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Fan.5 (First Amendment News) Is sharing a hyperlink protected expression?

I had hoped to post a piece today on Justice John Paul Stevens and his forthcoming book, Six Amendments: How and Why We Should Change the Constitution (Little, Brown & Co., pp. 170, to be released on April 22). However, since it was impossible to confirm the advanced-copy wording of his proposed amendment to the First Amendment until the final printed version is released, I opted to wait until next month to post the piece and the commentaries accompanying it.

That said, here are some news items that might be of interest to you.

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Is Sharing a Hyperlink Protected Expression? The lawyer for Barrett Brown thinks so and has argued as much in his motion to dismiss criminal charges against his client for sharing a publicly available hyperlink. The matter is pending in a federal district court in Texas. The hyperlink in question was transmitted in a chat-room and pointed to data that was obtained during the hacking of Stratfor Global Intelligence, this in purported violation of 18 U.S.C. § 1028. The motion to dismiss was filed by University of Texas clinical law instructor Ahmed Ghappour and the Law School’s Civil Rights Clinic. Though he argues that the pertinent statutory provisions are inapplicable to his client (thus triggering the doctrine of constitutional avoidance), Professor Ghappour maintains that if they are, the First Amendment nonetheless protects his client. Here is how he put it in his March 3, 2014 motion:

First, the allegations in this case are encompassed by the Supreme Court’s holding in Bartnicki v. Vopper, in that Mr. Brown’s publication of truthful information (by republishing a hyperlink) obtained in a lawful manner cannot be punished absent a showing of a heightened state interest. Second, Mr. Brown was engaged in pure political speech in republishing the hyperlink. Because §1028 as applied imposes a complete prohibition on such speech, and does so based on the speech’s content, Count 1 (and Counts 3-12) must be dismissed absent a showing of a compelling state interest and least restrictive means. Finally, as applied to Mr. Brown, §1028 also fails the O’Brien test for intermediate scrutiny because it is not at parity with any substantial government interest that would be achieved less effectively absent regulation.” (Update: Government Dismisses Bulk of Indictment Against Barrett Brown — hat tip to Ruthann Robson.)

Advertising Pot & the First Amendment: Though it is now legal to enjoy pot in Colorado, the Colorado Department of Revenue, Marijuana Enforcement Division, has promulgated certain rules limiting the advertising of the product. For example, there is this rule:

A Retail Marijuana Establishment shall not utilize television Advertising unless the Retail Marijuana Establishment has reliable evidence that no more than 30 percent of the audience for the program on which the Advertising is to air is reasonably expected to be under the age of 21.

Similar rules exist for radio, print media, and the Internet. Another rule provides: “A Retail Marijuana Establishment shall not engage in Advertising that specifically targets Persons located outside the state of Colorado.” As for outdoor advertising, there is this rule:

Except as otherwise  provided in this rule, it shall be unlawful for any Retail Marijuana Establishment to engage in Advertising that is visible to members of the public from any street, sidewalk, park or other public place, including Advertising utilizing any of the following media: any  billboard or other outdoor general Advertising device; any sign mounted on a vehicle, any hand-held or other portable sign; or any handbill, leaflet or flier directly handed to any person in a public  place, left upon a motor vehicle, or posted upon any public or  private property without the consent of the property owner.

High Times magazine and Westword (an alternative weekly newspaper) have challenged the rules in a suit brought in a federal district court in Colorado. U.S. District Judge Marcia Krieger has been assigned to the case. The plaintiffs seek declaratory and injunctive relief. They argue that such restrictions violate the First Amendment as interpreted by Central Hudson and 44 Liquormart.  David A. Lane of Killmer, Lane, & Newman is representing the two publications. When Jacob Sullum, writing for Forbes, asked UCLA Law Professor Eugene Volokh for his take on the matter, here is how Volokh replied: “I don’t see how marijuana sales are lawful, given the federal prohibition, so I think advertising marijuana is not protected under commercial speech doctrine,” Volokh said. “I realize that here the commercial speech restriction is imposed by the state, and the sales restriction is imposed by the federal government, but I don’t think that would change the First Amendment analysis.” That said, in a Reason magazine piece Mr. Sullum urged that such challenges be brought in state court instead of federal court, and under Article II, section 10 of the Colorado Constitution.

Monitoring Newsrooms? FCC Declines. Late last month the Federal Communications Commission issued a statement that it was nixing a proposal that involved sending government researchers into newsrooms to conduct survey questions related to how news organizations chose which stories to run. In its statement, the FCC noted: “To be clear, media owners and journalists will no longer be asked to participate in the Columbia, S.C. pilot study. The pilot will not be undertaken until a new study design is final. Any subsequent market studies conducted by the FCC, if determined necessary, will not seek participation from or include questions for media owners, news directors or reporters.” The proposal came under attack in a February 10, 2014 Wall St. Journal op.-ed by FCC Commissioner Ajit Pai.  Jay Sekulow, chief counsel of the American Center for Law and Justice, and his group also weighed in by way of a campaign to express public opposition to the proposed study. “This is significant victory for the First Amendment and the freedom of the press,” said Sekulow.  “By shutting down this proposal,” he added, “the FCC took the only action it could. We will now remain vigilant to ensure that the FCC follows through on its pledge to refrain from putting monitors in America’s newsrooms.”

University Settles in Dispute with Pro-Life Student Group: When Oklahoma State University officials barred Cowboys for Life from displaying certain photos near the University’s Student Union building, the Cowboys bucked. The photos they wanted to display depicted aborted fetuses. They were, however, given an alternative: relocate at a less populated site and display a warning. They declined.  The Alliance Defending Freedom came to their First Amendment defense and sued the University. The group’s lawyer, Travis Barham, maintained that “OSU needs to learn that it does not have free reign to censor its students. It can’t exile displays to remote areas of campus, or restrict students from distributing literature just because the hyper-sensitive feelings of a university administrator got ruffled.” Though not admitting guilt, the University agreed to pay $25,000 in legal fees and to amend its student conduct code.

Upcoming Conference on Sullivan:  On April 23, 2014, the University of Minnesota School of Journalism and Mass Communications will host a conference entitled “How Far from Near? 50 Years of New York Times v. Sullivan in Minnesota and Beyond: A Symposium Honoring the Legacy of Silha Professor Emeritus Donald M. Gillmor.”  Robert D. Sack, Senior Judge, United States Court of Appeals for the Second Circuit, will give the keynote address entitled “Thirteen Ways of Looking at New York TImes v. Sullivan.” Twelve participants will discuss the Sullivan case and its legacy. The titles of the panels are:

  • Academic panel: “Beyond First Amendment Exceptionalism: The Multiple Legacies of Near and Sullivan”
  • Practitioners panel: “Time After Times: Defamation Law (and Privacy, Too) in Minnesota”

(Hat tip to Professor Kyu Ho Youm)

Next Scheduled FAN Column: Wednesday, March 12th.

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FAC.1 (First Amendment Conversations) — Larry Tribe on Free Expression

photoOccasionally, I will post blog conservations (or Q & As) with various First Amendment persona – lawyers, litigants, journalists, scholars, or perhaps even a judge or two. My first such exchange is with the Carl M. Loeb University Professor at Harvard and author of numerous scholarly works, most notably his widely cited American Constitutional Law treatise. He has been awarded eleven honorary degrees, including most recently a D. Litt. from Columbia University in 2013. He is, of course, Professor Laurence Tribe. His views on freedom of speech have been an important part of his legal scholarship. More than three decades ago, he sketched out a “metatheory of free speech” in an essay in Constitutional Government in America (R. Collins, ed., 1980). Beyond scholarship, Professor Tribe has an impressive record as a Supreme Court litigator who has argued some 34 cases before the Justices between 1981 and 2005. Seven of those cases involved First Amendment free expression issues.

  • Heffron v. International Society for Krishna Consciousness (1980) (audio)
  • Richmond Newspapers v. Virginia (1981) (audio)
  • Sable Communications v. FCC (1989) (audio)
  • Rust v. Sullivan (1990) (audio)
  • U.S. v. United Foods (2001) (audio)
  • Nike v. Kasky (2002) (audio)
  • Johanns v. Livestock Marketing Association (2005) (audio)

Tribe even won a First Amendment case in the Supreme Court without having to argue it. The case is Boston v. Anderson (1978) (see also here and here), a summary per curiam disposition (over the written dissent of Justice Stevens, joined by Justice Stewart and then-Justice Rehnquist). The Court held that a state court may not prohibit municipal spending on speech regarding a referendum issue then pending before the people in a statewide election.

Larry, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our FAC readers.    

Question: Which Supreme Court Justice do you think has had the greatest impact on the law of free expression under the First Amendment? And why? 

Answer: Rather than naming just one, I’d point to Oliver Wendell Holmes, Jr. and Louis D. Brandeis for their extraordinarily influential separate opinions in Abrams in 1919 (Holmes’ greatest dissent) and in Whitney in 1927 (Brandeis’ greatest concurrence).

Question: Some noted First Amendment scholars such as Professors Steven Shiffrin and the late C. Edwin Baker, and also Dean Robert Post, have been rather critical of extending First Amendment protection to corporate commercial expression. Do you share that skepticism?

Answer: Although I do think the Court went rather far in Sorrell v. IMS (2011) three years ago, and found myself in considerable sympathy with Justice Breyer’s dissent (joined by Justices Ginsburg and Kagan), I continue to agree with Virginia Board of Pharmacy (1976) and with Discovery Network (1993) and disagree strongly with Florida Bar v. Went For It (1995), where I thought Kennedy’s dissent for himself and Justices Stevens, Souter, and Ginsburg was spot on. I just cannot bring myself to view either professional or corporate commercial expression as categorically beyond the reach of First Amendment protection. That’s why I took the position I did in Nike v. Kasky (2003) and was pleased to see that Justices Breyer, O’Connor, and Kennedy agreed.

Question: Insofar as the First Amendment is concerned, do you think that since corporations (for-profit ones) are entitled to free expression rights, they are likewise entitled to have free exercise rights? Or are the two conceptually different for constitutional purposes? What do you think?  

Answer: That’s too complex an issue for me to answer as briefly as you’d need in this context. To the extent that all First Amendment rights are interrelated and focus principally on the systemic dangers of entrusting certain matters to government control, I’m opposed to organizing one’s analysis around which entities are or are not “entitled to have” particular First Amendment rights. That’s an aspect of Citizens United (2010) with which I don’t take issue – even though the Court appears to be curiously agnostic on that score, as exemplified by its unexplained summary affirmance in 2012 of a district court ruling in Bluman v. FEC (2011) barring the participation of foreigners from campaign speech!

That said, it seems to me that it makes much more sense to maintain that the Free Speech Clause protects “speech” regardless of who or what happens to be its source than it would to say that the Free Exercise Clause protects “religion” regardless of who or what is engaged in its exercise. With respect to claims involving the free exercise of religion, I think there is considerably more room to pay attention to the nature of whoever is doing the “exercising.” For an illuminating thought experiment, I would suggest that, if a cute but distinctly alien extraterrestrial – let’s call it “ET” – were to land in Lafayette Park and were to broadcast condemnations of Obamacare, the fact that such a creature is not itself entitled to the protection of the Free Speech Clause would not undermine an interested listener’s First Amendment objection to an Executive Order silencing the exterrestrial (or to an Act of Congress shutting it up were it to switch to praising the ACA!). Yet I wouldn’t expect anyone to take seriously a claim made on the extraterrestrial’s behalf by the ACLU defending, either under the Free Exercise Clause or under RFRA, the right of ET to smoke grass as part of a sincere religious ritual in front of the White House – particularly if, as some argue is the case in Hobby Lobby, the religious freedom ET wished to exercise could be shown to injure third parties or even compromise their exercise of their constitutional rights.

I don’t believe, however, that the for-profit or not-for-profit character of the entity in question should be decisive, although some Justices will probably find that a tempting line to draw in otherwise difficult and close cases.

Finally, I believe that decisions like Hosanna-Tabor (2012) and those barring civil courts from injecting themselves into disputes over religious doctrine and/or the internal organization of religious bodies should not turn on the corporate or non-corporate character of the institutions in question.

Question: As of this date, the Roberts Court has rendered 30 First Amendment free expression opinions. For First Amendment purposes, what is your sense of the Court? What are its strengths and/or shortcomings as you see them?

Answer: That question is even less compatible with a short response than the previous one, and I’d rather let the fourth chapter of my forthcoming book (co-authored with a superb recent student of mine, Joshua Matz), Uncertain Justice: The Roberts Court and the Constitution (Henry Holt, June, 3, 2014), speak for itself on that issue. The chapter, which expresses both my sense and Joshua’s of the free speech jurisprudence of the Roberts Court, is entitled “Freedom of Speech: Sex, Lies, and Video Games.”

Question: As you know, this term the Court heard yet another campaign finance case, McCutcheon v. FEC. I gather you favor a constitutional amendment to curb what you see as the Court’s constitutional excesses in this area. Can you say a few words about why you think it would be wise to amend the First Amendment? 

Answer: Actually, although I did assist my former student Adam Schiff (D. Cal.) in drafting a proposed constitutional amendment that I thought would be better than the alternatives floating around at the time, and although at one point I thought some such amendment would be wise to consider seriously, I haven’t joined forces with those who currently urge vigorous pursuit of the amendment path, which I think probably represents a political dead end. I think that there’s both more promise and less danger in pushing for greater transparency and disclosure of the sort the Court held permissible in Citizens United, for reforms in the laws determining how and when corporations can spend their shareholders’ money on speech, and for possible ways to get around the Court’s post-Citizens United decision striking down the calibrated public finance mechanism at issue in Arizona v. Bennett (2011).

Thanks Larry, I hope we can continue this conversation again sometime. 

I hope so, Ron. I’ve enjoyed this opportunity to address your excellent questions.

The next FAN (First Amendment News) column (to be posted this Wednesday) will be devoted to Justice Stevens’ proposal to amend the First Amendment, replete with comments from noted First Amendment scholars and lawyers.

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FAN.4 (First Amendment News)

In this issue of FAN I flag some forthcoming books that should be of interest to First Amendment enthusiasts.  I hope to say more about some of these works when they are published. Before proceeding to the forthcoming books, I want to to share a video link to Justice John Paul Stevens’ February 7, 2014 speech to the ABA Forum on Communications Law (hat tip to Steven Zansberg). I also want to to highlight a just-released book.

Former Stanford University President and former dean of the University of Chicago Law School Gerhard Casper has published a book entitled The Winds of Freedom: Addressing Challenges to the University (Yale University Press, 248 pp.). Chapter 4 of that book (pp. 64-83) is titled “Corry v. Stanford University: The Issue of Free Expression.” The Cory case involved a challenge to Stanford’s speech code. Anyone familiar with Professor Casper’s impressive scholarship will want to examine this book. (On a related front, this April Yale University press will release the paperback version of Dean Robert Post’s Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State.)

Now, onto the forthcoming books and a few related matters:

  1. Stanley Fish is Coming!: Following the general Casper-Post theme, Stanley Fish offers his own unique perspective in Versions of Academic Freedom: From Professionalism to Revolution — The Rice University Campbell Lectures (192 pp, Univ. of Chicago Press, Oct. 2014). Here is a description of the book: “Providing a blueprint for the study of academic freedom, Fish breaks down the schools of thought on the subject, which range from the idea that academic freedom is justified by the common good or by academic exceptionalism, to its potential for critique or indeed revolution. Fish himself belongs to what he calls the ‘It’s Just a Job’ school: while academics need the latitude—call it freedom if you like—necessary to perform their professional activities, they are not free in any special sense to do anything but their jobs.  Academic freedom, Fish argues, should be justified only by the specific educational good that academics offer. Defending the university “in all its glorious narrowness” as a place of disinterested inquiry, Fish offers a bracing corrective to academic orthodoxy.”
  2. Press Freedom & Press Performance: University of Texas Journalism Professor Regina Lawrence has revised the late Timothy E. Cook’s edited work entitled Freeing the Presses: The First Amendment in Action (Louisiana State University Press, 2nd ed., June 2014). Contributors include: Charles Clark, Jack Weiss, Frederick Schauer, Michael Schudson, Ralph Izard, W. Lance Bennett, Craig Freeman, Diana Owen, Emily Erickson, Timothy Cook, and the new editor.
  3. U.S. v. Stevens — the book: In Animal Cruelty and Freedom of Speech: When Worlds Collide (Purdue University Press, pp. 260, May 2014) Wake Forest Law Professor Abigail Perdue and Dr. Randall Lockwood (senior vice president for Forensic Sciences & Anti-Cruelty Projects of the American Society for the Prevention of Cruelty to Animals) offer a detailed case study of the Stevens case. The authors provide a survey of important issues facing society in the area of animal welfare. “The Stevens case included various ‘hot topic’ elements connected to the role of government as arbiter of public morality, including judicial attitudes to sexual deviance and dogfighting. Because it is one of only two animal rights cases that the US Supreme Court has handled, and the only case discussing the competing interests of free speech and animal cruelty, it will be an important topic for discussion in constitutional and animal law courses for decades to come.”
  4. Boy Scouts of America v. Dale – the book: The next addition to the University Press of Kansas’ impressive Landmark Law Cases and American Society series is Judging the Boy Scouts of America: Gay Rights, Freedom of Association, and the Dale Case (272 pp., May 2014). In this forthcoming book, Willamette University Professor Richard J. Ellis “tells the fascinating story of the Dale case, placing it in the context of legal principles and precedents, Scouts policies, gay rights, and the “culture wars” in American politics.”
  5. The State of Funeral-Picketing Laws – The folks over at the First Amendment Center have just released a special report entitled the “Constitutionality of State Funeral-Picketing Laws Since Snyder v. Phelps.” The report was prepared for the Newseum Institute’s First Amendment Center by a team of law students from the Columbus School of Law at The Catholic University of America and examines the legal and legislative responses, as of January 1, 2014, to Snyder v. Phelps.
  6. In light of the recent passing of Professor George Anastaplo, I thought I would alert readers to some of his works on free speech, which include: Reflections on Freedom of Speech and the First Amendment (2007); The Amendments to the Constitution: A Commentary (1995, pp. 47-58); and The Constitutionalist: Notes on the First Amendment (1971 & 2005). Finally, for an audio file of Professor Anastaplo’s arguments before the Supreme Court in In re Anastaplo, go here.
  7. Last Issue of FAN: If you missed it, go here.
  8. Next Scheduled Issue of FAN: Wednesday, March 5th.
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FAN.2 (First Amendment News)

Thanks to everyone who sent along information for this and future FAN columns. For those who missed the first column, go here. One of the aims of FAN is to help build bridges between scholars and litigators, liberals and conservatives (and libertarians, too!), and between journalists and all others interested in the First Amendment and freedom of expression. To that end, here is more free speech news:

  • Speech — Justice Stevens & The First Amendment: In a February 7, 2014 speech to the ABA Forum on Communications Law (as of yet unpublished), retired Supreme Court Justice John Paul Stevens said some interesting things about the free expression law of the First Amendment. Here are a few samples:

– Re the Bose Corp. v. Consumers Union of United States, Inc. (1984) product disparagement case, though Justice Stevens ultimately wrote the majority opinion in the 6-3 case, when the cert. petition was first considered at Conference Stevens and most of his colleagues voted to deny review. Justice Byron White, however, relisted the case in order to write a dissent from the denial of cert. Ultimately, however, White persuaded his colleagues to hear the case and the rest is, as they say, history.

– Similarly, the Justices originally planned to deny review in Harte-Hanks Communications, Inc. v. Connaughton (1989), a defamation case. Here, too, Justice White drafted a dissent from the denial of cert., which prompted three other Justices (Brennan, Blackmun, and Marshall) to “vote to grant.” When the dialogic dust settled (and there is more to the Stevens’ story), the Court was unanimous and Stevens wrote the opinion. [For more on this case and the Bose one and related stories, see Lee Levine & Steve Wermiel’s The Progeny (2014).)]

– Justice Stevens disapproved of the Court’s judgment in United States v. Alvarez (the 2012 stolen valor case). “I agree,” said Stevens (a WW II Bronze Star veteran), “with the reasoning and conclusion of Justice Alito’s dissent.” Nonetheless, Stevens found  the first sentence of that dissent to be “inaccurate.” According to Stevens, and contra Alito, “the Court did not hold that ‘every American has a constitutional right to claim to have received that singular award.’” All the Court did was strike down as overbroad a particular federal statute; it thus did not condone all such false and deceptive speech.

– During the ABA Q & A period, Justice Stevens was asked if he thought it was necessary to have a constitutional amendment to overrule the 2010 Citizens United case. He replied: “Well, either a constitutional amendment or one more vote.”

Though Justice Stevens’ remarks have yet to be posted or published, you can look for them in the days ahead on the ABA Forum website here.  (Hat tip to Lee Levine and Steven Zansberg.)

  • Are Animal Rights Activists Terrorists? Have you ever heard of the Animal Enterprise Protection Act? Section 43(a) of the Act makes it a crime for anyone who “travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility in interstate or foreign commerce, for the purpose of causing physical disruption to the functioning of an animal enterprise; and intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property (including animals or records) used by the animal enterprise, and thereby causes economic damage exceeding $10,000 to that enterprise, or conspires to do so; shall be fined under this title or imprisoned not more than one year, or both.” The Center for Constitutional Rights maintains that AETA violates the First Amendment by criminalizing protected speech and expressive activities such as protests, boycotts, picketing and whistleblowing (see here). The district court dismissed the case on standing grounds, though that ruling has been appealed to the First Circuit (see here).
  • Free Press-Fair Trial: Seems that a Marin County public defender objects to the Marin Independent Journal taking photos of his client (an accused serial bank robber) at an arraignment in the Superior Court. According to a MIJ news report, “after the courtroom hearing, MIJ photographer Frankie Frost snapped photos of [the defendant] on public property outside the Hall of Justice as sheriff’s deputies escorted him in a wheelchair back to the jail. Those photos, which we shared with the Associated Press, have been published in the MIJ’s print editions and website.” The public defender balked and filed an 11-page memorandum seeking to enjoin the paper from publishing the photos again. When MIJ objected, Judge James Chou denied its request without prejudice (see here).
  • Upcoming Event: On Friday, February 21, 2014 (12:00-1:00 pm), the Heritage Foundation will host a program titled “Taxing the First Amendment: Using the IRS to Censor Speech?” The participants include Cleta Mitchell (partner, Foley & Lardner), Bradley A. Smith (chairman, Center for Competitive Politics), Eliana Johnson (reporter, National Review), and Kimberley Strassel (editorial board, Wall Street Journal).
  • Next FAN: Wednesday, February 19.
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UCLA Law Review Vol. 61, Issue 1

Volume 61, Issue 1 (December 2013)
Articles

Against Endowment Theory: Experimental Economics and Legal Scholarship Gregory Klass & Kathryn Zeiler 2
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case Mark D. Rosen & Christopher W. Schmidt 66

 

Comments

“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices Sid Nadkarni 148
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence Raj Shah 198

 

 

 

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Bright Ideas: Mark Weiner on his new book Rule of the Clan

Sometimes fortune smiles upon you. I met Mark Weiner when we started law school. My life and my work is much better for it. Mark is a scholar and more. He obtained his B.A. in American Studies from Stanford, his J.D. from Yale, and his PhD in American Studies from Yale.

His most recent project is his excellent book, The Rule of the Clan. Ambassadors, professors from all around the world, members of the 9/11 commission, and publishers have embraced the book. Mark argues, and I think rather well, that the state has a quite important role to play, and we ignore that to our peril. Publishers Weekly has said:

A nuanced view of clan-based societies … Weiner’s argument is a full-throated defense of the modern centralized state, which he sees as necessary to protect human rights: “In the face of well-intended but misguided criticism that the state is inimical to freedom, we must choose whether to maintain the state as our most basic political institution or to let it degrade.” An entertaining mix of anecdote and ethnography.

The New York Journal of Books has called the book “accessible, mesmerizing, and compelling.”

I wanted to get into how Mark came up with the project, why it matters, and, for the writers out there, the process of writing about such a complex subject but in a way that is accessible to a general audience. So I asked Mark whether we could do a Bright Ideas interview. He graciously agreed.

Mark, the book is great. I want to jump in and ask, What do you mean by “clan”?

Thanks, Deven. In my book, I consider clans both in their traditional form, as a subset of tribes, but also as a synecdoche for a pattern by which humans structure their social and legal lives: “the rule of the clan.” Clans are a natural form of social and legal organization. They certainly are more explicable in human terms than the modern liberal state and the liberal rule of law. Because of the natural fact of blood relationships, people tend to organize their communities on the basis of extended kinship in the absence of strong alternatives.

So why clans now?

Two reasons. First, the United States is involved militarily in parts of the world in which traditional tribal and clan relationships are critical, and if we don’t understand how those relationships work, including in legal terms, we have a major problem.

Let me give you an example from Guantanamo. In the book, I tell a story of a college friend who was in charge of the team there interrogating detainees from Saudi Arabia. (I should note that my friend finds torture morally repugnant and against the national interest, as do I, and that she has advocated for this view in meaningful ways.) Over the course of her work, my friend realized that because of the first-name/last-name structure of the detainee tracking system, basic information about detainee tribal affiliations hadn’t been gathered or had been lost. This meant, among other things, that we couldn’t fully appreciate the reason why some of these men had taken up arms against us in the first place—for instance, because the United States had become embroiled in their centuries-long, domestic tribal war with the House of Saud.

Our ignorance about these issues is what I call the contemporary “Fulda Gap.” Our lack of knowledge about more traditional societies hinders our ability to understand the motivations of those who oppose us and leaves us vulnerable—and, even more important, it diminishes our ability to cooperate with our friends and to assist liberal legal reformers abroad in ways that are both effective and ethical.

The second reason to study clans, and ultimately for me even more important than the first reason, has to do with our own political discourse here at home. You could say that I became interested in clans because of widespread ideological attacks against the state within liberal societies—that is, attacks on government. By this I mean not simply efforts to reduce the size of government or to make it more efficient. Instead, I mean broadside criticisms of the state itself, or efforts to starve government and render it anemic.

I think you are saying there is something about clans that helps us organize and understand our world. What is it?

It’s often said that individual freedom exists most powerfully in the absence of government. But I believe that studying the rule of the clan shows us that the reverse is true. Liberal personal freedom is inconceivable without the existence of a robust state dedicated to vindicating the public interest. That’s because the liberal state, at least in theory, treats persons as individuals rather than as members of ineluctable status or clan groups. So studying clans can help us imagine what our social and legal life would become if we allow the state to deteriorate through a lack of political will.

By the way, the idea that the state is somehow inimical to freedom—that we gain individual freedom outside the state, rather than through it—is hardly limited to the United States. It was a core component of Qaddafi’s revolutionary vision of Libya. Or consider Gandhi, who advocated for a largely stateless society for postcolonial India. Fortunately for India, his vision wasn’t realized. Instead, we owe the prospects for further liberal development there to the constitution drafted by B. R. Ambedkar.

Hold on. From Indian independence to Libyan revolution seems a long jump. Can you help me connect the dots?

Read More

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The Stanford Law Review Online: Defending DOMA in Court

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Matthew I. Hall entitled How Congress Could Defend DOMA in Court (and Why the BLAG Cannot). Professor Hall argues that the Bipartisan Legal Advisory Group lacks standing to defend DOMA:

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor’s challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor’s equal protection and due process claims, but also on the question whether the defendants—the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG)—have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing.

He concludes:

Congress could solve these problems by statute or resolution, but until it does so the BLAG is a mere bystander, with no stake in defending DOMA. This lack of standing may play a decisive role in the Windsor litigation. Both the BLAG and the executive branch defendants appealed the District Court’s judgment to the Second Circuit, and petitioned the Supreme Court for certiorari. If the BLAG lacks standing, however, then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case. Interestingly, the BLAG itself has argued that no such standing exists—a controversial position that is beyond the scope of this short piece. But if the BLAG is correct, then there is no case or controversy before the Court, and the Court will have to dismiss for lack of jurisdiction. The widespread expectation that Windsor will be a significant decision appears to be well-founded. But it remains to be seen whether its significance will lie in the area of individual rights or in the areas of federal court jurisdiction and the separation of powers.

Read the full article, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot) at the Stanford Law Review Online.

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Stanford Law Review Online: Privilege and the Belfast Project

Stanford Law Review

The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:

In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.

He concludes:

Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.

Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.

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Stanford Law Review Online: Software Speech

Stanford Law Review

The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:

When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.

He concludes:

By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.

Read the full article, Software Speech at the Stanford Law Review Online.

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Stanford Law Review Online: The Hunt for Noncitizen Voters

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.