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FAN 22 (First Amendment News) — New Documentary on Mr. First Amendment — Nat Hentoff

imagesPerhaps no person alive better embodies the spirit of the First Amend — robust, rebellious, free-flyin’ and straight-talking — than Nat Hentoff. Fuse the life spirit of Lenny Bruce together with that of the early Bob Dylan and add a dollop of Miles Davis’ jazz and Allen Ginsberg’s poetry and you’ll get a sense of Hentoff’s persona. There is also a Tom Paine quality about him — feisty in his defense of freedom, no matter how unpopular it makes him. Some liberals love him, some conservatives admire him, and some libertarians applaud him — but very few come along for the full Hentoff monty. And that’s the way he likes it! If you have an open mind and a tolerant side, you gotta love the guy . . . if only at a First Amendment distance.

If any of this strikes a chord in your free-speech consciousness, then check out the new documentary on Nat — The Pleasures of Being out of Step, directed by David L. Lewis. Here is a description of the documentary:

Pleasures profiles legendary jazz writer and civil libertarian Nat Hentoff, whose career tracks the greatest cultural and political movements of the last 65 years. The film is about an idea as well as a man – the idea of free expression as the defining characteristic of the individual. . . . Pleasures wraps the themes of liberty and identity around a historical narrative that stretches from the Great Depression to the Patriot Act. Brought to life by actor Andre Braugher, the narration doesn’t tell the story – it is the story, consisting entirely of writings by Hentoff and some of his subjects. With a potent mix of interviews, archival footage, photographs and music, the film employs a complex non-linear structure to engage the audience in a life of independent ideas and the creation of an enduring voice.

At the core of the film are three extraordinarily intimate interviews with Hentoff, shot by award-winning cinematographer Tom Hurwitz. The film also includes interviews with Floyd Abrams, Amiri Baraka, Stanley Crouch, Dan Morgenstern, Aryeh Neier, Karen Durbin, Margot Hentoff and John Gennari, among others. It features music by Duke Ellington, Miles Davis, John Coltrane, Bob Dylan and Charles Mingus, and never-before seen photographs of these artists and other cultural figures at the height of their powers.

 Here is the trailer.

→ Here is the bookThe Pleasures of Being Out of Step: Nat Hentoff’s Life in Journalism, Jazz and the First Amendment.

 Screenings have been in New York and are now happening on the West Coast.

Nat Hentoff on Bill Buckley's Firing Line

Nat Hentoff on Bill Buckley’s Firing Line

Hentoff Books

Some of Nat Hentoff’s books on free speech and related topics include the following:

→ As if that were not enough (and I left out all the jazz books), I gather that the 89-year-old Hentoff is working on a new book.

Video clips

See and hear the man himself on this Brian Lamb, C-SPAN (YouTube) interview with Nat (go here).

→ And go here, too, for Richard Heffner’s Open Mind interview with Nat.  (See also here for a Cato Interview)

→ One more — this is precious: The young Nat debating the young Bill Buckley on Firing Line.

Shaun McCutcheon Launches Litigation Group

The petitioner in the landmark McCutcheon v. FEC (2014) case has decided he wants to do more to further the cause of the First Amendment as he understands it. To that end, Shaun McCutcheon has launched a foundation – the Coolidge-Reagan Foundation.

→ Its purpose? “The Foundation is dedicated to defending, protecting, and advancing political speech.” Read More

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FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record

What a term it has been for the Roberts Court and free speech – Election campaign laws, union dues, government employee speech, abortion clinic buffer zones, and a presidential protest case. Also set out below are some related First Amendment events that occurred this Court Term along with a list of new books on free speech. Further down are some facts and figures concerning the Roberts Court’s overall record on free speech.

Disorder in the Court: Recall, too, that back in May there was a disruption inside the Court: “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech,” the protester said, “corporations are not people and that our democracy should not be for sale to the highest bidder.” Before he was arrested, Noah Newkirk of Los Angeles also got in a few more words of protest: “overturn Citizens United” and “the people demand democracy.” Even more incredible, it was captured on video and released on the Web.

35 Cases: This Term the Roberts Court decided five First Amendment free expression cases along with three related free speech cases. The Justices also denied review in a campaign finance case while granting review in “true threats” case. All in all, the Roberts Court has now decided 35 free speech cases on First Amendment grounds.

→ “In Group Bias”: And then there was the empirical study by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Sega entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Amending the 1st?: While much of this was going on, Justice John Paul Stevens released a book urging, among other things, that the First Amendment be amended. In the same vein, a Senate subcommittee first heard and then voted in favor of an amendment to the First Amendment.

→ New Books: Here are some of the new books that were published during this Court Term:

  1. Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
  2. Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
  3. Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
  4. Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
  5. Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
  6. Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
  7. Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court & The Constitution (2014)

→ Law Review: A Harvard Law Review Symposium on free speech was published recently.

→ Flashback: Cass Sunstein on the 50th Anniversary of NYT v. Sullivan

“[A]mid 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. . . . 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.” [Source: here]

→ The Play’s the Thing: Arguendo, a play about Barnes v. Glen Theatre, Inc. was performed earlier this year. 

Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.

Supreme_Court_US_20102013-14 Term: First Amendment Cases

  1. [JR: 5-4]          McCutcheon v. FEC
  2. [RBG: 9-0]      Woods v Moss
  3. [SS: 9-0]         Lane v. Franks (commentary)
  4. [JR: 9-0]         McCullen v. Coakley
  5. [SA: 5-4]         Harris v. Quinn (symposium)

→ Here is the lineup of Justices writing majority opinions this term in First Amendment free expression cases:

  • Chief Justice Roberts             McCutcheon v. FEC   (vote: 5-4) &
  •                                                McCullen v. Coakley   (vote: 9-0)
  • Justice Ginsburg                    Wood v. Moss              (vote: 9-0)
  • Justice Sotomayor                 Lane v. Franks            (vote: 9-0)
  • Justice Alito                           Harris v. Quinn            (vote: 5-4)

Read More

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FAN 19.5 (First Amendment News) — Supreme Court Decides Public Employee Speech Case: 1-A Claim Prevails 9-0

The Supreme Court just handed down its opinion in Lane v. Franks.  The vote was unanimous and the opinion for the Court was authored by Justice Sonia Sotomayor.  The opinion can be found here. Justice Clarence Thomas filed a concurring opinion in which Justices Antonin Scalia and Samuel Alito joined.

Issues: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.

  1. Held: “The Court holds that Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. His testimony was speech as a citizen on a matter of public concern.” (Amy Howe)
  2. The Court also holds that “the individual defendant has qualified immunity from this suit because prior precedent wasn’t clear enough that you could not fire an employee for sworn testimony.” (Tom Goldstein)

Tejinder Singh (Goldstein & Russell) counsel for Petitioner.

Select Excerpts from Majority Opinion

First Amendment Issues

  • Matters of Public Concern & Encouraging Public Employee Speech — “Speech by citizens on matters of public concern lies at the heart of the First Amendment, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” This remains true when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights. . . . There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees.”
  • Reserved for a Future Case: “We . . . need not address in this case whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties, and express no opinion on the matter today.” (emphasis added)
  • Truth is a Defense: “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment. . . . When the person testifying is a public employee, he may bear separate obligations to his employer—for example, an obligation not to show up to court dressed in an unprofessional manner. But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn testi- mony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.”
  • Garcetti Distinguished: “Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.”
  • Key Garcetti Question: “The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.
  • Value of Speech by Public Employees: “It bears emphasis that our precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.”
  • Preventing Corruption: “It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

Justice Thomas’ Concurrence

  • Limited Application of Garcetti: Deciding this case “requires little more than a straightforward application of Garcetti. There, we held that when a public employee speaks “pursuant to” his official duties, he is not speaking “as a citizen,” and First Amendment protection is unavailable. The petitioner in this case did not speak “pursuant to” his ordinary job duties because his responsibilities did not include testifying in court proceedings, and no party has suggested that he was subpoenaed as a representative of his employer.”
  • Employee Speech re Work-Related Responsibilities: “We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. For some public employees—such as police officers, crime scene techni- cians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers.” 
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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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UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)
Articles

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480

 

Comments

Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548

 

 

 

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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 

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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 16.1 (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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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