Category: First Amendment

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FAN 30. 3 (First Amendment News) Senate votes to begin debate on proposed amendment to First Amendment

This from Susan Ferrechio  writing in the Washington Examiner:

“The Senate voted Monday to begin debate on an amendment to the U.S. Constitution that would grant Congress and the states the power to imagesregulate campaign finance.The measure cleared a procedural hurdle by a vote of 79-18. It was authored by Democrats, who had anticipated it would be blocked by GOP opposition. But Republicans voted to move ahead with debate, turning what was supposed to be a Democratic messaging bill against the Democrats.”

 This from Ramsey Cox writing for The Hill:

“The Senate on Monday advanced a constitutional amendment meant to reverse two recent Supreme Court decisions on campaign spending.Republicans are likely to vote against the amendment when it comes up for a final vote, but by allowing it to proceed, ensured that it will tie up the Senate for most of the week.More than 20 Republicans joined Democrats in the 79-18 vote advancing the amendment, well over the 60 votes that were needed. The amendment is almost certain to fail, as it would need to win two-thirds support to pass the Senate, and then would still need to move through the House and be ratified by two-thirds of the states.”

“‘We should have debate on this important amendment,’ Sen. Chuck Grassley (R-Iowa) said before voting for cloture. ‘The majority should be made to answer why they want to silence critics.’ Senate Majority Leader Harry Reid (D-Nev.) said he would gladly debate the issue for as long as Republicans require because the amendment is necessary to keep ‘dark money’ out of politics.”

→ This from Burgess Everett writing for Politico:

“Several Senate Republicans joined Democrats on Monday to advance a constitutional amendment that would give Congress and the states greater power to regulate campaign finance. But the bipartisanship ends there. Many of the Republicans only voted for the bill to foul up Democrats’ pre-election messaging schedule, freezing precious Senate floor time for a measure that ultimately has no chance of securing the two-thirds support necessary in both the House and Senate to amend the Constitution. The legislation needed 60 votes to advance and Democrats took a cynical view of the 79-18 tally.”

“Ahead of the vote, [Senator Bernie] Sanders and other pro-reform Democrats like [Senators] Al Franken of Minnesota, Amy Klobuchar of Minnesota and Tom Udall of New Mexico held a rally on the Capitol grounds with amendment supporters and supporting groups like People for the American Way, Common Cause and Public Citizen. The crowd was a solid mix of reporters and demonstrators with signs reading “Democracy is not for sale.”

For commentary, see:

→ Tom Udall & Bernie Sanders, “The Threat to American Democracy,” Politico, Sept. 7, 2014

→ Geoffrey Stone, “The Rift in the ACLU Over Free Speech,” Huffington Post, Sept, 8, 2014 (see also here re ACLU controversy)

 

 

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FAN 30.1 (First Amendment News) Six former ACLU leaders contest group’s 1st Amendment position on campaign finance — ACLU’s Legislative Director responds

→ The history of campaign finance regulation demonstrates the need to erect sturdy safeguards for free speech. — ACLU amicus brief, Citizens United v. FEC, July 29, 2009

→ Any rule that requires the government to determine what political speech is legitimate and how much political speech is appropriate is difficult to reconcile with the First Amendment. Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them. — ACLU 2012 Statement

Below is a September 4, 2014 letter signed by six former leaders of the ACLU and presented to the chairman and members of the Senate Judiciary Committee. While the footnotes have been omitted, the full text with notes can be found here. Finally, note that a September 8, 2014 vote has been scheduled in the Senate concerning a proposal to amend the First Amendment.  

→ Following the statement below is a response from Ms. Laura W. Murphy, Director of the Washington Legislative Office of the ACLU.

ENTER THE DISSENTERS

Dear Chairman Leahy, Ranking Member Grassley, Subcommittee Chairman Durbin, and Subcommittee Ranking Member Cruz:

UnknownThis summer, some have taken to citing a June 2014 letter from the ACLU to bolster opposition to a constitutional amendment that would change the way Congress can regulate election spending.[fn] While, as present and former leaders of the ACLU, we take no position in this letter on whether a constitutional amendment is the most appropriate way to pursue campaign finance reform, we believe that the current leadership of the National ACLU has endorsed a deeply contested and incorrect reading of the First Amendment as a rigid deregulatory straitjacket that threatens the integrity of American democracy. [Bold type above & italicized bracketed text below  = added]

[Here is the ACLU position as stated on its website:  “Unfortunately, legitimate concern over the influence of ‘big money’ in politics has led some to propose a constitutional amendment to reverse the decision. The ACLU will firmly oppose any constitutional amendment that would limit the free speech clause of the First Amendment.”

→ And there is this statement by Laura W. Murphy, director, ACLU Washington Legislative Office (June 2012): “If there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally ‘break’ the Constitution.”]

In 1998, some of us signed the enclosed letter circulated by every then-living retired leader of the ACLU, protesting the ACLU’s erroneous insistence that the First Amendment makes it impossible to regulate massive campaign spending by the richest 1/10 of 1% of the American electorate. [fn] Things have only gotten worse since 1998. The passage of 16 years means that fewer 20th century ACLU leaders are left to sign this letter. More importantly, over the past 16 years, using the ACLU’s erroneous reading of the First Amendment as a fig leaf, five justices have added huge multi-national corporations to the list of unlimited campaign spenders, [fn] and authorized wealthy individuals to contribute virtually unlimited sums to party leaders in a never-ending search for wealth-driven political influence. [fn] Under the ACLU’s erroneous reading of the First Amendment, it is no exaggeration to label today’s version of American democracy as “one dollar-one vote.” We reiterate the substance of the 1998 letter, and add the following additional comments in light of the unfortunate events of the last 16 years.

John Shattuck, one of the signers of letter

John Shattuck, one of the signers of letter

Our campaign finance system, already in dreadful shape in 1998, has only gotten worse. Today, American democracy is almost irretrievably broken because it is dominated by self-interested, wealthy interests. We believe that reform of our campaign finance system is the only way to fulfill Lincoln’s hope that government of the people, by the people, and for the people shall not perish from the earth. The 2012 federal election cycle was the most expensive in our history, with a combined price tag of $6.3 billion. Most of the money came from the top 1% of the economic tree. Indeed, even within the 1%, the top 10% of the 1% exercised overwhelming independent groups, including super PACs, collectively spent $1 billion.[fn] It is the supremely wealthy that provide the bulk of that money. And because of loopholes in the reporting statutes, we don’t even know who many of them are.

Super PACs, in particular, have become a mechanism for the wealthy to exert even greater influence over our elections and our elected officials. Only 1,578 donors, each of whom gave at least $50,000, were responsible for more than $760 million — or 89.3% — of all donations to super PACs in 2012.[fn] Thus, a microscopic percentage of the population is funding a significant percentage of the political spending in this country.

Equally, many likely 2016 presidential candidates have made pilgrimages to wealthy independent spenders hoping to bolster their electoral chances.[fn]  Such opportunities for candidates to, as many outlets put it, “kiss the ring” of a major political donor rightfully cause the public to question whether candidates are tailoring their views to the highest bidder.

We believe that the Supreme Court’s campaign finance decisions from Buckley [fn] to Citizens United to McCutcheon are based on three fallacies. Read More

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FAN 30 (First Amendment News) — New & Forthcoming Books on Free Speech & Related Topics

UnknownAs the summer winds down, the cerebral season beckons us with a variety of books on free speech, with topics ranging from campaign finance to paparazzi and from free speech history to contemporary privacy issues boiling in the free speech caldron. There are also books on global expression, reporters privilege, and censorship and racial ridicule, among others. So prepare your minds, it is, as they say, the time of the season.

You may recall the name Judith Miller, the Pulitzer Prize winning and former New York Times journalist who was jailed for 85 days for contempt of court for refusing to reveal her sources to a grand jury in connection with a leak naming Valerie Plame as a CIA agent. Though Floyd Abrams represented her, the Court of Appeals ruled against her First Amendment and other claims in In re Grand Jury Subpoena, Judith Miller (D.C. Cir. 2005).

Against that backdrop and more comes a book titled The Story: A Reporter’s Memoir (Simon & Schuster). The release date is April 7, 2015. Here is how her publisher describes the book:

She turns her journalistic skills on herself and her controversial reporting which marshaled evidence that led America to invade Iraq. She writes about the mistakes she and others made on the existence in Iraq of weapons of mass destruction. She addresses the motives of some of her sources, including the notorious Iraqi Chalabi and the CIA. She describes going to jail to protect her sources in the Scooter Libby investigation of the outing of CIA agent Valerie Plame and how the Times subsequently abandoned her after twenty-eight years. 

The Story describes the real life of a foreign and investigative reporter. It is an adventure story, told with bluntness and wryness.

∇ ∇ ∇ 

UnknownEarly next year the University of North Carolina Press will release Censoring Racial Ridicule: Irish, Jewish, and African American Struggles over Race and Representation, 1890-1930. The book, replete with a provocative cover, is by M. Alison Kibler, an associate professor of American Studies and Women and Gender Studies at Franklin & Marshall College.

In Censoring Racial Ridicule Professor Kibler explores the “relationship between free expression, democracy, and equality in America,” and all of this mindful of contemporary debates over hate speech.

What is different about this forthcoming book is how it approaches its subject matter and how it portrays the responses of those who have been the victims of racial hatred. Unlike many other books that depict the victims of hate speech as helpless and silent victims, Professor Kibler’s work reveals a far more robust and courageous response, sometimes accompanied by calls for censorship.

This is how the history of opposition to hate speech is summarized in some advance publicity on the book:

A drunken Irish maid slips and falls. A greedy Jewish pawnbroker lures his female employee into prostitution. An African American man leers at a white woman. These and other, similar images appeared widely on stages and screens across America during the early twentieth century. In this provocative study, M. Alison Kibler uncovers, for the first time, powerful and concurrent campaigns by Irish, Jewish and African Americans against racial ridicule in popular culture at the turn of the twentieth century. Censoring Racial Ridicule explores how Irish, Jewish, and African American groups of the era resisted harmful representations in popular culture by lobbying behind the scenes, boycotting particular acts, and staging theater riots. Kibler demonstrates that these groups’ tactics evolved and diverged over time, with some continuing to pursue street protest while others sought redress through new censorship laws.

∇ ∇ ∇ 

0804793085Other books coming out this year include the following: Read More

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FAN 29.1 (First Amendment News) — Florida Bar Joins Petitioner in Urging Court Review of Judicial Elections Case

Barry Richard, counsel for Florida Bar

Barry Richard, counsel for Florida Bar

As difficult as it is to obtain review in the Supreme Court, sometimes a case comes along that makes it hard for the clerks and their bosses to ignore. Williams-Yulee v. The Florida Bar may be just such a case as the stars seem to be aligning in favor of the Petitioner, Lanell Williams-Yulee, having her case ruled upon by the Justices.

In a post a few weeks back, I flagged the Williams-Yulee case in which review was pending in the Court. The issue in the case 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.

As I mentioned, a petition for certiorari had been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

So much for the old news; now, here is the latest development in that case. Last week the Florida Bar filed its response — Barry Richard is the Bar’s counsel of record. Here is what is interesting about the Bar’s response:

The Florida Bar submits that the Florida Supreme Court correctly determined that the challenged Canon 7C(1) of the Florida Code of Judicial Conduct complies with the First Amendment. However, The Florida Bar believes that this Court should issue its writ of certiorari to resolve the significant conflicts existing between state high courts and federal circuit courts and among federal circuit courts on this fundamental issue of constitutional rights.

Additionally, the Respondent urges that the Court review the case for three reasons:

  1. “The issues at the heart of the conflicts are not such that they can accommodate different interpretations and applications in different jurisdictions and judicial forums without insulting fundamental principles,”
  2. “Judicial conflicts over the issues raised by the petition are likely to increase in the foreseeable future. Over twenty states that provide for popular election of judges have rules similar to Canon 7C(1)”, and
  3. “The Florida Bar joins the Petitioner in respectfully urging this Court to accept this case for review not only because there is a national need for resolution, but because of the particularly troublesome position in which it places The Florida Bar. Denial of the petition for certiorari would leave the decision of the Florida Supreme Court standing, but would provide The Florida Bar with little comfort. The existing indirect conflict between the decision of the Florida Supreme Court, and the decision of the Eleventh Circuit in Weaver v. Bonner . . . a case involving a Georgia judicial candidate, is likely to become a direct conflict when the Eleventh Circuit is inevitably called upon to adjudicate the constitutionality of Canon 7C(1) in a case involving a Florida judicial candidate.”

Of course, counsel for the Petitioner (Andrew Pincus) endorses the Respondent’s request for review:

Typically, a respondent joins in a petitioner’s request for further review only when “there is a clear conflict of decisions” and “the question is undoubtedly of such importance as to need a Supreme Court determination.” Stephen M. Shapiro, et al., Supreme Court Practice 510 (10th ed. 2013). That is precisely the case here. Because this case offers an opportunity to answer the question presented free of any doubt that the controversy here is both ripe and ongoing (see Pet. 15-16 & n.9; Resp. Br. 3), the petition for a writ of certiorari should be granted. 

(Hat tip to Maureen Johnston over at SCOTUSblog)

Additional information about the case is set out in FAN #25. Stay tuned for future developments.

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FAN 29 (First Amendment News) — Exceptional Freedom: How many exceptions are there to the First Amendment?

[W]e decline to carve out from the First Amendment any novel exception.                     – Chief Justice John Roberts (2010)

When we talk about exceptions to the First Amendment’s guaranty of freedom of expression, Justice Frank Murphy’s famous 1942 dictum in Chaplinsky v. New Hampshire comes to mind:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ―fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 

Note that the list of exceptions he offered was an incomplete one. To much the same effect as Chaplinsky, in his majority opinion in United States v. Stevens (2010) Chief Justice John Roberts declared:

From 1791 to the present, however, the First Amendment has ―permitted restrictions upon the content of speech in a few limited areas, and has never ―include[d] a freedom to disregard these traditional limitations.  . . . These historic and traditional categories [are] long familiar to the bar, . . . [and include] obscenity, . . . defamation, . . . fraud, . . . incitement, . . . and speech integral to criminal conduct . . . . [They] are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

Against that backdrop, the Chief Justice emphasized: “we decline to carve out from the First Amendment any novel exception.” He Unknownalso cautioned: “cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

The question, of course, is exactly how many “well-defined and narrowly limited classes” of exceptions are there (Chaplinsky), or  precisely how many “historic and traditional categories” of speech fall outside of the First Amendment (Stevens)?

To answer that question it is important to note that not all of the categories listed by the Chief Justice are single-subject exceptions. For example, consider the “speech integral to criminal conduct” category. That exception itself consists of more than a few particularized exceptions. And then there are the other exceptions that were left unmentioned.

So many exceptions

Mindful of the above, and as I have noted elsewhere, here is a list of the additional (or more particularized) types of expression that have been deemed unprotected:

(1)       blackmail

(2)       bribery

(3)       misleading commercial expression

(4)       incitement to lawless action

(5)       expression that violates an intellectual property right

(6)       criminal conspiracy expression

(7)       threatening expressions

(8)       expression that endangers national security

(9)       insider trading expression

(10)     perjurious expression

(11)     harassment in the workplace expression

(12)     expression in contempt of court

(13)     plagiaristic expression

(14)     criminal solicitation (e.g., prostitution or murder for hire)

(15)     child pornography

(16)     speech that amounts to bullying

(17)     intentionally false speech likely to create a dangerous public panic

(18)     intentionally misrepresenting oneself as a government official

(19)  intentionally false material statements made to voters concerning authorship or endorsement of political campaign materials

(20)     certain kinds of intentionally false statements made about a political or public figure

(21)     certain kinds of prisoner expression

(22)     certain kinds of government employee expression

(23)     certain kinds of government funded expression

(24)     certain kinds of student expression

(25)     certain kinds of expression by those in the military

(26)     expression deemed secret owing to a private contract or law

(27)      certain kinds of expression expression that unfairly places another in a false light

(28)     intentional expression that causes emotional distress

(29)     expression in violation of anti-trust laws

(30)      certain kinds of expression that cause prejudicial publicity that interferes with a fair trial

(31)     intentionally disclosing the identity of secret government agents

(32)     certain kinds of expression that invade the privacy of another

(33)     certain kinds of expression limited by time, place, and manner restrictions

(34)     certain kinds of expression that involves intentional lying

(35)     certain kinds of expression by sitting judges

(36)     certain kinds of expression aired on the public airwaves

(37)     certain kinds of panhandling

(38)     certain kinds of telemarketing

(39)     certain kinds of speech harmful to minors

(40)     certain kinds of commercial solicitation (e.g. lawyers soliciting business)

(41)   certain kinds of expression concerning the unauthorized practice of some licensed profession (e.g., medicine or law)

(42)     certain kinds of intentional lying to government officials (e.g., lying to Congress while under oath or false police reports) and

(43)     certain kinds of evidence introduced into court and in courtroom expression governed by the rules of evidence.

And what of revenge porn & cyber harassment?

Are there more? Perhaps. Might some of the above ones now be deemed unconstitutional? Perhaps. That said, my point is that the lists offered in Chaplinsky and Stevens (among other Supreme Court opinions) give the impression that the number of exceptions to the First Amendment is actually far fewer than may well be the case.

In all of this, however, I do not mean to undermine a robust commitment to free speech freedom — a commitment well beyond what is fashionable in many circles of academia today. Still, if originalism is to be a significant and even determinative guide here, we must be duly mindful of its true dimensions. This is not to say the results reached by the Roberts Court in several First Amendment cases could not otherwise be justified, but rather that some of the Court’s originalist language needs to be more fully stated and explained.

Justices asked to review Secondary Effects case  Read More

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FAN 28.1 (First Amendment News) — The First Amendment in the Era of ISIS

This is beyond anything we’ve seen.

                                  — Chuck Hagel, Aug. 21, 2014

The Threat

→ Defense Secretary Chuck Hagel told reporters at the Pentagon: “They are an imminent threat to every interest we have, whether it’s in Iraq or anywhere else.”

Secretary of Defense Chuck Hagel

Secretary of Defense Chuck Hagel

“Asked if the hardline Sunni Muslim organization posed a threat to the United States comparable to that of the attacks of Sept. 11, 2001, Hagel said it was ‘as sophisticated and well-funded as any group we have seen.'”

→ According to a report in The Hill, ISIS, also known as Islamic State, “has long threatened to carry out a catastrophic attack on American soil, with a spokesman recently boasting that the militant group would fly its flag over the White House.”

Senator Jim Inhofe (R-Okla.) Now is in “the most dangerous position we’ve ever been in.” ISIS members, he added, are “rapidly developing a method of blowing up a major U.S. city and people just can’t believe that’s happening.” 

imagesRecruiting in the U.S.? 

→ “The director of the FBI visited Colorado this week and detailed how the terror organization ISIS is recruiting Americans to take up their cause.It’s not just the recruitment of Americans that’s concerning to the FBI, it’s the method of recruitment — the Internet. FBI Director James Comey said how they are recruiting new members is getting the attention of the U.S. government.” [Source: CBS News]

James Comey: “We have seen an emergence since I was last in government of the people we call home grown violent extremists.” [Source: CBS News]

The Law

The Newseum in Washington, D.C.

The Newseum in Washington, D.C.

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” — Schenck v. United States (1919)

→ See also: Dennis v. United States (1951) (“In each case [courts] must ask whether the gravity of the `evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”)

→ See also: Yates v. United States (1957) (re “advocacy of actions” versus advocacy in the abstract).

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969)

 Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order. . . .  Plaintiffs’ complaint is that the ban on material support, applied to what they wish to do, is not ‘necessary to further that interest.’ The objective of combating terrorism does not justify prohibiting their speech, plaintiffs argue, because their support will advance only the legitimate activities of the designated terrorist organizations, not their terrorism. . . .  We are convinced that Congress was justified in rejecting that view.  . .  . We see no reason to question Congress’s finding . . . ” — Holder v. Humanitarian Law Project (2010)

→ See also: Geoffrey Stone. Perilous Times: Free Speech in Wartime (2004)

→ See also Richard A. Posner, Not a Suicide Pact: The Constitution in Time of National Emergency (2006) and Posner, Countering Terrorism: Blurred Focus, Halting Steps (2007)

→ See generally “Symposium, Free Speech in Wartime,” 36 Rutgers Law Journal 821-951 (2005) (contributors: Geoffrey Stone, Earl Maltz, Ronald Collins & David Skover, Adrian Vermeule, Leonard Niehoff, Floyd Abrams, David Strauss, Nadine Strossen, Eric Foner, David Rabban, and Raymond Solomon).

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FAN 28 (First Amendment News) — The Demise of Stare Decisis?

Professor Randy Kozel

Professor Randy Kozel

Start here: “Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis.” Okay, so much for the gospel regularly taught in law schools.

But there is another gospel — the one actually practiced by judges. (Somewhere the old Florentine grins.)

Now consider this: “[W]ithin the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.”

So contends Notre Dame Law School Professor Randy Kozel in a draft of an article titled “Second Thoughts About the First Amendment.” As his research reveals, “in recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech.”

And why? What accounts for this purported demise of stare decisis? “The best explanation for this phenomenon,” say Professor Kozel, “is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay.”

And is all of this a problem? Here is how the former Kozinski-Kennedy law clerk turned law professor answers that question: “Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.”

With a guarded measure of nuance, Professor Kozel adds: “For some, this state of affairs may be unobjectionable. There is no denying that robust expression is a core tenet of American legal and political culture. Still, there is something to be said for stare decisis, even when continuity comes at a hefty price.”

→ Of course there is more, much more in this thoughtful work-in-progress. I urge readers to take a look at it and send along your thoughts. Who knows, it might even make for an interesting topic for a future First Amendment salon?

Speaking of that salon, I may soon have some news on that front. Stay tuned.

Another great quote from Justice Jackson

[T]he very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.

– Justice Robert Jackson, in-chambers opinion in Williamson v. United States (1950):

→ Hat tip to Eugene Volokh

Two New Books Read More

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Dr. King on the First Amendment & the right to protest

Screen Shot 2014-08-14 at 11.21.51 PMMartin Luther King, Jr., April 3, 1968:

All we say to America is, “Be true to what you what you say on paper.” If I lived in China or even in Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for rights. 

See YouTube clip here.

→ See also the following books and articles:

  1. Harry Kalven, The Negro and the First Amendment (1965)
  2. David Garrow, Protest at Selma:Martin Luther King, Jr. and the Voting Rights Act of 1965 (1978)
  3. Andrew Mach, “Martin Luther King Jr.: 8 peaceful protests that bolstered civil rights,” Christian Science Monitor, Jan. 15, 2012
  4. Burke Marshall, “The Protest Movement and the Law,” 51 Virginia L. Rev. 785 (1965)
  5. Clark McPhail, David Schweingruber & John McCarthy, “Policing Protest in the United States: 1960-1995” in Policing Protest (1998) by  Donatella D. Porta, et al, eds.
  6. Lewis F. Powell, Jr., “A Lawyer Looks at Civil Disobedience,” 23 Wash. & Lee L. Rev. 205 (1966)
  7. Nicholas Katzenbach, “Protest, Politics and the First Amendment,” 44 Tulane L. Rev. 439 (1970)
  8. Ronald Krotoszynski, Jr. “Celebrating Selma: The importance of context in public forum analysis,” 104 Yale L. J. 1411 (1995)
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Now may be the moment . . .

Heed their rising voices.

heed-rising-voicesIn light of recent events in Ferguson, Missouri, that admonition seems as relevant today as it was when it was when it appeared on March 29, 1960 in a New York Times political advertisement directed at the Montgomery, Alabama police. Of course, it was that advertisement that gave rise to the celebrated ruling in New York Times Co. v. Sullivan (1964).

The analogy to the events surrounding the killing of young Michael Brown and the famed First Amendment case is more apt than may first appear. How so?  Well, let us start here: It is important to remember that the First Amendment victory in Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.

Know this: Racial injustice cannot endure the light of the First Amendment; police abuse cannot continue unabated when subjected to the scrutiny of a camera; and governmental indifference cannot persist when the citizenry assembles in a united front to oppose it. Put another way, the link between free-speech liberty and racial equality is vital to the health of our constitutional democracy.

Frank Pasquale’s recent post (“The Assault on Journalism in Ferguson, Missouri) ably points out why citizens of all political stripes should be concerned about what has been going on in Ferguson. His sober post is a timely reminder of the importance of the First Amendment in the affairs of our lives, be they in Ferguson or Staten Island or elsewhere.

(CNN) — The New York City medical examiner’s office Friday confirmed what demonstrators had been saying for weeks: A police officer’s choke hold on a man being arrested for selling loose cigarettes killed him. (Aug. 2, 2014)

So, now may be the moment to reunite the liberty and equality principles. What does that mean? Among other things, it must mean this:

  1. The press — traditional and modern — must be free to continue to exercise its rights in a robust manner.
  2. Citizens should be able to freely exercise their constitutional right to peacefully assemble and protest.
  3. More transparency should be demanded of government, be it in matters concerning the investigation of the killing of Michael Brown or the need for police identification badges to be plainly visible.
  4. And demands must be made of state and local officials that clear and specific measures be taken to respect and protect the lawful exercise of any and all First Amendment rights.

To that end, press groups, civil rights and civil liberties groups, along with political and religious groups should seize this opportunity, borne out of tragedy, to reinvigorate our First Amendment freedoms employed in the service of racial justice. In that way, perhaps some of the admirably defiant spirit of New York Times v. Sullivan may find its way back into the hearts and minds of people of good will who refuse to sit silent while law-abiding citizens of Ferguson stagger through clouds of teargas.

The Assault on Journalism in Ferguson, Missouri

The city of Ferguson, Missouri now looks like a war zone. Rapidly escalating responses to protest by a militarized police force have created dangerous conditions. About the only defense people have is some public attention to their plight. And now even that is being shut down by a series of intimidation tactics. Consider the following:

1) As the Washington Post states, its “reporter Wesley Lowery was detained by police on Wednesday while reporting on the unrest in Ferguson, Mo., following the fatal shooting of unarmed teen Michael Brown by police over the weekend.” Huffington Post reporter Ryan Reilly had his head slammed against glass as he attempted to report on police action.

2) U.S. Courts of Appeals have affirmed the right to record the police. The Justice Department has offered clear, recent guidance on the topic.

3) As the Post’s Executive Editor has observed, the information blackout has been so pervasive that we are not even allowed to know who is executing it:

[Lowery was] illegally instructed to stop taking video of officers. Then he followed officers’ instructions to leave a McDonald’s — and after contradictory instructions on how to exit, he was slammed against a soda machine and then handcuffed. That behavior was wholly unwarranted and an assault on the freedom of the press to cover the news. The physical risk to Wesley himself is obvious and outrageous. After being placed in a holding cell, he was released with no charges and no explanation. He was denied information about the names and badge numbers of those who arrested him.

This is consistent with other anti-transparency measures in the dispute.

4) Police brutality has been a pervasive problem. We can only start a public conversation on the magnitude of the problem if people have the unfettered right to record law enforcement practices.

5) Many people have reported that police in Ferguson told them to turn off cameras and recording devices. Police refused to answer basic questions. Even major media organizations were told to leave.

6) Police tear-gassed journalists from Al Jazeera and local TV crews.

7) Local leaders are not safe, either. Both an alderman and a state senator were detained and tear-gassed.

The United States has not exactly distinguished itself in its treatment of journalists. In 2012, it fell to 47th in Reporters Without Borders’ Press Freedom Index, well behind countries like Surinam, Mali, and Slovakia, largely due to police harassment of photographers and videographers at Occupy Wall Street protests. How far should it fall if police can basically decide unilaterally to make entire cities “no First Amendment zones”? How can the US warn other countries not to “take military action against protesters,” if it allows an out-of-control force like Ferguson’s to plot a media blackout? This is a policy of order-at-all-costs, even if it means “law enforcers” breaking the law with impunity.

I will have more to say later on the underlying dispute (well covered by Mary Ann Franks and Jamelle Bouie). For now, all I can say is: we should be deeply worried about the broader campaign to create “urban battlespaces” in American cities. This is a dangerous amalgamation of police and military functions, thoughtlessly accelerated by the distribution of war-fighting equipment to local law enforcers around the country. Minimal standards of accountability require free access by the press.