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Category: First Amendment

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FAN 15 (First Amendment News) — Free Speech & Judicial Elections: The Return of Kaus’ Crocodile

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Wolfson v. Concannon (9th Cir., May 9, 2014). The issue: whether several provisions in the Arizona Code of Judicial Conduct (Canon 4) restricting judicial candidate speech run afoul of First Amendment protections. Held: Yes, but only as to non-incumbent judicial candidates. The vote: 1-1-1. Judge Richard A. Paez wrote the main opinion, Judge Marsha S. Berzon wrote a concurring opinion, and Judge Richard Tallman dissented in part.

Anita Y. Woudenberg argued on behalf of the Appellant, Kimberly A. Demarchi argued on behalf of the Arizona Bar Association, and Charles A. Grube, Assistant Attorney General in the Arizona Attorney General’s Office, argued on behalf of the Appellees. The case, of course, revisits the Supreme Court’s 5-4 holding in Republican Party of Minnesota v. White (2002). (BTW: The White case was successfully argued by James Bopp, Jr., with whose firm Ms. Woudenberg is affiliated.)

Judge Paez began his opinion on a rhetorical high note: “A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate’s campaign speech. The conflict arises from the fundamental tension between the ideal of apolitical judicial independence and the critical nature of unfettered speech in the electoral political process.”

Justice Otto Kaus (1920-1996)

Justice Otto Kaus (1920-1996)

 By contrast, Judge Berzon opened by way of echoing a cautionary metaphor: “Sitting for judicial election while judging cases, Justice Otto Kaus famously quipped, is like “brushing your teeth in the bathroom and trying not to notice the crocodile in the bathtub.”

As for Judge Tallman, he was more direct: “I agree with the majority that strict scrutiny . . . is the appropriate standard. I agree that we should limit our decision to non-incumbent judicial candidates. And I agree that Rules 4.1(a)(5) (campaigning for others) and 4.1(a)(6) (personal solicitation) are unconstitutional as applied to those candidates. I concur in the majority opinion only on those points. I part company with my colleagues as to Rules 4.1(a)(2) (giving speeches on behalf of others), (3) (endorsing others), and (4) (soliciting money for others).”

Three judges, three opinions. Still, they all agreed that the rules prohibiting speechifying, endorsements, and fundraising “present the closest question.”

The 7th Circuit, by comparison, upheld a similar set of laws in Siefert v. Alexander  (2010) and in Bauer v. Shepard (2010). Those cases employed a Pickering balancing test instead of strict scrutiny. And those cases, unlike Wolfson, involved campaign restrictions on elected sitting judges rather than on a non-incumbent candidate running for a judicial office. As to the appropriate standard of review, in his White concurrence, Justice Anthony Kennedy, who voted with majority, declared: “Whether the rationale of Pickering and Connick v. Myers (1983), could be extended to allow a general speech restriction on sitting judges — regardless of whether they are campaigning — in order to promote the efficient administration of justice, is not an issue raised here.”

 Judge Berzon duly stressed the limited scope of the Court’s ruling:In sum, the principles applicable to the constitutionality of political restrictions on sitting judges diverge dramatically from those we apply to today’s challenge to restrictions on a judicial candidate not now a judge. The standard of review may well differ. And the powerful interests supporting such restrictions differ, too. I need not address, as the issue is not before us, whether the particular restrictions we review today would be constitutional as applied to sitting judges.”

More on this case as things develop.

First Amendment Cases Awaiting Decision 

The following First Amendment freedom of expression cases are awaiting a decision by the Supreme Court:

First Amendment Cases Already Decided

The following First Amendment freedom of expression case was handed down by Supreme Court this Term:

Related Cases, see also

Forthcoming Event on McCutcheon Case

On Wednesday June 18th @ noon the Cato Institute will host a program entitled “McCutcheon v. FEC: Two Books on the Supreme Court’s Latest Campaign Finance Case.” The event will feature:

The discussion will be moderated by Ilya Shapiro, a Senior Fellow in Constitutional Studies, Cato Institute.

Here is a description of the program:

Shaun McCutcheon (photo credit: NYT)

Shaun McCutcheon (photo credit: NYT)

On April 2, the Supreme Court issued its latest blockbuster ruling on campaign finance, McCutcheon v. FEC, striking down the “aggregate” contribution limits on how much money any one person can contribute to election campaigns (leaving untouched the “base” limits on donations to individual candidates or party committees). Within days of the decision, while pundits and activists were still battling in the media, two e-books were published about the case. One was by Shaun McCutcheon himself, an Alabama engineer who has quickly gone from political neophyte to Supreme Court plaintiff, thus providing a rare first-person layman’s account of high-stakes litigation. The other was by two law professors specializing in First Amendment law, Ronald Collins and David Skover, who dissect the Court’s ruling and put it in the broader context of campaign finance regulation.

 To register to attend this event, click the button below and then submit the form on the page that opens, or email events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by noon on Tuesday, June 17, 2014.

Recent Event on McCutcheon Case Read More

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FAC 4 (First Amendment Conversations) – Steve Shiffrin, the Dissenter at the First Amendment Table

My [next] book calls upon you and others to recognize that your religion – your speech worship – does a lot of damage, and you might do well to contemplate the possibility that the lack of free speech idolatry in other Western countries might be leading to more sensible conclusions (except when it comes to dissent where they are somewhat worse than we are).

Steven H. Shiffrin is the Charles Frank Reavis Sr., Professor of Law at Cornell Law School. He is the author of several books including: The Religious Left and Church-State Relations (Princeton University Press, 2009), Dissent, Injustice, and the Meanings of America (Princeton University Press, 1999), and The First Amendment, Democracy, and Romance (Harvard Press, 1990). He is the coauthor of Constitutional Law (11th ed., 2011) and The First Amendment (5th ed., 2011), both of which are widely used casebooks in the field. He is also a regular contributor to the “Religious Left Law” blog (and is active on Twitter and Facebook). From time to time, he files amicus briefs in First Amendment cases such as the recent Elane Photography case, which the Supreme Court declined to review. And he is a frequent speaker on the First Amendment lecture circuit.

In 2007, the Loyola of Los Angeles Law Review dedicated an entire issue to honor Steve. In that symposium, the late C. Edwin Baker (a noted First Amendment scholar in his own right) labeled Steve as “one of the country’s three or four top First Amendment scholars.” He went on to add: “I consider Steve the best in terms of possibly the most important criterion: being right about what really matters. On that ground, his achievement is truly worthy of honor.”

Steve Shiffrin

Steve Shiffrin

Steve is also a dear and longtime  friend. That friendship dates back to our days in law school when Steve first introduced me to the works of Harry Kalven, the preeminent  free speech scholar of his time. Speaking of law school, Steve’s student law review Note was cited approvingly by Justice Brennan in Fisher v. United States (1976). It was but one of several early signs of the high caliber of his scholarship. After law school he served as a law clerk to Judge Warren Ferguson on the United States District Court, Los Angeles (1975-76). 

Steve, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our FAC readers. I’d like to ask you some tough and some easy questions, all in the spirit of robust discussion between friends.  

Question: When I think of your work — beyond its rigorous analytical contours, that is — I always think of the dissenter, that lone wolf who howls at the moon for reasons unknown to or unpopular with the rest of us. Why this fascination with rogues or “moral lepers” as you tag them?

Answer: I have argued that the protection of dissent should occupy a special place in the First Amendment primarily, but not exclusively, because it is crucial to the combatting of injustice. I would think this even if I did not admire dissenters. But I do hold a special admiration for those who swim against the current and challenge existing customs, habits, institutions, and authorities. I do not think of dissenters as moral lepers (though some of them are). And I do not think dissent should always be protected. But I do think the practice of dissent should be regarded as especially valuable.

Question: What is your sense of Edward Snowden? Do you consider him a dissenter, of sorts? And do you believe that the First Amendment should protect him if he were to be prosecuted for leaking classified documents?

Answer: The First Amendment should often protect those who blow the whistle on government misconduct even if documents relating to that misconduct are classified. Much of the conduct disclosed by Snowden was rightly disclosed. I am not sure if all of it was. I find it disturbing that the government welcomed the debate instigated by Snowden even though it attempted to prevent the debate from occurring and that it seeks to prosecute Snowden for creating it. In particular, the desire to prosecute Snowden is disturbing when you recognize that government for decades has selectively revealed classified information in pursuit of official or partisan ends.

Question: In your Dissent book, you wrote: “if content neutrality is the First Amendment emperor, the emperor has no clothes.” Given the centrality of that doctrine in our current First Amendment decisional law, that seems to be a striking (and that is the word) assessment. Can you elaborate a bit on your thoughts concerning this?

Answer: The First Amendment prevents content discrimination except when it doesn’t. Many exceptions to First Amendment protection depend upon content, e.g., some forms of defamation, sexual speech, advocacy of illegal action. The Court has no principled justification for using strict scrutiny regarding some forms of content discrimination and less scrutiny for others. A theory of content neutrality does nothing to explain its selective use.

The Values of Free Speech vs the Value of Democracy

Question: In 1990 you wrote: “there is something quite odd about suppressing speech in the name of democracy.” Forgive me, but in today’s vernacular that could almost be the mantra of, say, the libertarian Cato Institute or of Shaun McCutcheon, the petitioner in McCutcheon v. FEC. What is your response to that?

Answer: A rhetorical joust in one context does not work in another. A politically centered theory of the First Amendment rooted in democratic theory leads to the conclusion that much non-political speech is not protected because it is only marginally related, if at all, to the democratic dialogue. Contributing to democratic dialogue should not be a necessary condition for First Amendment protection. Suppressing literature, music or art or private non-political speech in the name of democratic theory is entirely unpersuasive. At the same time, the values of free speech can be outweighed by the value of democracy. The Court’s insensitivity to this and its legalization of forms of bribery in Buckley, Citizens United, and McCutcheon is an embarrassment to the country and a scandal.

Question: As you know, the ACLU argued for the First Amendment claims sustained in Buckley v. Valeo (1976), the case in which Senator James Buckley and former Senator Eugene McCarthy challenged certain provisions of the 1974 Amendment to the Federal Election Campaign Act. Do you think that the ACLU and the majority got in right in Buckley?

Answer: No. The Court left human beings free to spend unlimited sums of money with the intent and effect of advancing or opposing political candidates and by implication it left corporations free to do the same so long as they did not use explicit language of endorsement or opposition to a particular candidate. Democracy is not consistent with the kind of preferential access and influence that the wealthy buy by spending large sums of money in this way. The victory for free speech is a significant democratic loss.

Question: Would it be fair to say, at least generally speaking, that your view of free expression under the First Amendment turns on power and those who possess it versus those who do not? What prompts this question is a passage in your Romance book wherein you wrote: “From the romantic perspective, the regulation of the wealthy, the powerful, and the large corporate conglomerate does not ordinarily inspire concern  [about whether such individuals or groups] are in danger of being stifled or that individual self-expression is at risk” By contrast, you add, the “Schencks, the Carlins, [and] the O’Briens” do need such protection. Hence, “from the romantic perspective, it is clear: the powerful rarely need protection; dissenters often do.” Putting aside for the moment the fact that the late comedian George Carlin was a man of means, does your view of free speech look at wealth and power as important factors in deciding whether to protect speech? Read More

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Drones and Newsgathering at the NTSB

Who would have predicted that a First Amendment amicus brief on behalf of national news organizations would be filed at the National Transportation Safety Board (NTSB)?

News Media filed the brief a few days ago in support of drone filmmaker Raphael Pirker. Pirker flew a drone, made a video, distributed it, and was fined by the FAA. In response, Pirker challenged whether the FAA’s notice banning the commercial use of even small drones meets the criteria for valid rulemaking. An ALJ invalidated Pirker’s fine, and the NSTB is currently reviewing the decision. This is an administrative law case about rulemaking and FAA definitions. But the News Media brief shows that as the FAA, Congress, and states decide how to regulate drone use, First Amendment concerns will inevitably be raised.

Drone regulation implicates the First Amendment because drones carry recording devices. A number of courts have recognized a limited First Amendment right to record, although it’s important to also note that some courts have not. As drone regulations are enacted, courts will need to figure out how broadly the right to record extends, and which government regulations do and don’t implicate it.

The News Media amicus brief takes a slightly different approach.  It urges the NTSB to “safeguard the public’s First Amendment interest in the free flow of information.” A number of cases, most notably Branzburg v. Hayes, speak to the importance of protecting newsgathering. Newsgathering protection is really protection of free speech infrastructure. Protecting speech without protecting free speech infrastructure could result in government use of other regulatory tools like taxes or roadblocks to shut down speech as effectively as censorship.

Unfortunately, the News Media brief overstates its case. The NTSB should certainly consider the First Amendment implications of FAA rules. But the FAA’s general ban on commercial drone use is just that: a general ban. The brief recognizes that the FAA’s “de facto policy” is the “almost complete prohibition on the civilian use of UAS for any purpose, including First Amendment purposes.” By this argument, the government isn’t targeting the press; it’s including them with everybody else.

Generally applicable regulations, such as labor laws, can be applied to the press. “The publisher of a newspaper has no special immunity from the application of general laws.” (AP v. NLRB) But if the government uses such laws to specifically target free speech infrastructure, ie with press-specific taxes, that targeting violates the First Amendment (Grosjean v. AP). The News Media brief suggests that the press deserve an exception from a generally applicable rule, not that the FAA has impermissibly targeted the press.

The centrality of “the press” in this argument also should give pause. The brief teems with press exceptionalism. It asks the NTSB to consider the First Amendment newsgathering rights of “professional news organizations” (at 9) and “accredited news media” (at 10). We all know this is not the way news is gathered now. It’s not even how drone journalism has worked. Many newsworthy drone videos have been crafted by hobbyists (at 13). But the brief argues that “the use of UAS for newsgathering should receive greater protections than those afforded to hobbyists and commercial users,” against the backdrop that the brief understands “newsgathering” to be newsgathering by professional organizations (at 12). This just won’t (pardon the expression) fly. Sometimes the government creates special exceptions for the institutional press (at 10-11), but institutional press access is often established in situations where the government just can’t let everyone in. FAA regulation of drones isn’t quite the same. In some scenarios, the government can’t let everyone in at once for safety reasons, but in others, that limitation won’t be at play. Encouraging the FAA to carve out exceptions for professional newsgatherers and not for hobbyists potentially creates rather than solves a First Amendment problem. It could discriminate between actors, and likely discriminate between viewpoints.

The problems in the brief don’t mean that the First Amendment has no role to play here. The two most interesting questions raised by the brief are as follows: should the FAA be able to fine newspapers that distribute drone hobbyist footage? (at 21) And might the FAA’s decisionmaking be an example of impermissibly ad hoc and opaque delegation? (at 23)

The first question- whether the FAA can fine newspapers that distribute hobbyist footage- strikes at the challenging core of Bartnicki v. Vopper. A broad reading of Bartnicki is that government regulations of the distribution of information are subject to strict scrutiny and thus likely will be struck down by the First Amendment (see also Stevens). A narrower reading is that the government cannot regulate the distribution of information of public interest (vs private info), as long as the publisher took no part in the illegal obtaining of that information. The fact pattern suggested here- a newspaper publishing information legally obtained by a hobbyist under the FAA’s model aircraft exception- could force a reexamination of what Bartnicki means by “obtained lawfully”.  The hobbyist’s making of the video is not itself unlawful, but it’s unlawful to fly a drone for business purposes, so the newspaper’s participation in distributing the video arguably makes both that distribution and the initial drone flight unlawful. It’s a mess.

The question of whether the FAA’s decisionmaking process is impermissibly ad hoc, opaque, and subjective is similarly fascinating. Opaque, ad hoc, and subjective policymaking has been found to violate the First Amendment because it leaves too much discretion, and thus room for discrimination, in the hands of local authorities (the brief cites the Ninth Circuit case Foti v. City of Menlo Park). The FAA’s ban on commercial drone use doesn’t seem to raise this issue, since the FAA bans everyone. But the FAA’s drone licensing process for universities might raise this concern (huge caveat: I don’t know that much about it). Or if Congress or the FAA were to put in place a broader drone licensing system, it would have to make sure that FAA officials aren’t giving licenses based on the content or viewpoints of particular organizations.

 

 

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FAN 14 (First Amendment News) — Why the Justices vote as they do in First Amendment Free Expression Cases (updated)

As I mentioned in an earlier column, there is a new empirical study entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.” The study was done by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Segal. Since I just introduced that study in a cursory fashion, I wanted to say a bit more about the study and its findings.  

→ Let us start here with this admonition to lawyers and scholars: The ideological status (or “grouping”) of the party bringing a First Amendment challenge (speech, press, assembly, or association) may well determine the outcome. That, at least, is the general takeaway point from this new study done by three political scientists (Lee Epstein is also a law professor). In other words, the focus is not simply on the legal claim in the abstract or on the ideological makeup of the judge in general. It is an old but forgotten lesson: the right plaintiff can make or break the case. But here the right plaintiff depends on aligning his or her ideological grouping with that of a majority of the Justices hearing the case. If you doubt it, the authors argue, simply consider the ideological divide in cases such as Boy Scouts v. Dale or Madsen v. Women’s Health Center or  Morse v. Frederick or Citizens United or Garcetti v. Ceballos.

Such “in-group bias,” the authors maintain, “leads to the hypothesis that judges engage in opportunistic behavior following from litigant favoritism.” To buttress their general claim, Epstein, Parker, and Segal examined 4,519 votes of the Justices in 516 First Amendment free expression cases decided between the 1953-2010 Court Terms. Based on their examination they concluded that “the Justices’ votes tend to reflect their preferences towards the speakers’ ideological grouping, and not solely an underlying taste for the First Amendment qua Amendment.” While scholars such as Emily Bazelon (see here) and Adam Winkler (see here) have made similar points, this study is the first one to make the case based on a systematic examination of a large number of First Amendment cases and the voting patterns of 33 Justices (from Hugo Black to Elena Kagan). Again, below is one of the tables setting out some of the authors’ findings:Screen Shot 2014-05-05 at 3.25.12 PM

Here are three questions for Professors Epstein, Parker and Segal:

1.) How might one categorize the ideological grouping of, say, the litigant in United States v. Stevens where the Court voted 8-1 to sustain the First Amendment claim? Or what about the ideological grouping of the litigant in United States v. Alvarez, where the Court sustained a free speech claim by a 6-3 margin? Or what about Knox v. Service Employees International Union where the Court voted 7-2 to uphold the First Amendment claim (with Justices Sotomayor and Ginsburg in the majority)?

2.)  What about the rule and reasoning of a case? That is, even if, say, conservative Justices favor a litigant based on some ideological similarity with their own views, might not that ruling and the logic of the case serve to benefit “liberal” litigants in future cases? Or as Howard Wasserman (I assume he is Professor Wasserman) put it in a comment to my last post: “Is there a problem relying entirely on results and votes rather than reasoning? This would be more meaningful if a justice came out diametrically opposite in two cases that were identical but for the identity and political persuasion of the speaker and that involved the same constitutional test, analysis, or standard.”

3.) What are we to make of unanimous rulings like the ones in First Amendment cases such as New York State Bd. of Elections v. Lopez Torres or Locke v. Karass or Rumsfeld v. Forum for Academic & Institutional Rights?

The authors have kindly replied, and their response is set out below:

The first and third questions seem to address a similar issue, which is the extent to which factors outside of ideology influence voting on the Court. While we argue that ideology is a major component of a Justice’s vote, it is not the only factor.  The influence of ideology does not mean that other legal or institutional issues may play a role in voting. For example, our model finds that Justices are less likely to support freedom of association claims as compared to their support for speech in purer free speech cases. We also find that justices are less likely to support speech that violates a federal law as compared to a state or local law. So while ideology plays a significant role in voting, that does not preclude the possibility that we will see larger, or even unanimous majorities on some of the “easier” free speech cases.

Some of the cases you mentioned, like U.S. v. Stevens and Knox v. Service Employees International Union, may also create ideological ambivalence in Justices.  For example, do liberal Justices continue to vote against anti-obscenity laws or uphold a law aimed at preventing animal cruelty (in Stevens), or do they support labor unions or individual workers (in Knox)?  This may help explain why we see ideologically mixed coalitions in some cases.

The second question deals with the possibility that a liberal (or conservative) Justice may vote to create a precedent that benefits liberals (conservatives) in the short term but can be exploited by the other side in future cases. There is always the potential for this, although we think it is significantly mitigated in many of the most controversial free speech cases recently.  Where we see the clearest ideological splits are on cases that create a new standard that is likely to consistently benefit one side over another. For example, campaign finance cases that uphold the money-as-speech standard and continuously loosen restrictions on this form of speech apply to both conservative and liberal donors.  However, in terms of support for restrictions on this type of speech liberals consistently support regulations while conservatives oppose them. So rulings that remove restrictions on campaign spending will endorse the conservative vision of the role of money in politics, regardless of whether or not it benefits liberal donors as well.

Similarly, in cases involving abortion protesters may be facially neutral and create a standard that supports all forms of public protesters, but it is pretty clear that the decisions on these cases are going to affect pro-life protesters much more than any other group. While a reversal of Hill v. Colorado in the forthcoming McCullen v. Coakley decision could be used by liberal protesters (such as an Occupy Wall Street type protest), the conservative justices could also distinguish the precedent to apply more narrowly to abortion protests given their unique nature.  Or if Hill v. Colorado is upheld liberal justices could state that the unique history of violence on the part of pro-life protesters limits that precedent to restricting protesting outside of health facilities but not peaceful protests like Occupy Wall Street. Given these circumstances it is not surprising that we consistently see 5-4 votes along ideological lines in campaign finance and abortion protest cases.

[Hat tip to Professor Parker for helping to expedite this reply and thanks to all of the authors for accommodating our readers.]

Meanwhile, I wonder how far ideological labeling can take us. While I do not deny the importance of this fact and this important new study, I think it well to remember that labels like “conservative” or “liberal” also change over time. For example, recall the lineup in the 5-4 Posadas commercial speech case wherein the conservatives voted against the First Amendment claim and the liberals for it. Furthermore, how likely is it that traditional First Amendment conservative Justices like, say, Felix Frankfurter or Byron White would have joined their contemporary counterparts in sustaining a free speech claim in a cases such as United States v. Stevens or Brown v. Entertainment Merchants Association? My point: ideological turf sometimes shifts over time and labels take on new meanings (or become blurred).

To be continued? Let me know what you think and we may well post more. (One more thing: a big welcome to our colleagues in Political Science. Please keep us abreast of your work in the First Amendment field.)

Bopp is Back!

James Bopp, Jr. is the man who, among other things, first brought the legal challenges in the Citizens United and McCutcheon cases. He is, I gather, now about to file a lawsuit before a three-judge court in a federal district court in the District of Columbia. When filed, the complaint will petition the court to allow national and state parties to form super PACs that can raise and spend unlimited amounts on election campaigns, something the Federal Election Commission has barred. According to a Washington Times news report, “current rules for soft money require that state and local parties use only severely limited, federally regulated ‘hard dollar’ donations to fund federal electioneering activities. This includes voter registration drives within 120 days of an election, voter ID and get-out-the-vote programs and any communications that mention federal candidates — with some exceptions.” The story goes on to quote Mr. Bopp: “‘This means that few local political parties do these activities because of the hard-money requirement,’ Bopp told [Louisiana Republican Party Chairman Roger Villere] in an email suggesting that the Louisiana chairman become the plaintiff in the proposed lawsuit. ‘State political parties that are able to set up hard money accounts find it hard to raise this money because of the annual $10,000 contribution limit for hard money.’”

Will the RNC join this anticipated lawsuit? Stay tuned.

Headline: “News media challenges ban on journalism drones” Read More

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FAN 13.3 (First Amendment News) New Study Reveals Politics of Justices’ Protection of Free Speech

Over at the New York Times Adam Liptak has just posted a news item entitled “In Justices’ Votes, Free Speech Often Means ‘Speech I Agree With.” Liptak’s story is based on a new empirical study entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.” The study was done by Professors Lee Epstein, Christopher M. Parker, & Jeffrey A. Segal.  Here is the abstract:

In contrast to the traditional political science view, which holds that justices on the left are more supportive of free speech claims than justices on the right, and in contrast to a newer view among legal academics that justices on the right are more supportive of free speech claims than justices on the left, we use in-group bias theory to argue that Supreme Court justices are opportunistic supporters of free speech. That is, liberal (conservative) justices are supportive of free speech when the speaker is liberal (conservative).

A two-level hierarchical model of 4,519 votes in 516 cases confirms the in-group bias hypothesis. Although liberal justices are (overall) more supportive of free speech claims than conservative justices, the votes of both liberal and conservative justices tend to reflect their preferences toward the speakers’ ideological grouping, and not solely an underlying taste for (or against) the First Amendment.

Below is a revealing chart summary of the study (sans the notes to the asterisks). Given the importance of this study, I plan to post more on this work after I have had more time to review it.  Meanwhile, here is a link with additional information concerning the study.  Screen Shot 2014-05-05 at 3.25.12 PM

 

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FAN 13.2 (First Amendment News) — Indiana High Court Affirms Right to Criticize Judge

The CaseBrewington v. Indiana (No 15S01-1405-CR-309, May 1, 2014)

The Vote: Unanimous

The AuthorJustice Loretta H. Rush

The LawyerJames Bopp, Jr. (for Defendant)

Facts: (as stated in Court opinion)

In his blog posts, Defendant’s criticisms of the Judge were rather generalized—contending that the Judge “has abused my children” or otherwise done “mean things to my children and my family,” was guilty of “criminal conduct,” or was simply “crooked,” or “a nasty evil man.” But he also posted a copy of his August 24, 2009 “Motion to Grant Relief from Judgment and Order” online  in which he alleged that the Judge:

Justice Loretta Rush

Justice Loretta Rush

  • “has a substantial conflict of interest as[ he] was aware that Dr. Connor was not licensed to practice psychology by the State of Indiana when [he] had appointed Dr. Connor to perform psycho- logical services for an Indiana Court,”
  • “conducted himself in a willful, malicious, and premeditated manner in punishing the Respondent for attempting to protect the parties’ minor children, the Counties of Ripley and Dearborn, and the States of Indiana and Kentucky from the actions of Dr. Edward J. Connor by terminating the Respondent’s parental rights,”
  • “robbed [Defendant’s] parenting rights as revenge for fighting injustice,”
  • “caused irreparable damage to the Respondent’s children in the Court mandated child abuse [sic]” by “illegally eliminating their father from their lives out of the Court’s self-interest,” and
  •  used “child abducting tactics” by issuing the divorce decree.

In the motion, Defendant also threatened to “fil[e] criminal complaints with the Sheriff’s department and Prosecutor’s office for child abuse,” and to contact government officials, local churches and schools, social service agencies, and community organizations “in an attempt to contact other victims and to help bring public awareness to the atrocities that take place in the Ripley and Dearborn County Courts.” And he concluded the motion by seeking relief “due to fraud” by the Judge, the Doctor, and opposing parties and counsel—and echoing his previous efforts seeking Judge Taul’s recusal, he further demanded “the immediate resignation of Judge James D. Humphrey from the bench for the horrendous crimes committed against the Respondent and his children.”

Judgment

The First Amendment “is . . . certainly broad enough to protect Defendant’s ill-informed—but by all indications, sincere—beliefs that the Judge’s child-custody ruling constituted “child abuse” or “child abducting,” and that the ruling was based on improper motives. The Court of Appeals erred in relying on Defendant’s overheated rhetoric about “child abuse,” or the falsity of that characterization, to affirm his conviction for intimidating a judge. Even if Defendant’s “child abuse” and other statements about the Judge could be understood as assertions of fact, not hyperbole, they are protected by the First Amendment because there is no proof of actual malice.”

While his criticism of the judge was protected, the Court concluded that other statements made by the Defendant constituted “true threats” and were thus unprotected under the First Amendment. Said the Court:

It is every American’s constitutional right to criticize, even ridicule, judges and other parti- cipants in the judicial system—and those targets must bear that burden as the price of free public discourse. But that right does not permit threats against the safety and security of any American, even public officials, regardless of whether those threats are accompanied by some protected criti- cism. Defendant’s true threats against the Judge and the Doctor therefore find no refuge in free speech protections. To the contrary, they undermine the core values of judicial neutrality and truthful witness testimony on which every aggrieved citizen depends.

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FAN 13.1 (First Amendment News) — Justice Stevens’ Testimony to Senate Rules Committee re Proposed Campaign Finance Constitutional Amendment

Statement of Justice John Paul Stevens (Ret.)

April 30, 2014

Senator King, Chairman Schumer, Ranking Member Roberts, and distinguished Members of this Committee, thank you for the opportunity to appear before you today to discuss the important issue of campaign finance.

justice-stevens-235x300When I last appeared before this body in December 1975 my confirmation hearing stretched over three days. Today I shall spend only a few minutes making five brief points:

First, campaign finance is not a partisan issue. For years the Court’s campaign finance jurisprudence has been incorrectly predicated on the assumption that avoiding corruption or the appearance of corruption is the only justification for regulating campaign speech and the financing of political campaigns. That is quite wrong. We can safely assume that all of our candidates for public office are law-abiding citizens and that our laws against bribery provide an adequate protection against misconduct in office. It is fundamentally wrong to assume that preventing corruption is the only justification for laws limiting the First Amendment rights of candidates and their supporters. Elections are contests between rival candidates for public office. Like rules that govern athletic contests or adversary litigation, those rules should create a level playing field. The interest in creating a level playing field justifies regulation of campaign speech that does not apply to speech about general issues that is not designed to affect the outcome of elections. The rules should give rival candidates – irrespective of their party and incumbency status – an equal opportunity to persuade citizens to vote for them. Just as procedures in contested litigation regulate speech in order to give adversary parties a fair and equal opportunity to persuade the decision-maker to rule in their favor, rules regulating political campaigns should have the same objective. In elections, the decision-makers are voters, not judges or jurors, but that does not change the imperative for equality of opportunity.

Second, all elected officials would lead happier lives and be better able to perform their public responsibilities if they did not have to spend so much time raising money.

Third, rules limiting campaign contributions and expenditures should recognize the distinction between money provided by their constituents and money provided by non-voters, such as corporations and people living in other jurisdictions. An important recent opinion written by Judge Brett Kavanaugh of the D.C. Circuit and summarily affirmed by the Supreme Court, Bluman v.Federal Election Commission [800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 132 S. Ct 1087 (Jan. 9, 2012)] upheld the constitutionality of the federal statute that prohibits foreign citizens from spending money to support or oppose candidates for federal office. While the federal interest in preventing foreigners from taking part in elections in this country justified the financial regulation, it placed no limit on Canadians’ freedom to speak about issues of general interest. During World War II, the reasoning behind the statute would have prohibited Japanese agents from spending money opposing the re-election of FDR but would not have limited their ability to broadcast propaganda to our troops. Similar reasoning would justify the State of Michigan placing restrictions on campaign expenditures made by residents of Wisconsin or Indiana without curtailing their speech about general issues. Voters’ fundamental right to participate in electing their own political leaders is far more compelling than the right of non-voters such as corporations and non- residents to support or oppose candidates for public office. The Bluman case illustrates that the interest in protecting campaign speech by non-voters is less worthy of protection than the interest in protecting speech about general issues.

Fourth, while money is used to finance speech, money is not speech. Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive the same constitutional protection as speech itself. After all, campaign funds were used to finance the Watergate burglaries – actions that clearly were not protected by the First Amendment.

Fifth, the central error in the Court’s campaign finance jurisprudence is the holding in the 1976 case of Buckley v. Valeo [442 U.S. 1 (1976)] that denies Congress the power to impose limitations on campaign expenditures. My friend Justice Byron White was the only member of the Court to dissent from that holding. As an athlete and as a participant in Jack Kennedy’s campaign for the presidency, he was familiar with the importance of rules requiring a level playing field. I did not arrive at the Court in time to participate in the decision of the Buckley case, but I have always thought that Byron got it right. After the decision was announced, Judge Skelly Wright, who was one of the federal judiciary’s most ardent supporters of a broad interpretation of the First Amendment, characterized its ruling on campaign expenditures as “tragically misguided.”[J. Skelly Wright, "Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?," 82 Col. L. Rev. 609, 609 (1982).]

Because that erroneous holding has been consistently followed ever since 1976, we need an amendment to the Constitution to correct that fundamental error. I favor the adoption of this simple amendment:

Neither the First Amendment nor any provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

I think it wise to include the word “reasonable” to insure that legislatures do not prescribe limits that are so low that incumbents have an unfair advantage or that interfere with the freedom of the press. I have confidence that my former colleagues would not use that word to justify a continuation of the practice of treating any limitation as unreasonable.

Unlimited campaign expenditures impair the process of democratic self-government. They create a risk that successful candidates will pay more attention to the interests of non-voters who provided them with money than to the interests of the voters who elected them. That risk is unacceptable.

Thank you.

[Note: Footnotes were converted to bracketed references in the text.]

[Hat tip to Fred Wertheimer]

For more on Justice Stevens and his proposed Amendment to the First Amendment, go here and see also Professor Richard Hasen’s op-ed here.

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FAN 13 (First Amendment News) — Burt Neuborne’s Forthcoming Book on Madison, Music, & the First Amendment

Note: Oral arguments for the 2013-2014 Term end today. 

UnknownWikipedia describes him as “a nationally renowned civil liberties defender.”

  • He is the former National Legal Director of the American Civil Liberties Union.
  • He is the Inez Milholland Professor of Civil Liberties at New York University School of Law.
  • He is the Legal Director of the Brennan Center for Justice.
  • He was the focus of a six-part series on SCOTUSblog.
  • He is the author of Free Speech Free Markets Free Choice: An Essay on Commercial Speech (1986), and Building a Better Democracy: Reflections on Money, Politics and Free Speech (2002).  
  • And he is the one who on several occasions forcefully contested the ACLU’s position on the First Amendment and campaign finance reform.  

He is, of course, Burt Neuborne – a man not known for shunning controversy.

True to his contrarian spirit, Professor Neuborne has authored a new book that comes out next February. The book is titled Madison’s Music: On Reading the First Amendment (The New Press). (For a few sample bars from the forthcoming musical work, listen to Professor Neuborn’s 2012 Cooper Union remarks here.) Casting modesty to the wind, here is how the publisher describes the work:

Are you sitting down? It turns out that everything you learned about the First Amendment is wrong. For too long, we’ve been treating small, isolated snippets of the text as infallible gospel without looking at the masterpiece of the whole. Legal luminary Burt Neuborne argues that the structure of the First Amendment as well as of the entire Bill of Rights was more intentional than most people realize, beginning with the internal freedom of conscience and working outward to freedom of expression and finally freedom of public association. This design, Neuborne argues, was not to protect discrete individual rights—such as the rights of corporations to spend unlimited amounts of money to influence elections—but to guarantee that the process of democracy continues without disenfranchisement, oppression, or injustice. (emphasis added)   

If you have regained your “composure,” there is more — more music and flowers and eloquence:

Neuborne . . . invites us to hear the “music” within the form and content of Madison’s carefully formulated text. When we hear Madison’s music, a democratic ideal flowers in front of us, and we can see that the First Amendment gives us the tools to fight for campaign finance reform, the right to vote, equal rights in the military, the right to be full citizens, and the right to prevent corporations from riding roughshod over the weakest among us. Neuborne gives us an eloquent lesson in democracy that informs and inspires.

As the publication date nears, I will say more about this book.

Meanwhile, books that sound a similar tune include Dean Robert Post’s soon-to-be-released Citizens Divided: Campaign Finance Reform and the Constitution (Harvard U. Press, June 2, 2014), which has already been approvingly cited by Justice Stepehen Breyer in his dissent in McCutcheon v. FEC.

On a related score, there is Ralph Nader’s new book, Unstoppable, which joins the anti-Citizens United chorus in ways both simple and bold — as in Nader’s clarion call for initiatives and referenda in every state and even at the federal constitutional level as well.

First Amendment Salon Debuts in NYC

Floyd Abrams, Nadine Strossen & Steven Shapiro

Floyd Abrams, Nadine Strossen & Steven Shapiro

Monday, April 28th, 7:00-8:30 pm: The Levine, Sullivan, Koch & Schulz law firm hosted the first in a series of First Amendment salons. The New York City event was webcast live to the firm’s offices in Washington, D.C.  A small group of invited lawyers, journalists, professors and others (approximately 25 at each of the two venues) first listened and then partook in a lively discussion of McCullen v. Coakley. The discussion centered around an exchange between the noted First Amendment lawyer Floyd Abrams and the ACLU’s national legal director Steven Shapiro. The exchange was moderated by New York Law School Professor Nadine Strossen. The next salon will occur in D.C. with a live webcast to New York.

Florida Appellate Court Grants Press Access to Jury Selection in High- Profile Criminal Case 

The District Court of Appeal for the First District of Florida issued a unanimous opinion last week in which it reversed a trial court order excluding the media from the courtroom during voir dire proceedings. To compensate for this physical exclusion, County Court Judge Russell Healey set up an “overflow” courtroom with an audio feed for the media. That “accommodation,” however, was legally impermissible under Florida common law and the First and Fourteenth Amendments. So ruled a state appellate court in Morris Publishing Group v. Florida,

George Gabel, Jr.

George Gabel, Jr.

The 27-page opinion was written by Judge Stephanie W. Ray. What was especially interesting about this case was that the state argued that the voir dire proceeding was effectively a “bench conference” to which the media enjoy no right of access. In resolving that question, Judge Ray discounted labels and noted that a “functional analysis is necessary to determine whether the closed proceeding is part of the trial process to which the First Amendment right of access attaches.” In that regard, the appellate court held that “the purported ‘bench conference’ was, in fact, a substantive part of the trial.” Futhermore, the Court ruled that “the juror challenge phase of jury selection is a ‘judicial proceeding’ and an essential part of a criminal trial,” and as such Florida common law “provides an additional mandate for a qualified right to public access, requiring both procedural and substantive safeguards prior to closure.” The case was successfully argued by George D. Gabel, Jr. of the Holland and Knight law firm. An appeal is not expected.

The Employee Speech case

All right. Tell me what you want as your rule. Anyone subpoenaed in a criminal trial is protected? — Justice Sonia Sotomayor

So you could fire him because he testified? — Chief Justice John Roberts

This past Monday the Justices heard oral arguments in Lane v. Franks, the employee speech case raising the question of whether, consistent with the First Amendment, a government employer can retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities. (There is also a qualified immunity question raised in the case.) Throughout the arguments, the Justices went back and forth between discounting the extremes of no First Amendment protection, on the one hand, to some categorical exception for court testimony, on the other. Even so, it seemed likely that the Petitioner’s First Amendment argument might well prevail, though it was unclear on exactly what grounds it might do so.

Justice Samuel Alito inquired about the scope of one’s job duties, as in the case of an inspector general. What about, asked Justice Sotomayor, police officers or  lab technicians who testify in court regularly? And, what about Pickering balancing, Justice Ruth Bader Ginsburg inquired? At one point later on Justice Anthony Kennedy asked: “What’s an example of a subpoena that requires the employee to testify, but that he’s not testifying on public matters?” And later still, Justice Antonin Scalia stated: “So your position is you cannot speak as a citizen if ­­ if your speech consists of disclosing material that you knew as an employee. Why is that true?”

For an analysis of the oral arguments in the case, see Professor Ruthann Robson’s post in SCOTUSlog (“It does seem clear that the Eleventh Circuit was wrong in this case. But how the Court will attempt to prevent future wrongs by articulating a new rule and how the Court will remedy the past wrong by deciding the issue of qualified immunity is much murkier.”) Read More

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FAN 12.3 (First Amendment News) Floyd Abrams Institute Sponsors Upcoming Conference

The Floyd Abrams Institute for Freedom of Expression is sponsoring an upcoming First Amendment conference at Yale Law School. This will be the the second Freedom of Expression Scholars Conference, which is hosted by the Information Society Project (ISP) at the Law School. The event is scheduled for May 3-4, 2014.abrams-logo

“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 conference offers participants an opportunity to receive substantive feedback through group discussion. Each accepted paper will be assigned a discussant, who will lead discussion and provide feedback to the author. Participants will be expected to read papers in advance, and to attend the entire conference.”

The array of topics for the conference includes:

  • Constitution Betrayed: Free Expression, the Cold War, and the End of Democracy
  • First Amendment Challenges to Economic Regulation in the Jehovah’s Witness Cases       
  • Free Speech Constitutionalism (see also here)
  • National Security Letters and the First Amendment, Brief of Amici Curiae Floyd Abrams Institute and First Amendment Scholars, In re Nat’l Sec. Letter (9th Cir. filed Mar. 31, 2014) (Brief currently under seal)
  • Old School/New School Speech Regulation (see also here)
  • Product Redesign as Commercial Expression: Antitrust Treatment of Speech and Innovation
  • Revenge Porn (see also here)
  • The Freedom not to Think
  • Unreasonable Access: Disguised Issue Advocacy and the Role of Broadcasters in Shaping Public Discourse
  • When Government Lies: The Constitutional Implications of the Government’s Deliberate Falsehoods
  • Why Data Privacy Law is (Mostly) Constitutional (see also here)

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FAN 12.2 (First Amendment News) – Justice Altio on the First Amendment

Over at The American Spectator, Matthew Walther (an assistant editor there) has a very informative article titled Sam Alito: A Civil Man – The pleasure of Justice Alito’s Company. It is an overview of the Justice’s career on the Court and before. The article is well flavored with revealing snippets from an interview Mr. Walther did with the Justice. Anyone interested in the Court will want to read this article with its rich mix of the personal and professional side of the Justice.Samuel-Alito-articleInline

I have taken the liberty of excerpting a few passages from the Walther article, passages that concern, naturally, the First Amendment.

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Citizens United & State of the Union 

“When he tells me that he is done making appearances at the State of the Union, I ask him about the last time he attended, in 2010, when he mouthed what looked like the words ‘Not true’ in response to President Obama’s characterization of the Court’s ruling in Citizens United v. Federal Elections Commission. ‘I don’t play poker,’ he says.”

“Either I should take it up so that I learn to have a poker face, or it’s a good thing that I don’t because I’d lose a lot of money. People thought I said something. I assume that they’re correct. I certainly thought it. The president said that Citizens United overruled a century of precedent, which just isn’t true. The chief justice has said that he thought that the president’s criticizing us while we were sitting there was inappropriate. I don’t know that something like that has been done before.”

United States v. Stevens & Snyder v. Phelps

“In Stevens I thought that the real restriction was on conduct, on animal cruelty, rather than on expression,” he says. “There is virtually no way to prosecute the people who are involved in these acts. If you say that you can’t circulate these videos it dries up the market for them.”

Snyder was a tough call,” he says. “Obviously eight of my colleagues disagreed with me.” I ask him what Stevens and Snyder tell us about the limits of the free speech. “The core of the First Amendment is political speech. Any restriction of political speech I think is very dangerous. That is what was involved in Citizens United. This was speech about a candidate for president. What could be more important than that? It’s about the free exchange of ideas concerning public policy, economics, science, art, religion, philosophy, all of those things.”

“Now I can’t speak for my colleagues, but I think I understand the impulse to say that we cannot tolerate any restrictions on freedom of speech because if we allow it even when it’s something like a video of a woman stomping a little animal, then that kind of limitation will begin to restrict the things that need to be covered. But if a court is going to allow restrictions on political speech or intellectual debate or discussion of the arts, our having ruled on these outliers is not going to stop it.”

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There is more, much more, to Matthew Walther’s profile of and interview with Justice Alito, which I recommend to you.

For those interested, earlier accounts of Justice Alito’s views on the First Amendment are offered here, herehere, and here.

Last FAN Column: “First Amendment salon to be launched

Last Scheduled FAN Column: “Red Lion Revisited?