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Tagged: Constitutional Law

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FAN 11.4 (First Amendment News) — Liptak re Amending the First Amendment & Similar Proposals by Justice Stevens

If you have not yet seen it, take a look at Adam Liptak’s New York Times article titled “Justice Stevens’s Prescription for ‘Giant Step in Wrong Direction.’” It is quite good and in characteristic Liptak fashion elicits an important reply by way of an insightful question.  Here are a few excerpts:Unknown

Traces of Anger

There was a hint of anger in some of his remarks when I went to see him last week in his Supreme Court chambers. He said the Court had made a disastrous wrong turn in its recent string of campaign finance rulings. “The voter is less important than the man who provides money to the candidate,” he said. “It’s really wrong.

“Misleading” Message 

Chief Justice John G. Roberts Jr. started his controlling opinion with a characteristically crisp and stirring opening sentence: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” But that was misleading, Justice Stevens said. “The first sentence here,” he said, “is not really about what the case is about.”

Justice Souter’s (unpublished) Dissent

I asked Justice Stevens whether he, as the senior justice among the four dissenters, would have assigned the 2009 dissent.“I would and I did,” he said. And he more or less confirmed that the assignment went to Justice David H. Souter, as Jeffrey Toobin has reported in The New Yorker. “He was certainly a logical candidate to write the dissent,” Justice Stevens said of Justice Souter . . . . The draft dissent caused the majority to pause, Justice Stevens said, thanks to “the strong expression of the feeling among the dissenters that procedurally the case was not in the proper posture to reach the issue that they ultimately decided. I think it persuaded the majority that it would be better to have a re-argument so that they could not be accused of deciding something that had not been adequately argued,” he said. 

Amending the First Amendment — Prudent? 

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.” Or perhaps not

His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates. Justice Stevens said he would not go that far.“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”

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More On Justice Stevens’ Proposal to Amend the First Amendment

If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.

Last Scheduled FAN Column: click here

Next Scheduled FAN Column: Wednesday, April 23rd.

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FAN 11.3 (First Amendment News) — The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term

Over at SCOTUSblog, Lyle Denniston writes of  the Roberts Court’s continued “fascination with free speech and the First Amendment.” Indeed it is so. Having now decided 31 First Amendment free expression cases and sustaining such constitutional challenges in 14 of them, the Roberts Court has already carved out its own special (and often controversial) niche in the history of our free speech jurisprudence. DuSupreme_Court_US_2010ring that period, Chief Justice John Roberts has led the way with 11 majority or plurality opinions, followed by Justices Anthony Kennedy and Antonin Scalia with five such opinions each. Only two majority First Amendment free expression opinions have been authored by the Court’s women Justices–Golan v. Holder (2012) by Justice Ruth Bader Ginsburg and Milavetz, Gallop, & Milavetz v. United States (2010) by Justice Sonia Sotomayor. And Justice Elena Kagan’s sole First Amendment free expression opinion is her dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

Tomorrow the Court will hear oral arguments in the Susan B. Anthony List v. Driehaus case. Assuming that the Petitioners can get past the ripeness issue (which is a First Amendment concern), the case could prove to be yet another important one concerning not only false speech, but also speech expressed in the election context.

Meanwhile, we await a ruling in McCullen v. Coakley, another abortion protest bubble zone case that could obliterate or significantly undermine the Court’s 1999 ruling in Hill v. Colorado. Should the Court sustain the First Amendment claim in that case, Justice Kennedy (who dissented in Hill) might well author the majority opinion.

Against that general backdrop, here is a snapshot of the free expression cases (both First Amendment and otherwise) before the Roberts Court this term.

Decided Cases

Cert Granted

Already Argued & Ruling Pending 

Awaiting Argument 

Selected Pending Cases: Petition Stage

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Justices Scalia & Ginsburg on the First Amendment

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In case you missed it, you can go to YouTube and see Marvin Kalb’s interview with Justices Antonin Scalia and Ruth Bader Ginsburg. The C-SPAN interview focused on the two Justices’ views on select First Amendment free speech and press issues. Here are a few highlights:

Justice Scalia: Re: newspapers: “I don’t read the [Washington] Post.”

Re: NYT v. Sullivan“I don’t recall whether it was unanimous; I’m not sure it was. [At this point Mr. Kalb interjected: "It was; it was 9 nothing."] Even so, it was wrong. The issue is not whether it’s a good idea to let . . . anybody [Justice Scalia paused here and began his sentence anew] What New York Times versus Sullivan holds is that if you are a public figure — and it’s been a matter of some doubt what it takes to become a public figure, and certainly any politician is a public figure — if you are a public figure, you cannot sue somebody for libel unless you can prove, effectively, that the person knew it was a lie. So long as he heard from somebody, you know, it makes it very difficult for a pubic figure to win a libel suit. I think George Washington, I think Thomas Jefferson, I think the Framers would have been appalled at the notion that they could be libeled with impunity. And when the Supreme Court came out with that decision, it was revising the Constitution. Now, it may be a very good idea to set up a system that way, and New York State [Alabama] could have revised its libel laws by popular vote to say that if you libel a public figure, it’s okay unless it’s malicious. But New York State [Alabama] didn’t do that. It was nine lawyers who decided that is what the Constitution ought to mean, even though it had never meant that. And that’s essentially the difference between Ruth and me concerning a ‘living constitution.’ She thinks that’s all right and I don’t think it’s all right.” 

Note: As Justice Scalia is aware, the precise issue in Sullivan involved public officials, whereas the public figure issue was addressed subsequently in other cases such as as Curtis Publishing Co. v. Butts (1967). See Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan 65-107 (2014).

Justice GinsburgRe: NYT v. Sullivan: The opinion “is now well accepted. . . .I think the Founding Fathers would have agreed with it in the 1960s.”

Re tweets & Twitter: “A great danger for people who use those devices is you can’t take it back. You know, once you let it out, it’s there for everybody to see for years.”

Re televising Supreme Court arguments: “I think it’s probably inevitable” and “there’s so much pressure for it.” Nonetheless, she was “very much concerned of misportraying” what occurred in court.

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More On Justice Stevens’ Proposal to Amend the First Amendmentjustice-stevens 

If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.

Last Scheduled FAN Column: click here

Next Scheduled FAN Column: Wednesday, April 23rd.

 

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FAN 11.2 (First Amendment News) — C-SPAN: A Conversation with Justices Scalia & Ginsburg on the First Amendment

On C-SPAN: Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg join host Marvin Kalb at the National Press Club to talk about the First Amendment as well as the origins and contemporary meaning of freedom.

WASHINGTONOne sentence, just 45 words in length, proclaims and promises the freedoms that define American democracy. The First Amendment to the U.S. Constitution guarantees the right to freedom of religion, freedom of speech, freedom of the press, freedom of assembly and the right to petition one’s government. It is the duty of the justices of the Supreme Court of the United States to interpret the constitution and to rule on the legality of legislation.

On the next edition of The Kalb Report, Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg join journalist/scholar Marvin Kalb to offer their views of those 45 words in a rare glimpse behind the gavel and inside one of our nation’s vital branches of government.images

The Kalb Report will take place on April 17 at 6 p.m. in the main ballroom of the National Press Club, 529 14th St., NW, in Washington, D.C.

“I am honored to host this program with two justices of the Supreme Court and to discuss their interpretations of the First Amendment guaranteeing our national freedoms, including freedom of the press,” said Mr. Kalb. “I would also love to hear their views on the broader subject of freedom–what is its origin, and what does it mean today?”

The Kalb Report series is produced jointly by The National Press Club Journalism Institute, the George Washington University School of Media and Public Affairs, Harvard University’s Shorenstein Center, University of Maryland University College and the Philip Merrill College of Journalism at the University of Maryland.

For the 11th consecutive year, the series is underwritten by a grant from Ethics and Excellence in Journalism Foundation.

Since 1994, the partnership has produced 83 forums with guests including Walter Cronkite, Rupert Murdoch, Diane Sawyer, Roger Ailes, Katie Couric, Bill O’Reilly, Bob Costas, Hillary Clinton, Ken Burns, and Nobel Prize winner Elie Wiesel. In 2012, The Kalb Report was honored with both a Gold World Medal and the overall Grand Award in the New York Festivals International Radio Awards competition.

The Kalb Report series is distributed nationally by American Public Television. Oklahoma Educational Television Authority serves as the presenting station. The Kalb Report also airs on the public radio channels of Sirius—XM Satellite Radio, Federal News Radio in Washington, D.C. (1500 AM), District of Columbia Cable Television, University of Maryland Cable Television, and NewsChannel 8 in Washington, D.C. Each program is also streamed live at press.org and kalb.gwu.edu.

Moderator Marvin Kalb is Edward R. Murrow Professor Emeritus at Harvard University’s Kennedy School of Government. Over the course of his distinguished 30-year career in broadcast journalism, Mr. Kalb served as chief diplomatic correspondent for both CBS News and NBC News, and moderator of Meet the Press. He went on to serve as the founding director of Harvard’s Joan Shorenstein Center on the Press, Politics and Public Policy. Among his many honors are two Peabody Awards, the DuPont Prize from Columbia University, the 2006 Fourth Estate Award from the National Press Club and more than a half-dozen Overseas Press Club awards. Mr. Kalb has authored or co-authored 13 nonfiction books and two best-selling novels. His latest book is “The Road to War: Presidential Commitments Honored and Betrayed.”

Executive Producer Michael Freedman is a senior vice president and professor of the practice at University of Maryland University College, as well as a professorial lecturer in journalism at the George Washington University. Mr. Freedman is the former general manager of CBS Radio Network News, and former managing editor for the broadcast division of United Press International. He is the recipient of more than 85 honors for journalistic excellence including 14 Edward R. Murrow Awards.

Senior Producer Heather Date is an associate vice president at University of Maryland University College and former CNN producer. She is the recipient of the Alliance for Women in Media’s 2011 Gracie Award for Outstanding Producer of a News Program for her work on The Kalb Report.

Lindsay Underwood, a 2011 graduate of George Washington University’s School of Media and Public Affairs, is the associate producer of The Kalb Report.

Web Editor Bryan Kane is a senior at George Washington University.

The Kalb Report series is directed by Robert Vitarelli, a 39-year CBS News veteran and a Directors Guild of America Lifetime Achievement Award winner.

 

 

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FAN 11.1 (First Amendment News) — Winners of 2014 Hugh M. Hefner First Amendment Awards

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Hugh Hefner

The Hugh M. Hefner Foundation has just announced the winners of the 2014 Hugh M. Hefner First Amendment Awards. Christie Hefner established the Awards in 1979, in conjunction with Playboy magazine’s 25th anniversary, to honor individuals who have made significant contributions in the vital effort to protect and enhance First Amendment rights for all Americans. The awards will be presented on Tuesday, May 20, 2014, followed by a reception for past winners, journalists, government officials, and civic leaders at the Knight Conference Center at the Newseum in Washington, D.C.

A Lifetime Achievement Award will be bestowed on Norman Dorsen, who, for more than a half-century, has been at the forefront of the fight to advance fundamental freedoms and protect civil rights and civil liberties. Since 1961, Dorsen has taught as the Frederick I. and Grace A. Stokes Professor of Law at New York University School of Law. He is the co-director of the Arthur Garfield Hays Civil Liberties Program and was the founding director of NYU’s Hauser Global Law School Program in 1994. Dorsen served as General Counsel of the American Civil Liberties Union (1969-1976), and then as its president (1976-1991). Dorsen has argued many Court cases, wrote the brief for Brandenburg and appeared amicus curiae in theGideon case, the Pentagon Papers case and the Nixon Tapes case.

Award winners, many of whom are unsung heroes, come from various walks of life, including Muneer Awad (Government), former Executive Director of the Council on American-Islamic Relations Oklahoma Chapter, who successfully challenged the implementation of an amendment to ban Sharia and International law that violates the U.S. Constitution and targets Oklahoma’s Muslim-Americans.

Glenn Greenwald (Journalism), political journalist, lawyer, author, blogger and columnist, who published the first in a series of reports detailing NSA surveillance programs based on classified documents leaked by Edward Snowden.

Mary Beth Tinker and Mike Hiestand (Education), for organizing the Tinker Tour, a national free speech and free press tour to promote the First Amendment through the stories of young people. This past school year, the Tinker Tour traveled to schools in 31 states, the District of Columbia and two countries.

Thomas Healy (Book Publishing), author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (Henry Holt & Co., 2013). Professor Healy is a Professor of Law at Seton Hall and teaches Constitutional Law, the First Amendment and Federal Courts and Criminal Procedure.

Christopher Finan (Law), President of the American Booksellers Foundation for Free Expression, for presenting key issues of the impact of the attacks of 9/11 on First Amendment rights to middle and high school students in his book, National Security and Free Speech: The Debate Since 9/11(IDEBATE Press, 2013).

This year’s Master of Ceremonies will be Christie Hefner, Chairperson and founder of the Hugh M. Hefner First Amendment Awards.

{From April 16, 2014 press release}

Previous Winners: (go here)

Last FAN 11 Column (go here)

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FAN 10.1 (First Amendment News) The 2014 Jefferson Muzzles are Here! — 2015 Candidates in Wings

Since 1992, the Thomas Jefferson Center for the Protection of Free Expression has celebrated the birth and ideals of its namesake by calling attention to those who in the past year forgot or disregarded Mr. Jefferson’s admonition that freedom of speech “cannot be limited without being lost.”

Announced on or near April 13—the anniversary of the birth of Thomas Jefferson—the Jefferson Muzzles are awarded as a means to draw national attention to abridgments of free speech and press and, at the same time, foster an appreciation for those tenets of the First Amendment.TJCenter-copy

As the Center sees it, because the importance and value of free expression extend far beyond the First Amendment’s limit on government censorship, acts of private censorship are not spared consideration for the dubious honor of receiving a Muzzle.

So, Ladies and Gentlemen, by way of the Thomas Jefferson Center, I present you the

2014 Jefferson Muzzles

Re: 2013 Muzzles, go here

On a related point, see David Berstein’s “Brandeis University’s Double Standard on Honorary Degrees,” Volokh Conspiracy, April 9, 2014.

If Josh Wheeler and the folks at the Jefferson Center are considering candidates for the 2015 Muzzles, check out John L. Smith’s column entitled “Government in full force to corral cattle, First Amendment,” Las Vegas Review-Journal, April 7, 2014. As Smith  put it:

Perhaps I’ve led a sheltered life, but . . . I had never set foot in a First Amendment Area. On Saturday, the lot was otherwise empty. There were no fiery voices of libertarian protest, no throng of angry Nevada ranchers with rifles in their pickups, not even a gaggle of curious tourists or a covey of head-scratching reporters. Of course, the fact the free-speech pen was located several miles from Bundy’s ranch and even farther from the federal government’s corral of “trespass cattle,” the lack of attendance was understandable. (By Monday, the voices of peaceful protest would increase considerably a few miles up the road near the banks of the Virgin River.)

Adds Smith: “A sign marks a ‘First Amendment area’ to designate where protesters can protest near Bunkerville.” See lonely “First Amendment Area” below in pic. Turns out that sometime later a protester ventured out with an American flag and placard that read: “The First Amendment is not an area.”

web1_bundy_040114JL_09_4Last FAN.10 Column: (“Justice Stevens’ Proposal to Amend the 1st Amendment”) go here

Next Scheduled FAN Column: April 16th

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Fan.10 (First Amendment News) — Justice Stevens’ Proposal to Amend the 1st Amendment

justice-stevensWhile the Justices busily prepared their respective opinions in the McCutcheon campaign finance case, one of their Brethren was preparing to release a book that calls on Americans to reverse some of his former colleagues’ constitutional handiwork. The forthcoming book is Six Amendments: How and Why We Should Change the Constitution (Little, Brown & Co., pp. 170). The author is Justice John Paul Stevens.

This short book is offered up against the backdrop of Justice Stevens’ co-authored opinion in McConnell v. FEC (2003), his dissents in Colorado Republican Federal Campaign Committee v. FEC (1996), Randall v. Sorrell (2006),  Davis v. Federal Election Commission (2008), and Citizens United v. FEC (2010), his criticism of that case in his Five Chiefs: A Supreme Court Memoir (2011), and in his various criticisms of the Court’s campaign finance jurisprudence in his print and TV interviews along with his public addresses. Moreover, it is highly likely that Justice Stevens is just as critical of the Court’s recent 5-4 decision in McCutcheon v. FEC. In short, John Paul Stevens is a man on a constitutional mission.

Quite apart from Citizens United, Justice Stevens has long had serious reservations about vindicating First Amendment claims in most campaign finance cases. Coming onto the Court shortly after Buckley v. Valeo (1976), he witnessed firsthand what Justice William Brennan and his colleagues had wrought in sustaining several of the First Amendment claims urged by  Senator James L. Buckley, presidential candidate Eugene McCarthy, and the ACLU. It left him, he recalled in Five Chiefs, with an “extreme distaste” for that precedent. That distaste, he added, “never abated, and I have felt ever since that the Court would have been best served by inserting itself into campaign finance debates with less frequency.”

Given that, he thinks it is time to resort to Article V for a constitutional remedy. Admittedly, it is (and should be) difficult to amend the Constitution. From 1789 to April 2014, some 11,539 amendments have been proposed, but only twenty-six have been ratified. But that fact has not deterred the retired Justice from Hyde Park, Chicago. Here, then, is the text of the 43 words Justice Stevens would add to the Constitution in order to amend the First Amendment.

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.

(Though the publication date is not until April 22, the text of the above language, which has been confirmed to be the final text, has heretofore appeared here and here and here.)

Reactions from Select 1st Amendment Scholars & Lawyers

Professor Martin Redish, a noted First Amendment scholar who teaches at Justice Stevens’ alma mater, takes exception to this proposed constitutional amendment: “As much as I respect Justice Stevens, I believe that his proposed amendment is sorely misguided.”

  1. “Its inescapable impact would be to reduce dramatically the flow of information and opinion to the voters about political campaigns, thereby substantially undermining core goals of the First Amendment and its role as a facilitator of democracy. The simple fact is that speech costs money, and by limiting the amount of money that candidates and supporters can spend the provision would necessarily limit the flow of often valuable expression which could help the voters perform their governing function in the voting booth.”
  2.  “Moreover, Justice Stevens’ proposal would have the inescapable effect of locking in non-monetary inequalities—for example, incumbency, political connections or fame— perversely, in the name of equality. These are inequalities that have traditionally been diluted by opponents’ use of money to equalize the voters’ awareness of the candidates.”
  3.  “Finally, the provision would create an interpretive nightmare. How much money is “reasonable”? Would it differ from state to state? From campaign to campaign? And who gets to decide? Would courts invoke strict scrutiny or rational basis review of the legislature’s judgment? To give the authority of determining how much is “reasonable” to a state legislature invites the fox to watch the hen house: legislators who will stand for reelection will naturally attempt to shape the limits in a way that facilitates their continued victory. Also on an interpretive level, enormous uncertainty would be created by the task of determining who is a “supporter” of a candidate. And even if courts were somehow able to establish coherent interpretive standards for that word, is it appropriate for the Constitution to engage in what amounts to viewpoint-based discrimination by giving preferences to those who are neutral over those who have chosen to support a particular candidate?”

“In sum, Justice Stevens’ proposal would bring about all of these nightmares—political, social, and interpretive. We would be left with a doctrinal morass and a substantial disruption of the flow of information and opinion fundamental to the operation of the democratic process. To be sure, there are problems with our current campaign system, but as Madison warned in Federalist No. 10, sometimes the cure is worse than the disease.”Unknown

Professor Steven Shiffrin, another noted First Amendment scholar, takes a different view: “The proposal of Justice Stevens directly speaks to the major evil confronting our elections and our democracy. Nonetheless, I worry that conservatives on the Court, as they have in the past, will make a distinction between commentary on issues and election commentary allowing the former, but not the latter. They have previously ruled that commentary was about issues rather than candidates even when the purpose and effect of the commentary was to influence the outcome of an election. This loophole could seriously undermine the purpose of the proposed amendment.”

Such comments notwithstanding, Justice Stevens is “confident that the soundness” of his proposal “will become more and more evident, and that ultimately [it] will be adopted.” The purpose of his forthcoming book, he tells us, “is to expedite that process and to avoid future crises before they occur.”

Not surprisingly, Robert Corn-Revere, a noted First Amendment lawyer, was also skeptical of the Justice’s amendment idea: “The idea of proposing an amendment to reverse Supreme Court decisions one doesn’t like is not new – witness the myriad amendments that purported to ‘fix’ the First Amendment in the wake of the flag burning cases Texas v. Johnson and U.S. v. Eichmann.  But such a thing is rare when it comes from a retired Supreme Court justice, and even more surprising is the degree of latitude the proposed language would give government to restrict our most basic rights. I would have hoped Justice Stevens’ long experience with Fourth Amendment jurisprudence would have suggested the danger of giving the courts power to decide which abridgements are ‘reasonable.’”

Two Opposing Views

John Nichols & Robert McChesney, Dollarocracy (2013): “Every major reform period in American history…has been accompanied by numerous amendments to the Constitution, amendments that were deemed unthinkable until almost the moment they were passed. If the problems faced at this point in the American journey are going to be solved, history suggests constitutional amendments will be a significant part of the process”

– 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.”

Other Proposed Amendments to the First Amendment re Campaign Finance Issues

Read More

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E-Book on McCutcheon Case Just Published

At the risk of being accused of shameful promotion, I am nonetheless delighted to say that my book with David Skover was released yesterday and is now available as an e-book on Amazon, Barnes & Noble, and Google Play. The book is titled When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment and was available 36 hours after the Court rendered its ruling in McCutcheon v. FEC. davidskoverThis is the first book to be released in the SCOTUS-Books-in-Brief series.

This is also my fifth book with David (going back to 1996) and the ride has been an incredible one. As a co-author he is all things wonderful and wondrous and none of those books would have been possible but for his incredible talents and work ethic. So, a BIG NOD to my co-author. One more thing: the book is dedicated to Nadine Strossen, “The First Lady of Liberty,” as we tag her. I can think of no one who has been a greater champion of liberty than Nadine. All that said, here is a dollop of yet more of shameless promotion:

Book Description

Top Five Books: Publication Date: April 2, 2014WMS-cover2

80,000 words, e-book: $2.99

“A brilliant discussion of campaign finance in America…a must for all who care about the American political system.” —Erwin Chemerinsky

“Thorough, dispassionate, and immensely readable.” —Floyd Abrams 

“A must read for anyone interested in constitutional law, free speech, or elections. An original and welcome brand of narrative scholarship.”  —Adam Winkler

“Informative. Reliable.  Accessible. This is the best book on the general topic. And a great read, too!” —David M. O’Brien

On April 2, 2014, the U.S. Supreme Court struck down aggregate limits on how much money individuals could contribute to political candidates, parties, and committees. The McCutcheon v. FEC decision fundamentally changes how people (and corporations, thanks to Citizens United) can fund campaigns, opening the floodgates for millions of dollars in new spending, which had been curtailed by campaign finance laws going back to the early 1970s.

WHEN MONEY SPEAKS is the first book to explain and dissect the Supreme Court’s controversial ruling in McCutcheon, including analysis of the tumultuous history of campaign finance law in the U.S. and the new legal and political repercussions likely to be felt from the Court’s decision. The book is cast in narrative form, replete with accounts of the players who made the case what it has become. Also included are photos of the key players — the lawyers, activists, and Shaun McCutcheon, too. The authors also did extensive interviews (up to and including the day of the ruling) with several of the key figures in the case.

McCutcheon has been billed as “the sequel to Citizens United,” the decision giving corporations the same rights as individuals to contribute to political campaigns. Lauded by the right as a victory for free speech, and condemned by the left as handing the keys to our government to the rich and powerful, the Court’s ruling has inflamed a debate that is not going to go away anytime soon, with calls for new laws and even a constitutional amendment on the left—while those on the right (including Justice Clarence Thomas in his concurring opinion) call for an end to all contribution limits. Two of the nation’s top First Amendment scholars—Ronald Collins and David Skover—have produced a highly engaging, incisive account of the case, including exclusive interviews with petitioner Scott McCutcheon and other key players, as well as an eye-opening history of campaign finance law in the U.S.

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FAN.9.1 (First Amendment News) — McCutcheon Wins: Supreme Court strikes down aggregate limits law

Only minutes ago the U.S. Supreme Court handed down its ruling in McCutcheon v. FEC, the aggregate limits campaign finance case.

Link to opinion is here.

Vote to Reverse:  5-4 (sustaining First Amendment claim)

Plurality Opinion:  Chief Justice John Roberts (joined by Justices Scalia, Kennedy & Alito)

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

Dissenting Opinions: Justice Stephen Breyer joined by Justices Kagan, Ginsburg, & Sotomayor.

The issues before the Court were: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

Commentary: SCOTUSblog (Amy Howe): “The Court rules in the Chief’s opinion that the aggregate limits do not further the permissible government interest in preventing quid pro quo corruption or the appearance of such corruption.”

 Lawyers: Supreme Court

For Appellant Shaun McCutcheon: Erin Murphy (lead counsel) & Paul Clement

For Appellant RNC: James Bopp, Jr. (NB: Though the NRC brief was prepared by Mr. Bopp, Ms. Murphy argued the case for both McCutcheon and the RNC)

For Senator Mitch McConnell (amicus): Bobby Burchfield 

For Appellee: Solicitor General Donald Verrilli, Jr.

Oral Arguments 

Resources & Related Materials 

  • Lower Court opinion (per Judge Janice Rogers-Brown) (argued by James Bopp, Jr., for Appellant)

Selected Supreme Court Briefs

  • Cert. Petition of Shaun McCutcheon & RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant Shaun McCutcheon (Michael T. Morley, counsel of record)
  • Reply Brief of Appellant Republican National Committee  (James Bopp, Jr., counsel of record)
  • Amicus Brief of Sen. Mitch McConnell (Bobby Burchfield, counsel of record)
  • Amicus Brief of the Cato Institute in support of the Appellant (Ilya Shapiro, counsel of record)
  • Amicus Brief of Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in support of the Appellant (J. Joshua Wheeler, counsel of record)
  • Brief of Appellee FEC (S.G. Donald Verrilli, Jr., counsel of record)
  • Amicus Brief of Brennan Center for Justice in support of Appellee (Daniel Kolb, counsel of record)
  • Amicus Brief of Americans for Campaign Reform in support of Appellee (Charles Fried)
  • Amicus Brief of Democratic Members of the U.S. House of Representatives in support of Appellee (Paul M. Smith, counsel of record)
  • Amicus Brief of Representatives Chris Van Hollen & David Price in support of Appellee (Seth Waxman, counsel of record)
  • Amicus Brief of Professor Lawrence Lessig in support of Appellee (Douglas T. Kendall, counsel of record)
  • For Additional Briefs, go here (ABA site)

Books, Symposia & Articles

  • SCOTUSblog Symposium on McCutcheon (forthcoming, 2014) (contributors: Jan Witold Baran, Richard Hasen, Burt Neuborne, Ilya Shapiro, & Fred Wertheimer)
  • SCOTUSblog Symposium on McCutcheon (Aug., 2013) (contributors: Erwin Chemerinsky, Ronald Collins, Robert Corn-Revere, Joel Gora, Justin Levitt, Tamara Piety, David Skover, & Adam Winkler)
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FAN.9 (First Amendment News) — Sunstein on Sullivan & its “Dark Side”

In the wide-open, robust, and uninhibited world of the First Amendment, nothing is sacred, not even the hallowed opinion in New York Times, Inc. v. Sullivan (1964). Case in point: Justice Antonin Scalia’s originalist reservations about Justice William Brennan’s constitutional handiwork in that landmark case. But alas, the conservative jurist is not alone. Enter the sometimes liberal Harvard Law Professor Cass Sunstein, who has recently authored an op-ed titled “The dark side of the First Amendment” (Bloomberg, March 26, 2014).Unknown

Some two decades ago, in his Democracy and the Problem of Free Speech, Professor Sunstein labeled the Sullivan case as “one of the greatest cases of modern free speech law.” Even so, he made it clear in that book and in later works that his understanding of the Sullivan principle was a cabined one. Later, in an August 21, 1995 review essay in The New Republic, he spoke of the question of causation, among other things. There Sunstein maintained that “it isn’t necessary to demand proof of causation before encouraging greater responsibility on simple prudential grounds.” In that regard, he argued that cultural questions should not be confused with constitutional ones when it comes to questions of causation. It is against that backdrop that we return to his views on Sullivan, which are at once somewhat laudatory and at the same time rather cautionary.

On the occasion of the 50th anniversary of Sullivan, Sunstein writes: “amid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.” (emphasis added).  Later on in his op-ed, he was more modest in his critique: “False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” (emphasis added). Having said all of that, in the end he conceded that “the Court got the balance right” in Sullivan. What are we to make of this?

A few preliminary responses, first my own, and then some from a colleague. If I read him correctly, Professor Sunstein seems to be saying that constitutionally speaking Sullivan is a good thing, but culturally speaking it is not, or may not be so wonderful. Fair enough, for general discussion purposes anyway. That said, it must be remembered that we pay a price for liberty. So much for the constitutional side of the equation. On the cultural side, however, Sunstein seems to make his case on the back of a weak causation claim (recall: “it isn’t necessary to demand proof of causation . . . .”). That leads me to wonder: Is it unreasonable to expect that any meaningful cultural critique of Sullivan be related in some actual sense to questions of proof of causation? In other words, should cultural critiques be oblivious to what science can tell us, or at least suggest to us? Granted, one might understandably deplore the state of “discourse” in modern America.  But faulting Sullivan is another matter. More importantly, what is sorely missing from Professor Sunstein’s cultural critique is a critique of the culture writ large. By that measure, Sullivan may make for a convenient scapegoat, but little more, at least standing alone.

By way of another look, American University law professor Stephen Wermiel, who co-authored the seminal biography of Justice Brennan and more recently co-authored a book on Sullivan and its legacy, offered the following comment on Professor Sunstein’s article:

“Professor Cass Sunstein joined the fiftieth anniversary celebration of New York Times v. Sullivan, but bemoaned the ability of “talk show hosts, bloggers and users of social media” to “spread ugly falsehoods in an instant,” adding to “a climate of distrust and political polarization.” But Sunstein’s concerns lay too much blame on the shoulders of Sullivan. That unanimous ruling did not create a society in which free-flowing criticism, replete with occasional falsehoods, is rampant. That culture already existed; Sullivan only helped to fit it all into a robust constitutional democracy. To the extent that Sunstein’s criticism turns on the proliferation of instant means of communication, he gives too little weight to the access that victims of social media have to respond. Moreover, Justice Brennan, the author of Sullivan, was not alone in his belief that society benefits from “robust and wide-open debate.” It was, after all, the more judicially modest Justice John Harlan who 1971 observed that the ability of society to handle the cacophony of free speech is a sign of strength, not weakness.”

Returning to the constitutional side of the ledger, in his latest book (Conspiracy Theories and other Dangerous Ideas) Professor Sunstein further elaborates on his ideas about the virtues of “minimalist” judging, which makes one wonder if he would have indeed signed onto what Justice Brennan wrote in Sullivan. My guess: no.

Watch your calendar: The petition in Elane Photography, LLC v. Willock is scheduled to be considered at the Court’s April 4th Conference.

Note: I plan to have immediate and updated postings re McCutcheon v. FEC, the campaign finance First Amendment case now awaiting a ruling from the Supreme Court.

Journalists & “qualified First Amendment privileges”

Joel Kurtzberg of Cahill Gordon & Reindel has just filed a cert. petition in the case of Risen v. United States in which two issues are presented: (1) Do journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial?, and (2) should a federal common law privilege be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial? Read More

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My Textualist Moment — the Use of the Words “Person” or “Persons” or “People” in Our National Bill of Rights

There has been much talk lately about whether corporations are or should be “persons” under the First Amendment, both for free speech and free exercise purposes.images

In a textualist moment, this got me to thinking about the wording of our federal Bill of Rights and what light it might shed on this. Let’s start with the First Amendment. Its focus is a limitation on the powers of Congress and makes no mention of persons until the reference to “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The Second Amendment mentions people in a similar way: “the right of the people to keep and bear arms, shall not be infringed.”

The Third Amendment uses the word “Owner” but not person or persons or people.

The Fourth Amendment is quite explicit: It speaks of the “right of the people” and the rights of “persons.” So, too, with the Fifth Amendment and its reference to “person.”

The Sixth Amendment mentions the rights of “the accused” and likewise uses the male pronoun “his” and “him” in this regard.

The Seventh and Eighth Amendments are silent on the personhood question.

The Ninth Amendment, of course, refers to the rights “retained by the people.”

And the Tenth Amendment reserves rights to “the states respectively, or to the people.”

There you have it. What to make of it? Well, I leave that to others to decide since I am not a bona fide textualist fundamentalist, though I do think text matters as a part of the constitutional calculation of things. Y tu? What do you think? (Feel free to respond in either your individual or corporate capacity.)