Category: General Law

1

FAN 30.2 (First Amendment News) This evening: vote on proposed amendment to First Amendment

Since a vote re a proposed amendment to the First Amendment has been scheduled for 6 p.m. ET this evening, I am reposting an earlier FAN column on this topic.

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

Text of First Amendment on stone tablet facing Pennsylvania Avenue -- the Newseum, Washington, D.C.

Text of First Amendment on stone tablet facing Pennsylvania Avenue — the Newseum, Washington, D.C.

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 aconstitutional 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 andUnited 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 Read More

0

ROUNDUP: Law and Humanities 09.08.14

I’d like to alert those of you planning to attend the AALS Annual Meeting in January 2015 to three law and film events taking place during that time. The AALS Film Committee is sponsoring two law and film nights during the meeting. The first, on January 2, at 7:30 p.m. (the first night of the conference), will be a screening of the classic Judgment at Nuremberg, directed by Stanley Kramer, written by Abby Mann, and starring a whole host of great actors, including Spencer Tracy as the thoughtful Chief Judge Dan Haywood, Marlene Dietrich as widowed Mrs. Bertholt, lost in denial, a young William Shatner (in his pre Captain Kirk days), Richard Widmark as the passionate prosecutor Colonel Lawson, Burt Lancaster as Dr. Ernst Janning and Werner Klemperer, two of the German judges accused of war crimes, Judy Garland as Irene Hoffman, a witness nearly overcome by the story she has to tell, and Maximilian Schell as Hans Rolfe, the defense attorney for the judges, who challenges both the prosecutors and the system of justice at every turn. Rolfe poses the ultimate question: in such a high profile trial, in which the stakes include the future of a nation, can these defendants ever get justice? The film dramatizes some of the famous “Nuremberg Trials” held after World War II, in particular those in which judges rather than political and military figures were defendants.

Read More

0

Scottish Independence

120px-Scottish_Flag_-_detailNext week Scotland will vote on independence.  No matter the outcome, the result will be more federalism in Great Britain.  Even if Scotland votes nae, that vote will still probably be close.  And much like what happened in Canada with Quebec, Parliament will have to give Scotland more autonomy to prevent a future vote from going the other way.  (Indeed, a proposal of this sort is already being floated to sway undecided voters.)  If Scotland votes aye, then one would expect Wales to demand and get more autonomy to stay in the Union, though Wales is a less viable independent states.

One curiosity about the upcoming vote is that Britain is due to hold a general election next year.  If Scotland votes aye on independence, then would it still get to vote in that election?  It will probably take more than a year to finalize Scottish secession, but it would be weird if a departing part of the country gets to form a new government.  (And then, I guess you’d have to have a new election as soon as all of the Scottish MPs leave.)  Of course, Parliament could simply postpone the election (something that cannot be done under our Constitution), but that creates its own difficulties.

One last thought.  At what point will a federal Britain need an English Parliament as distinct from Westminster?  In other words, right now there is no English provincial government–there are only national, Scottish, Welsh, and local ones.  How long is that sustainable if Scotland and Wales get more power within Britain?

1

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

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

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

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

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

ENTER THE DISSENTERS

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

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

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

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

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

John Shattuck, one of the signers of letter

John Shattuck, one of the signers of letter

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

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

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

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

13

Posnerian Muscle Flexing

Let us take a moment to celebrate my dear Judge Posner’s decision in favor of same sex marriage, Baskin v. Bogan __ F.3d __ (7th Cir. Sep. 4, 2014) and offer some favorite paragraphs from one of our greatest thinkers (ok, I’ll admit, I am a fan):

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

Some pretty language for future quotes:

If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving. See 388 U.S. at 8–12.

or:

Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

or:

[M]ore than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation.

Read More

4

Posner opinion on same-sex marriage cases — no law clerk drafts needed

Judge Richard Posner

Judge Richard Posner

He is a rara avis – he writes his own judicial opinions (nearly 3000).  Law clerks need not bother with drafts. He writes his own scholarly articles (over 300-plus of them) and erudite books (40-plus). Law clerks need not bother with writing them either.

In a world where judicial “plagiarism” is the accepted norm, Judge Richard Posner is his own man, his own author, and his own thinker. Make of him what you will, but you gotta admire the guy for his hard work, dedication, and integrity.

All of this was made manifest recently in two same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker), which were argued before a panel of the Seventh Circuit on August 26, 2014. The oral arguments in the cases, especially Posner’s interactions with the counsel, have been the talk of the town. In them, Posner minced no words as he cut through the clichéd babble tendered in defense of the state laws therein challenged.

Yesterday, slightly more than a week after those arguments, Judge Posner wrote for the Court in a clear-headed and well-reasoned 40-page opinion.

No cutting and pasting here; no arguments weighed down by the pull of tedious string citations; and no ambiguity of argument. Not surprisingly, the likes of Holmes and Kafka were summoned to buttress the logic of his opinion, this with a dollop of Posner’s own cost-benefit analysis mixed in for persuasive measure. This is not to say, however, that the opinion lacks a good discussion of the relevant case law. Hardly. Rather, my point is that Posner’s work in these cases does not read like some group project or something out of a law school moot court exercise. No! It has style and sophistication.

Now think: could a fresh-out-of-law-school clerk do all that, and in such a short period of time? Probably not . . . unless his name was Richard Posner (on that score, see here).

Speaking of Judge Posner, next month we plan to post a series of pieces on the good Judge, including a post consisting of questions on 26 topics posed to him by 24 noted legal persona (professors, journalists, and judges), replete with his replies to all of them. Stay tuned.

0

Introducing Professor Kenneth Stahl

Kenneth StahKen teaches Land Use, Real Property, and Local Government Law at Chapman University Fowler School of Law, and is the director of the Environmental, Land Use, and Real Estate Law certificate program. Before joining Fowler, Ken spent four years as an Assistant United States Attorney in the Eastern District of New York. Prior to that, he worked as a Trial Attorney for the United States Department of Justice, Office of Constitutional Torts, and as an Associate at the Washington, D.C. law firm of Arnold & Porter.

Ken’s scholarly work focuses on local politics and the relationship between the local political process and judicial doctrine in land use and local government law. Professor Stahl’s articles include Neighborhood Empowerment and the Future of the City, 161 University of Pennsylvania Law Review 939 (2013) and The Suburb as a Legal Concept: The Problem of Organization and the Fate of Municipalities in American Law, 29 Cardozo Law Review 1193 (2008). He also wrote Local Government, “One Person/One Vote,” and the Jewish Question, 49 Harvard Civil Rights-Civil Liberties Law Review 1 (2014). This piece was selected as one of the winning papers for the 2012 Junior Faculty Forum at Harvard Law School.

Welcome, Ken!

stairway-to-heaven-1319562-m-720x340
0

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

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

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

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

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

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

∇ ∇ ∇ 

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

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

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

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

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

∇ ∇ ∇ 

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

0

Blogging Hiatus

I am on paternity leave this semester, and taking care of an infant most of the day does not lend itself to deep thinking about the law (or about much else).  You can therefore expect to see me here less often in the next few months, though I’m sure I’ll post a few times once the Justices get back into action.

0

Marian Anderson & Justice Black, April 9, 1939

Harold Ickes & Marian Anderson

Harold Ickes & Marian Anderson

I was just watching a WETA segment on our national parks when I came upon the Marian Anderson story and how the Daughters of the American Revolution refused to let her perform at Constitution Hall, which they owned.

Upset by the incident, Eleanor Roosevelt urged Harold Ickes (the former president of the Chicago NAACP & then Secretary of the Interior) to arrange for the opera singer to perform at the Lincoln Memorial. Ms. Anderson performed there on Easter Sunday, April 9, 1939, to a crowd of 75,000 admiring onlookers. The event was also broadcast on national radio.

Of course, all of this and more are well known. What is far less known is that invitations were sent out to the all of the Justices of the Supreme Court.  (See Gerald T. Dunne, Hugo Black & the Judicial Revolution 304 (1977)). One Justice accepted, which brings me back to my public television story.

Justice Hugo Black, 9 April 1939

Justice Hugo Black, 9 April 1939

If you go to the YouTube clip of the Anderson concert, you will see Justice Black in the audience (1 minute & 19 seconds into it).

By that time in 1939 Justice Black had been on the Court for some 20 months — this 15 years before Brown. Most likely, word of Justice Hugo Black’s solo appearance made its way to Alabama, his home state. And yet, he was there (see pic) and the newsreels captured it all, too.

For an account of the concert and its historical significance, see Raymond Arsenault, The Sound of Freedom: Marian Anderson, the Lincoln Memorial, & the Concert that Awakened America (2009).