Category: General Law


FAN 32.1 (First Amendment News) — Cato hosts panel on First Amendment: Strossen discusses McCutcheon & history of ACLU stance

Many of us believe that [what] democracy is all about is that you vote for a candidate [and] you give money to a candidate because you want that person to share and be responsive to your concerns. That’s is not corruption; that is democracy.

Nadine Strossen, Sept. 17, 2014.

Earlier today the Cato Institute hosted a panel on the First Amendment. Here is the lineup:

Ilya Shapiro & Nadine Strossen

Ilya Shapiro & Nadine Strossen

Panel I: The First Amendment

Moderator: Ilya Shapiro
Editor-in-Chief, Cato Supreme Court Review

Nadine Strossen, Professor of Law, New York Law School

P.J. O’Rourke, H.L. Mencken Research Fellow, Cato Institute

Eric Rassbach, Deputy General Counsel, Becket Fund

Among other things, Professor Strossen said:

  • “My defense of letting money speak has, in most of my circles, caused me to be called a ‘puppet of plutocracy’ and not a champion of liberty.” [19.40-20.07]
  • “It was the ACLU that long spearheaded the fight against all of these laws, including in the 1976 landmark case of Buckley v. Valeo, in which the ACLU was both a plaintiff and co-counsel, and opposed every single aspect of the Federal Election Campaign Act.”  [21:06-21:24]
  • “Those of us who are First Amendment absolutists have been losing some ground, although I am happy to say that in contrast to former ACLU leaders, the current ACLU is very strongly opposing, and effectively opposing, the proposed constitutional amendment on this ground.” [20:39-20:57]
  • “Notably, one of the Buckley plaintiffs was Eugene McCarthy who repeatedly said he could not have mounted his historic challenge to Lyndon Johnson without very large contributions from a small handful of ‘fact cat liberals’ donors, and McCarthy could never understand how liberals could possibly support these limits in light of that experience. So, the ACLU argued in Buckley that contribution limits, as well as spending limits, violate not only free speech and association principles but also violate the very equality principles that are said to justify those limits.” [25:20-26:00]
  • “I continue to believe that invalidating contribution limits would boost democratic and egalitarian ideals as well as free speech. So, I welcome [the ruling in] McCutcheon v. FEC as a small but notable step in that direction.” [26:01-26:15]
  • “I do agree with Justice Thomas [in his McCutcheon concurrence] when he says that [the plurality opinion] is a rule lacking a rationale.” [29:53-30:17]
  • “[The Roberts Court's campaign finance] decisions have been incredibly maligned and misunderstood thanks to a lot of media distortion by media outlets that all have an unacknowledged conflict of interest because their voices are amplified by every law that restricts other voices in the campaign context.”[17:48-18:10]

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FAN 32 (First Amendment News) PA prosecutor targets teenager in Facebook-posting desecration case

He brags about it, he is proud of it, he put it on his Facebook page, and now he’s going to be held accountable for it. The  only reason that was done was to upset people. And if he wanted to engage in that kind of behavior, there’s consequences. — District Attorney William Higgins

A 1972 Pennsylvania law makes it a crime (a misdemeanor) to “intentionally desecrate any public monument or structure, or place of worship or burial.” That same law criminalizes the behavior of anyone who “intentionally desecrates any other object of veneration by the public or a substantial segment thereof in any public place.”

Dist. Atty. William Higgins

William Higgins

Here is the relevant definition: “Desecrate.” “Defacing, damaging, polluting or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover the action.” (See here for a list of similar desecration laws.)

Bedford County District Attorney William Higgins (FB re-election page here) has invoked that law to go after a 14-year-old boy who allegedly placed photos of himself “placing his crotch near the mouth of a statue of Jesus in prayer on Facebook. The allegedly victimized Jesus statue sits in the front yard of Love In the Name of Christ, a Christian organization in teen’s hometown of Everett, Pa.”

→ Photos of “desecration” here and video of CBS news affiliate story here, replete with phone comments by Mr. Higgins.

As reported in the Altoona Mirror, and as Mr. Higgins is said to have written on his Facebook page: “”I guess I should take solace in the fact that the liberals are mad at me – again. As for this case, this troubled young man offended the sensibilities and morals of OUR community. … His actions constitute a violation of the law, and he will be prosecuted accordingly. If that tends to upset the ‘anti-Christian, ban-school-prayer, war-on-Christmas, oppose-display-of-Ten-Commandments’ crowd, I make no apologies.'”

Jesus statue at center of controversy

Jesus statue at center of controversy

→ “Apparently, Mr. Higgins is unaware that the statue isn’t actually Christ, or even a revered piece of art depicting Jesus,” says columnist Drew Johnson writing in the Washington Times. “It’s just a painted piece of concrete mass produced from a mold and sold at flea markets, garden shops and home improvement stores across America. In fact, a slightly smaller version of the statue is available on Sears’ website for $225.” While that may be, the statue does nonetheless resemble what is often thought to be a Christ-like figure.

→ “There are some serious First Amendment issues with this statute” if merely gesturing next to an image is enough to be charged,” said Sara Rose, a staff attorney with the ACLU of Pennsylvania.

Professor Eugene Volokh, who first blogged on this story, argues: (1) by its terms, it is arguable whether the statute has been violated; (2) the law might be impermissibly vague; and (3) the law, on its face or as applied, may run afoul of the free speech clause of the First Amendment.

“Bedford County President Judge Thomas S. Ling said the next set of juvenile court hearings is scheduled for Oct. 3rd.”

Tenth Circuit rules in “true threats” case 

Writing for a three-judge panel in United States v. Heineman (10th Cir., Sept. 15, 2014), Judge Harris Hartz (joined by Judge Robert Bacharach with Judge Bobby Ray Baldock concurring in the judgment) reversed the Defendant’s conviction in a “true threats” case,this  even while the same general issue in the case is soon to be decided by the Supreme Court in Elonis v. United States.

Facts: “In 2010 and 2011 Defendant sent three e-mails espousing white supremacist ideology to a professor at the University of Utah. The first two e-mails did not contain threats, but the third made the professor fear for his safety and the safety of his family. Entitled “Poem,” it began by addressing the professor by his first name, and contained the following language:

Come the time of the new revolution

we will convene to detain youAnd slay you,

by a bowie knife shoved up into the skull from your pig chin

you choke, with blood flooding in your filthily treasonous throat!

We put the noose ring around your neckand drag you as you choke and gasp

The noose laid on the tree branch
and the fate hath conferred justice for Treason

You are a filthy traitor along the horde of anti-American and anti-Whitey comrades

whose justice shall come to be delivered
To fuck the traitors, for justice!
 fuck Mexico! fuck South America!

Fuck your soul to Hell!

Into the furnace pool of MexiShit as the filthily traitorous asshole and puta!

“Law-enforcement officers traced the e-mail to Defendant through his e-mail address, which had the user name “siegheil_neocon.” Id. at 91. When officers contacted him in writing, he responded immediately, “Is this about the email?” Id. He was charged in the United States District Court for the District of Utah with one count of sending an interstate threat, in violation of 18 U.S.C. § 875(c).”

Against that factual backdrop, Judge Hartz declared:

[T]o say that the effect on the listener supports a “threat” exception to the freedom of speech does not mean that no other considerations come into play. For example, it may be worth protecting speech that creates fear when the speaker intends only to convey a political message. As we understand Black, the Supreme Court has said as much. When the speaker does not intend to instill fear, concern for the effect on the listener must yield. In short, despite arguments to the contrary, we adhere to the view that Black required the district court in this case to find that Defendant intended to instill fear before it could convict him of violating 18 U.S.C. § 875(c). [footnote omitted] [re Defendant Heineman, see news story here]

While Judge Baldock concurred in the judgment, he declined to reach the First Amendment issue and instead grounded his opinion on statutory grounds: “The question presented in this case is whether § 875(c) requires the Government to prove a defendant’s subjective intent to threaten. The court concludes the First Amendment requires such proof. But to my mind we should resolve this case without resorting to the First Amendment by simply construing the statute’s text. Indeed, we are duty bound not to reach constitutional questions unnecessarily even if the parties ask us to do so.”

→ The case was successfully argued by Benjamin McMurray, Assistant Federal Public Defender (Kathryn Nester, Federal Public Defender, with him on the briefs), District of Utah, Salt Lake City, Utah.

→ Questions: One wonders how the ruling in this case might affect the judgment and the analysis in Elonis. For example, will the facts prompt some of the Justices to be more guarded in their First Amendment analysis? Will the Heineman ruling further encourage some of the Justices to dispense with Elonis on statutory grounds? Or, will the Heineman ruling dissuade them from ruling in Mr. Elonis’ favor on either statutory or First Amendment grounds? Or are the facts in Elnois readily distinguishable such as to sustain the Defendant’s claims, either on statutory or constitutional grounds? Finally, if cert. is sought in Heinemanperhaps the Justices will remand it for consideration in light of whatever they do in Elonis. Meanwhile, one thing seems likely: the Heineman facts may well find their way into the oral arguments in Elonis.

→ Note: The Heineman majority declined to follow the ruling of the Sixth Circuit in another “true threats” case — United States v. Jeffries, 692 F.3d 473, 477–81 (6th Cir. 2012), cert. denied, 134 S. Ct. 59 (2013). That case, it should be noted, was also discussed at some length in the government’s reply brief in Elonis as well as in the ACLU’s amicus brief in that case.

(Hat tip to Joan Bertin)

Free expression cases on Court’s Conference docket  Read More


Happy Constitution Day!

On this solemn anniversary I ask that the American people rejoice in the wisdom of their Constitution.  I ask that they guarantee the effectiveness of each of its parts by living by the Constitution as a whole.  I ask that they have faith in its ultimate capacity to work out the problems of democracy, but that they justify that faith by making it work now rather than twenty years from now.  I ask that they give their fealty to the Constitution itself and not to its misinterpreters.  I ask that they exalt the glorious simplicity of its purposes, rather than a century of complicated legalism.  I ask that majorities and minorities subordinate intolerance and power alike to the common good of all.  For us the Constitution is a common bond, without bitterness, for those who see America as Lincoln saw it, ‘the last, best hope of earth.’  So we revere it, not because it is old but because it is ever new, not in the worship of its past alone but in the faith of the living who keep it young, now and in the years to come.

Franklin D. Roosevelt, Constitution Day Address (1937)


Alexander Hamilton on a Bill of Rights

105px-Hamilton_smallWhat was the original understanding of a bill of rights?  This is one of the questions that my next book will address.  A useful source is Federalist #84, in which Hamilton defended the Constitution against the criticism that it lacked a bill of rights.  Most people know this essay because of his claim that a bill of rights was dangerous because it implied the existence of powers not enumerated.  But Hamilton also said a good deal about what a bill of rights was that gets overlooked.

First, Hamilton attacked Anti-Federalists in New York as hypocrites for lamenting the absence of a federal bill of rights given that the New York Constitution did not have one.  In his description of that fact, Hamilton wrote that “the constitution of New York has no bill of rights prefixed to it.”  The word prefix is critical, because all of the state bills of rights in 1788 came at the start of those constitutions.  Madison wanted something similar in one of the amendments that he proposed in 1789, but Congress rejected a prefix in favor of a suffix.  This partly explains why nobody called the first set of ratified amendments a bill of rights at the time.

Second, Hamilton dismissed the importance of state bill of rights by calling them “aphorisms . . . which would sound much better in a treatise of ethics than in a constitution of governments.”  The upshot, however, is that “aphorisms” were what people in 1788 expected in a bill of rights.  Once again, the first set of amendments lacked those abstract statements, which is why people did not consider it a bill of rights.

Finally, Hamilton anticipated the modern argument that the first two points should not matter.  He said that the Constitution was “in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”  Hamilton went on to explain that the purpose of a bill of rights was to “declare and specify the political privileges of the citizen” and “to define certain immunities and modes of proceeding, which are relative to personal and private concerns.”  While he conceded that someone could say that the Constitution did not go far enough in both respects, the mode of setting forth these guarantees was “immaterial” and “rests merely on verbal and nominal distinctions.”  In other words, who cares whether the bill of rights is a prefix or contains general aphorisms like “All men are born free and equal?”

The answer is that most people in 1791 did care about these formalities.  So did most people in 1868, though John Bingham was a notable exception.  It was only around 1900 that people started adopting Hamilton’s pragmatic view, though the reasons for that change are complex.


Local Government and Global Urbanization

The world’s future looks to be an urban one. The United Nations estimates that by 2050, two-thirds of the world’s population will live in cities. The planet’s urban population will increase from about 2.5 billion to over six billion, with ninety percent of that growth estimated to occur in Africa and Asia.  The growth of these cities, particularly in the developing world, will undoubtedly present a host of new challenges for local governments.

ranchos-de-caracas-810983-mEd Glaeser, one of the most important and interesting urban thinkers today, recently authored a great essay in City Journal about the rise of mega-cities in poor and developing countries, cities like Kinshasa, Caracas (pictured) and Lagos. His essay provides much food for thought about how these cities emerged, the issues they will confront, and how they can draw on the American experience with urbanization for some solutions.

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31.1 (First Amendment News) Proposed amendment to 1st Amendment fails — A brief history of it all

We must preserve our Bill of Rights including our rights to free speech. We must not allow officials to diminish and ration that right. We must not let this proposal become the supreme law of the land. – Senator Chuck Grassley, Sept. 10, 2014

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

It’s over now, the campaign to amend the First Amendment. The Democratic-led effort died in the Senate yesterday by a vote of 54-42. Thankfully, the constitutional theatrics have ended and the 1791 text remains safe, at least from any Article V threat by lawmakers.

Not surprisingly, reports Burgess Everett writing in Politico, “Senate Republicans unanimously rejected a constitutional amendment sought by Democrats that would allow Congress to regulate campaign finance reform. . . . The failure of the proposal followed a surprising result on Monday, when the measure advanced past an initial filibuster despite broad GOP opposition to the measure.”

“Grassley and two dozen other Senate Republicans voted to advance the bill,” added Everett, “to blunt Democrats’ plans to hold a second round of campaign-flavored Democratic votes on proposals aimed at raising the minimum wage, overturning the Hobby Lobby Supreme Court decision, chipping away at gender pay disparities and reforming the student loan system.”

After the vote, Senate Majority Harry Reid (D-Nev.) said: “Today, Senate Republicans clearly showed that they would rather sideline hardworking families in order to protect the Koch brothers and other radical interests that are working to fix our elections and buy our democracy.” Senator Chuck Grassley (R-Iowa) had a quite different view: “The proposed amendment would restrict the most important speech the First Amendment protects, core political speech. It’s hard to imagine what would be more radical than the Congress passing a constitutional amendment to overturn a dozen Supreme Court decisions that have protected individual rights. Free speech would be dramatically curtailed.” (See also text of Senator Grassley’s floor statement.)

Looking back: Justice Stevens takes the stage 

The constitutional campaign movement got a big boost last April when Justice John Paul Stevens proposed an amendment to the First Amendment. Remember, he did so in his book Six Amendments: How and Why We Should Change the ConstitutionHis proposed amendment provided:

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

On April 30, 2014, Justice Stevens testified before a Senate Rules Committee at which he read a statement in defense of his proposed amendment.

Looking back:  The Leahy hearing  Read More



My springboard today is a post about the AALS (Am. Assn of Law Schools) asking whether law schools really need the AALS and perhaps that law schools can cut from their budget their annual fee to it. My accounting supports this view.

First, my own use of the AALS, then an accounting if its pursuits. The central themes in the AALS annual meetings are never about anything relevant to my scholarship, bankruptcy and securities, and they are at an inconvenient time of the year for me, so I miss most annual conferences. As a new teacher, however, I recall obtaining some value from going to one of the AALS new teacher conferences.

From my glance at the central themes of the 15 meetings at the AALS website (appended below) I restate their focus as dealing with a changing world and producing desirable legal change with a constant underscoring of the centrality of diversity.

Deal with change, produce desirable change, and maintain pluralism? If those were truly the central themes of the conferences, I should be elated. It sounds exactly right, no? Why are we all so jaded about the AALS?

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Cognitive Biases, the Legal Academy, and the Judiciary

It’s a pleasure to be here at Concurring Opinions.  I would like to thank Dan, Sarah, and Ron for inviting me.  During my visit, I hope to talk a bit about my core research areas of land use and local government law (including why you, who are statistically unlikely to be interested in either land use or local government law, should be interested), but also about other issues such as the current state of the legal academy and the legal profession, often using land use or local government law to examine these broader issues.

On Cognitive Biases

On that last note, recently ran a great piece by Katy Waldman regarding how the human brain processes information, observing that people have a predilection to believe factual claims that we find easy to process.  Waldman synthesizes the results of several interesting studies, including one eye-opening study that identifies three persistent cognitive biases that humans possess.  As Waldman summarizes these biases: “First, we reflexively attribute people’s behavior to their character rather than their circumstances.” Second, “we learn more easily when knowledge is arranged hierarchically, so in a pinch we may be inclined to accept fixed status and gender roles.” And third, “we tend to assume that persisting and long-standing states are good and desirable, which stirs our faith in the status quo absent any kind of deep reflection.” The studygreen-lizard-1427838-s attributes these biases to the basic human need, rooted in the primitive recesses of our lizard brain (pictured), to manage uncertainty and risk.

While Waldman argues that there is some relationship between these biases and conservative political beliefs, what struck me about these findings is how well the biases describe judicial behavior.

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The Supreme Court and the Bill of Rights

As part of the research for my next book, I want to correct something that I said earlier.  I’ve written that the Supreme Court did not call the first set of amendments a bill of rights until 1893.  Turns out that is not quite right.  It was 1897.

For eighteenth and nineteenth century Americans, a bill of rights was something that you put at the beginning of a constitution and that declared general principles in the style of the Virginia Declaration of Rights (for example, “All men are by nature equally free and independent . . .”).  Since the constitutional amendments ratified in 1791 did not look like that, hardly anybody called it a bill of rights.  Justice Story (riding circuit) said in the 1830s that the first set of amendments were “in the nature of a bill of rights,” and a few people did use that lukewarm formulation after that.  In 1893, the Supreme Court repeated this for the first time, but there was a difference between “a bill of rights” and “in the nature [meaning just sort] of a bill of rights.”  I had not picked up on that distinction until recently.

Thus, the first Supreme Court decision that used the modern terminology was Robertson v. Baldwin, an 1897 case which said that “[t]he law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the Bill of Rights . . . “


Originalism and Irrationality

A thought that occurred to me as I was reading Judge Posner’s opinion on same-sex marriage concerns the relationship between originalism and rational basis review.  Here are my questions:

1.  What is the originalist basis for saying that any irrational law is unconstitutional?  Are there Founding-era cases or authorities that support that proposition?  How about cases from the late 1860s?

2.  If not, then rational basis review must be an exception to originalism.  After all, a court undertaking that inquiry does not ask whether a law was rational given the perspective of 1787, 1791, 1868, etc.  Instead, judges are asked to decide whether a law is rational now.  How is that exception justified?