Category: First Amendment


UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480



Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548





FAN 17 (First Amendment News) — New Bio Reveals How Scalia Helped to Save a PBS Station

A soon to be released 650-page biography of Antonin Scalia reveals some interesting tidbits about the Justice and his career as it relates to free speech. The book is titled Scalia: A Court of One (Simon & Schuster, June 10, 2014). Bruce Allen Murphy, the Fred Morgan Kirby Professor of Civil Rights at Lafayette College, is the author of this heavily-researched and well-documented new biography. Professor Murphy’s previous judicial biographies include The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982), Fortas: The Rise and Ruin of a Supreme Court Justice (1988), and Wild Bill: The Legend and Life of William O. Douglas (2003).

Bruce Allen Murphy

Bruce Allen Murphy

Tellingly, the yet-to-be-distributed book has already been praised and criticized. That said, Murphy’s biography affords a new opportunity to revisit the history of Justice Scalia’s interaction with the First Amendment, both before and during his career on the Court. Readers of this column will recall Scalia’s recent call for law schools to place more emphasis on teaching the First Amendment. Recall, too, the Justice’s repeated criticism of the holding in New York Times Co. v. Sullivan.

Turning back the biographical clock, and as Professor Murphy recounts it, in January of 1971 Antonin Scalia (he was 35) went to work as general counsel for the Office of Telecommunications Policy. During Scalia’s tenure there President Nixon “became convinced that the national news and public affairs division of the Public Broadcasting Service . . ., which depended on government funding, was an ‘enemy’ group staffed by relentless liberal journalists. Nixon decided to try to take control of this agency, or, if he could not, to destroy it by cutting off its funding.”

Sometime later, word reportedly came down from the Nixon White House to “get a particular PBS station off the air.” According to an OTP official then working there, “Nino said, ‘hell, write back a memo that says it’s illegal.’ While Scalia acknowledged that [the purported illegality] was not true, he added, ‘Hell, they don’t know that.'” Subsequently, the OTP official “told a reporter that he did precisely what Scalia recommended and the White House soon dropped the issue.”

To be sure, there is more to this story, but I refer readers to the Murphy’s biography to learn how the matter ultimately played out, politics and all.

Before leaving the Murphy biography, readers might be interested to know that he devotes a chapter (#8) to the originalist debate over the meaning of the First Amendment as interpreted by then Circuit Judges Robert Bork and Antonin Scalia in the case of Ollman v. Evans (1984).

More on Justice Scalia

Speaking of Justice Scalia and free speech, the following is a list of his First Amendment free expression majority opinions authored during his tenure on the Roberts Court. Notice the vote margin when he is assigned to write for the Court.

→ Aside: Coming in 2015: A play titled “The Originalist

Federal Court Affirms Right to Videorecord Police 

Read More


FAN 16.3 (First Amendment News) — Unanimous Judgments: The Roberts Court’s Record in First Amendment Free Expression Cases

Earlier today the Supreme Court handed down its ruling in Wood v.Moss.  The vote was 9-0 and the opinion was authored by Justice Ruth Bader Ginsburg.  In part, the Court held that

Government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the gov- ernment actor fears, dislikes, or disagrees with the views expressed. See, e.g., Police Dept. of Chicago v. Mosley . . . . The fundamental right to speak, however, does not leave people at liberty to publicize their views “ ‘whenever and however and wherever they please.’ ” United States v. Grace . . . In deciding whether the protesters have alleged violation of a clearly established First Amendment right, this Court assumes without deciding that Bivens v. Six Unknown Fed. Narcotics Agents, . . . , which involved alleged Fourth Amendment violations, extends to First Amendment claims . . . .

Accordingly, the Court ruled that the Secret Service agents were entitled to immunity; the Ninth Circuit was reversed. (See Professor Ruthann Robson’s comments on the case here.)

Beyond the qualified immunity point of this opinion, what is interesting is that in Wood the Court denied a First Amendment claim by a unanimous vote. When it comes to free expression First Amendment cases, the Roberts has consistently been unanimous in cases in which the claim was denied. In other words, the only time the judgment is unanimous in such cases is when a free speech claim is rejected. Wood is but the latest case in this string of First Amendment opinions.

Unanimous Judgments Denying First Amendment Expression Claim

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0] [3rd Cir., reversed & remanded]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0] [Wash. S. Ct., vacated & remanded]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0] [2nd Cir., reversed]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0] [10th Cir., reversed]
  5. Locke v. Karass (2009) [vote: 9-0] [First Cir., affirmed]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0] [8th Cir., affirmed in part, reversed in part & remanded]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0] [Nevada S. Ct., reversed & remanded]
  8. Reichle v. Howards (2012) [vote: 8-0] [10th Cir., reversed & remanded]
  9. Wood v.Moss (2014) [vote: 9-0] [9th Cir., reversed]


Of the Roberts Court’s 32 free expression First Amendment opinions, 28% were decided by a unanimous vote and against the free expression claim being asserted.

See also: FAN 11.3: The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term


FAN 16.2 (First Amendment News) Democracy 21 Responds to RNC Lawsuit

Press Release, May 23, 2014

RNC Challenge to Political Party Soft Money Ban Filed Today in Federal District Court Has Already Been Rejected Twice by Supreme Court

Statement by Democracy 21 President Fred Wertheimer

The RNC filed a lawsuit today in Federal District Court in Washington, D.C. challenging for the third time the ban on national parties raising and spending unlimited contributions, or soft money. They have lost this same argument twice before in the Supreme Court.

The RNC lost this argument in the Supreme Court in the McConnell case in 2003 and lost again in the RNC case in 2010, decided after the Citizens United decision.

In the 2010 RNC case, Chief Justice Roberts and Justice Alito joined in the 6 to 3 Supreme Court decision that summarily upheld the lower court decision reaffirming the constitutionality of the soft money ban.

The RNC cannot get around the soft money ban and the Supreme Court decisions upholding the ban by the use of blue smoke and mirrors.

The RNC has no basis for bringing this lawsuit and apparently wants to obtain three strikes before they will accept the fact that they cannot raise and spend soft money.

The RNC is attempting to sell an illusion that the RNC can raise and spend soft money without raising and spending the soft money that the law, upheld by the Supreme Court, prohibits the RNC from raising and spending.

The RNC is also attempting to make believe that the two previous losses they had in the Supreme Court in challenging the soft money ban somehow aren’t relevant to this case and the RNC’s desire to raise and spend soft money.

Representative Chris Van Hollen intervened in the 2010 RNC case to defend the ban on political party soft money and he has indicated he will move to intervene in the RNC case filed today.

Democracy 21 lawyers will join with others in representing Representative Van Hollen in this case, as we did in the 2010 RNC case.

Federal law prohibits the national parties from raising contributions above the federal contribution limits, or soft money, and from spending any such funds.

Federal law also prohibits federal officeholders and national party officials from soliciting any such soft money contributions.

Contact Kathryn Beard, Democracy 21 @



FAN 16.1 (First Amendment News) — RNC Lawsuit Challenges Soft Money Restrictions in McCain-Feingold

Press Release (complaint available here)

Today, the Republican National Committee (RNC) and the Republican Party of Louisiana (LAGOP) filed suit in federal court challenging federal soft-money restrictions in the McCain-Feingold campaign finance law that prevent political parties from having their own independent-expenditure accounts and that prevent state and local political parties from using soft money — i.e., state-regulated money — for voter registration and get-out-the-vote activities.
        The Federal Election Commission (FEC) has recognized that political committees may have independent-expenditure accounts, which may receive unlimited contributions for making independent expenditures about federal candidates, and may also have a separate account to make contributions to candidates. Contribution accounts are subject to a “base contribution limit,” usually $5,000 annually, restricting how much an individual may contribute to them.
        However, the FEC prohibits political parties from having independent-expenditure accounts, which means that the RNC’s independent expenditures must be funded by contributions limited to $32,400 a year.
        In the lawsuit, Republican National Committee v. FEC, the RNC and Chairman Reince Priebus want to establish an RNC independent-expenditure account and to solicit unlimited contributions to it. However, political parties are currently prohibited from having independent-expenditure accounts and national political party officers are limited in how much they may solicit for an independent-expenditure account — only up to the base contribution limits — even though base limits on contributions to independent-expenditure accounts are unconstitutional.
        The Republican Party of Louisiana, and its Chairman Roger Villere, also are suing in order to establish and to solicit unlimited contributions to the LAGOP’s own independent-expenditure account.
        In addition, the LAGOP has joined with two Louisiana local political parties, Jefferson Parish Republican Parish Executive Committee and Orleans Parish Republican Executive Committee, to seek to do independent “federal election activities” with Louisiana state-regulated money (often called “soft money”),  instead of so-called “federal funds” (often called “hard money”). Federal election activity includes voter-identification, voter-registration near federal elections, and get-out-the-vote activities, as well as any public communications that merely mention a federal candidate. State and local parties must currently use federal funds even for independent federal election activity. Federal funds are subject to burdensome regulations that prevent many state and local political parties from engaging in federal election activity.
        The controlling legal principle undergirding all the suit’s claims is that the Supreme Court has held in Citizens United v. FEC and McCutcheon v. FEC, that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” As a result, it is unconstitutional to impose contribution limits on independent expenditure activities – which has given rise to independent-expenditure accounts. The same reasoning applies to political parties’ independent campaign activities.
        In the alternative, the Plaintiffs ask the court to declare all soft money provisions of McCain-Feingold to be unconstitutional on their face, reversing McConnell v. FEC, since there is no evidence of quid-pro-quo corruption where a political party sought to corrupt their own candidates. McCutcheon v. FEC recently decided that only quid-pro-quo corruption can justify contribution limits and McConnell upheld the soft money bans despite no evidence of quid-pro-quo corruption, so McConnell was wrongly decided.
        James Bopp, Jr., lead attorney for Plaintiffs comments:
After Citizens United, there is no justification for restricting funds that political parties receive for independent campaign activity. In an era when independent-expenditure accounts can solicit unlimited contributions and spend enormous amounts to influence political races, political parties are constitutionally entitled to compete equally with them with their own independent campaign activity. Political parties are an important part of our political system and success in this case will help empower them again.

May 23, 2014
Contact: James Bopp  (see link above) 


FAN 16 (First Amendment News) — The Move to Amend & Leahy’s Upcoming Senate Hearing

The First Amendment never needs defending when it comes to popular speech. . . . I would hope that all of us in this chamber champion liberty … but when I hear some talk about cutting back on our First Amendment rights, you can see why people would wonder. — Senator Patrick Leahy, June 26, 2006

That was the mindset of the man who on June 3rd will preside over a Senate Judiciary Committee hearing on a constitutional amendment to “rein in massive campaign spending.” Essentially, he takes exception to the proposition that spending money (or lots of it) on elections is protected speech, much as his opponents took exception eight years ago to the proposition that desecrating the flag was speech, let alone protected speech. In that regard, it is well to remember that the same Justice John Paul Stevens who recently testified before the Senate in favor of a constitutional amendment to overrule Buckley v. Valeo and its progeny was also the one who dissented from the First Amendment holding in the flag desecration cases (Texas v. Johnson and United States v. Eichman). Thereafter, the campaign to pass a constitutional amendment to overrule those cases nearly succeeded (see below).

Text of Proposed Constitutional Amendment

I respect my colleagues’ fidelity to the First Amendment, but no amendment is absolute.                                                                                              Senator Chuck Schumer (D-NY) (May 2014)

The proposed constitutional amendment (S.J. 19) set out below was 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): 

SECTION 1. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.

SECTION 2. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, each State shall have power to regulate the raising and spending of money and in-kind equivalents with respect to State elections, including through setting limits on— (1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates. 

SECTION 3. Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.

SECTION 4. Congress and the States shall have power to implement and enforce this article by appropriate legislation. 

Question:  Given the gravity of amending the First Amendment for the first time in our history, it would be well to know who exactly drafted the Udall amendment. If staffers, which one(s)? And did any law professor(s) help in the drafting?

→ Other proposed amendments can be found here.

* * * * *

[This proposed amendment is ] an all-out assault on the right to free speech, a right which undergirds all others in our democracy. — Senator Mitch McConnell, May 15, 2014

A Constitutional amendment requires a two-thirds vote of the House and Senate and ratification by 38 states, so it has scant chance of passing any time soon. – WSJ Editorial, May 6, 2014

Historical First? — Liberal Push for Amendment to Amend First Amendment 

Recent efforts to amend the Constitution in light of Citizens United might represent the first time in American history that liberals/progressives have, acting alone, moved to amend the First Amendment in a way that would constrict existing rights.

I say this mindful of the failed proposed amendment in the 1980s offered up by Senators Ernest Hollings (D-S.C.) and Arlen Specter (R-Pa.) and again by them in 1997 by way of bi-partisan proposals urging a constitutional amendment to authorize Congress to set spending limits. The 1997 measure was defeated by a 61-38 vote.

Note:  Democracy 21, which was founded by Fred Wertheimer and is one of the leading progressive groups calling for campaign finance reforms, has taken no position on any proposals to amend the First Amendment, though People for the American way does support the Udall amendment as does Public Citizen.

Calls for Constitutional Amendment — Support in the States & Cities

Since the Citizens United case, 16 states and more than 500 local governments have called on Congress to overturnCitizens United through ballot initiatives, resolutions or other measures, showing strong public support for reform.  Read More


FAN 15.2 (First Amendment News) — Justice Scalia on the First Amendment & Legal Education

In a recent speech entitled “Reflections on the Future of the Legal Academy,” Justice Antonin Scalia had a few things to say about legal education and the First Amendment. The remarks were made on May 11, 2014 at the William & Mary Law School, this by way of a commencement address. The relevant passage is:

In more than a few law schools, including some of the most prestigious (the University of Chicago, for example), it is possible to graduate without ever having studied the recent First Amendment. Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law? And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?

[Hat tip to William Baude]


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, fax (202) 371-0841, or call (202) 789-5229 by noon on Tuesday, June 17, 2014.

Recent Event on McCutcheon Case Read More


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


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.