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Category: First Amendment

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Anuj Desai on the Post Office and the First Amendment

Envelope 1a.jpgProfessor Anuj Desai (U. Wisconsin Law School) has posted his forthcoming article, The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine, on SSRN. Anuj’s paper is a fascinating history of the early Post Office and how statutory protection of letters influenced constitutional law. From the abstract:

We typically think of constitutional law as the product of text, structure, constitutional history, ethical and moral philosophy, or common law doctrine. At times, though, constitutional law comes directly from societal institutions; those institutions in turn are often rooted in legislative, not judicial, choices. In this article, I tell an intriguing story of constitutional lawmaking in which policy choices about an institution developed into constitutional law. I look at two important areas of First Amendment doctrine: First Amendment constraints on government spending, i.e., “unconstitutional conditions”; and what is known in First Amendment jurisprudence as “the right to receive.” I argue that the genesis of both doctrines can be found in legislative choices made during the formation of one of the nation’s first “administrative agencies,” a communications network that was viewed as the internet of its day: the United States Post Office. When the twentieth century Supreme Court held that the First Amendment can constrain government spending and then later, in a separate line of cases, established “the right to receive,” the Court initially relied on specific attributes of the post office. Those attributes in turn had been established by choices made by policymakers during the late eighteenth century. In short, the Court incorporated aspects of the early postal statutes into First Amendment doctrine. Legislative choices in effect became constitutional law.

I really enjoyed reading this article — it’s a very interesting piece, especially for anybody interested in legal history and First Amendment law.

Speech vs. Defiance

frederickbanner.jpgAfter hearing a very interesting discussion between Jay Sekulow and Kenneth Star on the “Bong Hits for Jesus” case, I had a few thoughts.

1) This case strikes me as the reductio ad absurdum of the classic “liberal autonomy” case for free speech. The plaintiff by his own admission has virtually no message except for “I want to show that I can exercise my free speech rights” . . . begging the great question posed by John H. Garvey in his book What are Freedoms For? As Garvey argues,

We should understand freedom . . . as a right to act, not a right to choose; and furthermore, we should view freedom as a right to engage in actions that are good and valuable. This may seem obvious, but it inverts a central principle of liberalism–the idea that the right is prior to the good.

2) Given the ambiguity of this message, Starr tried to make the case about an admin law issue; who is to decide a) whether a student’s speech is part of a school activity and b) whether the student’s message contradicts the school’s educational mission?

3) Expect the question raised by 2a to be increasingly important as schools start scouring MySpace and other social networking sites for objectionable speech. Consider this suspension for a YouTube video: “A model student is in court this week over a 40-day suspension for posting a mocking in-class video to YouTube of ‘Mongzilla’, a high school english teacher.” The administration is careful not to say that the speech itself is being punished, but rather, that the suspension “was punishment for the disruption created by the students secreting a video camera into [the teacher's] class and dancing in a mocking, disrespectful manner while her back was turned.”

4) Following Garvey (and perhaps Collins and Skover), I think cases like Mongzilla & Bong Hits can be distinguished from more protectible advocacy. The former seem to be more about defiance than a real message. The students involved could learn a lot from Martin Buber’s basic idea of stressing “mutual, holistic existence without qualification or objectification of the other.” Perhaps the old “speech/conduct” distinction will prove useful here.

From Right-of-Reply to Norm-of-Trackback

One of the things I love about the blogosphere is the way that comments let readers correct you or turn your attention to something you may have missed. One of my recent posts on copyright law illustrates how this process can work. James Grimmelmann has suggested that this right to comment, and to trackback to one’s own post upon linking to another’s post, is a big victory for free speech. While right-of-reply laws may be stymied by Miami Herald v. Tornillo, these innovations let everyone have their say.

Should the mainstream media adopt similar norms? Consider the case of a recent WSJ commentary entitled “The Innocence Myth,” arguing that the rate of false convictions is very low. You can find critiques of it online if you google “innocence myth,” and the WSJ does publish some skeptical letters to the editor. But my colleague Michael Risinger is about to publish a piece that he believes definitively refutes the WSJ piece. As he argues:

If one is at all serious about trying to determine the empirical truth about the magnitude of the wrongful conviction problem, one must make an attempt to associate the denominator with the same kind of cases represented in the numerator. . . . In an article now in galleys at Northwestern Law School’s Journal of Criminal Law and Criminology, I have tried to do just that. Using only DNA exonerations for capital rape-murders from 1982 through 1989 as a numerator, and a 407-member sample of the 2235 capital sentences imposed during this period, this article shows that 21.45%, or around 479 of those, were cases of capital rape murder. Data supplied by the Innocence Project of Cardozo Law School and newly developed for this article show that only two-thirds of those cases would be expected to yield usable DNA for analysis. Combining these figures and dividing the numerator by the resulting denominator, a minimum factually wrongful conviction rate for capital rape-murder in the 1980’s emerges: 3.3%.

The WSJ has so far failed to publish Prof. Risinger’s letter to the editor, and claims a policy against allowing responses to commentaries. But would it at least behoove the Journal to provide a link to Risinger’s work after this opinion piece? I don’t see how this could hurt. . . . especially given time already devoted to screening letters to the editor. The Journal could make the links inobtrusive, as it does in this fantastic article on predatory debt collectors.

I hope that more of the mainstream media (MSM) follows the lead of the Washington Post, which provides great links to blogs (and opportunities for comment) on virtually all of its online articles (including editorials). Perhaps “opening up” the letters to the editor section in this way will be a bit of a burden at the beginning. But as technology makes these online forums more permeable, the usual excuse of “space constraints” (for shutting out diverse views) will be less and less convincing.

Unnaturally Made Killers

After a week of media coverage of the Virginia Tech tragedy, we can compare how different outlets have shaped our view of events there. Megan McCardle notes:

I haven’t found a single editorial addressing one factor we know creates these mass murders: reporting on the mass murders. In the next few weeks and months, even over the next few years, expect to see copycat killings inspired by Cho’s actions. The more saturated the media coverage, the more such events we are likely to get.

Of course, it’s impossible to fully assess causation here, an issue that has vexed media reformers for decades. But Thomas de Zengotita has weighed in on how deeply mediated this killer’s self-conception was, and how the whole event quickly became polarized between different “scripts,” or ways of making sense of a terrible reality. Many criticize the media for airing so much of the shooter’s “media kit,” for complicity in fulfilling (if posthumously) a disturbed soul’s demand for the world’s attention.

Some respond that competitive pressures made the decision by NBC to share the materials inevitable. The Canadian Broadcasting Company decided not to air the Cho videos….but they are under less ratings pressure than American broadcasters, and at the time it aired the tapes, NBC was losing share to ABC.

Is there a role for law to deter an arms race of sensationalism? Fred Yen has mentioned a possible copyright issue here, but it’s hard to imagine the shooter’s family being capable of putting such a suit at the top of its concerns….especially immediately in the aftermath of the murders.

Could a ban on broadcast of such materials work? Perhaps, but I imagine would-be celebrity killers would simply upload their rants into the BitTorrent and YouTube ether. Blogs would quickly jump on disseminating it, eager for the fame & links that it could bring.

So despite my occasional dirigisme, I can’t see a role for law here. The public’s insatiable appetite for sensationalism, and predictably ensuing frenzies for renown, appear to be a durable aspect of a decentralized and link-driven web. Technology + Competition > Values.

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Can the First Amendment Serve as a Source of Criminal Procedure?

first-am-as-crim-pro.jpgTypically, when we think of the constitutional criminal procedure that regulates government information gathering, we think of the Fourth and Fifth Amendments. But many government investigations involve collecting information about speech, association, religion, and the consumption of ideas. The NSA surveillance of telephone calls, for example, involves speech. National Security Letters can be used to obtain information about association and the consumption of ideas. And so on.

Does the First Amendment apply? Should it? If the First Amendment serves as a source of criminal procedure, what procedures does it require? For example, could the First Amendment require a warrant? An exclusionary rule?

For the answers, please check out my new article, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007).

I’ve posted the final published version of the article on SSRN.

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Bong Hits for What?

Thanks to Dan for the introduction and to the whole Co-op team for hosting me. And thanks for your indulgence over the next few weeks as I share a few thoughts on constitutional law, criminal law, and other topics.

This morning, the Supreme Court heard oral arguments in Morse v. Frederick, the First Amendment case involving a high school student suspended for displaying a banner emblazoned, “Bong Hits 4 Jesus.” Joseph Frederick was an 18-year-old high school senior in January 2002, when he displayed his banner across the street from his high school in Juneau, Alaska, as the Olympic torch procession passed by. The Ninth Circuit found that Frederick’s First Amendment rights were violated even under the less protective standards applied to student speech. The school board (represented by Ken Starr) has denounced the Ninth Circuit’s decision as “unforgivingly libertarian.” As Linda Greenhouse and Marty Lederman have noted, a number of conservative religious organizations have filed briefs in support of Joseph Frederick. The organizations are apparently deeply concerned by the far-reaching authority that the school district has asserted to suppress speech inconsistent with the school’s own understanding of its “basic educational mission,” a mission that may include the inculcation of support for specific public policy positions.

So much for the weighty doctrinal questions that are likely to capture the Court’s attention. One of the things I find most interesting—and amusing—about the case is a slightly different underlying question: what does “Bong Hits 4 Jesus” mean, anyway?

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Constitutional Law & Institutional “Tailoring”: My Contrarian View

I’ve just uploaded to SSRN my latest article, which I wrote and presented as part of a February UCLA Law Review Symposium on “Constitutional Niches: The Role of Institutional Context in Constitutional Law”, Prisoners and Students and Workers – Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine. (In January, I’d linked a blog post to a much more preliminary draft in advance of the conference; this is a much more complete draft, and editing is just starting, so I’d love any comments!)

With the Symposium focused on “The Role of Institutional Context in Constitutional Law, my paper took a slightly contrarian view, arguing that when courts tailor doctrine to the needs and characteristics of particular institutions (like public schools, prisons, and workplaces), courts tend to overstate the uniqueness of those institutions. This is dangerous in the First Amendment context, because when courts overstate the unique institutional needs of, say, prisons, they’ll end up allowing too much restriction of speech on an exaggerated “prisons are special” theory. The basis for my conclusion that courts are exaggerating, not just recognizing, institutional uniqueness is a “pL“-type risk analysis of the arguments that prisons, schools, and workplaces face unique risks from dangerous speech.

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Say Vagina, Go To Detention

One of the great things about blogging – much like hanging out in libraries – is that you can discover lots of interesting stuff when you follow the links. Like many other readers, I’ve found the AutoAdmit cyber stalking story pretty compelling and troubling. (Dave tweaks me for my nod to David Lat’s librarian hottie lists. I continue to think that this post falls into a very different category of cyber-jectification, but I’m open to educatin’.) Following various links, from Leiter, through Althouse, to Feministe, I discovered another nugget that I missed in yesterday’s web WaPo: a suburban NY school district suspended three girls for using the word “vagina” in an open-mic reading of (what else?) The Vagina Monologues. Apparently, prior to the performance, the principal had told the 11th graders that they could read the play, but not utter the V-word. Their one-day suspension was therefore framed as punishment for ignoring the principal’s orders. (The principal’s explanation is posted here.) Emil Steiner over the Post gets it right, from my point of view:

Fine, I’m willing to except that cop-out on face value, but if saying “vagina” wasn’t a problem, then why issue an order forbidding it in the first place? Was the school’s objective to teach them that no matter how repressively backwards a rule is, it must be followed blindly? Or maybe its goal was to demonstrate how irony (and/or totalitarianism) works by calling the event an “open mic” and then punishing those with the gall to speak into the said mic openly?

I’m not going to scream First Amendment here because let’s face it: I don’t know the doctrine. (And I can understand that high schools might, in very limited situations, need to regulate speech.) I also suspect that school administrators make similarly stupid decisions all the time – and nobody notices. But geez – did the principal (and note that I don’t name him…what do people think about that decision?) really think that in suburban NY, with three girls who clearly thought this was a worthwhile battle, such silliness would remain a quiet matter?

Actually, I find the story somewhat uplifting. Here we have three girls who appeared to have used excellent judgment both politically (could the girls have found a better chance to score points on both the free speech and feminsim front?) and personally (since, as Steiner says, these girls now have a “kick ass topic for their college essays.”) And I must say that, having read Jill’s compelling and hellish narrative of stalking, the word “uplifting” is about the last thing the AutoAdmit story brings to mind.

By the way, for everyone who found the unnamed victim in the WaPo AutoAdmit story a bit full of herself – the story does suggest that she believes that a Yalie’s failure to garner an offer is akin to a freak of nature (and there is a suggestion, in Althouse comments at least, that she might be a 1L…which makes her job search story somewhat less exceptional) – read Jill’s post. Her story is far more powerful.

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The Libby Tapes

Reading news reports tonight about the Scooter Libby trial, one might imagine that matters of some constitutional note are up for grabs. MSNBC leads:

Reporters file to get Libby recordings

Judge will decide Monday whether to release grand jury testimony

Given the medium, and the cast of characters, we might almost think we’ve got another US v. Nixon on our hands.

Reading the reports in the mainstream press, I got the very strong sense that the judge was considering closing the courtroom while the prosecution played certain grand jury proceedings before the jury. Given the Republic’s long tradition of closed trials, but recent move toward sealed dockets, this would indeed be a problem of some significance.

Reading the blogs, I realize that this is just about finding a way to feed the beast on a slow news day. It’s pretty clear that the news media want the actual tapes – a mere transcription isn’t going to do – and think that they have a constitutional right to access them. That is, the grand jury testimony will absolutely be released on Monday, and it will be heard, in Court, before the jury. The reporters merely want rebroadcasting rights.

This strikes me as a hard argument, especially where (as Judge Walton no doubt realizes) the additional prejudice from publicity can only create grounds for appeal. I’m with Justice Souter and Chief Justice Roberts. Courts don’t exist to entertain the public, but to resolve disputes and administer justice. Whatever value that the public might potentially reap from listening to GJ tapes, it could get more by reporters spending the time trying to put the transcripts of such tapes in context. Indeed, I simply don’t understand the normative force of the right-to-cameras-in-trial as an initial matter.

(I’m also unclear why this issue couldn’t have been litigated before the trial through limine practice. It seems, from Slate’s description, that the jury waited 4 hours while counsel resolved a similar problem this morning. And folks say that there should be more trials? But I’ve griped enough for one evening.)

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Upcoming UCLA Con Law Conference, & My Paper on Prisoner/Student/Employee 1st Amdmt Claims

A few days ago I finished drafting my paper for this Friday’s UCLA Law Review Symposium, Constitutional “Niches”: The Role of Institutional Context in Constitutional Law”. You can download my paper here; it’s very much a draft, and I’ll be busily working on the final version over the next two or three weeks, so I’d love any feedback!

For anyone interested in the topic and in/near L.A., the conference looks like a really tightly-packed day of Con Law bigwigs: Fred Schauer (whose work I really admire, though my paper notes an exception to one of his theses); Cynthia Estlund (the conference’s resident employment law bigwig); John Yoo, formerly of the Bush Admninistration (will he offer more “tortured” interpretations of executive power and detainees’ rights against torture?); Dawn Johnsen, formerly of the Clinton Administration (most likely to have her torture authorized by John Yoo?); and many others, but this list already is getting too long. Don’t ask how I got into this crowd — I’m just happy to be there; Paul Secunda and I feel like we’ll be the kids at the grown-ups’ table!

I haven’t written a real abstract yet, but here’s an informal one:

The paper notes Fred Schauer’s criticism that First Amendment law gives too little consideration to how speech rights should vary in different institutions (e.g., government institutions sponsoring arts or election speech; obscenity/pornography being judged similarly whether in print, on the internet, over the phone lines) — but the paper notes one area in which institutional context appears to be given too much consideration. Specifically, would-be speakers located within certain government institutions — students in public schools, employees in government workplaces, and prisoners — have far lesser speech protection; rather than apply heightened scrutiny to speech restrictions, courts substantially defer to those institutions’ speech restrictions and actually apply different legal “tests” in each of the three contexts. Courts rarely explain why different tests apply in these areas, so the article, partly based on economic analysis, (1) tries to discern, as a descriptive matter, the reasons courts apply less speech-protective tests in these contexts and (2) criticizes those reasons as exaggerations of the uniqueness of the three institutions (schools, prisons, and workplaces), or at least finding that those reasons vary in persuasiveness among the three institutions. Ultimately, the article concludes that courts should apply not institution-specific legal tests, but standard heightened scrutiny, to speech rights claims in these institutions, just as it does under the Equal Protection Clause.