Whether a political committee that makes highly restricted direct contributions has a First Amendment right to engage in unrestricted non-contribution activities through a separate and segregated non-contribution account, and (2) Whether the First Amendment forbids a government from restricting political speech based on the disclosure interest—an interest in providing the electorate with information about the sources of election-related spending—including when a more narrowly tailored remedy is available.

→ The man principally behind the case is a mild-mannered and quiet sort of guy, Dan Backer. He is no big time K street lawyer. No, his professional credentials are much more modest. He is the founder and principal attorney for DB Capitol Strategies, a campaign finance and political law firm in Alexandria Virginia. More importantly (and as David Skover and I noted in our book When Money Speaks), he was one of the driving forces behind the successful litigation of McCutcheon v. FEC (2014). When his team lost that case in the D.C. Circuit (in an opinion by Judge Janice Rogers Brown), it did not stop him — he took the case to the Supreme Court where Erin Murphy successfully argued the case for the Petitioner.

And now, Backer and a new team are at it again, in yet another campaign finance case — and again challenging a ruling by Judge Brown and her colleagues on the D.C. Circuit.

Lower Court ruling — “‘You can’t always get what you want'” 

→ Court of Appeals decision (D.C. Cir., Aug, 5, 2014), per Judge Janice Rogers Brown (joined by Judges Thomas Griffith and David Sentelle). Here is how Judge Brown began her opinion:

“The iconic musician Mick Jagger famously mused, ‘You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.’ The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). Here, Stop This Insanity Inc. (STII)—a grassroots organization—wants to remove the congressionally-imposed binds on solicitation by separate segregated funds, a type of political action committee connected to a parent corporation. What it needs, however, it already has—an unrestrained vehicle, in the form of that parent corporation, which can engage in unlimited political spending. Because this less-obsolete and less-onerous alternative exists, we decline Stop This Insanity’s invitation for us to tinker with what has become a statutory artifact.”

And here is how she ended it, albeit with musical flare:

“STII is already capable of sweeping solicitation. And yet, it wants a vehicle capable of soliciting without transparency. The Court has endorsed disclosure as “a particularly effective means of arming the voting public with information,” McCutcheon, 134 S. Ct. at 1460, and the Appellants’ approach would stifle the Government’s ability to achieve that endeavor. Our Constitution does not compel such a result.IIIWe may never know why the Appellants wish to do things the hard way. The Constitution, however, does not guarantee a right to be obstinate. Try as it might, STII will get no satisfaction.”

Tillman Breckenridge

Tillman Breckenridge

The players

 Counsel of record on Cert. PetitionTillman J. Breckenridge.

 Other Counsel in the Case: The petition was filed by Tillman Breckenridge and Tara Brennan of the Reed Smith law firm, working in conjunction with the William & Mary Law School Appellate and Supreme Court Clinic, and Dan Backer.

→ Counsel for the FEC in Court of Appeals: Erin Chlopak, Acting Assistant General Counsel, Federal Election Commission.

The initial advisory opinion request to the FEC and court filing were done by Steven Hoersting and Dan Backer.

Circuit Split

In his cert. petition, Mr. Breckenridge maintains that “the D.C. and Second Circuits directly conflict with the Fifth and Tenth Circuits on whether hybrid PACs can be prohibited.” The cases to which he refers are:

  1. Stop This Insanity Inc Employee Leadership Fund et al v FEC (D.C. Cir., 2014)
  2. Vermont Right to Life Comm., Inc. v. Sorrell (2nd Cir., 2014)
  3. Catholic Leadership Coal. of Tex. v. Reisman (5th Cir., 2014)
  4. Republican Party of N.M. v. King (10th Cir., 2013)

 → Will such differences in the Circuits be enough to prompt four of the Justices to review the enmeshment issue and/or the discourse one? Here is Professor Rick Hasen’s prediction: “I give this a reasonable chance of a cert. grant, given the circuit split (though not on the disclosure issues, but on the coordination/enmeshment issue.”

On a related matter: Federal judge rules donor disclosure required for political documentary

This from the JURIST website (Sept. 23, 2014):

The US District Court for the District of Colorado denied on Monday a request by Citizens United for a preliminary injunction to allow the conservative organization to air a political documentary without disclosing the film’s advertising donors as required by state law. The documentary, Rocky Mountain Heist, which the group hopes to air before November’s elections, “concerns various Colorado advocacy groups and their impact on Colorado government and public policy.” Citizens United argued, on First Amendment grounds, that its organization should be considered a “press entity,” entitled to the same exemptions as traditional media outlets, which are not required to disclose their donors. Otherwise, the group argued, it would be the victim of “viewpoint-based discrimination.” The court disagreed stating that people should be able to “discern the private interests behind speech when determining how much weight to afford it.” Citizens United intends [press release] to appeal this ruling to the US Court of Appeals for the Tenth Circuit.

Supreme Court: Results of Sept. 29th Conference Read More

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FAN 33.1 (First Amendment News) — Gov. Brown signs Confederate flag ban

Symbols of the Confederate flag are so unwelcome in California that this past Thursday Governor Jerry Brown signed legislation prohibiting state agencies from selling or displaying items bearing the Stars and Bars.

According to an August 21, 2014 news report in the Los Angeles Times:

A bill that would prohibit California from displaying or selling merchandise with the Confederate flag is headed to Gov. Jerry Brown’s desk, after getting final legislative approval in the Assembly on Thursday. The measure by Assemblyman Isadore Hall III (D-Compton) would prohibit the state from displaying or selling merchandise emblazoned with the Confederate flag. The ban would not apply to images of the flag found in books, digitial media or state museums if displayed for educational or historical purposes. Hall introduced the bill, AB 2444, after his mother, on a visit to the Capitol, saw a replica of Confederate money sold in the gift shop. The money contained a picture of the flag.The bill passed the Assembly on a bipartisan 66-1 vote, a symbol, Hall said, of “standing together united to fend off the ugly hatred of racism that’s been portrayed and demonstrated through the emblem of the Confederacy.”

The bill provides:

8195. (a) The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.

(b) For purposes of this section, “sell” means to transfer title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for consideration. “Transfer possession” includes only transactions that would be found by the State Board of Equalization, for purposes of the Sales and Use Tax Law, to be in lieu of a transfer of title, exchange, or barter.

It’s now the law.

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FAN 33 (First Amendment News) What is a PAC? The next big issue?

This is the hottest issue in campaign finance litigation right now. James Bopp, Jr. 

James Bopp

James Bopp

What is the next big campaign finance class of cases, the ones most likely to go the Supreme Court? Ask different people and you will get pretty much the same answers, ranging from “soft money” cases to certain kinds of campaign disclosure cases to campaign speech and judicial elections cases to certain kinds of contributions made by for-profit and non-profit corporations cases, among others.

James Bopp, a noted campaign finance lawyer, has his own views on the matter. Here is the issue that he thinks will get considerably more judicial attention in the near future: “whether an issue advocacy group, that does some political speech, can be deemed to be a Political Action Committee even though it is not under the control of a candidate and it’s major purpose is not the election or nomination of candidates.” Moreover, he stressed that this “is an important issue since deeming a group to be a PAC vitiates the right to political speech that groups won in Citizens United, since no issue advocacy group wants to suffer PAC burdens to do a small amount of political speech.”

Circuit split

Most recently, this issue was examined by a three-judge panel of the Second Circuit in a case familiarly named Vermont Right to Life Committee, et al v. Sorrell (June 28, 2014). The opinion was written by Judge Christopher Droney and joined in by Judges Richard Wesley and Vincent Briccetti. The case for the Petitioners was argued by Randy Elf (with James Bopp, Jr., on the brief).

In a variety of challenges to Vermont’s campaign laws, the Court rejected the Petitioners’ argument that the state’s PAC disclosure requirements violate the First Amendment because Vermont may only impose a disclosure regime on an organization if “the major purpose” of the organization is to advance a candidacy.” Here is Judge Droney’s reply to that argument:

Prior to Citizens United, the Fourth Circuit held that an organization could only be subjected to a political committee regulatory regime if the organization met “the major purpose” test. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288‐89, 295 (4th Cir. 2008) (“NCRL III”). However, since Citizens United and its approval of extensive disclosure regimes, two Circuits have concluded that the major purpose test is not a constitutional requirement. See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 490 (7th Cir. 2012) (“[T]he line‐drawing concerns that led the [Supreme] Court to adopt the major purpose limitation for contribution expenditure limits in Buckley do not control our overbreadth analysis of the disclosure requirements . . . .”).  Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (“We find no reason to believe that this so called ‘major purpose’ test, like the other narrowing constructions adopted in Buckley, is anything more than an artifact of the Court’s construction of a federal statute.”); see also Human Life of Wash., Inc.  v. Brumsickle, 624 F.3d 990, at 1009‐11 (9th Cir., 2010) (concluding that Buckley did not lay down a bright‐line test requiring that the major purpose of an organization must be to support or oppose a candidate, and that a state law regulating organizations with a major purpose of engaging in such actions was constitutional).

We join the Circuits that have considered PAC definitions in this context after Citizens United and hold that the Constitution does not require disclosure regulatory statutes to be limited to groups having “the major purpose” of nominating or electing a candidate.

 Counsel for Respondent: Eve R. Jacobs‐Carnahan (Megan J. Shafritz, on the brief), Assistant Attorneys General for the State of Vermont.

Amicus briefs in support of the Respondent were filed by J. Gerald Hebert, the Campaign Legal Center and Democracy 21.

 Additionally, George Jepsen, Attorney General for the State of Connecticut and Maura Murphy Osborne, Assistant Attorney General for the State of Connecticut, filed an amicus brief for the States of Connecticut, New York, Hawaii, Iowa, Kentucky, Minnesota, Montana, New1 Mexico, and Washington, all joined in support of the Respondent.

The next move: “Several cases raising this issue,” says Bopp, “will be filed with the Supreme Court, including one this Friday contesting the decision of the Second Circuit in Vermont Right to Life v Sorrell.”

→ See also below re C-SPAN link on Heritage event (Sept., 18) on campaign finance law and the First Amendment (with Floyd Abrams, Ronald Collins, Adam Liptak, Erin Murphy, and James Swanson).

New Litigation

Challenge to bans on controversial subway ads  Read More