Category: General Law

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Close to Home

82px-William_Jennings_Bryan_cph.3b33180I recently learned an interesting fact that is not relevant to any current event.  William Jennings Bryan gave his acceptance speech for the 1900 Democratic presidential nomination across the street from my office.  In those days, candidates accepted their nomination after (not during) the convention.  Indeed, there was a tradition where a delegation from the convention went to the candidate’s home to present the invitation to run.  When Bryan gave his acceptance speech, he chose an outdoor rally in Indianapolis as the venue, and that location is now mostly occupied by the campus on which my law school sits.  (I’m sure there is a plaque somewhere the designates the exact sp0t.)

This was be the second most important speech ever given in Indianapolis.  The most important was this one.

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FAN 40.1 (First Amendment News) Banzhaf responds to Corn-Revere on FCC Redskins Flap

Professor John Banzhaf

Professor John Banzhaf, III

In an earlier post I profiled Robert Corn-Revere’s WSJ op-ed entitled “Free-Speech Foes Call an Audible — Bringing the FCC into the ‘Redskins’ debate is an invitation for First Amendment mischief.” The op-ed was written in critical response to a petition filed by George Washington Law Professor John Banzhaf to the Federal Communications Commission concerning the use of the Washington Redskins’ name on broadcast airwaves. At the end of my blog profile I invited Professor Banzhaf to respond, which he has now done. His response is set out below.

Robert Corn-Revere apparently objects that I have asked the FCC not to renew the broadcast license of a station that repeatedly and unnecessarily broadcasts a word which has been found in several legal proceedings to be a racial slur even when applied to an NFL team – “R*dskins,” the so-called R-word, equivalent to the N-word so hateful to African Americans, and never used on the air – and is even so defined in most dictionaries. But, in an apparent attempt to prove some point, he describes at length a major life-saving step I persuaded the FCC to take, and (perhaps deliberately) overlooks several obvious points.

In 1966 I persuaded the FCC with one filing (far shorter than the one now in question, and one which many likewise called “frivolous” at the time) to apply a largely unknown and moribund principle – the “Fairness Doctrine” — to cigarette advertising. The result was that anti-smoking messages were broadcast on radio and TV for the first time — hundreds of millions of (1968) dollars worth. This caused the country’s first major drop in cigarette consumption; estimated by itself to have saved millions of lives. It also led directly to a ban on cigarettes commercials; something which saved even more lives, and hundreds of billions of dollars in health care costs. [See  Banzhaf, et al. v. Federal Communications Commission, et al. (D.C. Cir., 1968, per Bazelon, C.J.)]

imagesThose who seek to hide behind the First Amendment argued then, as Corn-Revere does now, that both moves — first forcing stations to broadcast statements against smoking, and then banning them from running cigarette commercials — violated Free Speech, but I successfully defended both decisions in court. Thus, I was able to persuade the FCC to make one of its most important and significant decisions ever — one which saved millions of lives and got rid of cigarette commercials — yet Corn-Revere criticizes the fact that the FCC granted my request, apparently because the Fairness Doctrine was later abandoned. Yet this makes as much sense as criticizing the Special Prosecutor legislation (which I also had a hand in bringing into effect) — which helped save the country from a major constitutional crisis during Watergate — because it likewise was eventually allowed to expire.

He also fails to mention another FCC filing of mine that forced the major TV stations in DC — and eventually around the country – to begin featuring African Americans as reporters and in other significant on-air positions. That one, like the one he now criticizes and seeks to belittle, was likewise based on allegations of racism. Corn-Revere also fails to note how many of my other agency petitions, likewise derided as “frivolous” and/or publicity stunts at the time, were granted and were successful: in getting women admitted, for the first time, to the Cosmos Club and to formerly all-male state-supported military academies; in restricting and ultimately banning smoking on airplanes; in changing labels on foods, birth control pills and elsewhere; in striking down various forms of sex-based price discrimination, etc.

Although Corn-Revere opines (citing no authority) that my petition has no legal basis, three former FCC commissioners (including a former Chairman), as well as almost a dozen broadcasting law superstars, have publicly stated that such broadcasts are probably illegal under current law. The current FCC Chairman has stated that my petition will be taken seriously and evaluated on its merits, something he would not have said if it were obviously “a publicity stunt, not a serious legal argument.” And other broadcast law attorneys who oppose the petition have been forced to admit that it will at the very least likely hold up the license renewals of the stations for a considerable period of time, impacting their credit ratings, their ability to sell or transfer assets, etc.

Given that at least one TV station lost its license based upon allegations of racism, and that the FCC previously ruled that racial slurs constituted “profanity” (which cannot be broadcast during prime time), the tremendous value of a station’s broadcast license, and my track record in persuading the FCC and many other agencies to take unprecedented steps in response to imaginative petitions many said had no chance of success, given all that the question is: Should stations ignore this new movement and continue to bet the farm (their FCC licenses), simply to be able to say “R*dskins” rather than “DC” or “Washington” when providing the sports scores or otherwise talking about this NFL team?

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FAN 40 (First Amendment News) Steve Shiffrin & Bob Corn-Revere debate “What’s Wrong with the First Amendment?”

Bob Corn-Revere & Steve Shiffrin (with Joel Gora in background)

Bob Corn-Revere & Steve Shiffrin (with Joel Gora in background)

For those who savor good give-and-take talk about the First Amendment, last Wednesday evening was a memorable one as Professor Steven Shiffrin debated Robert Corn-Revere with Ashly Messenger moderating. The topic: “What’s Wrong with the First Amendment?” Why that title? Because that’s the working title of Professor Shiffrin’s next book.

The New York city event was the third in a series of First Amendment salons held at the offices of the law firm of Levine, Sullivan, Koch & Schulz. The program was introduced by Lee Levine, who announced that this was the first salon done in conjunction with the Floyd Abrams Institute for Freedom of Expression at Yale Law School. The event was video cast live to the firm’s office in Washington, D.C. and to the Abrams Institute in New Haven.

Among others, those attending the event included: Floyd Abrams, Sandra Baron, John Berger, Joan Bertin, Vince Blasi, Kali Borkoski, Karen Gantz, Joel Gora, Laura Handman, David Horowitz, Maureen Johnston, Adam Liptak, Greg Lukianoff, Tony Mauro, Wes Macleaod-Ball, David Savage, David Schulz, Paul Smith, and James Swanson.

The exchange was robust as the Cornell professor took articulate and passionate exception to several of the Roberts Court’s First Amendment rulings, including United States v. Stevens, Brown v. Entertainment Merchants Association, and United States v. Alvarez – all cases in which Corn-Revere had an amicus’ hand in defending the free speech claims. No potted plant, the First Amendment lawyer fired back with facts, figures, and history as the two men debated the pros and cons of balancing vs strict scrutiny approaches to free speech decision-making. The animated discussion was always friendly and at times even funny as the two traded witty retorts.

The dialogue was enriched as Vince Blasi, Katherine Bolger, Joan Bertin, Paul Smith, James Swanson, and Floyd Abrams, among others, weighed in. As the discussion developed one could almost see minds bouncing back-and-forth as Ms. Messenger pressed the two seasoned First Amendment experts. The evening ended on a high note as Shiffrin and Corn-Revere laughed and shook hands. (Re earlier salons, see here and here.)

Coming soon: book by Seana Shiffrin 

UnknownThe Shiffrin name has long been a familiar one in First Amendment circles — a name that has both invited and provoked thought. Now comes another Shiffrin, UCLA philosophy and law Professor Seana Shiffrin, who is a scholar in her own right — someone quite attune to jurisprudential nuance.

If the case of United States v. Alvarez (2012) — the Stolen Valor case — caught your attention, and if you were intrigued by Chief Judge Alex Kozinki’s separate opinion in the case when it was before the Ninth Circuit, then Speech Matters: On Lying, Morality, and the Law (Princeton University Press, Dec. 21, 2014) by Seana Shiffrin is a book for you. And it is more, philosophically much more.

Here is the publisher’s description of the forthcoming book: “To understand one another as individuals and to fulfill the moral duties that require such understanding, we must communicate with each other. We must also maintain protected channels that render reliable communication possible, a demand that, Seana Shiffrin argues, yields a prohibition against lying and requires protection for free speech. This book makes a distinctive philosophical argument for the wrong of the lie and provides an original account of its difference from the wrong of deception.”

“Drawing on legal as well as philosophical arguments, the book defends a series of notable claims — that you may not lie about everything to the “murderer at the door,” that you have reasons to keep promises offered under duress, that lies are not protected by free speech, that police subvert their mission when they lie to suspects, and that scholars undermine their goals when they lie to research subjects.”

“Many philosophers start to craft moral exceptions to demands for sincerity and fidelity when they confront wrongdoers, the pressures of non-ideal circumstances, or the achievement of morally substantial ends. But Shiffrin consistently resists this sort of exceptionalism, arguing that maintaining a strong basis for trust and reliable communication through practices of sincerity, fidelity, and respecting free speech is an essential aspect of ensuring the conditions for moral progress, including our rehabilitation of and moral reconciliation with wrongdoers.”

Table of Contents

Chapter 1: Lies and the Murderer Next Door 5

Chapter 2: Duress and Moral Progress 47

Chapter 3: A Thinker-Based Approach to Freedom of Speech 79

Chapter 4: Lying and Freedom of Speech 116

Chapter 5: Accommodation, Equality, and the Liar 157

Chapter 6: Sincerity and Institutional Values 182

I plan to say more about this book in the coming year. Stay tuned.

UnknownNew book by Danish editor of newspaper that published cartoons of Mohammad

The author: Fleming Rose 

The book: The Tyranny of Silence (Cato Institute, Nov. 14, 2014)

Description: “When the Danish newspaper Jyllands-Posten (Viby, Denmark) published the cartoons of the prophet Mohammed nine years ago, Denmark found itself at the center of a global battle about the freedom of speech. The paper’s culture editor, Flemming Rose, defended the decision to print the 12 drawings, and he quickly came to play a central part in the debate about the limitations to freedom of speech in the 21st century. Since then, Rose has visited universities and think tanks and participated in conferences and debates around the globe in order to discuss tolerance and freedom. In The Tyranny of Silence, Flemming Rose writes about the people and experiences that have influenced the way he views the world and his understanding of the crisis, including meetings with dissidents from the former Soviet Union and ex-Muslims living in Europe. He provides a personal account of an event that has shaped the debate about what it means to be a citizen in a democracy and how to coexist in a world that is increasingly multicultural, multi-religious, and multi-ethnic.”

See Fleming Rose here re his recent appearance on The Last Word with Lawrence O’Donnell.  

1-A groups urge school district to select books “solely on sound educational grounds” Read More

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Does King v. Burwell Present Constitutional Difficulties?

Here is an interesting point raised in this piece by The New Republic.  If the Court interprets the ACA to say that subsidies may go only to states that set up exchanges, then wouldn’t that raise a Spending Clause issue under South Dakota v. Dole and NFIB v. Sebelius?  Maybe that use of Congress’s spending authority is too coercive (whatever that means) because the subsidies are large and a state would suffer a lot if they had a health insurance system without federal subsidies while their neighbor had one with subsidies.

Mind you, I can see why what Congress may have done with the ACA subsidies is constitutional, but that’s not the question.  The question is whether the challenge to the Act raises “constitutional difficulties” that should be avoided by not reading the Act as providing for conditional spending.  I’m not sure what to think about this yet.

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The Roberts Convention

When I think about NFIB v. Sebelius, my understanding of what Chief Justice Roberts did was to say that in an election year the Justices appointed by one political party should not strike down the signature legislation of the other political party.  I have no idea what the Chief Justice thinks that the Chief Justice did two years ago, but how would what I just said apply to King if the decision is 5-4 against the Administration.

Well, 2015 is not an election year, and King would not strike down the Affordable Care Act.  But is an adverse ruling tantamount to striking it down given that Congress will not do much in response?  I don’t know.  I get different views on that from health law experts.  Some say this would be crippling, others say not so much.  One would think that the briefs will try to convince the Chief one way or the other on this–that matters as much as the technical aspects.

One other note–Paul Krugman’s column in today’s NY Times today on King is the liberal equivalent of a Rush Limbaugh tirade.  I don’t have time to go through all of the flaws.  I love reading him and think his economic views are spot on, but on this one he doesn’t know what he’s talking about.

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American Founding Son

I see Amazon is temporarily out of stock of my John Bingham biography, but don’t let that discourage you from buying the book.  (Yes, this is shameless self-promotion.)  More substantive posts about King coming tomorrow.

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Piketty’s Capital & the Continuing Pull of Macroeconomic Theory

One of the important points of Thomas Piketty, Capital in the Twenty-First Century is to undermine the use exclusively of the long prevailing macroeconomic theories focusing on national economies called “the Chicago School.” Saul Levmore, in a review of Capital forthcoming in the Michigan Law Review, delivers what should be a devastating blow to macroeconomics as the only way to describe how our society works if, as Piketty shows, that in the long run the return on capital exceeds economic growth, r>g. In a nutshell, Piketty’s microeconomic view shows that macroeconomic theory simply fails to describe reality. Levmore describes how macroeconomic theory would predict that in the long run competition for capital would reduce its rate of return to close to the rate of economic growth: “If the rate of return to capital is high, then there should be more investment in capital. Individual can be expected to save more and to defer consumption. . . . . But as high returns attract capital, opportunities to earn high returns ought eventually to diminish, and decreasing returns should be expected. Moreover, if capital remains expensive, because its suppliers need to be paid high returns, then there is room to substitute labor for capital. This demand for labor ought to increase g. Piketty’s response to this doubt about the long-term claim regarding r>g is essentially to report that it simply had not been so. . . . [D]ata do not lie. . . . At every turn it is useful to remember that this is a thesis driven by data rather than by theory.”

Levemore goes on to describe how macroeconomic theory would predict that the initial very high returns to hedge funds and their managers would, again in the long run, be reduced by competition. But, he says, the continuing “stratospheric compensation of hedge-fund managers is more difficult to rationalize [using Chicago school macroeconomic theory]. It is possible that in the beginning there were some gifted managers who could find extraordinary investments, but with thousands of funds and trillions of dollars in the industry, the reality of efficient market prevails.” The attraction to hedge funds should create competition that reduces the earnings of their managers. But Levemore concedes that Piketty’s microeconomic data shows that it hasn’t and likely won’t absent some enormous disasters like another World War.

After setting forth such a radical critique of macroeconomic theory – that it does not describe reality — Levmore fails to take the next step of asking why marcroeconomic theory does not hold up. Perhaps that simply indicates the continuing hold that Chicago School macroeconomics has over how we all think. That economic ideology is the prevailing paradigm that has a powerful hold on how we think. Through sizable investment by big business and the very wealthy in Milton Friedman’s macroeconomic theory, the prior Keynesian microeconomic paradigm was replaced in the U.S. and also more broadly. While contesting data don’t lie — the prevailing macroeconomic theory fails to describe the real world — it is still hard to see and understand a new paradigm that replaces the existing ideology because it does so much better at describing reality.

In some sense, Piketty may make seeing the new paradigm more difficult. His characterization of capital as things – cash, corporate stock, buildings, etc. – fails to understand its essence. Capital is power. No only economic power, but also social and political power. In The Rise and Decline of Nations, Mancur Olson describes how special interests groups organize to capture power to serve their own interests. Olson’s Logic of Collective Action describes how small, focused groups are more effective than large, more diffused groups in being effective. In the late 1960s and early 1970s, the U.S. Chamber of Commerce directed a campaign for it to become such a group. Future Supreme Court Justice but then Chair of the Chamber’s Commerce Committee called on “business to mobilize politically: Strength lies in organization [and in] the political power available only through united action and national organization.” Chicago School macroeconomic theory triumphed very broadly and the public policy decisions made following the Reagan Revolution continue to reflect that triumph of what Piketty shows is theory over reality.

Certainly a work of such broad scope and in depth presentation of data from 20 countries over almost two hundred years calls for scrutiny and critique. Admitting “data don’t lie,” but then falling to acknowledge how devastating that data is to the prevailing economic paradigm that has helped to bring our world to such a precarious situation, while understandable from a psychological point of view, does not seem to advance very far the project of what to do about the alarming level of growing economic inequality in an economy that is not growing except for those at the very top.

 

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The Most Important Statutory Case?

Today I was thinking that King could be the most important statutory case decided by the Supreme Court.  How many other candidates are there?  The early cases under the Sherman Anti-Trust Act come to mind (Northern SecuritiesStandard Oil), and maybe one or two involving the Civil Rights Act of 1964.  Anything else?

UPDATE:  I suppose Ex Parte McCardle was more important.

FTC 01
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Should the FTC Be Regulating Privacy and Data Security?

This post was co-authored with Professor Woodrow Hartzog.

This past Tuesday the Federal Trade Commission (FTC) filed a complaint against AT&T for allegedly throttling the Internet of its customers even though they paid for unlimited data plans. This complaint was surprising for many, who thought the Federal Communications Commission (FCC) was the agency that handled such telecommunications issues. Is the FTC supposed to be involved here?

This is a question that has recently been posed in the privacy and data security arenas, where the FTC has been involved since the late 1990s. Today, the FTC is the most active federal agency enforcing privacy and data security, and it has the broadest reach. Its fingers seem to be everywhere, in all industries, even those regulated by other agencies, such as in the AT&T case. Is the FTC going too far? Is it even the FTC’s role to police privacy and data security?

The Fount of FTC Authority

The FTC’s source of authority for privacy and data security comes from some specific statutes that give the FTC regulatory power. Examples include the Children’s Online Privacy Protection Act (COPPA) where the FTC regulates online websites collecting data about children under 13 and the Gramm-Leach-Bliley Act (GLBA) which governs financial institutions.

But the biggest source of the FTC’s authority comes from Section 5 of the FTC Act, where the FTC can regulate “unfair or deceptive acts or practices in or affecting commerce.” This is how the FTC has achieved its dominant position.

Enter the Drama

Until recently, the FTC built its privacy and security platform with little pushback. All of the complaints brought by the FTC for unfair data security practices quickly settled. However, recently, two companies have put on their armor, drawn their swords, and raised the battle cry. Wyndham Hotels and LabMD have challenged the FTC’s authority to regulate data security. These are more than just case-specific challenges that the FTC got the facts wrong or that the FTC is wrong about certain data security practices. Instead, these challenges go to whether the FTC should be regulating data security under Section 5 in the first place. And the logic of these challenges could also potentially extend to privacy as well.

The first dispute involving Wyndham Hotels has already resulted in a district court opinion affirming the FTC’s data protection jurisprudence. The second dispute over FTC regulatory authority involving LabMD is awaiting trial.

In the LabMD case, LabMD is contending that the U.S. Department of Health and Human Services (HHS) — not the FTC — has the authority to regulate data security practices affecting patient data regulated by HIPAA.

With Wyndham, and especially LabMD, the drama surrounding the FTC’s activities in data protection has gone from 2 to 11. The LabMD case has involved the probable shuttering of business, a controversial commissioner recusal, a defamation lawsuit, a House Oversight committee investigation into the FTC’s actions, and an entire book written by the LabMD’s CEO chronicling his view of the conflict. And the case hasn’t even been tried yet!

The FTC Becomes a Centenarian

And so, it couldn’t be more appropriate that this year, the FTC celebrates its 100th birthday.

To commemorate the event, the George Washington Law Review is hosting a symposium titled “The FTC at 100: Centennial Commemorations and Proposals for Progress,” which will be held on Saturday, November 8, 2014, in Washington, DC.

The lineup for this event is really terrific, including U.S. Supreme Court Justice Steven Breyer, FTC Chairwoman Edith Ramirez, FTC Commissioner Joshua Wright, FTC Commissioner Maureen Ohlhausen, as well as many former FTC officials.

FTC 03 GW

Some of the participating professors include Richard Pierce, William Kovacic, David Vladeck, Howard Beales, Timothy Muris, and Tim Wu, just to name a few.

At the event, we will be presenting our forthcoming article:

The Scope and Potential of FTC Data Protection
83 George Washington Law Review (forthcoming 2015)

So Is the FTC Overreaching?

Short answer: No. In our paper, The Scope and Potential of FTC Data Protection, we argue that the FTC not only has the authority to regulate data protection to the extent it has been doing, but it also has the authority to expand its reach much more. Here are some of our key points:

* The FTC has a lot of power. Congress gave the FTC very broad and general regulatory authority by design to allow for a more nimble and evolutionary approach to the regulation of consumer protection.

* Overlap in agency authority is inevitable. The FTC’s regulation of data protection will inevitably overlap with other agencies and state law given the very broad jurisdiction in Section 5, which spans nearly all industries. If the FTC’s Section 5 power were to stop at any overlapping regulatory domain, the result would be a confusing, contentious, and unworkable regulatory system with boundaries constantly in dispute.

* The FTC’s use of a “reasonable” standard for data security is quite reasonable. Critics of the FTC have attacked its data security jurisprudence as being too vague and open-ended; the FTC should create a specific list of requirements. However, there is a benefit to mandating reasonable data security instead of a specific, itemized checklist. When determining what is reasonable, the FTC has often looked to industry standards. Such an approach allows for greater flexibility in the face of technological change than a set of rigid rules.

* The FTC performs an essential role in US data protection. The FTC’s current scope of data protection authority is essential to the United States data protection regime and should be fully embraced. The FTC’s regulation of data protection gives the U.S. system of privacy law needed legitimacy and heft. Without the FTC’s data protection enforcement authority, the E.U. Safe Harbor agreement and other arrangements that govern the international exchange of personal information would be in jeopardy. The FTC can also harmonize discordant privacy-related laws and obviate the need for new laws.

* Contrary to the critics, the FTC has used its powers very conservatively. Thus far, the FTC has been quite modest in its enforcement, focusing on the most egregious offenders and enforcing the most widespread industry norms. The FTC should push the development of the norms a little more (though not in an extreme or aggressive way).

* The FTC can and should expand its enforcement, and there are areas in need of improvement. The FTC now sits atop an impressive body of jurisprudence. We applaud its efforts and believe it can and should do even more. But as it grows into this role of being the data protection authority for the United States, some gaps in its power need to be addressed and it can improve its processes and transparency.

The FTC currently plays the role as the primary regulator of privacy and data security in the United States. It reached this position in part because Congress never enacted comprehensive privacy regulation and because some kind of regulator was greatly needed to fill the void. The FTC has done a lot so far, and we believe it can and should do more.

If you want more detail, please see our paper, The Scope and Potential of FTC Data Protection. And with all the drama about the FTC these days, please contact us if you want to option the movie rights.

Cross-posted on LinkedIn

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Vanderbilt Law Review En Banc Roundtable: Comptroller v. Wynne

Vanderbilt Law Review En Banc, the online companion to the Vanderbilt Law Review, recently published its Roundtable on the upcoming case, Comptroller v. Wynne, set to be argued before the Court on November 12, 2014. In Wynne, the Court considers whether the Constitution bans a state from taxing its residents’ income, wherever earned, by requiring a credit for taxes paid on income taxed in other states. The Court could answer many questions: How far is the reach of the dormant Commerce Clause in the context of income taxation? What is the extent of a state’s power to enforce personal income taxes on its residents? What kinds of residents are subject to double taxation and why? Professors Edward Zelinsky, Dan Coenen, Brannon Denning, Norman Williams, Michael Greve, and Adam Thimmesch tackle these questions and more in their contributions.

Roundtable: Comptroller v. Wynne

Edward Zelinsky, Yeshiva University, Cardozo School of Law
Dan Coenen, University of Georgia School of Law
Brannon Denning, Samford University, Cumberland School of Law
Norman Williams, Willamette University College of Law
Michael Greve, George Mason University School of Law
Adam Thimmesch, University of Nebraska College of Law