Tagged: Constitutional Law

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FAN 17 (First Amendment News) — New Bio Reveals How Scalia Helped to Save a PBS Station

A soon to be released 650-page biography of Antonin Scalia reveals some interesting tidbits about the Justice and his career as it relates to free speech. The book is titled Scalia: A Court of One (Simon & Schuster, June 10, 2014). Bruce Allen Murphy, the Fred Morgan Kirby Professor of Civil Rights at Lafayette College, is the author of this heavily-researched and well-documented new biography. Professor Murphy’s previous judicial biographies include The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982), Fortas: The Rise and Ruin of a Supreme Court Justice (1988), and Wild Bill: The Legend and Life of William O. Douglas (2003).

Bruce Allen Murphy

Bruce Allen Murphy

Tellingly, the yet-to-be-distributed book has already been praised and criticized. That said, Murphy’s biography affords a new opportunity to revisit the history of Justice Scalia’s interaction with the First Amendment, both before and during his career on the Court. Readers of this column will recall Scalia’s recent call for law schools to place more emphasis on teaching the First Amendment. Recall, too, the Justice’s repeated criticism of the holding in New York Times Co. v. Sullivan.

Turning back the biographical clock, and as Professor Murphy recounts it, in January of 1971 Antonin Scalia (he was 35) went to work as general counsel for the Office of Telecommunications Policy. During Scalia’s tenure there President Nixon “became convinced that the national news and public affairs division of the Public Broadcasting Service . . ., which depended on government funding, was an ‘enemy’ group staffed by relentless liberal journalists. Nixon decided to try to take control of this agency, or, if he could not, to destroy it by cutting off its funding.”

Sometime later, word reportedly came down from the Nixon White House to “get a particular PBS station off the air.” According to an OTP official then working there, “Nino said, ‘hell, write back a memo that says it’s illegal.’ While Scalia acknowledged that [the purported illegality] was not true, he added, ‘Hell, they don’t know that.'” Subsequently, the OTP official “told a reporter that he did precisely what Scalia recommended and the White House soon dropped the issue.”

To be sure, there is more to this story, but I refer readers to the Murphy’s biography to learn how the matter ultimately played out, politics and all.

Before leaving the Murphy biography, readers might be interested to know that he devotes a chapter (#8) to the originalist debate over the meaning of the First Amendment as interpreted by then Circuit Judges Robert Bork and Antonin Scalia in the case of Ollman v. Evans (1984).

More on Justice Scalia

Speaking of Justice Scalia and free speech, the following is a list of his First Amendment free expression majority opinions authored during his tenure on the Roberts Court. Notice the vote margin when he is assigned to write for the Court.

→ Aside: Coming in 2015: A play titled “The Originalist

Federal Court Affirms Right to Videorecord Police 

Read More

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FAN 16.3 (First Amendment News) — Unanimous Judgments: The Roberts Court’s Record in First Amendment Free Expression Cases

Earlier today the Supreme Court handed down its ruling in Wood v.Moss.  The vote was 9-0 and the opinion was authored by Justice Ruth Bader Ginsburg.  In part, the Court held that

Government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the gov- ernment actor fears, dislikes, or disagrees with the views expressed. See, e.g., Police Dept. of Chicago v. Mosley . . . . The fundamental right to speak, however, does not leave people at liberty to publicize their views “ ‘whenever and however and wherever they please.’ ” United States v. Grace . . . In deciding whether the protesters have alleged violation of a clearly established First Amendment right, this Court assumes without deciding that Bivens v. Six Unknown Fed. Narcotics Agents, . . . , which involved alleged Fourth Amendment violations, extends to First Amendment claims . . . .

Accordingly, the Court ruled that the Secret Service agents were entitled to immunity; the Ninth Circuit was reversed. (See Professor Ruthann Robson’s comments on the case here.)

Beyond the qualified immunity point of this opinion, what is interesting is that in Wood the Court denied a First Amendment claim by a unanimous vote. When it comes to free expression First Amendment cases, the Roberts has consistently been unanimous in cases in which the claim was denied. In other words, the only time the judgment is unanimous in such cases is when a free speech claim is rejected. Wood is but the latest case in this string of First Amendment opinions.

Unanimous Judgments Denying First Amendment Expression Claim

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0] [3rd Cir., reversed & remanded]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0] [Wash. S. Ct., vacated & remanded]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0] [2nd Cir., reversed]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0] [10th Cir., reversed]
  5. Locke v. Karass (2009) [vote: 9-0] [First Cir., affirmed]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0] [8th Cir., affirmed in part, reversed in part & remanded]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0] [Nevada S. Ct., reversed & remanded]
  8. Reichle v. Howards (2012) [vote: 8-0] [10th Cir., reversed & remanded]
  9. Wood v.Moss (2014) [vote: 9-0] [9th Cir., reversed]

Conclusion

Of the Roberts Court’s 32 free expression First Amendment opinions, 28% were decided by a unanimous vote and against the free expression claim being asserted.

See also: FAN 11.3: The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term

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FAN 16.2 (First Amendment News) Democracy 21 Responds to RNC Lawsuit

Press Release, May 23, 2014

RNC Challenge to Political Party Soft Money Ban Filed Today in Federal District Court Has Already Been Rejected Twice by Supreme Court

Statement by Democracy 21 President Fred Wertheimer

The RNC filed a lawsuit today in Federal District Court in Washington, D.C. challenging for the third time the ban on national parties raising and spending unlimited contributions, or soft money. They have lost this same argument twice before in the Supreme Court.

The RNC lost this argument in the Supreme Court in the McConnell case in 2003 and lost again in the RNC case in 2010, decided after the Citizens United decision.

In the 2010 RNC case, Chief Justice Roberts and Justice Alito joined in the 6 to 3 Supreme Court decision that summarily upheld the lower court decision reaffirming the constitutionality of the soft money ban.

The RNC cannot get around the soft money ban and the Supreme Court decisions upholding the ban by the use of blue smoke and mirrors.

The RNC has no basis for bringing this lawsuit and apparently wants to obtain three strikes before they will accept the fact that they cannot raise and spend soft money.

The RNC is attempting to sell an illusion that the RNC can raise and spend soft money without raising and spending the soft money that the law, upheld by the Supreme Court, prohibits the RNC from raising and spending.

The RNC is also attempting to make believe that the two previous losses they had in the Supreme Court in challenging the soft money ban somehow aren’t relevant to this case and the RNC’s desire to raise and spend soft money.

Representative Chris Van Hollen intervened in the 2010 RNC case to defend the ban on political party soft money and he has indicated he will move to intervene in the RNC case filed today.

Democracy 21 lawyers will join with others in representing Representative Van Hollen in this case, as we did in the 2010 RNC case.

Federal law prohibits the national parties from raising contributions above the federal contribution limits, or soft money, and from spending any such funds.

Federal law also prohibits federal officeholders and national party officials from soliciting any such soft money contributions.

Contact Kathryn Beard, Democracy 21 @ kbeard@democracy21.org

 

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FAN 16.1 (First Amendment News) — RNC Lawsuit Challenges Soft Money Restrictions in McCain-Feingold

Press Release (complaint available here)

Today, the Republican National Committee (RNC) and the Republican Party of Louisiana (LAGOP) filed suit in federal court challenging federal soft-money restrictions in the McCain-Feingold campaign finance law that prevent political parties from having their own independent-expenditure accounts and that prevent state and local political parties from using soft money — i.e., state-regulated money — for voter registration and get-out-the-vote activities.
        The Federal Election Commission (FEC) has recognized that political committees may have independent-expenditure accounts, which may receive unlimited contributions for making independent expenditures about federal candidates, and may also have a separate account to make contributions to candidates. Contribution accounts are subject to a “base contribution limit,” usually $5,000 annually, restricting how much an individual may contribute to them.
        However, the FEC prohibits political parties from having independent-expenditure accounts, which means that the RNC’s independent expenditures must be funded by contributions limited to $32,400 a year.
        In the lawsuit, Republican National Committee v. FEC, the RNC and Chairman Reince Priebus want to establish an RNC independent-expenditure account and to solicit unlimited contributions to it. However, political parties are currently prohibited from having independent-expenditure accounts and national political party officers are limited in how much they may solicit for an independent-expenditure account — only up to the base contribution limits — even though base limits on contributions to independent-expenditure accounts are unconstitutional.
        The Republican Party of Louisiana, and its Chairman Roger Villere, also are suing in order to establish and to solicit unlimited contributions to the LAGOP’s own independent-expenditure account.
        In addition, the LAGOP has joined with two Louisiana local political parties, Jefferson Parish Republican Parish Executive Committee and Orleans Parish Republican Executive Committee, to seek to do independent “federal election activities” with Louisiana state-regulated money (often called “soft money”),  instead of so-called “federal funds” (often called “hard money”). Federal election activity includes voter-identification, voter-registration near federal elections, and get-out-the-vote activities, as well as any public communications that merely mention a federal candidate. State and local parties must currently use federal funds even for independent federal election activity. Federal funds are subject to burdensome regulations that prevent many state and local political parties from engaging in federal election activity.
        The controlling legal principle undergirding all the suit’s claims is that the Supreme Court has held in Citizens United v. FEC and McCutcheon v. FEC, that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” As a result, it is unconstitutional to impose contribution limits on independent expenditure activities – which has given rise to independent-expenditure accounts. The same reasoning applies to political parties’ independent campaign activities.
        In the alternative, the Plaintiffs ask the court to declare all soft money provisions of McCain-Feingold to be unconstitutional on their face, reversing McConnell v. FEC, since there is no evidence of quid-pro-quo corruption where a political party sought to corrupt their own candidates. McCutcheon v. FEC recently decided that only quid-pro-quo corruption can justify contribution limits and McConnell upheld the soft money bans despite no evidence of quid-pro-quo corruption, so McConnell was wrongly decided.
        James Bopp, Jr., lead attorney for Plaintiffs comments:
After Citizens United, there is no justification for restricting funds that political parties receive for independent campaign activity. In an era when independent-expenditure accounts can solicit unlimited contributions and spend enormous amounts to influence political races, political parties are constitutionally entitled to compete equally with them with their own independent campaign activity. Political parties are an important part of our political system and success in this case will help empower them again.

May 23, 2014
Contact: James Bopp  (see link above) 

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FAN 15.2 (First Amendment News) — Justice Scalia on the First Amendment & Legal Education

In a recent speech entitled “Reflections on the Future of the Legal Academy,” Justice Antonin Scalia had a few things to say about legal education and the First Amendment. The remarks were made on May 11, 2014 at the William & Mary Law School, this by way of a commencement address. The relevant passage is:

In more than a few law schools, including some of the most prestigious (the University of Chicago, for example), it is possible to graduate without ever having studied the recent First Amendment. Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law? And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?

[Hat tip to William Baude]

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FAN 15 (First Amendment News) — Free Speech & Judicial Elections: The Return of Kaus’ Crocodile

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Wolfson v. Concannon (9th Cir., May 9, 2014). The issue: whether several provisions in the Arizona Code of Judicial Conduct (Canon 4) restricting judicial candidate speech run afoul of First Amendment protections. Held: Yes, but only as to non-incumbent judicial candidates. The vote: 1-1-1. Judge Richard A. Paez wrote the main opinion, Judge Marsha S. Berzon wrote a concurring opinion, and Judge Richard Tallman dissented in part.

Anita Y. Woudenberg argued on behalf of the Appellant, Kimberly A. Demarchi argued on behalf of the Arizona Bar Association, and Charles A. Grube, Assistant Attorney General in the Arizona Attorney General’s Office, argued on behalf of the Appellees. The case, of course, revisits the Supreme Court’s 5-4 holding in Republican Party of Minnesota v. White (2002). (BTW: The White case was successfully argued by James Bopp, Jr., with whose firm Ms. Woudenberg is affiliated.)

Judge Paez began his opinion on a rhetorical high note: “A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate’s campaign speech. The conflict arises from the fundamental tension between the ideal of apolitical judicial independence and the critical nature of unfettered speech in the electoral political process.”

Justice Otto Kaus (1920-1996)

Justice Otto Kaus (1920-1996)

 By contrast, Judge Berzon opened by way of echoing a cautionary metaphor: “Sitting for judicial election while judging cases, Justice Otto Kaus famously quipped, is like “brushing your teeth in the bathroom and trying not to notice the crocodile in the bathtub.”

As for Judge Tallman, he was more direct: “I agree with the majority that strict scrutiny . . . is the appropriate standard. I agree that we should limit our decision to non-incumbent judicial candidates. And I agree that Rules 4.1(a)(5) (campaigning for others) and 4.1(a)(6) (personal solicitation) are unconstitutional as applied to those candidates. I concur in the majority opinion only on those points. I part company with my colleagues as to Rules 4.1(a)(2) (giving speeches on behalf of others), (3) (endorsing others), and (4) (soliciting money for others).”

Three judges, three opinions. Still, they all agreed that the rules prohibiting speechifying, endorsements, and fundraising “present the closest question.”

The 7th Circuit, by comparison, upheld a similar set of laws in Siefert v. Alexander  (2010) and in Bauer v. Shepard (2010). Those cases employed a Pickering balancing test instead of strict scrutiny. And those cases, unlike Wolfson, involved campaign restrictions on elected sitting judges rather than on a non-incumbent candidate running for a judicial office. As to the appropriate standard of review, in his White concurrence, Justice Anthony Kennedy, who voted with majority, declared: “Whether the rationale of Pickering and Connick v. Myers (1983), could be extended to allow a general speech restriction on sitting judges — regardless of whether they are campaigning — in order to promote the efficient administration of justice, is not an issue raised here.”

 Judge Berzon duly stressed the limited scope of the Court’s ruling:In sum, the principles applicable to the constitutionality of political restrictions on sitting judges diverge dramatically from those we apply to today’s challenge to restrictions on a judicial candidate not now a judge. The standard of review may well differ. And the powerful interests supporting such restrictions differ, too. I need not address, as the issue is not before us, whether the particular restrictions we review today would be constitutional as applied to sitting judges.”

More on this case as things develop.

First Amendment Cases Awaiting Decision 

The following First Amendment freedom of expression cases are awaiting a decision by the Supreme Court:

First Amendment Cases Already Decided

The following First Amendment freedom of expression case was handed down by Supreme Court this Term:

Related Cases, see also

Forthcoming Event on McCutcheon Case

On Wednesday June 18th @ noon the Cato Institute will host a program entitled “McCutcheon v. FEC: Two Books on the Supreme Court’s Latest Campaign Finance Case.” The event will feature:

The discussion will be moderated by Ilya Shapiro, a Senior Fellow in Constitutional Studies, Cato Institute.

Here is a description of the program:

Shaun McCutcheon (photo credit: NYT)

Shaun McCutcheon (photo credit: NYT)

On April 2, the Supreme Court issued its latest blockbuster ruling on campaign finance, McCutcheon v. FEC, striking down the “aggregate” contribution limits on how much money any one person can contribute to election campaigns (leaving untouched the “base” limits on donations to individual candidates or party committees). Within days of the decision, while pundits and activists were still battling in the media, two e-books were published about the case. One was by Shaun McCutcheon himself, an Alabama engineer who has quickly gone from political neophyte to Supreme Court plaintiff, thus providing a rare first-person layman’s account of high-stakes litigation. The other was by two law professors specializing in First Amendment law, Ronald Collins and David Skover, who dissect the Court’s ruling and put it in the broader context of campaign finance regulation.

 To register to attend this event, click the button below and then submit the form on the page that opens, or email events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by noon on Tuesday, June 17, 2014.

Recent Event on McCutcheon Case Read More

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FAC 4 (First Amendment Conversations) – Steve Shiffrin, the Dissenter at the First Amendment Table

My [next] book calls upon you and others to recognize that your religion – your speech worship – does a lot of damage, and you might do well to contemplate the possibility that the lack of free speech idolatry in other Western countries might be leading to more sensible conclusions (except when it comes to dissent where they are somewhat worse than we are).

Steven H. Shiffrin is the Charles Frank Reavis Sr., Professor of Law at Cornell Law School. He is the author of several books including: The Religious Left and Church-State Relations (Princeton University Press, 2009), Dissent, Injustice, and the Meanings of America (Princeton University Press, 1999), and The First Amendment, Democracy, and Romance (Harvard Press, 1990). He is the coauthor of Constitutional Law (11th ed., 2011) and The First Amendment (5th ed., 2011), both of which are widely used casebooks in the field. He is also a regular contributor to the “Religious Left Law” blog (and is active on Twitter and Facebook). From time to time, he files amicus briefs in First Amendment cases such as the recent Elane Photography case, which the Supreme Court declined to review. And he is a frequent speaker on the First Amendment lecture circuit.

In 2007, the Loyola of Los Angeles Law Review dedicated an entire issue to honor Steve. In that symposium, the late C. Edwin Baker (a noted First Amendment scholar in his own right) labeled Steve as “one of the country’s three or four top First Amendment scholars.” He went on to add: “I consider Steve the best in terms of possibly the most important criterion: being right about what really matters. On that ground, his achievement is truly worthy of honor.”

Steve Shiffrin

Steve Shiffrin

Steve is also a dear and longtime  friend. That friendship dates back to our days in law school when Steve first introduced me to the works of Harry Kalven, the preeminent  free speech scholar of his time. Speaking of law school, Steve’s student law review Note was cited approvingly by Justice Brennan in Fisher v. United States (1976). It was but one of several early signs of the high caliber of his scholarship. After law school he served as a law clerk to Judge Warren Ferguson on the United States District Court, Los Angeles (1975-76). 

Steve, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our FAC readers. I’d like to ask you some tough and some easy questions, all in the spirit of robust discussion between friends.  

Question: When I think of your work — beyond its rigorous analytical contours, that is — I always think of the dissenter, that lone wolf who howls at the moon for reasons unknown to or unpopular with the rest of us. Why this fascination with rogues or “moral lepers” as you tag them?

Answer: I have argued that the protection of dissent should occupy a special place in the First Amendment primarily, but not exclusively, because it is crucial to the combatting of injustice. I would think this even if I did not admire dissenters. But I do hold a special admiration for those who swim against the current and challenge existing customs, habits, institutions, and authorities. I do not think of dissenters as moral lepers (though some of them are). And I do not think dissent should always be protected. But I do think the practice of dissent should be regarded as especially valuable.

Question: What is your sense of Edward Snowden? Do you consider him a dissenter, of sorts? And do you believe that the First Amendment should protect him if he were to be prosecuted for leaking classified documents?

Answer: The First Amendment should often protect those who blow the whistle on government misconduct even if documents relating to that misconduct are classified. Much of the conduct disclosed by Snowden was rightly disclosed. I am not sure if all of it was. I find it disturbing that the government welcomed the debate instigated by Snowden even though it attempted to prevent the debate from occurring and that it seeks to prosecute Snowden for creating it. In particular, the desire to prosecute Snowden is disturbing when you recognize that government for decades has selectively revealed classified information in pursuit of official or partisan ends.

Question: In your Dissent book, you wrote: “if content neutrality is the First Amendment emperor, the emperor has no clothes.” Given the centrality of that doctrine in our current First Amendment decisional law, that seems to be a striking (and that is the word) assessment. Can you elaborate a bit on your thoughts concerning this?

Answer: The First Amendment prevents content discrimination except when it doesn’t. Many exceptions to First Amendment protection depend upon content, e.g., some forms of defamation, sexual speech, advocacy of illegal action. The Court has no principled justification for using strict scrutiny regarding some forms of content discrimination and less scrutiny for others. A theory of content neutrality does nothing to explain its selective use.

The Values of Free Speech vs the Value of Democracy

Question: In 1990 you wrote: “there is something quite odd about suppressing speech in the name of democracy.” Forgive me, but in today’s vernacular that could almost be the mantra of, say, the libertarian Cato Institute or of Shaun McCutcheon, the petitioner in McCutcheon v. FEC. What is your response to that?

Answer: A rhetorical joust in one context does not work in another. A politically centered theory of the First Amendment rooted in democratic theory leads to the conclusion that much non-political speech is not protected because it is only marginally related, if at all, to the democratic dialogue. Contributing to democratic dialogue should not be a necessary condition for First Amendment protection. Suppressing literature, music or art or private non-political speech in the name of democratic theory is entirely unpersuasive. At the same time, the values of free speech can be outweighed by the value of democracy. The Court’s insensitivity to this and its legalization of forms of bribery in Buckley, Citizens United, and McCutcheon is an embarrassment to the country and a scandal.

Question: As you know, the ACLU argued for the First Amendment claims sustained in Buckley v. Valeo (1976), the case in which Senator James Buckley and former Senator Eugene McCarthy challenged certain provisions of the 1974 Amendment to the Federal Election Campaign Act. Do you think that the ACLU and the majority got in right in Buckley?

Answer: No. The Court left human beings free to spend unlimited sums of money with the intent and effect of advancing or opposing political candidates and by implication it left corporations free to do the same so long as they did not use explicit language of endorsement or opposition to a particular candidate. Democracy is not consistent with the kind of preferential access and influence that the wealthy buy by spending large sums of money in this way. The victory for free speech is a significant democratic loss.

Question: Would it be fair to say, at least generally speaking, that your view of free expression under the First Amendment turns on power and those who possess it versus those who do not? What prompts this question is a passage in your Romance book wherein you wrote: “From the romantic perspective, the regulation of the wealthy, the powerful, and the large corporate conglomerate does not ordinarily inspire concern  [about whether such individuals or groups] are in danger of being stifled or that individual self-expression is at risk” By contrast, you add, the “Schencks, the Carlins, [and] the O’Briens” do need such protection. Hence, “from the romantic perspective, it is clear: the powerful rarely need protection; dissenters often do.” Putting aside for the moment the fact that the late comedian George Carlin was a man of means, does your view of free speech look at wealth and power as important factors in deciding whether to protect speech? Read More

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FAN 14 (First Amendment News) — Why the Justices vote as they do in First Amendment Free Expression Cases (updated)

As I mentioned in an earlier column, there is a new empirical study entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.” The study was done by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Segal. Since I just introduced that study in a cursory fashion, I wanted to say a bit more about the study and its findings.  

→ Let us start here with this admonition to lawyers and scholars: The ideological status (or “grouping”) of the party bringing a First Amendment challenge (speech, press, assembly, or association) may well determine the outcome. That, at least, is the general takeaway point from this new study done by three political scientists (Lee Epstein is also a law professor). In other words, the focus is not simply on the legal claim in the abstract or on the ideological makeup of the judge in general. It is an old but forgotten lesson: the right plaintiff can make or break the case. But here the right plaintiff depends on aligning his or her ideological grouping with that of a majority of the Justices hearing the case. If you doubt it, the authors argue, simply consider the ideological divide in cases such as Boy Scouts v. Dale or Madsen v. Women’s Health Center or  Morse v. Frederick or Citizens United or Garcetti v. Ceballos.

Such “in-group bias,” the authors maintain, “leads to the hypothesis that judges engage in opportunistic behavior following from litigant favoritism.” To buttress their general claim, Epstein, Parker, and Segal examined 4,519 votes of the Justices in 516 First Amendment free expression cases decided between the 1953-2010 Court Terms. Based on their examination they concluded that “the Justices’ votes tend to reflect their preferences towards the speakers’ ideological grouping, and not solely an underlying taste for the First Amendment qua Amendment.” While scholars such as Emily Bazelon (see here) and Adam Winkler (see here) have made similar points, this study is the first one to make the case based on a systematic examination of a large number of First Amendment cases and the voting patterns of 33 Justices (from Hugo Black to Elena Kagan). Again, below is one of the tables setting out some of the authors’ findings:Screen Shot 2014-05-05 at 3.25.12 PM

Here are three questions for Professors Epstein, Parker and Segal:

1.) How might one categorize the ideological grouping of, say, the litigant in United States v. Stevens where the Court voted 8-1 to sustain the First Amendment claim? Or what about the ideological grouping of the litigant in United States v. Alvarez, where the Court sustained a free speech claim by a 6-3 margin? Or what about Knox v. Service Employees International Union where the Court voted 7-2 to uphold the First Amendment claim (with Justices Sotomayor and Ginsburg in the majority)?

2.)  What about the rule and reasoning of a case? That is, even if, say, conservative Justices favor a litigant based on some ideological similarity with their own views, might not that ruling and the logic of the case serve to benefit “liberal” litigants in future cases? Or as Howard Wasserman (I assume he is Professor Wasserman) put it in a comment to my last post: “Is there a problem relying entirely on results and votes rather than reasoning? This would be more meaningful if a justice came out diametrically opposite in two cases that were identical but for the identity and political persuasion of the speaker and that involved the same constitutional test, analysis, or standard.”

3.) What are we to make of unanimous rulings like the ones in First Amendment cases such as New York State Bd. of Elections v. Lopez Torres or Locke v. Karass or Rumsfeld v. Forum for Academic & Institutional Rights?

The authors have kindly replied, and their response is set out below:

The first and third questions seem to address a similar issue, which is the extent to which factors outside of ideology influence voting on the Court. While we argue that ideology is a major component of a Justice’s vote, it is not the only factor.  The influence of ideology does not mean that other legal or institutional issues may play a role in voting. For example, our model finds that Justices are less likely to support freedom of association claims as compared to their support for speech in purer free speech cases. We also find that justices are less likely to support speech that violates a federal law as compared to a state or local law. So while ideology plays a significant role in voting, that does not preclude the possibility that we will see larger, or even unanimous majorities on some of the “easier” free speech cases.

Some of the cases you mentioned, like U.S. v. Stevens and Knox v. Service Employees International Union, may also create ideological ambivalence in Justices.  For example, do liberal Justices continue to vote against anti-obscenity laws or uphold a law aimed at preventing animal cruelty (in Stevens), or do they support labor unions or individual workers (in Knox)?  This may help explain why we see ideologically mixed coalitions in some cases.

The second question deals with the possibility that a liberal (or conservative) Justice may vote to create a precedent that benefits liberals (conservatives) in the short term but can be exploited by the other side in future cases. There is always the potential for this, although we think it is significantly mitigated in many of the most controversial free speech cases recently.  Where we see the clearest ideological splits are on cases that create a new standard that is likely to consistently benefit one side over another. For example, campaign finance cases that uphold the money-as-speech standard and continuously loosen restrictions on this form of speech apply to both conservative and liberal donors.  However, in terms of support for restrictions on this type of speech liberals consistently support regulations while conservatives oppose them. So rulings that remove restrictions on campaign spending will endorse the conservative vision of the role of money in politics, regardless of whether or not it benefits liberal donors as well.

Similarly, in cases involving abortion protesters may be facially neutral and create a standard that supports all forms of public protesters, but it is pretty clear that the decisions on these cases are going to affect pro-life protesters much more than any other group. While a reversal of Hill v. Colorado in the forthcoming McCullen v. Coakley decision could be used by liberal protesters (such as an Occupy Wall Street type protest), the conservative justices could also distinguish the precedent to apply more narrowly to abortion protests given their unique nature.  Or if Hill v. Colorado is upheld liberal justices could state that the unique history of violence on the part of pro-life protesters limits that precedent to restricting protesting outside of health facilities but not peaceful protests like Occupy Wall Street. Given these circumstances it is not surprising that we consistently see 5-4 votes along ideological lines in campaign finance and abortion protest cases.

[Hat tip to Professor Parker for helping to expedite this reply and thanks to all of the authors for accommodating our readers.]

Meanwhile, I wonder how far ideological labeling can take us. While I do not deny the importance of this fact and this important new study, I think it well to remember that labels like “conservative” or “liberal” also change over time. For example, recall the lineup in the 5-4 Posadas commercial speech case wherein the conservatives voted against the First Amendment claim and the liberals for it. Furthermore, how likely is it that traditional First Amendment conservative Justices like, say, Felix Frankfurter or Byron White would have joined their contemporary counterparts in sustaining a free speech claim in a cases such as United States v. Stevens or Brown v. Entertainment Merchants Association? My point: ideological turf sometimes shifts over time and labels take on new meanings (or become blurred).

To be continued? Let me know what you think and we may well post more. (One more thing: a big welcome to our colleagues in Political Science. Please keep us abreast of your work in the First Amendment field.)

Bopp is Back!

James Bopp, Jr. is the man who, among other things, first brought the legal challenges in the Citizens United and McCutcheon cases. He is, I gather, now about to file a lawsuit before a three-judge court in a federal district court in the District of Columbia. When filed, the complaint will petition the court to allow national and state parties to form super PACs that can raise and spend unlimited amounts on election campaigns, something the Federal Election Commission has barred. According to a Washington Times news report, “current rules for soft money require that state and local parties use only severely limited, federally regulated ‘hard dollar’ donations to fund federal electioneering activities. This includes voter registration drives within 120 days of an election, voter ID and get-out-the-vote programs and any communications that mention federal candidates — with some exceptions.” The story goes on to quote Mr. Bopp: “‘This means that few local political parties do these activities because of the hard-money requirement,’ Bopp told [Louisiana Republican Party Chairman Roger Villere] in an email suggesting that the Louisiana chairman become the plaintiff in the proposed lawsuit. ‘State political parties that are able to set up hard money accounts find it hard to raise this money because of the annual $10,000 contribution limit for hard money.'”

Will the RNC join this anticipated lawsuit? Stay tuned.

Headline: “News media challenges ban on journalism drones” Read More

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FAN 13.3 (First Amendment News) New Study Reveals Politics of Justices’ Protection of Free Speech

Over at the New York Times Adam Liptak has just posted a news item entitled “In Justices’ Votes, Free Speech Often Means ‘Speech I Agree With.” Liptak’s story is based on a new empirical study entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.” The study was done by Professors Lee Epstein, Christopher M. Parker, & Jeffrey A. Segal.  Here is the abstract:

In contrast to the traditional political science view, which holds that justices on the left are more supportive of free speech claims than justices on the right, and in contrast to a newer view among legal academics that justices on the right are more supportive of free speech claims than justices on the left, we use in-group bias theory to argue that Supreme Court justices are opportunistic supporters of free speech. That is, liberal (conservative) justices are supportive of free speech when the speaker is liberal (conservative).

A two-level hierarchical model of 4,519 votes in 516 cases confirms the in-group bias hypothesis. Although liberal justices are (overall) more supportive of free speech claims than conservative justices, the votes of both liberal and conservative justices tend to reflect their preferences toward the speakers’ ideological grouping, and not solely an underlying taste for (or against) the First Amendment.

Below is a revealing chart summary of the study (sans the notes to the asterisks). Given the importance of this study, I plan to post more on this work after I have had more time to review it.  Meanwhile, here is a link with additional information concerning the study.  Screen Shot 2014-05-05 at 3.25.12 PM

 

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FAN 13.2 (First Amendment News) — Indiana High Court Affirms Right to Criticize Judge

The CaseBrewington v. Indiana (No 15S01-1405-CR-309, May 1, 2014)

The Vote: Unanimous

The AuthorJustice Loretta H. Rush

The LawyerJames Bopp, Jr. (for Defendant)

Facts: (as stated in Court opinion)

In his blog posts, Defendant’s criticisms of the Judge were rather generalized—contending that the Judge “has abused my children” or otherwise done “mean things to my children and my family,” was guilty of “criminal conduct,” or was simply “crooked,” or “a nasty evil man.” But he also posted a copy of his August 24, 2009 “Motion to Grant Relief from Judgment and Order” online  in which he alleged that the Judge:

Justice Loretta Rush

Justice Loretta Rush

  • “has a substantial conflict of interest as[ he] was aware that Dr. Connor was not licensed to practice psychology by the State of Indiana when [he] had appointed Dr. Connor to perform psycho- logical services for an Indiana Court,”
  • “conducted himself in a willful, malicious, and premeditated manner in punishing the Respondent for attempting to protect the parties’ minor children, the Counties of Ripley and Dearborn, and the States of Indiana and Kentucky from the actions of Dr. Edward J. Connor by terminating the Respondent’s parental rights,”
  • “robbed [Defendant’s] parenting rights as revenge for fighting injustice,”
  • “caused irreparable damage to the Respondent’s children in the Court mandated child abuse [sic]” by “illegally eliminating their father from their lives out of the Court’s self-interest,” and
  •  used “child abducting tactics” by issuing the divorce decree.

In the motion, Defendant also threatened to “fil[e] criminal complaints with the Sheriff’s department and Prosecutor’s office for child abuse,” and to contact government officials, local churches and schools, social service agencies, and community organizations “in an attempt to contact other victims and to help bring public awareness to the atrocities that take place in the Ripley and Dearborn County Courts.” And he concluded the motion by seeking relief “due to fraud” by the Judge, the Doctor, and opposing parties and counsel—and echoing his previous efforts seeking Judge Taul’s recusal, he further demanded “the immediate resignation of Judge James D. Humphrey from the bench for the horrendous crimes committed against the Respondent and his children.”

Judgment

The First Amendment “is . . . certainly broad enough to protect Defendant’s ill-informed—but by all indications, sincere—beliefs that the Judge’s child-custody ruling constituted “child abuse” or “child abducting,” and that the ruling was based on improper motives. The Court of Appeals erred in relying on Defendant’s overheated rhetoric about “child abuse,” or the falsity of that characterization, to affirm his conviction for intimidating a judge. Even if Defendant’s “child abuse” and other statements about the Judge could be understood as assertions of fact, not hyperbole, they are protected by the First Amendment because there is no proof of actual malice.”

While his criticism of the judge was protected, the Court concluded that other statements made by the Defendant constituted “true threats” and were thus unprotected under the First Amendment. Said the Court:

It is every American’s constitutional right to criticize, even ridicule, judges and other parti- cipants in the judicial system—and those targets must bear that burden as the price of free public discourse. But that right does not permit threats against the safety and security of any American, even public officials, regardless of whether those threats are accompanied by some protected criti- cism. Defendant’s true threats against the Judge and the Doctor therefore find no refuge in free speech protections. To the contrary, they undermine the core values of judicial neutrality and truthful witness testimony on which every aggrieved citizen depends.