Category: First Amendment

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Richard Posner & NAACP v. Button — A Short History

Since I had to prepare remarks for a panel discussion for today, I was unable to do my weekly First Amendment News column. Instead, I opted to present an abbreviated essay from a work-in-progerss, actually two. In the main, I  stitched together something from one of my books (We Must not be Afraid to be Free) and a future article (“The Maverick – A Biographical Sketch of Richard Posner”), this in addition to some reliance on Justice Brennan: Liberal Champion (2010) by Seth Stern and Stephen Wermiel and other works. I also benefitted from the thoughtful assistance of Judge Posner and Robert M. O’Neil. The result is this post, also a prelude to a more scholarly work on NAACP v. Button (1963). Shortly, I will say more about Judge Posner’s involvement in Button, but before I do I thought it might useful to say a few prefatory things about the history of the case.

* * * *

The case’s original name was NAACP v. Patty, which began in 1957. After cert. was granted, the case name changed to NAACP v. Gray. Later it would be changed to Button, the last name of the Virginia Attorney General at the time. The controversy involved a challenge to five Virginia laws which, according to Fourth Circuit Court Judge Morris Aimes Soper, “were enacted [in 1956] for the express purpose of impeding the integration of the races in the public schools of the state which the plaintiff corporations are seeking to promote.” The laws in question banned the encouragement of certain kinds of litigation (“barratry” statutes) and the solicitation of clients (including in pro bono cases) and/or the financing of litigation (“champerty” statutes). The lawyer who represented the NAACP was Robert L. Carter (1917-2012), Thurgood Marshall’s chief legal assistant (and later General Counsel to the NAACP). By 1957, recalled Carter in his memoir (A Matter of Law), the group was involved in 25 cases in various states employing barratry and champerty laws aimed at halting civil rights litigation. Henry T. Wickham (1920-2008) represented the state of Virginia. In his obituary it was noted that Mr. Wickham “served as a special assistant to former Virginia Attorney General J. Lindsay Almond Jr. representing Virginia in an effort to preserve segregated public schools” in Brown v. Board.

 For an informative and thoughtful account of Button, see Harry Kalven, Jr., The Negro and the First Amendment 75-90 (1965).

The Hand of Fate

Robert Button was the Attorney General of Virginia (1962-1970) who backed policies of Massive Resistance to prevent public school desegregation.

Robert Young Button was the Attorney General of Virginia (Dem. –1962-1970) who backed policies of Massive Resistance to prevent public school desegregation (see short video clip here)

When it came time for a conference vote in the Button case, Chief Justice Earl Warren, predictably, voted to reverse. “The purpose of the statute is obviously to circumvent Brown,” he said. Justice Hugo Black agreed. “This is part of a scheme to defeat the Court’s order, and sooner or later we will have to grapple with these problems in those terms. The NAACP is finished if this law stands.” But Justice Felix Frankfurter pushed back. “I can’t imagine a worse disservice than to continue being the guardians of the Negroes. . . . There is nothing in the record to show that this statute is aimed at Negroes as such.” Justices Tom Clark and Charles Evans Whittaker agreed. “To strike this law down, we would have to discriminate in favor of Negroes,” said Clark, to which Whittaker added: “We should be color blind on this law.”

Warren added up the votes. It was a five-to-four split in favor of the state of Virginia. Justice Frankfurter eagerly began work on his majority opinion upholding Virginia’s law—the laws that made the NAACP’s brand of non-pecuniary solicitation and financing of litigation a disciplinary offense that could result in disbarment. (For a discussion of Frankfurter’s early role in the case, see Mark V. Tushnet, Making Civil Rights Law 277-278 (1994).)

At the same time, Justice Black circulated drafts of a dissent in which he claimed, among other things, that perhaps the law should be renamed “[a]n Act to make it difficult and dangerous for the [NAACP] and Virginia lawyers to assert the constitutional rights of Virginia Negroes in state and federal courts.” Then Black added a passage revealing how far removed he was from his days as a hooded member of the Ku Klux Klan. “The job of lawyers under [the] Constitution is not to lead revolutions, but to lead their people in taking advantage of the American methods for correcting injustice.” And courts, Black continued, had a responsibility to serve as “sanctuaries of justice.” To ignore that role here, he concluded, was to leave the courts “a little less havens of refuge than they were before this Virginia law was sustained.”

Robert L. Carter, lawyer for the NAACP

Robert L. Carter, lawyer for the NAACP

Justice Black’s internal comments exposed just how wide the ideological chasm had grown between the members of this Court. But Robert Carter wouldn’t get a chance to read them. Nor, for that matter, would anyone else. On April 1, 1962, before the Court could announce its decision in NAACP v. Button, Justice Whittaker retired on the advice of his physician. He was sixty-one. The “great volume and continuous stresses of the court’s work,” he explained in a written statement, had brought him to the “point of physical exhaustion.” That left a four-to-four split among the remaining jurists, who scheduled a rehearing of the case the following term. Then, a few days later, seventy-nine-year-old Felix Frankfurter collapsed at his desk from a stroke. He lived, but shortly afterwards he announced his retirement. Just like that, President Kennedy could appoint two new Justices—and Robert Carter could feel new hope.

 An audio of the arguments in NAACP v. Gray can be found here.

New Faces, New Result

By the fall of 1962, President Kennedy had successfully appointed to the bench his top two choices—Byron White and Arthur Goldberg. And it promised to be a busy fall at the Supreme Court after they were both confirmed. Sometime around then, as Stern and Wermiel recount it, Justice Brennan busily circulated a 63-page memo that detailed the activities of the NAACP and its Virginia branch.

After hearing rearguments in Button, the Justices met privately to discuss the case on October 12, 1962. Chief Justice Warren had not changed his mind since first discussing the facts a year earlier. “The NAACP has a right to be in business,” he began. “If this suit goes against the NAACP, it is out of business.” Justices Black, Douglas, and Clark also maintained their original opinions. So did the typically restrained Justice John Marshall Harlan, who continued to claim that Virginia’s new law was “plainly constitutional. . . . Brown v. Board of Education will never work out if it is left in the federal domain. The states must do it. We have no reason to reverse Virginia on this law.” Justice Potter Stewart, the Eisenhower appointee from Cincinnati with the unpredictable voting record, was the first of the veteran Justices to suggest a possible change of heart. “I am not sure,” he said, “but I am inclined to reverse.” Justice White, the first of the two new members to speak at the private conference, was even less certain than Stewart. “I do not know where I stand.” Goldberg was more certain. “There is a substantial equal protection point here and I could reverse on that,” he said. Read More

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FAN 19.3 (First Amendment News) 9th Cir. Strikes California Requirement of Initiative-Proponent Identification on Initiative Petitions

Earlier today the U.S. Court of Appeals for the Ninth Circuit held unconstitutional California’s requirement that ballot initiative petition forms identify the official initiative proponents. This follows court opinions allowing anonymity at the point of petition circulation.

The opinion in Chula Vista Citizens for Jobs v. Norriscan be found here.

Opinion by Judge O’Scannlain, in which Judge Graber joins, except as to Part IV, and in which Judge Bea joins, except as to Part III. Judge Graber filed an opinion dissenting as to Part IV. Judge Bea filed an opinion concurring as to Part III.

→  Prevailing Counsel: James Bopp, Jr. for the Plaintiff-Appellant.

Prediction: Professor Richard Hasen (on Election Law Blog): “I expect this issue will go en banc and perhaps to the Supreme Court—with a decent chance of reversal.”

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FAN 19.2 (First Amendment News) — High Court Finds Art. III Standing in False Statements Case & Grants Review in Threats Case

The Supreme Court just handed down its ruling in Susan B. Anthony List v. Driehaus. The vote was 9-0. Here is the opinion.

The issues in the case were:

(1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and

(2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

The Sixth Circuit rejected the Plaintiff’s claims. The Supreme Court reversed.

Article III Standing (from Justice Thomas’ opinion) Read More

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FAN 19.1 (First Amendment News) — Media Scholar Named Next Dean of GW Law School

It’s now official: Blake D. Morant, dean of the Wake Forest University School of Law and president-elect of the Association of American Law Schools, will be the next Dean of the George Washington Law School. According to a GW press release: Dean Morant “will assume the deanship on Sept. 1 after having served seven years as dean of the Wake Forest University School of Law. ‘Blake Morant is not only a seasoned dean but also a national leader in legal education,’ said GW President Steven Knapp. ‘He brings to this important position a proven record of accomplishments, and his extensive leadership experience will make him an extremely valuable addition to our law school and the entire university.'”

Dean Blake Morant

Dean Blake Morant

“‘I have respected and admired the George Washington Law School throughout my career and consider serving as its next dean to be a distinct privilege,’ Mr. Morant said. “‘I look forward to working with the constituency of this historic institution during this time of both challenge and extraordinary opportunity.'”

Media Law Scholarship

Though his scholarship includes other areas of law (such as contracts, administrative law, and legal education), Dean Morant’s articles on media law include the following:

Advance Greeting: Welcome to Washington, D.C., Dean Morant!

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FAN 19 (First Amendment News) Law Prof. Contests Ban on Note-Taking in Courtroom

This first part of this column is about bans on note-taking in courtrooms, federal and state. To illustrate this point, I want to say a few things about a law professor and the recent hell he went through in his attempt to takes notes in a public courtroom in Cook County, Illinois. Before I get to his story, which is an incredible one, permit me to set the stage with a few bits of history.
* * * * 
There was a time, in my adult lifetime, when spectators in the Supreme Court were barred from taking notes. Yes, note-taking was not permitted unless one was a member of the press corps. One had to sit and listen in silence. In an August 18, 1997 Washington Post op-ed, Professor David M. O’Brien and I put it this way:

“It is an unwritten rule but a rule nonetheless. No ordinary citizen can take notes in the courtroom of the U.S. Supreme Court, unless granted special prior approval by the officer of the Public Information Office. . . . (For an unknown period before 1988, not even members of the Court’s bar could lift a pen.) . . . . No one really really knows when the rule, which is of contemporary vintage, began. Insofar as there is any reason for the rule, it is to protect the ‘decorum factor.’ Violate the rule and the marshals whisk you away.”

“No one, including the ever-attentive press corps, fusses over the rule, one of the few of its kind enforced in any federal or state court in this land. . . . Back in 1988, however, Justice Harry Blackmun complained about the rule in a memo to his colleagues: ‘I wonder if we go too far in our request for decorum.’ Noting came of the complaint.”

We concluded our op-ed this way: “Imagine courtroom audiences . . . taking notes about what they hear and see, as if the Court were a civic classroom. Imagine citizens exercising their First Amendment rights to further their knowledge of [the Supreme Court] and their Constitution. What is amazing is that such things can only be imagined — for now.”

Ban Silently Lifted 

And then the world changed in November 2002. As Tony Mauro reported in a May 5, 2003 article for Legal Times: The rule’s “demise came without fanfare and without public notice, but Court public information officer Kathy Arberg confirmed last week that sometime last November the policy against note-taking was ‘no longer enforced’ by Court Police officers.” And then this: “One of the weblogs that handicaps Court cases, [SCOTUSblog], first noted the change on April 25th after blogger Ted Metzler attended the arguments in Nike v. Kasky. As he and other spectators went through security, Metzler recalls, ‘The officer told us we could bring in a notebook and pen and we all looked at each other.’ Metzler is currently a law clerk at D.C.’s Goldstein & Howe . . . .”

Professor Samuel V. Jones

Professor Samuel V. Jones

12 Years Later — Enter Professor Jones (the would-be notetaker)

He doesn’t fit the typical profile of a rabble-rouser. He is a former Marine Sargent, a former U.S. judge advocate, and before that senior counsel in the Commercial Law group at AT&T Corp and later as corporate counsel for Labor and Employment for Blockbuster, Inc. He is also a former Special Advisor to the Chair of the Illinois Judicial Council. And now he is a professor at the John Marshall Law School.

He is Samuel V. Jones. This former Marine is not a man to sit on his rights, especially his First Amendment rights. And so when the deputies in a circuit court ordered his to forsake those rights, he refused.

It all happened on May 8th during the course of bail hearings in a Cook County court presided over by Circuit Judge Laura Sullivan. Apparently, the atmosphere was tense as deputies patrolled the courtroom. At one point, according to Professor Jones, a “deputy approached and impolitely inquired, ‘Are you an attorney’? I identified myself as a professor of law doing research. She responded, ‘There is no note-taking in here.’ I wondered if the deputy knew that ‘the right of the press to access court proceedings is derivative of the public’s right,’ and journalists held no greater right than I did. I informed her that the office of the chief judge had advised me that note-taking is permitted. I asked if I had violated any laws or was disruptive. ‘No,’ she replied, and walked away.”

But that was hardly the end of the matter. Shortly thereafter, two different deputies ordered the professor out of the courtroom and confiscated his notes. “One deputy approached Judge Sullivan,” recalls Professor Jones, “and the proceedings immediately stopped. I was ordered to sit on a bench, told not to move or write, and was surrounded by several deputies.”

Judge Laura Sullivan

Judge Laura Sullivan

Here is how it ended: “After roughly 30 minutes, they released me with my notes. As I left, a group of African-Americans approached, wanting to shake hands. A lady enlightened me, ‘We saw what they did to you and figured you must be important.’ ‘Why,’ I asked. She explained, ‘Because they let you go.'”

Turns out that this is a old story in Cook County courts. According to recent a Chicago Tribune editorial, “in 2004, a different Cook County judge threw a different law professor out of her courtroom for taking notes. [Now retired] Judge Gloria Coco  forbade . . . writing in her courtroom . . . . That time, it ended up in federal court. A judge said the First Amendment protects public access to the courts so that citizens can observe and critique their government, and note-taking helps ensure an informed discussion.” (Here is the case: Goldschmidt v. Coco (2006).)

Thanks to Professor Jones, the problem may now have been solved for good insofar as Chief Judge Timothy Evans has since signed an “administrative order spelling out that note-taking is permitted in court.”

→ For an earlier discussion of the same problem, see Eugene Volokh, “Ban on Note-Taking by Spectators in Court,” Volokh Conspiracy, May 24, 2013

→ The American Judicature Society has conducted a federal court and 50-state court survey of “Note-Taking Laws,” this in connection with juror note-taking.

Third Circuit to Hear Challenge to Delaware’s Voter Guide Rules Read More

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SCOTUSBlog and Press Credentials

There is an ongoing controversy over whether SCOTUSBlog can get a press credential at the Supreme Court.  (For some background, here is Adam Liptak’s column.)  The Court defers on these matters to the Senate, and the Senate defers to a group of journalists on the “Standing Committee of Correspondents.”  The Committee has denied a new petition from SCOTUSBlog for a credential, and is now considering an appeal.

I want to say that I (and many other people) rely on SCOTUSBlog’s professional coverage of the Court’s work.  When the health care cases came down in 2012, SCOTUSBlog got it right while the so-called real journalists (I’m talking to you CNN) got the news wrong.  Moreover, I think that in a world of blogs, vesting credentialing in an obscure group of reporters (who are, of course, not from blogs) is highly problematic.

I thought that CoOp readers and others might want to make their views known to the Committee on this question, and thus I thought I’d list their names and affiliations.  After all, journalists love transparency.

Kate Hunter–Bloomberg News (Kate_HunterDC) on Twitter

Emily Ethridge–CQ Roll Call (emilyethridge@cqrollcall.com)

Siobhan Hughes–The Wall Street Journal (siobhanhughes1) on Twitter

Colby Itkowitz–Washington Post (ColbyItkowitz) on Twitter

Peter Urban–Stephens Media Group (purban@stephensmedia.com)

 

 

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James Risen and the reporter’s privilege status quo

Many thanks to Danielle, Frank, and the Concurring Opinions crew for inviting me to guest blog this month. As Danielle mentioned, I’m primarily an IP and media law guy, and I anticipate blogging about things like Aereo, trolls, and the future of newsgathering. (Like Harry, I can be found commenting on lots of other things @bradagreenberg.) I start today with a reporter’s ability to protect the identity of confidential sources…

This week the Supreme Court denied the petition of New York Times investigative reporter James Risen. For years, Risen has fought government efforts to compel disclosure of whether a former CIA official was Risen’s source for a story about a botched CIA plot to infiltrate Iran’s nuclear agency. Risen included this confidential information in his 2006 best-selling book State of War. The former CIA official is being prosecuted for leaking to Risen, and, last July, the Fourth Circuit ruled that Risen must testify at the trial. In a last gasp, Risen petitioned the Supreme Court, asking whether  journalists in a federal criminal trial have a qualified constitutional privilege against revealing confidential sources or should have a common law privilege under Federal Rule of Evidence 501.

The Court having declined to answer this question, Risen now faces testifying or being held in contempt. (Or he must throw himself on the “hinted” mercy of the Justice Department.) This is a great tragedy for a great journalist. But it is not necessarily a great tragedy for great journalism.

Risen’s appeal was a case of Be Careful What You Wish For.

At the core of Risen’s protest is the often-mistaken belief that reporters cannot be compelled to disclose their confidential sources. The Supreme Court first addressed this question forty-two years ago in Branzburg v. Hayes, in which the Court effectively split 4-1-4 on whether journalists had a constitutional privilege against compelled disclosure. The majority opinion held that journalists do not.

But Branzburg did not foreclose such protections. State courts have long shielded media from compelled disclosure, with forty-nine states and the District of Columbia offer varying statutory or common law protections. And Justice Powell’s concurrence suggested that journalists might have a constitutional privilege on different facts, particularly if the subpoena had not been issued by a grand jury. Since then, the circuit courts have recognized a variety of protections: “nine circuits have acknowledged, and only the Sixth Circuit has rejected, a qualified privilege for confidential information in civil cases, and … four circuits extend the privilege in criminal cases and some over non-confidential information in civil cases.” (That’s from this essay about the flawed Free Flow of Information Act of 2013; the federal media shield folly was also mentioned in my previous guest visit.) The result has been that journalists get different levels of protection in different jurisdictions—but in most jurisdictions they get some protection.

Had the Supreme Court agreed to hear Risen’s petition, it is likely that there would be uniformity regarding compelled disclosure of journalists’ confidential info. (It is unclear whether that uniformity would have been limited to confidential sources or would have extended to nonconfidential notes, unused materials, journalist observations, etc.) That uniformity could have increased protections and thereby decreased disincentives to sharing sensitive or confidential information.

Yet, in many circuits the uniformity might cut the other way, restating Branzburg in a manner that results in a weaker media shield. In fact, this seems more likely. In a post-legacy-media era in which people do journalism but aren’t necessarily journalists, legislators and judges have found it so difficult to determine to whom a reporter’s privilege should apply. (The debate over the federal media shield bill is paradigmatic. See n.5.) In this context, it is unlikely the Supreme Court would be willing to establish a broad reporter’s privilege—and in a national security case, for that matter.

Of course, just because the government can compel Risen to testify, does not mean that it should. The spirit of the First Amendment suggests otherwise…

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FAN 18 (First Amendment News) — What to do with the First Amendment? Election Law & Free Speech

I have not taken a position, one way or the other, on these constitutional amendments; we are having a hearing.” — Senator Patrick Leahy, June 3, 2013

To amend or not to amend? The question lingers and the debate continues. In the political maelstrom, some liberals push to amend the First Amendment while conservatives push back against the idea of tinkering with the Bill of Rights. It is a sign of our times that jaws don’t drop in utter amazement at the ideological lineup at play here.

Protestors at Senate SJ 19 hearing just before it began

Protestors at Senate SJ 19 hearing just before it began

“We are here to declare victory,” said Bobby Burchfield at a Heritage Foundation event this past Monday (see below). The seasoned election law lawyer, who argued on behalf of the RNC in the McCutcheon case, stressed victory because in his view campaign finance reformers have now conceded that their reform measures cannot be reconciled with the First Amendment. Echoing that point, Donald McGahn (former FEC chairman and prominent election law lawyer now with Jones Day) told the Heritage audience: “The so-called reformers are finally admitting that what they want to do is unconstitutional.”

Messrs. Burchfield and McGahn were referring to a proposed constitutional amendment  (S.J. 19) introduced by Senator Tom Udall (D-NM) and co-sponsofed by Senators Michael Bennet (D-CO) and Jon Tester (D-MT) along with 38 others (no Republican co-sponsors — 33 co-sponsors have joined a companion amendment in the House, H.J. Res. 20). A hearing on the Udall proposal took place yesterday in the Senate.

The Senate Hearing

Senator Leahy chatting with Senator Reid (seated).

Senator Leahy chatting with Senator Reid (seated).

Senate Hart Building, Rm. 216, 10:30 a.m — Senator Patrick Leahy (D-Vt.) chaired the hearing. Sixteen senators were present at various times during the hearing. Introductory comments were made by  Chairman Leahy (statement here) and Senator Chuck Grassley (R-IA) (statement here). Their remarks were followed by the first panel of witnesses, which consisted of Majority Leader Harry Reid (D-Nev.) (statement here) followed by comments from Minority Leader Mitch McConnell (R-KY) (statement here). “This joint appearance,” said Committee Chairman Patrick Leahy (D-Vt.), “is a first in the Committee’s history as far as we can tell.”  

Prior to the second panel’s statements, comments were offered by Senator Richard Durbin (D-IL) and Senator Ted Cruz (R-TX) (video clip here).  The second panel consisted of statements by Floyd B. McKissick, Jr. (a state Senator from North Carolina) (statement here), Floyd Abrams (Partner, Cahill Gordon & Reindel) (statement here), and Jamie Raskin (Professor of Law, American University, Washington College of Law) (statement here).

Here are a few excerpts from State Senator McKissick’s remarks:

“In 2010 alone Americans For Prosperity, a group funded in large party by the Koch brothers, spent more than a quarter of a million dollars in North Carolina. Another group, Civitas Action, spent more. A new organization that sprang up, called Real Jobs NC, spent almost $1.5 million dollars. Overall, three quarters of all the outside money in state races that year were tied to one man: Art Pope. Pope and his associates poured money into 22 targeted races, and the candidates they backed won in 18.”

Here are a few excerpts from Mr. Abrams’ remarks:

“The description of the constitutional amendment it proposes states, in its text, that it ‘relate[s] to contributions and expenditures intended to affect elections.’ That’s one way to say it, but I think it would have been more revealing to have said that it actually ‘relate[s] to speech intended to affect elections.’ And it would have been even more revealing, and at least as accurate, to have said that it relates to limiting speech intended to affect elections. And that’s the core problem with it. It is intended to limit speech about elections and it would do just that. . . .”

Here are a few excerpts from Professor Raskin’s remarks:

“[I]n several recent 5-4 decisions, the wall protecting democracy from plutocracy has been crumbling under judicial attack. Four years ago, in Citizens United v. FEC, the Roberts Court majority bulldozed an essential block of the wall, the one that kept trillions of dollars in corporate treasury wealth from flowing into federal campaigns. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), the Court stifled public debate and destroyed vast new opportunities for political speech by striking down public financing programs that use matching funds and a trigger mechanism to amplify the voices of less affluent candidates competing to be heard over the roar of big wealth. In McCutcheon v. FEC (2014), the Court took a sledgehammer to the aggregate contribution limits, empowering political tycoons and shrewd business investors to max out to every Member of Congress and all their opponents. All of these assaults on political equality and free speech were justified in the name of the First Amendment.”

See Amy Howe’s SCOTUSblog post here.

→ A vote on S.J. 19 is said to occur later this year. 

A Few Highlights from S.J. 19 Hearing

  • Boxes of petitions calling for a constitutional amendment.

    Boxes of petitions calling for a constitutional amendment.

    Senator Leahy: “Two million Americans have signed petitions calling for a constitutional amendment.” [Stacks of boxes containing the petitions were brought into the hearing room for display.]

  • Senator Grassley: “Today freedom of speech is threatened as it has not been in many decades.”
  • Senator Reid: “Is there any member of this Committee who believes the status quo is good?”
  • Senator McConnell: “Everyone on this panel knows this proposal will not pass . . . . This is a political exercise and that’s all it is.”
  • Senator Jefferson Sessions (R-AL): “The First Amendment . . . is not a collective right.”
  • Senator Cruz: “Citizens are still astonished that members of Congress would dare support repealing the First Amendment. . . . This amendment is about power and about politicians silencing citizens. . . . We are in a strange point in time when Democrats abandon the First Amendment, and, indeed, propose repealing it.”
  • Professor Raskin: “Don’t be intimidated; the people are with you. . . . [The Petitioners in Citizens United] could have won, and should have won, on that point [i.e., statutory grounds].”
  • Senator Charles Schumer (D-NY): “The First Amendment has always had a balancing test.”
  • Senator Jean Klobuchar (D-MN) question to Mr. Abrams: “Do you support any other limits [beyond disclosure] on campaign contributions . . . .?  Mr. Abrams: “I’ve pretty well come to the conclusion that contribution limits . . . ought to fall. I think they should be disclosed, but it seems to me that we’ve reached a point, both in our jurisprudence and our politics, where if we know what the money is and where it is coming from that . . . we can trust the public to make a rational decision . . . .”
  • Senator Reid quoting Senator Mitchell (apparently from statement made in 1987 or 1988): “‘We Republicans have put together a responsible and Constitutional campaign reform agenda. It would restrict the power of special interest PACS, stop the flow of all soft money, keep wealthy individuals from buying public office.'”

* * * * 

Ken Kulkowski: “Only one amendment has modified a previous amendment. The Eighteenth Amendment was ratified in 1919 and empowered Congress to forbid alcohol nationwide. Then the Twenty-First Amendment was ratified in 1933 to repeal the Eighteenth Amendment and allow alcohol to flow once again.” [Source: here]

* * * * 

Heritage Foundation Event

The day before the Senate hearing on S.J. 19, the proposed amendment was a topic of discussion at the Heritage Foundation. The panel was moderated by Elizabeth Slattery with comments by Bobby Burchfield, Donald McGahn, and Hans A. von Spakovsky. Here are a few excerpts from their remarks:

Mr. Burchfield: “The McCutcheon decision is plainly correct.  McCutcheon like Citizens United did not break new First Amendment ground” since both decisions were consistent with Buckley v. Valeo, which rejected the idea of leveling the political playing field rationale. “The self-styled reform community is trying to read into the First Amendment what democratic government should be. The First Amendment does not impose on government a duty to limit speech.”  

Dan McGahn

Dan McGahn

Mr. McGahn: Under S.J. 19, could “Congress prohibit a labor union from communicating with its members?  What about the NRA and its members?” Can S.J. 19’s ban be “speech selective?”  Would it apply to “pastors and their congregation? What about bloggers who aired a video like the one in Citizens United?  What about books?”  McGahn also analogized S.J. 19 with the British Licensing Order of 1643 and the Stamp Act of 1765 in that all of these measures required permission from the government to speak.

Mr. von Spakovsky: “Nearly all means of communication require spending money—from the ‘humblest handbill or leaflet’ to political advertisements run during prime time on ‘television, radio, and other mass media,’ which are “indispensable instruments of effective political speech. . . . Supporters of this amendment claim that restricting the amount of money that may be spent on political speech and activity is not the same as limiting speech, but that is the equivalent of saying that limiting the amount of newsprint a newspaper may buy does not limit the newspaper’s speech. Coincidentally, the proposed constitutional amendment has one glaring exception: It would not apply to the press. Thus,The New York Times and MSNBC could continue to spend as much money, newsprint, and airtime as they want supporting their preferred candidates (or attacking those they oppose), but individuals, associations, and non-media corporations would be strictly limited in their political speech. This is certainly no way to ‘level the playing field.'”

 A video of the event should be available soon (check here)

Call for Constitutional Convention?  Read More

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FAN 17.2 (First Amendment News) Latest Snapshot of Roberts Court’s Record on Free Expression Issues This Term

Here is the latest snapshot of what the Roberts Court has done this Term in connection with free expression cases.

Decided Cases

Cert Granted

Already Argued & Ruling Pending 

Selected Pending Cases: Petition Stage

Cert. Denied

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FAN 17.1 (First Amendment News) — Court Denies Review in Reporter’s Privilege Case

Earlier this morning, the Supreme Court denied review in Risen v. United States, a reporter’s privilege case involving the Pulitzer Price winning New York Times journalist James Risen.

The two issues raised in the case were:

(1) Whether journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial; and (2) whether a federal common law privilege should be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial.

In a complex array of vote lineups on various aspects of the main opinion, the Circuit Court (led by Chief Judge William B Traxler, Jr. and joined in some parts by Judges Albert Diaz and Roger Gregory) ruled against James Risen. The Chief Judge declared that “there is no First Amendment testimonial privilege, absolute or qualified, that protects reporter from being compelled to testify in criminal proceedings about criminal conduct that reporter personally witnessed or participated in, absent showing of bad faith, harassment, or other such non-legitimate motive, even where reporter has promised confidentiality to source; in present case, federal trial court erred by quashing trial subpoena issued to journalist who allegedly received classified information about covert operation from former CIA case officer, in criminal prosecution of that individual for disclosure of classified information, since there is no First Amendment reporter’s privilege in criminal cases.” The Chief Judge also noted that there was no federal common-law reporter’s privilege protecting confidential sources, and if there were one the federal government would have satisfied it in this case.

Joel Kurtzberg of Cahill Gordon and Reindel filed the cert. petition on behalf of Mr. Risen. Lee Levine of Levine Sullivan Kock and Schulz filed an amicus brief on behalf of ABC and other media groups in support of the Petitioner. And Joshua Wheeler of the Thomas Jefferson Center for the Protection of Free Expression also filed an amicus brief in support of the Petitioner.