Tagged: Election law

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FAN 20.5 (First Amendment News) — Move to Amend First Amendment Continues

imagesAccording to a June 26, 2014 Bloomberg BNA news story by Nancy Ognanovich & Kenneth P. Doyle:

“Senate Majority Leader Harry Reid’s (D-Nev.) priority list for Senate action in July includes plans to schedule votes on a constitutional amendment to protect the authority of Congress to regulate campaign finance, as well as a separate campaign finance disclosure measure—known as the DISCLOSE Act—that failed in previous years, aides said. . . .”

Vote in Subcommittee: “The proposed campaign finance amendment to the Constitution was approved by the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights June 18th on a 5-4, party-line vote. The measure was set to be considered June 26th by the full Judiciary Committee, but was held over.”

Substituted language: “The subcommittee adopted a substitute to Sen. Tom Udall’s (D-N.M.) proposed amendment (S. J. Res. 19) offered by panel Chairman Richard Durbin (D-Ill.). The measure would allow Congress and the states to set ‘reasonable limits on the raising and spending of money by candidates and others,’ and would further permit Congress and the states to prohibit campaign spending by ‘corporations or other artificial entities.'”

See also this op-ed by Josh Blackman: “Democrats are Trying to Rewrite the First Amendment,” American Spectator, June 25, 2014

→ For earlier coverage of this proposed constitutional amendment, see:

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FAN 19.3 (First Amendment News) 9th Cir. Strikes California Requirement of Initiative-Proponent Identification on Initiative Petitions

Earlier today the U.S. Court of Appeals for the Ninth Circuit held unconstitutional California’s requirement that ballot initiative petition forms identify the official initiative proponents. This follows court opinions allowing anonymity at the point of petition circulation.

The opinion in Chula Vista Citizens for Jobs v. Norriscan be found here.

Opinion by Judge O’Scannlain, in which Judge Graber joins, except as to Part IV, and in which Judge Bea joins, except as to Part III. Judge Graber filed an opinion dissenting as to Part IV. Judge Bea filed an opinion concurring as to Part III.

→  Prevailing Counsel: James Bopp, Jr. for the Plaintiff-Appellant.

Prediction: Professor Richard Hasen (on Election Law Blog): “I expect this issue will go en banc and perhaps to the Supreme Court—with a decent chance of reversal.”

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FAN 19 (First Amendment News) Law Prof. Contests Ban on Note-Taking in Courtroom

This first part of this column is about bans on note-taking in courtrooms, federal and state. To illustrate this point, I want to say a few things about a law professor and the recent hell he went through in his attempt to takes notes in a public courtroom in Cook County, Illinois. Before I get to his story, which is an incredible one, permit me to set the stage with a few bits of history.
* * * * 
There was a time, in my adult lifetime, when spectators in the Supreme Court were barred from taking notes. Yes, note-taking was not permitted unless one was a member of the press corps. One had to sit and listen in silence. In an August 18, 1997 Washington Post op-ed, Professor David M. O’Brien and I put it this way:

“It is an unwritten rule but a rule nonetheless. No ordinary citizen can take notes in the courtroom of the U.S. Supreme Court, unless granted special prior approval by the officer of the Public Information Office. . . . (For an unknown period before 1988, not even members of the Court’s bar could lift a pen.) . . . . No one really really knows when the rule, which is of contemporary vintage, began. Insofar as there is any reason for the rule, it is to protect the ‘decorum factor.’ Violate the rule and the marshals whisk you away.”

“No one, including the ever-attentive press corps, fusses over the rule, one of the few of its kind enforced in any federal or state court in this land. . . . Back in 1988, however, Justice Harry Blackmun complained about the rule in a memo to his colleagues: ‘I wonder if we go too far in our request for decorum.’ Noting came of the complaint.”

We concluded our op-ed this way: “Imagine courtroom audiences . . . taking notes about what they hear and see, as if the Court were a civic classroom. Imagine citizens exercising their First Amendment rights to further their knowledge of [the Supreme Court] and their Constitution. What is amazing is that such things can only be imagined — for now.”

Ban Silently Lifted 

And then the world changed in November 2002. As Tony Mauro reported in a May 5, 2003 article for Legal Times: The rule’s “demise came without fanfare and without public notice, but Court public information officer Kathy Arberg confirmed last week that sometime last November the policy against note-taking was ‘no longer enforced’ by Court Police officers.” And then this: “One of the weblogs that handicaps Court cases, [SCOTUSblog], first noted the change on April 25th after blogger Ted Metzler attended the arguments in Nike v. Kasky. As he and other spectators went through security, Metzler recalls, ‘The officer told us we could bring in a notebook and pen and we all looked at each other.’ Metzler is currently a law clerk at D.C.’s Goldstein & Howe . . . .”

Professor Samuel V. Jones

Professor Samuel V. Jones

12 Years Later — Enter Professor Jones (the would-be notetaker)

He doesn’t fit the typical profile of a rabble-rouser. He is a former Marine Sargent, a former U.S. judge advocate, and before that senior counsel in the Commercial Law group at AT&T Corp and later as corporate counsel for Labor and Employment for Blockbuster, Inc. He is also a former Special Advisor to the Chair of the Illinois Judicial Council. And now he is a professor at the John Marshall Law School.

He is Samuel V. Jones. This former Marine is not a man to sit on his rights, especially his First Amendment rights. And so when the deputies in a circuit court ordered his to forsake those rights, he refused.

It all happened on May 8th during the course of bail hearings in a Cook County court presided over by Circuit Judge Laura Sullivan. Apparently, the atmosphere was tense as deputies patrolled the courtroom. At one point, according to Professor Jones, a “deputy approached and impolitely inquired, ‘Are you an attorney’? I identified myself as a professor of law doing research. She responded, ‘There is no note-taking in here.’ I wondered if the deputy knew that ‘the right of the press to access court proceedings is derivative of the public’s right,’ and journalists held no greater right than I did. I informed her that the office of the chief judge had advised me that note-taking is permitted. I asked if I had violated any laws or was disruptive. ‘No,’ she replied, and walked away.”

But that was hardly the end of the matter. Shortly thereafter, two different deputies ordered the professor out of the courtroom and confiscated his notes. “One deputy approached Judge Sullivan,” recalls Professor Jones, “and the proceedings immediately stopped. I was ordered to sit on a bench, told not to move or write, and was surrounded by several deputies.”

Judge Laura Sullivan

Judge Laura Sullivan

Here is how it ended: “After roughly 30 minutes, they released me with my notes. As I left, a group of African-Americans approached, wanting to shake hands. A lady enlightened me, ‘We saw what they did to you and figured you must be important.’ ‘Why,’ I asked. She explained, ‘Because they let you go.'”

Turns out that this is a old story in Cook County courts. According to recent a Chicago Tribune editorial, “in 2004, a different Cook County judge threw a different law professor out of her courtroom for taking notes. [Now retired] Judge Gloria Coco  forbade . . . writing in her courtroom . . . . That time, it ended up in federal court. A judge said the First Amendment protects public access to the courts so that citizens can observe and critique their government, and note-taking helps ensure an informed discussion.” (Here is the case: Goldschmidt v. Coco (2006).)

Thanks to Professor Jones, the problem may now have been solved for good insofar as Chief Judge Timothy Evans has since signed an “administrative order spelling out that note-taking is permitted in court.”

→ For an earlier discussion of the same problem, see Eugene Volokh, “Ban on Note-Taking by Spectators in Court,” Volokh Conspiracy, May 24, 2013

→ The American Judicature Society has conducted a federal court and 50-state court survey of “Note-Taking Laws,” this in connection with juror note-taking.

Third Circuit to Hear Challenge to Delaware’s Voter Guide Rules Read More

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FAN 18 (First Amendment News) — What to do with the First Amendment? Election Law & Free Speech

I have not taken a position, one way or the other, on these constitutional amendments; we are having a hearing.” — Senator Patrick Leahy, June 3, 2013

To amend or not to amend? The question lingers and the debate continues. In the political maelstrom, some liberals push to amend the First Amendment while conservatives push back against the idea of tinkering with the Bill of Rights. It is a sign of our times that jaws don’t drop in utter amazement at the ideological lineup at play here.

Protestors at Senate SJ 19 hearing just before it began

Protestors at Senate SJ 19 hearing just before it began

“We are here to declare victory,” said Bobby Burchfield at a Heritage Foundation event this past Monday (see below). The seasoned election law lawyer, who argued on behalf of the RNC in the McCutcheon case, stressed victory because in his view campaign finance reformers have now conceded that their reform measures cannot be reconciled with the First Amendment. Echoing that point, Donald McGahn (former FEC chairman and prominent election law lawyer now with Jones Day) told the Heritage audience: “The so-called reformers are finally admitting that what they want to do is unconstitutional.”

Messrs. Burchfield and McGahn were referring to a proposed constitutional amendment  (S.J. 19) introduced by Senator Tom Udall (D-NM) and co-sponsofed by Senators Michael Bennet (D-CO) and Jon Tester (D-MT) along with 38 others (no Republican co-sponsors — 33 co-sponsors have joined a companion amendment in the House, H.J. Res. 20). A hearing on the Udall proposal took place yesterday in the Senate.

The Senate Hearing

Senator Leahy chatting with Senator Reid (seated).

Senator Leahy chatting with Senator Reid (seated).

Senate Hart Building, Rm. 216, 10:30 a.m — Senator Patrick Leahy (D-Vt.) chaired the hearing. Sixteen senators were present at various times during the hearing. Introductory comments were made by  Chairman Leahy (statement here) and Senator Chuck Grassley (R-IA) (statement here). Their remarks were followed by the first panel of witnesses, which consisted of Majority Leader Harry Reid (D-Nev.) (statement here) followed by comments from Minority Leader Mitch McConnell (R-KY) (statement here). “This joint appearance,” said Committee Chairman Patrick Leahy (D-Vt.), “is a first in the Committee’s history as far as we can tell.”  

Prior to the second panel’s statements, comments were offered by Senator Richard Durbin (D-IL) and Senator Ted Cruz (R-TX) (video clip here).  The second panel consisted of statements by Floyd B. McKissick, Jr. (a state Senator from North Carolina) (statement here), Floyd Abrams (Partner, Cahill Gordon & Reindel) (statement here), and Jamie Raskin (Professor of Law, American University, Washington College of Law) (statement here).

Here are a few excerpts from State Senator McKissick’s remarks:

“In 2010 alone Americans For Prosperity, a group funded in large party by the Koch brothers, spent more than a quarter of a million dollars in North Carolina. Another group, Civitas Action, spent more. A new organization that sprang up, called Real Jobs NC, spent almost $1.5 million dollars. Overall, three quarters of all the outside money in state races that year were tied to one man: Art Pope. Pope and his associates poured money into 22 targeted races, and the candidates they backed won in 18.”

Here are a few excerpts from Mr. Abrams’ remarks:

“The description of the constitutional amendment it proposes states, in its text, that it ‘relate[s] to contributions and expenditures intended to affect elections.’ That’s one way to say it, but I think it would have been more revealing to have said that it actually ‘relate[s] to speech intended to affect elections.’ And it would have been even more revealing, and at least as accurate, to have said that it relates to limiting speech intended to affect elections. And that’s the core problem with it. It is intended to limit speech about elections and it would do just that. . . .”

Here are a few excerpts from Professor Raskin’s remarks:

“[I]n several recent 5-4 decisions, the wall protecting democracy from plutocracy has been crumbling under judicial attack. Four years ago, in Citizens United v. FEC, the Roberts Court majority bulldozed an essential block of the wall, the one that kept trillions of dollars in corporate treasury wealth from flowing into federal campaigns. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), the Court stifled public debate and destroyed vast new opportunities for political speech by striking down public financing programs that use matching funds and a trigger mechanism to amplify the voices of less affluent candidates competing to be heard over the roar of big wealth. In McCutcheon v. FEC (2014), the Court took a sledgehammer to the aggregate contribution limits, empowering political tycoons and shrewd business investors to max out to every Member of Congress and all their opponents. All of these assaults on political equality and free speech were justified in the name of the First Amendment.”

See Amy Howe’s SCOTUSblog post here.

→ A vote on S.J. 19 is said to occur later this year. 

A Few Highlights from S.J. 19 Hearing

  • Boxes of petitions calling for a constitutional amendment.

    Boxes of petitions calling for a constitutional amendment.

    Senator Leahy: “Two million Americans have signed petitions calling for a constitutional amendment.” [Stacks of boxes containing the petitions were brought into the hearing room for display.]

  • Senator Grassley: “Today freedom of speech is threatened as it has not been in many decades.”
  • Senator Reid: “Is there any member of this Committee who believes the status quo is good?”
  • Senator McConnell: “Everyone on this panel knows this proposal will not pass . . . . This is a political exercise and that’s all it is.”
  • Senator Jefferson Sessions (R-AL): “The First Amendment . . . is not a collective right.”
  • Senator Cruz: “Citizens are still astonished that members of Congress would dare support repealing the First Amendment. . . . This amendment is about power and about politicians silencing citizens. . . . We are in a strange point in time when Democrats abandon the First Amendment, and, indeed, propose repealing it.”
  • Professor Raskin: “Don’t be intimidated; the people are with you. . . . [The Petitioners in Citizens United] could have won, and should have won, on that point [i.e., statutory grounds].”
  • Senator Charles Schumer (D-NY): “The First Amendment has always had a balancing test.”
  • Senator Jean Klobuchar (D-MN) question to Mr. Abrams: “Do you support any other limits [beyond disclosure] on campaign contributions . . . .?  Mr. Abrams: “I’ve pretty well come to the conclusion that contribution limits . . . ought to fall. I think they should be disclosed, but it seems to me that we’ve reached a point, both in our jurisprudence and our politics, where if we know what the money is and where it is coming from that . . . we can trust the public to make a rational decision . . . .”
  • Senator Reid quoting Senator Mitchell (apparently from statement made in 1987 or 1988): “‘We Republicans have put together a responsible and Constitutional campaign reform agenda. It would restrict the power of special interest PACS, stop the flow of all soft money, keep wealthy individuals from buying public office.'”

* * * * 

Ken Kulkowski: “Only one amendment has modified a previous amendment. The Eighteenth Amendment was ratified in 1919 and empowered Congress to forbid alcohol nationwide. Then the Twenty-First Amendment was ratified in 1933 to repeal the Eighteenth Amendment and allow alcohol to flow once again.” [Source: here]

* * * * 

Heritage Foundation Event

The day before the Senate hearing on S.J. 19, the proposed amendment was a topic of discussion at the Heritage Foundation. The panel was moderated by Elizabeth Slattery with comments by Bobby Burchfield, Donald McGahn, and Hans A. von Spakovsky. Here are a few excerpts from their remarks:

Mr. Burchfield: “The McCutcheon decision is plainly correct.  McCutcheon like Citizens United did not break new First Amendment ground” since both decisions were consistent with Buckley v. Valeo, which rejected the idea of leveling the political playing field rationale. “The self-styled reform community is trying to read into the First Amendment what democratic government should be. The First Amendment does not impose on government a duty to limit speech.”  

Dan McGahn

Dan McGahn

Mr. McGahn: Under S.J. 19, could “Congress prohibit a labor union from communicating with its members?  What about the NRA and its members?” Can S.J. 19’s ban be “speech selective?”  Would it apply to “pastors and their congregation? What about bloggers who aired a video like the one in Citizens United?  What about books?”  McGahn also analogized S.J. 19 with the British Licensing Order of 1643 and the Stamp Act of 1765 in that all of these measures required permission from the government to speak.

Mr. von Spakovsky: “Nearly all means of communication require spending money—from the ‘humblest handbill or leaflet’ to political advertisements run during prime time on ‘television, radio, and other mass media,’ which are “indispensable instruments of effective political speech. . . . Supporters of this amendment claim that restricting the amount of money that may be spent on political speech and activity is not the same as limiting speech, but that is the equivalent of saying that limiting the amount of newsprint a newspaper may buy does not limit the newspaper’s speech. Coincidentally, the proposed constitutional amendment has one glaring exception: It would not apply to the press. Thus,The New York Times and MSNBC could continue to spend as much money, newsprint, and airtime as they want supporting their preferred candidates (or attacking those they oppose), but individuals, associations, and non-media corporations would be strictly limited in their political speech. This is certainly no way to ‘level the playing field.'”

 A video of the event should be available soon (check here)

Call for Constitutional Convention?  Read More

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FAN 17.3 (First Amendment News) Senator Cruz Introduces Two Free Speech Bills

Senator Ted Cruz

Senator Ted Cruz

Today in the course of a Senate Judiciary Committee hearing concerning S.J. 19 (a proposal to amend the First Amendment) Senator Ted Cruz (R-TX) announced that he was introducing two bills  “to protect the individual right to free speech in the wake of Democrats’ efforts to effectively repeal the First Amendment by allowing Congress to regulate spending on political speech.” As the robust Committee discussion went back and forth, Senator Cruz paused for a moment to say a few words about the pair of bills he was introducing: 

“Senate Democrats are seeking unfettered power to regulate and stifle political speech, which is why today, it’s more important than ever to champion the freedoms enshrined in our Constitution,” Sen. Cruz said. “Once Congress can prohibit spending money, it can prohibit almost every form of speech, whether it comes to books, films, television advertisements, or events. The pair of bills I filed today will not only encourage more freedom and transparency in the campaign finance system, but once again put individual Americans on a level playing field with the media and politicians when it comes to exercising our First Amendment rights.” [See video clip here]

SuperPAC Elimination Act of 2014

The first bill is entitled “the SuperPAC Elimination Act of 2014.” The bill was offered as an amendment to the Federal Election Campaign Act of 1971. The proposed law would “eliminate limitations on direct contributions to candidates” and “require disclosure of certain contributions within 24 hours or receipt, and for other purposes.” The bill’s stated purpose would be to “allow unlimited direct contributions by citizens and lawful permanent residents of the United States to candidates in Federal elections.”

The disclosure section of the bill provides in relevant part that “[i]f a candidate receives an aggregate amount of contributions in excess of $200 from any contributor during a calendar year the principal campaign committee of such candidate shall submit to the Secretary or the Commission, and the Secretary of State, as appropriate, in writing, a notification containing the name of the candidate and office sought by the candidate, the identification of the contributor, and the date of the receipt and amount of the contribution.”

The Free All Speech Act

The Senator’s second bill is entitled “The Free All Speech Act.” The first part of the bill provides that “[a]ny law that restricts the political speech of American citizens shall apply with equal force to media corporations, such as the New York Times, the American Broadcasting Company (ABC), the National Broadcasting Company (NBC), and the CBS Television Network.” Another section of the bill states that to “the extent that the application of a law to a media corporation under subsection (a) is found unconstitutional, such law shall have no force or effect with respect to American citizens.”

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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 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.

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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.8 (First Amendment News) — Shaun McCutcheon to write e-book

Ever the entrepreneurial figure, Shaun McCutcheon, the man at the center of the latest campaign finance storm known at McCutcheon v. FEC, has decided to take his case to yet a higher plateau — he’s writing an e-book titled Outsider Inside The Supreme Court — A Decisive First Amendment Battle. “It’s mainly about the actual [experience of being] an activist plaintiff (a DC ‘outsider’),” he told me. The work will be an e-book consisting of nine chapters. According to Mr. McCutcheon, the e-book is being written with significant assistance from Richard E. Cohen, a seasoned correspondent for Congressional Quarterly and the National Journal. Cohen, who has written on politics (see, e.g., here) and campaign finance issues (see, e.g., here), reportedly began working on the writing project with Mr. McCutcheon in late November or early December of last year. (Mr. Cohen is no newcomer to the subject of campaign finance laws. See, e.g., his “Giving till It Hurts: 1982 Campaign Prompts New Look at Financing Races,” National Journal, Dec. 18, 1982.)

SM_Book_Cover_ConceptsHere is the opening paragraph from the first chapter of the forthcoming e-book: “I strongly believe in Freedom of Speech and your right to spend your money on as many candidates and political activities as you choose. Free political speech and assembly are especially important to the future, because we can’t change anything in Washington, DC if we can’t change whom we send to Washington. Supporting those we believe will bring about change – and doing so through transparent contributions — is a good thing.” (emphasis added) He goes on to note: “So I filed a lawsuit, which was argued before the United States Supreme Court on Oct. 8, 2013. As I write this I’m waiting on the High Court’s ruling. This e-book is about the case, and the legal and political forces that drive it.”

Not to be overlooked is his attorney, Erin Murphy, who argued his case in the Supreme Court. He quotes her early on in the work: “‘By prohibiting contributions that are within the modest base limits Congress has already imposed to combat the reality or appearance of corruption,’ Erin Murphy—a former clerk to Chief Justice Roberts, who has become a Supreme Court litigator with a Washington D.C. law firm—told the Justices, ‘these limits simply seek to prevent individuals from engaging in too much First Amendment activity.'”

Some of the other chapters (which are each 3,000 words or fewer) concern:mcc-shaun

  • How Shaun McCutcheon first got actively involved in politics
  • How his case evolved
  • The various attorneys (notably Dan Backer) with whom he has worked on his case
  • How the media has covered the case and controversy, and
  • How the Court will ultimately rule in his case.

McCutcheon’s aim is to provide “a rare inside perspective of the evolution of an important court case from the view of an Alabama businessman.” To that end, he hopes that his account “will help demystify an important part of how our government operates.”

The e-book is slated to come out sometime shortly after the Court rules in McCutcheon. Read More