Tagged: Constitutional Law

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FAN 33 (First Amendment News) What is a PAC? The next big issue?

This is the hottest issue in campaign finance litigation right now. James Bopp, Jr. 

James Bopp

James Bopp

What is the next big campaign finance class of cases, the ones most likely to go the Supreme Court? Ask different people and you will get pretty much the same answers, ranging from “soft money” cases to certain kinds of campaign disclosure cases to campaign speech and judicial elections cases to certain kinds of contributions made by for-profit and non-profit corporations cases, among others.

James Bopp, a noted campaign finance lawyer, has his own views on the matter. Here is the issue that he thinks will get considerably more judicial attention in the near future: “whether an issue advocacy group, that does some political speech, can be deemed to be a Political Action Committee even though it is not under the control of a candidate and it’s major purpose is not the election or nomination of candidates.” Moreover, he stressed that this “is an important issue since deeming a group to be a PAC vitiates the right to political speech that groups won in Citizens United, since no issue advocacy group wants to suffer PAC burdens to do a small amount of political speech.”

Circuit split

Most recently, this issue was examined by a three-judge panel of the Second Circuit in a case familiarly named Vermont Right to Life Committee, et al v. Sorrell (June 28, 2014). The opinion was written by Judge Christopher Droney and joined in by Judges Richard Wesley and Vincent Briccetti. The case for the Petitioners was argued by Randy Elf (with James Bopp, Jr., on the brief).

In a variety of challenges to Vermont’s campaign laws, the Court rejected the Petitioners’ argument that the state’s PAC disclosure requirements violate the First Amendment because Vermont may only impose a disclosure regime on an organization if “the major purpose” of the organization is to advance a candidacy.” Here is Judge Droney’s reply to that argument:

Prior to Citizens United, the Fourth Circuit held that an organization could only be subjected to a political committee regulatory regime if the organization met “the major purpose” test. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288‐89, 295 (4th Cir. 2008) (“NCRL III”). However, since Citizens United and its approval of extensive disclosure regimes, two Circuits have concluded that the major purpose test is not a constitutional requirement. See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 490 (7th Cir. 2012) (“[T]he line‐drawing concerns that led the [Supreme] Court to adopt the major purpose limitation for contribution expenditure limits in Buckley do not control our overbreadth analysis of the disclosure requirements . . . .”).  Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (“We find no reason to believe that this so called ‘major purpose’ test, like the other narrowing constructions adopted in Buckley, is anything more than an artifact of the Court’s construction of a federal statute.”); see also Human Life of Wash., Inc.  v. Brumsickle, 624 F.3d 990, at 1009‐11 (9th Cir., 2010) (concluding that Buckley did not lay down a bright‐line test requiring that the major purpose of an organization must be to support or oppose a candidate, and that a state law regulating organizations with a major purpose of engaging in such actions was constitutional).

We join the Circuits that have considered PAC definitions in this context after Citizens United and hold that the Constitution does not require disclosure regulatory statutes to be limited to groups having “the major purpose” of nominating or electing a candidate.

 Counsel for Respondent: Eve R. Jacobs‐Carnahan (Megan J. Shafritz, on the brief), Assistant Attorneys General for the State of Vermont.

Amicus briefs in support of the Respondent were filed by J. Gerald Hebert, the Campaign Legal Center and Democracy 21.

 Additionally, George Jepsen, Attorney General for the State of Connecticut and Maura Murphy Osborne, Assistant Attorney General for the State of Connecticut, filed an amicus brief for the States of Connecticut, New York, Hawaii, Iowa, Kentucky, Minnesota, Montana, New1 Mexico, and Washington, all joined in support of the Respondent.

The next move: “Several cases raising this issue,” says Bopp, “will be filed with the Supreme Court, including one this Friday contesting the decision of the Second Circuit in Vermont Right to Life v Sorrell.”

→ See also below re C-SPAN link on Heritage event (Sept., 18) on campaign finance law and the First Amendment (with Floyd Abrams, Ronald Collins, Adam Liptak, Erin Murphy, and James Swanson).

New Litigation

Challenge to bans on controversial subway ads  Read More

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FAN 32.2 (First Amendment News) — Upcoming Sullivan conference at University of Oregon

New York Times v. Sullivan 50 Years Later:

Celebrating a Free Speech Landmark

The University of Oregon School of Journalism and Communications is hosting a conference on the Sullivan case. The schedule for the conference is set out below:

Friday, October 3, 2014 UO School of Law (Room 175)

8-8:30 a.m.          Registration — Location: outside Room 175

8:45-9 a.m.          Opening Remark

  • Michael Moffitt, Dean and Phillip H. Knight Chair, UO School of Law

9-9:50 a.m.          Keynote Address: 

                             “The Anatomy of a Great Case: The People Behind the Precedent

  • Professor Ronald K.L. Collins, University of Washington, School of Law

9:50-10 a.m.         Break

10-10:50 a.m.        NYT v. Sullivan: Has it Withstood the Test of Time?

Moderator:            Professor Ofer Raban, University of Oregon, School of Law

Panelists:

  • Professor Stephen Wermiel, American University, Washington College of Law
  • Attorney Bruce Johnson of Davis Wright Tremain
  • Attorney Ashley Messenger, NPR and American University School of Communication

11-11:50 a.m.        Oregon Law: Things Are Different Here Read More

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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

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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

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FAN 31 (First Amendment News): “Freedom from Speech” — a timely broadside

“This is a surreal time for freedom of speech.” 

He is a First Amendment activist / he likes his freedom robust / he refuses to leave censorial speech codes alone / and he is making a real difference in safeguarding free speech in America (see, e.g., here). True, there can be an irksome quality about him, or at least so think some college administrators who cabin liberty in “free speech zones” (oh, the Orwellian irony of the phrase!). There is an air of Tom Paine about him, if only in his willingness to speak boldly and perceptively about our contemporary crisis in free speech, a crisis fostered as much by close-minded liberals as by ideologically driven conservatives. And if you miss those wonderfully irreverent Christopher Hitchins broadsides, then take heed: here is someone with a dollop of the same brazen DNA. Even so, he is civil / he speaks softly / he listens to other voices / he welcomes a hearty give-and-take / and he puts his views to the test in the marketplace of ideas (see, e.g., his last book).

The man of whom I speak: Greg Lukianoff.

His broadside: Freedom from Speech (61 pp.) (paperback: $5.39 / Kindle: $4.79)

photoHis publisher: Encounter Books.

This timely broadside is as American as blue jeans . . . and yet its message struggles to survive in a nation where governmental intolerance and groupthink orthodoxy too often rule over the minds and voices and campaigns of those who would have their messages heard. If you want a turgid academic read, avoid this work. So, too, if you want everything from the obvious to the obfuscated documented by a long string of fancy footnotes dotted with case names and the like. And if you yearn for a work that merrily balances away individual freedom of speech in the name of some professorial parlor norm, Lukianoff’s pamphlet will not be your cup of tea. Just  common sense and plain speech are served up in this pamphlet in defense of free speech.

Why the title?

Before answering that question, it is important to note that Lukianoff”s concerns are not confined to the First Amendment. Hardly. What troubles this Stanford Law School educated activist are threats to the culture of free speech in America and abroad. “People all over the globe,” he argues, “are coming to expect emotional and intellectual comfort as though it were a right.” That focus brings us back to the title. Censorship due to hypersensitivity, Lukianoff argues, “is precisely what you would expect when you train a generation to believe that they have a right not to be offended. Eventually, they stop demanding freedom of speech and start demanding freedom from speech.”

While some might reasonably take issue with the author’s criticisms of private actors punishing others for offensive speech (e.g. offensive types such as Donald Sterling, the Duck Dynasty guys, Don Imus, and Howard Stern), I nonetheless think Lukianoff makes a telling point when he highlights the growing trend, particularly on college campuses, towards various forms of what he labels a “sensitivity-based censorship.” On that score he adds: “The idea that we can truly tackle hard issues while remaining universally inoffensive — an impossible pipe dream even if it were desirable — seems to be growing increasingly popular.”

Education in censorship?  Read More

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FAN 30. 3 (First Amendment News) Senate votes to begin debate on proposed amendment to First Amendment

This from Susan Ferrechio  writing in the Washington Examiner:

“The Senate voted Monday to begin debate on an amendment to the U.S. Constitution that would grant Congress and the states the power to imagesregulate campaign finance.The measure cleared a procedural hurdle by a vote of 79-18. It was authored by Democrats, who had anticipated it would be blocked by GOP opposition. But Republicans voted to move ahead with debate, turning what was supposed to be a Democratic messaging bill against the Democrats.”

 This from Ramsey Cox writing for The Hill:

“The Senate on Monday advanced a constitutional amendment meant to reverse two recent Supreme Court decisions on campaign spending.Republicans are likely to vote against the amendment when it comes up for a final vote, but by allowing it to proceed, ensured that it will tie up the Senate for most of the week.More than 20 Republicans joined Democrats in the 79-18 vote advancing the amendment, well over the 60 votes that were needed. The amendment is almost certain to fail, as it would need to win two-thirds support to pass the Senate, and then would still need to move through the House and be ratified by two-thirds of the states.”

“‘We should have debate on this important amendment,’ Sen. Chuck Grassley (R-Iowa) said before voting for cloture. ‘The majority should be made to answer why they want to silence critics.’ Senate Majority Leader Harry Reid (D-Nev.) said he would gladly debate the issue for as long as Republicans require because the amendment is necessary to keep ‘dark money’ out of politics.”

→ This from Burgess Everett writing for Politico:

“Several Senate Republicans joined Democrats on Monday to advance a constitutional amendment that would give Congress and the states greater power to regulate campaign finance. But the bipartisanship ends there. Many of the Republicans only voted for the bill to foul up Democrats’ pre-election messaging schedule, freezing precious Senate floor time for a measure that ultimately has no chance of securing the two-thirds support necessary in both the House and Senate to amend the Constitution. The legislation needed 60 votes to advance and Democrats took a cynical view of the 79-18 tally.”

“Ahead of the vote, [Senator Bernie] Sanders and other pro-reform Democrats like [Senators] Al Franken of Minnesota, Amy Klobuchar of Minnesota and Tom Udall of New Mexico held a rally on the Capitol grounds with amendment supporters and supporting groups like People for the American Way, Common Cause and Public Citizen. The crowd was a solid mix of reporters and demonstrators with signs reading “Democracy is not for sale.”

For commentary, see:

→ Tom Udall & Bernie Sanders, “The Threat to American Democracy,” Politico, Sept. 7, 2014

→ Geoffrey Stone, “The Rift in the ACLU Over Free Speech,” Huffington Post, Sept, 8, 2014 (see also here re ACLU controversy)

 

 

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

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

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

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

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

ENTER THE DISSENTERS

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

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

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

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

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

John Shattuck, one of the signers of letter

John Shattuck, one of the signers of letter

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

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

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

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

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

Judge Richard Posner

Judge Richard Posner

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

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

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

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

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

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

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

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

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

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

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

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

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

∇ ∇ ∇ 

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

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

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

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

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

∇ ∇ ∇ 

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

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FAN 29.1 (First Amendment News) — Florida Bar Joins Petitioner in Urging Court Review of Judicial Elections Case

Barry Richard, counsel for Florida Bar

Barry Richard, counsel for Florida Bar

As difficult as it is to obtain review in the Supreme Court, sometimes a case comes along that makes it hard for the clerks and their bosses to ignore. Williams-Yulee v. The Florida Bar may be just such a case as the stars seem to be aligning in favor of the Petitioner, Lanell Williams-Yulee, having her case ruled upon by the Justices.

In a post a few weeks back, I flagged the Williams-Yulee case in which review was pending in the Court. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge.

As I mentioned, a petition for certiorari had been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

So much for the old news; now, here is the latest development in that case. Last week the Florida Bar filed its response — Barry Richard is the Bar’s counsel of record. Here is what is interesting about the Bar’s response:

The Florida Bar submits that the Florida Supreme Court correctly determined that the challenged Canon 7C(1) of the Florida Code of Judicial Conduct complies with the First Amendment. However, The Florida Bar believes that this Court should issue its writ of certiorari to resolve the significant conflicts existing between state high courts and federal circuit courts and among federal circuit courts on this fundamental issue of constitutional rights.

Additionally, the Respondent urges that the Court review the case for three reasons:

  1. “The issues at the heart of the conflicts are not such that they can accommodate different interpretations and applications in different jurisdictions and judicial forums without insulting fundamental principles,”
  2. “Judicial conflicts over the issues raised by the petition are likely to increase in the foreseeable future. Over twenty states that provide for popular election of judges have rules similar to Canon 7C(1)”, and
  3. “The Florida Bar joins the Petitioner in respectfully urging this Court to accept this case for review not only because there is a national need for resolution, but because of the particularly troublesome position in which it places The Florida Bar. Denial of the petition for certiorari would leave the decision of the Florida Supreme Court standing, but would provide The Florida Bar with little comfort. The existing indirect conflict between the decision of the Florida Supreme Court, and the decision of the Eleventh Circuit in Weaver v. Bonner . . . a case involving a Georgia judicial candidate, is likely to become a direct conflict when the Eleventh Circuit is inevitably called upon to adjudicate the constitutionality of Canon 7C(1) in a case involving a Florida judicial candidate.”

Of course, counsel for the Petitioner (Andrew Pincus) endorses the Respondent’s request for review:

Typically, a respondent joins in a petitioner’s request for further review only when “there is a clear conflict of decisions” and “the question is undoubtedly of such importance as to need a Supreme Court determination.” Stephen M. Shapiro, et al., Supreme Court Practice 510 (10th ed. 2013). That is precisely the case here. Because this case offers an opportunity to answer the question presented free of any doubt that the controversy here is both ripe and ongoing (see Pet. 15-16 & n.9; Resp. Br. 3), the petition for a writ of certiorari should be granted. 

(Hat tip to Maureen Johnston over at SCOTUSblog)

Additional information about the case is set out in FAN #25. Stay tuned for future developments.