Tagged: First Amendment

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E-Book on McCutcheon Case Just Published

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

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

Book Description

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

80,000 words, e-book: $2.99

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

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

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

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

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

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

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

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

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

Link to opinion is here.

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

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

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

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

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

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

 Lawyers: Supreme Court

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

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

For Senator Mitch McConnell (amicus): Bobby Burchfield 

For Appellee: Solicitor General Donald Verrilli, Jr.

Oral Arguments 

Resources & Related Materials 

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

Selected Supreme Court Briefs

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

Books, Symposia & Articles

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

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

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

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

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

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

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

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

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

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

Journalists & “qualified First Amendment privileges”

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

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

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

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

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

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

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

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

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

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

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

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

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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

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FAC.2 (First Amendment Conversations) – Bruce Johnson on Press Access to Prisons

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His name is well known among First Amendment practitioners. He is Bruce E.H. Johnson, a friend and seasoned First Amendment lawyer who is a partner at the Seattle office of the Davis Wright Tremaine law firm. He represents information industry clients on issues involving media and communications law as well as technology and intellectual property matters. In addition to being the co-author of the leading treatise on commercial expression (Advertising and Commercial Speech, A First Amendment Guide (2nd ed. 2013), Bruce has written scholarly articles and has done considerable First Amendment appellate work, both in federal and state courts. He has also drafted three press-related statutes that have been enacted into law in Washington State.

Today’s topic concerns press and public access to jails and prisons for the purpose of gathering information relevant to conditions therein. (Hat tip: I selected this topic after reading William Bennett Turner’s informative and engaging book Figures of Speech: First Amendment Heroes & Villains (2011), which has a chapter on the topic. See also Helene Vosters, Media Lockout: Prisons & Journalists.)

Bruce, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our readers. 

Question: Ever since the Supreme Court’s 3-1-3 split in Houchins v. KQED (1978), some doubt whether there is any meaningful First Amendment right of press and public access to jails or prisons for the purpose of gathering and distributing information about the conditions therein. On that constitutional score, how bleak are things in your opinion?

Answer:  Not good, in my view. In practice, prison administrators have virtually unbridled discretion to prevent meaningful public access, and thus also media access. One problem has been the refusal to permit videotaped interviews within prisons, even though the use of audio and video equipment does not create any additional risks for prison security. Ironically, the one area in the case law that shows some promise is the media’s right of access to executions, especially now that major issues have been raised about executioners’ use of compounded drugs as a result of European refusals to permit the export of killing drugs. Several court decisions, beginning with the press lawsuit against Idaho in 2012, have recognized that the press and the public have access rights to executions.  Another success story has been the efforts of the Human Rights Defense Center and its affiliate Prison Legal News (which we have represented in several matters), to gain access to prison information and to push for prisoner rights of access to the media. [See Society of Professional Journalists, "Prison Access Policies"]

Prisons are a vast, undercovered, but important beat. [W]e need more criminal justice coverage.  Dan Froomkin, Nieman Reports, Sept. 18, 2013

Question: Are you aware of any independent state constitutional rulings or state statutory reforms in this area?

Answer: Prison rights tend to get litigated more often in federal court than in state court.  One exception was the HRDC-PLN lawsuit in Seattle against various telecom carriers, alleging that the companies had overcharged prisoners for their telephone calls.  That class action case took more than a decade and was finally settled in 2013. The case should also remind lawyers that prisoners and their families may have valid claims against non-state entities, as well as the prison authorities themselves.

Question: As a statutory matter, could a state law extend protections to the institutional or traditional press, and it alone, without running afoul of the Fourteenth Amendment? In other words, would it be constitutionally problematic if such special protection did not extend to the general public as well?

Answer: Generally, at least since 1974, when Justice Potter Stewart gave his speech at Yale Law School [26 Hastings L. J. 631 (1975)] suggesting that the Press Clause should have some independent meaning, the courts have refused to recognize any significant media-non-media distinctions in First Amendment jurisprudence.  The essence of the U.S. Supreme Court’s holding in Citizens United (2010), which rejected precisely such a distinction on First Amendment grounds, is that press rights and public rights must be treated identically.  The First Amendment protections discussed in Citizens United clearly apply to the states under the Fourteenth Amendment.  But as a practical matter (and speaking as someone who successfully drafted and lobbied for state legislation protecting confidential sources and reporters’ work product, deterring SLAPP claims, and encouraging corrections and clarifications of allegedly defamatory publications), I don’t see any likelihood that the media can obtain statutory protections from state legislatures by throwing fellow citizens under the bus. Politics is about building coalitions, not avoiding them.

Question: If you were to draft a model access law relating to state jails and prisons, what would be its key components?

Answer: Like the Washington anti-SLAPP law (which I drafted back in 2010), it should provide speed (deadlines should be specified), monetary incentives (such as attorney fee awards and perhaps statutory damages) to facilitate government cooperation, and immediate and prompt judicial and appellate review.

Question: Where and why would you draw the line when it comes to limiting any such access?

Answer: Obviously, if there is truly a concern about prison security, state authorities should have appropriate discretion.

Thank you Bruce, I hope you will join us again sometime soon.   

LAST FAC.1: With Harvard Law Professor Laurence Tribe.

NEXT FAC.3: With Northwestern Law Professor Martin Redish.

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FAN.7 (First Amendment News) — Justice Scalia & the First Amendment

“The words are the law.” Sound familiar?  Of course, they are the words of none other than Justice Antonin Scalia, spoken at Catholic University of America on Oct. 18, 1996. As I considered them recently, I wondered, yet again, how the Justice’s view of textualism and originalism — I do not say “original intent,” which would be a breach of the Scalia creed — plays out in the First Amendment context. That took me back to the First Amendment debate between then Judges Robert Bork and Antonin Scalia in Ollman v. Evans (D.C. Cir., 1984), which is well worth reflective consideration. See e.g. Steven Calabresi & Lauren Pope, “Judge Robert H. Bork and Constitutional Change: An Essay on Ollman v Evans,” 80 U Chi. L. Rev. Dialogue 155 (2013).220px-Antonin_Scalia_2010

All of this brings me to my main point: Though it is not news in the literal textualist sense, it was news to me and may likewise be so to many others — I refer to Justice Scalia’s March 8, 2012 Hugo Black lecture on freedom of expression at Wesley College. The title of that lecture was “The Originalist Approach to the First Amendment.” A packed audience of college students and others listened to lecture. “After Scalia’s 40-minute speech, protesters in the balcony of the chapel where he spoke unfurled a banner reading, ‘There can be no justice in the court of the conqueror’ and flung dozens of condoms carrying pro-gay rights and pro-abortion messages.”

As to the substance, here are a few samples of what Justice Scalia reportedly said (the full text is, to the best of my knowledge, unpublished):

Libel. According to a news report, the Justice maintained that “[t]here’s no doubt that libel of a public figure, even good faith libel of a public figure, was unprotected by the First Amendment in 1791. Indeed, it remains unprotected even today in England. But the Warren Court had determined, as the framers had not, that allowing good faith libel of public figures would be good for democracy. And so the First Amendment was revised accordingly . . . .”

As for symbolic speech expressed by way of conduct, Scalia was quoted as saying: “You should be in no doubt that patriotic conservative that I am, I detest the burning of the nation’s flag, and if I were king, I would make it a crime. But as I understand the First Amendment, it guarantees the right to express contempt for the government, Congress, the Supreme Court, even the nation and the nation’s flag.”

Associations. Further elaborating on his ideas, and in response to a question, the Justice added: “The text guarantees the freedom of speech. That freedom of speech was never withheld from associations of people. Associations of people can speak just as people can speak and can band together to make their speech more effective, pool their resources . . . . If you’re going to deny it to corporations, are you going to deny it to the Washington Post? Most newspapers, most sources of political commentary, are corporations. How do you create an exception for that in the First Amendment? Because freedom of speech and of the press? C’mon, ‘press.’ The word ‘press’ meant publishing—anybody—not the institutional press. I’m not sure they had an institutional press.”

Questions? Mindful of such considerations, and duly sensitive to the “text and traditions of our people” concerning the words of the First Amendment, one might respectfully ask the textualist/originalist the following questions:

  1. Does the constitutional restriction on “Congress” extend to the other branches of government such as the executive and judicial branches? If so, how?
  2. How should one interpret the constitutional ban against Congress making laws? (Consider Hans Linde, “‘Clear and Present Danger’ Reexamined,” 22 Stan. L. Rev. 1163, 1183 & n.66 (1970).)
  3. What does “abridging” mean and is it synonymous “prohibiting” or “denying”?
  4. What exactly does “freedom of speech” mean? Did “speech” mean “money,” as in spending money for expressive purposes? Whatever else it meant, for Justice Scalia the term “speech” apparently did not include anonymous speech as evidenced by his dissent in McIntyre v. Ohio Elections Commission (1995) and his concurrence in Doe v. Reed (2010).
  5. How far does the notion of “press” extend? (Consider Volokh here)
  6. How exactly should we understand the term “petition”? (Consider S. Higginson here)
  7. What does the 1828 edition of Webster’s Dictionary of the English Language (apparently, the preferred edition?) tell us about such matters and how are we to discern the original “public meaning” insofar as these queries are concerned? Read More
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FAN.6 (First Amendment News) — Cellphone Privacy & the First Amendment

employee_Corn-RevereRobThere has been quite a bit of news lately, along with general commentary on this blog, about the legality of police searches of the contents of an arrestee’s cell phone. The issue raised in United States v. Wurie, which the Court has agreed to review, is whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested. (The Court has also agreed to hear a companion case out of California: Riley v. California.) But there is more here than meets the constitutional eye, or so maintains Robert Corn-Revere, a noted First Amendment lawyer who is a partner at the Washington, D.C. office of Davis Wright Tremaine. Yesterday, he filed an amicus brief on behalf of the National Press Photographers Association and thirteen media organizations in support of the Petitioner in the Wurie case. What is interesting about this brief is the First Amendment argument Mr. Corn-Revere offers up to buttress the Fourth Amendment claim at stake in these cases.

Here is the media interest in all of this: “Of particular concern to Amici, media outlets increasingly rely on issuing reporters smart phones to take photographs and to record other story elements. Cell phone cameras are capable of taking high quality photographs and audio-visual recordings. And, because smart phones can connect to the Internet, it is easy for journalists to upload photo, video, audio, or text files to the Internet to file reports.” So opens this amicus brief.

Here is the problem for the media: “These new technologies have greatly expanded the ability to gather and report news, but the same capabilities that make them a boon to journalists create a grave threat if they are subject to unrestricted warrantless searches incident to arrest. Unfortunately, the threat is not just hypothetical, and the enhanced newsgathering capacity may have made reporters more frequent targets of police action. There has been an epidemic of arrests for nothing more than the journalistic enterprise of photographing public events. Frequently, such arrests are made on generalized charges of ‘disorderly conduct’ or ‘disturbing the peace,’ and often charges are dismissed without further action. But such circumstances could be used, and in some cases have been used, as a predicate to search or seize photographic equipment.”

Here is the First Amendment take on this: “It is essential that the Fourth Amendment be scrupulously applied in cases that involve sophisticated communications technologies because of the inherent intrusion of warrantless searches on . . . other fundamental rights,” including First Amendment rights. This interconnectivity of rights, Corn-Revere argues, has both historical roots and contemporary significance in our cellular world.  Or as he puts it: “These interconnected rights have long been ‘part of the intellectual matrix within which our own constitutional fabric was shaped,’ . . . and [any] failure to protect them in light of changing technology would risk converting constitutional principles into ‘impotent and lifeless formulas’ whereby ‘[r]ights declared in words might be lost in reality.’ Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting).”

Oral argument in the two cases is set for April 29th. Read More

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Fan.5 (First Amendment News) Is sharing a hyperlink protected expression?

I had hoped to post a piece today on Justice John Paul Stevens and his forthcoming book, Six Amendments: How and Why We Should Change the Constitution (Little, Brown & Co., pp. 170, to be released on April 22). However, since it was impossible to confirm the advanced-copy wording of his proposed amendment to the First Amendment until the final printed version is released, I opted to wait until next month to post the piece and the commentaries accompanying it.

That said, here are some news items that might be of interest to you.

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Is Sharing a Hyperlink Protected Expression? The lawyer for Barrett Brown thinks so and has argued as much in his motion to dismiss criminal charges against his client for sharing a publicly available hyperlink. The matter is pending in a federal district court in Texas. The hyperlink in question was transmitted in a chat-room and pointed to data that was obtained during the hacking of Stratfor Global Intelligence, this in purported violation of 18 U.S.C. § 1028. The motion to dismiss was filed by University of Texas clinical law instructor Ahmed Ghappour and the Law School’s Civil Rights Clinic. Though he argues that the pertinent statutory provisions are inapplicable to his client (thus triggering the doctrine of constitutional avoidance), Professor Ghappour maintains that if they are, the First Amendment nonetheless protects his client. Here is how he put it in his March 3, 2014 motion:

First, the allegations in this case are encompassed by the Supreme Court’s holding in Bartnicki v. Vopper, in that Mr. Brown’s publication of truthful information (by republishing a hyperlink) obtained in a lawful manner cannot be punished absent a showing of a heightened state interest. Second, Mr. Brown was engaged in pure political speech in republishing the hyperlink. Because §1028 as applied imposes a complete prohibition on such speech, and does so based on the speech’s content, Count 1 (and Counts 3-12) must be dismissed absent a showing of a compelling state interest and least restrictive means. Finally, as applied to Mr. Brown, §1028 also fails the O’Brien test for intermediate scrutiny because it is not at parity with any substantial government interest that would be achieved less effectively absent regulation.” (Update: Government Dismisses Bulk of Indictment Against Barrett Brown — hat tip to Ruthann Robson.)

Advertising Pot & the First Amendment: Though it is now legal to enjoy pot in Colorado, the Colorado Department of Revenue, Marijuana Enforcement Division, has promulgated certain rules limiting the advertising of the product. For example, there is this rule:

A Retail Marijuana Establishment shall not utilize television Advertising unless the Retail Marijuana Establishment has reliable evidence that no more than 30 percent of the audience for the program on which the Advertising is to air is reasonably expected to be under the age of 21.

Similar rules exist for radio, print media, and the Internet. Another rule provides: “A Retail Marijuana Establishment shall not engage in Advertising that specifically targets Persons located outside the state of Colorado.” As for outdoor advertising, there is this rule:

Except as otherwise  provided in this rule, it shall be unlawful for any Retail Marijuana Establishment to engage in Advertising that is visible to members of the public from any street, sidewalk, park or other public place, including Advertising utilizing any of the following media: any  billboard or other outdoor general Advertising device; any sign mounted on a vehicle, any hand-held or other portable sign; or any handbill, leaflet or flier directly handed to any person in a public  place, left upon a motor vehicle, or posted upon any public or  private property without the consent of the property owner.

High Times magazine and Westword (an alternative weekly newspaper) have challenged the rules in a suit brought in a federal district court in Colorado. U.S. District Judge Marcia Krieger has been assigned to the case. The plaintiffs seek declaratory and injunctive relief. They argue that such restrictions violate the First Amendment as interpreted by Central Hudson and 44 Liquormart.  David A. Lane of Killmer, Lane, & Newman is representing the two publications. When Jacob Sullum, writing for Forbes, asked UCLA Law Professor Eugene Volokh for his take on the matter, here is how Volokh replied: “I don’t see how marijuana sales are lawful, given the federal prohibition, so I think advertising marijuana is not protected under commercial speech doctrine,” Volokh said. “I realize that here the commercial speech restriction is imposed by the state, and the sales restriction is imposed by the federal government, but I don’t think that would change the First Amendment analysis.” That said, in a Reason magazine piece Mr. Sullum urged that such challenges be brought in state court instead of federal court, and under Article II, section 10 of the Colorado Constitution.

Monitoring Newsrooms? FCC Declines. Late last month the Federal Communications Commission issued a statement that it was nixing a proposal that involved sending government researchers into newsrooms to conduct survey questions related to how news organizations chose which stories to run. In its statement, the FCC noted: “To be clear, media owners and journalists will no longer be asked to participate in the Columbia, S.C. pilot study. The pilot will not be undertaken until a new study design is final. Any subsequent market studies conducted by the FCC, if determined necessary, will not seek participation from or include questions for media owners, news directors or reporters.” The proposal came under attack in a February 10, 2014 Wall St. Journal op.-ed by FCC Commissioner Ajit Pai.  Jay Sekulow, chief counsel of the American Center for Law and Justice, and his group also weighed in by way of a campaign to express public opposition to the proposed study. “This is significant victory for the First Amendment and the freedom of the press,” said Sekulow.  “By shutting down this proposal,” he added, “the FCC took the only action it could. We will now remain vigilant to ensure that the FCC follows through on its pledge to refrain from putting monitors in America’s newsrooms.”

University Settles in Dispute with Pro-Life Student Group: When Oklahoma State University officials barred Cowboys for Life from displaying certain photos near the University’s Student Union building, the Cowboys bucked. The photos they wanted to display depicted aborted fetuses. They were, however, given an alternative: relocate at a less populated site and display a warning. They declined.  The Alliance Defending Freedom came to their First Amendment defense and sued the University. The group’s lawyer, Travis Barham, maintained that “OSU needs to learn that it does not have free reign to censor its students. It can’t exile displays to remote areas of campus, or restrict students from distributing literature just because the hyper-sensitive feelings of a university administrator got ruffled.” Though not admitting guilt, the University agreed to pay $25,000 in legal fees and to amend its student conduct code.

Upcoming Conference on Sullivan:  On April 23, 2014, the University of Minnesota School of Journalism and Mass Communications will host a conference entitled “How Far from Near? 50 Years of New York Times v. Sullivan in Minnesota and Beyond: A Symposium Honoring the Legacy of Silha Professor Emeritus Donald M. Gillmor.”  Robert D. Sack, Senior Judge, United States Court of Appeals for the Second Circuit, will give the keynote address entitled “Thirteen Ways of Looking at New York TImes v. Sullivan.” Twelve participants will discuss the Sullivan case and its legacy. The titles of the panels are:

  • Academic panel: “Beyond First Amendment Exceptionalism: The Multiple Legacies of Near and Sullivan”
  • Practitioners panel: “Time After Times: Defamation Law (and Privacy, Too) in Minnesota”

(Hat tip to Professor Kyu Ho Youm)

Next Scheduled FAN Column: Wednesday, March 12th.

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FAC.1 (First Amendment Conversations) — Larry Tribe on Free Expression

photoOccasionally, I will post blog conservations (or Q & As) with various First Amendment persona – lawyers, litigants, journalists, scholars, or perhaps even a judge or two. My first such exchange is with the Carl M. Loeb University Professor at Harvard and author of numerous scholarly works, most notably his widely cited American Constitutional Law treatise. He has been awarded eleven honorary degrees, including most recently a D. Litt. from Columbia University in 2013. He is, of course, Professor Laurence Tribe. His views on freedom of speech have been an important part of his legal scholarship. More than three decades ago, he sketched out a “metatheory of free speech” in an essay in Constitutional Government in America (R. Collins, ed., 1980). Beyond scholarship, Professor Tribe has an impressive record as a Supreme Court litigator who has argued some 34 cases before the Justices between 1981 and 2005. Seven of those cases involved First Amendment free expression issues.

  • Heffron v. International Society for Krishna Consciousness (1980) (audio)
  • Richmond Newspapers v. Virginia (1981) (audio)
  • Sable Communications v. FCC (1989) (audio)
  • Rust v. Sullivan (1990) (audio)
  • U.S. v. United Foods (2001) (audio)
  • Nike v. Kasky (2002) (audio)
  • Johanns v. Livestock Marketing Association (2005) (audio)

Tribe even won a First Amendment case in the Supreme Court without having to argue it. The case is Boston v. Anderson (1978) (see also here and here), a summary per curiam disposition (over the written dissent of Justice Stevens, joined by Justice Stewart and then-Justice Rehnquist). The Court held that a state court may not prohibit municipal spending on speech regarding a referendum issue then pending before the people in a statewide election.

Larry, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our FAC readers.    

Question: Which Supreme Court Justice do you think has had the greatest impact on the law of free expression under the First Amendment? And why? 

Answer: Rather than naming just one, I’d point to Oliver Wendell Holmes, Jr. and Louis D. Brandeis for their extraordinarily influential separate opinions in Abrams in 1919 (Holmes’ greatest dissent) and in Whitney in 1927 (Brandeis’ greatest concurrence).

Question: Some noted First Amendment scholars such as Professors Steven Shiffrin and the late C. Edwin Baker, and also Dean Robert Post, have been rather critical of extending First Amendment protection to corporate commercial expression. Do you share that skepticism?

Answer: Although I do think the Court went rather far in Sorrell v. IMS (2011) three years ago, and found myself in considerable sympathy with Justice Breyer’s dissent (joined by Justices Ginsburg and Kagan), I continue to agree with Virginia Board of Pharmacy (1976) and with Discovery Network (1993) and disagree strongly with Florida Bar v. Went For It (1995), where I thought Kennedy’s dissent for himself and Justices Stevens, Souter, and Ginsburg was spot on. I just cannot bring myself to view either professional or corporate commercial expression as categorically beyond the reach of First Amendment protection. That’s why I took the position I did in Nike v. Kasky (2003) and was pleased to see that Justices Breyer, O’Connor, and Kennedy agreed.

Question: Insofar as the First Amendment is concerned, do you think that since corporations (for-profit ones) are entitled to free expression rights, they are likewise entitled to have free exercise rights? Or are the two conceptually different for constitutional purposes? What do you think?  

Answer: That’s too complex an issue for me to answer as briefly as you’d need in this context. To the extent that all First Amendment rights are interrelated and focus principally on the systemic dangers of entrusting certain matters to government control, I’m opposed to organizing one’s analysis around which entities are or are not “entitled to have” particular First Amendment rights. That’s an aspect of Citizens United (2010) with which I don’t take issue – even though the Court appears to be curiously agnostic on that score, as exemplified by its unexplained summary affirmance in 2012 of a district court ruling in Bluman v. FEC (2011) barring the participation of foreigners from campaign speech!

That said, it seems to me that it makes much more sense to maintain that the Free Speech Clause protects “speech” regardless of who or what happens to be its source than it would to say that the Free Exercise Clause protects “religion” regardless of who or what is engaged in its exercise. With respect to claims involving the free exercise of religion, I think there is considerably more room to pay attention to the nature of whoever is doing the “exercising.” For an illuminating thought experiment, I would suggest that, if a cute but distinctly alien extraterrestrial – let’s call it “ET” – were to land in Lafayette Park and were to broadcast condemnations of Obamacare, the fact that such a creature is not itself entitled to the protection of the Free Speech Clause would not undermine an interested listener’s First Amendment objection to an Executive Order silencing the exterrestrial (or to an Act of Congress shutting it up were it to switch to praising the ACA!). Yet I wouldn’t expect anyone to take seriously a claim made on the extraterrestrial’s behalf by the ACLU defending, either under the Free Exercise Clause or under RFRA, the right of ET to smoke grass as part of a sincere religious ritual in front of the White House – particularly if, as some argue is the case in Hobby Lobby, the religious freedom ET wished to exercise could be shown to injure third parties or even compromise their exercise of their constitutional rights.

I don’t believe, however, that the for-profit or not-for-profit character of the entity in question should be decisive, although some Justices will probably find that a tempting line to draw in otherwise difficult and close cases.

Finally, I believe that decisions like Hosanna-Tabor (2012) and those barring civil courts from injecting themselves into disputes over religious doctrine and/or the internal organization of religious bodies should not turn on the corporate or non-corporate character of the institutions in question.

Question: As of this date, the Roberts Court has rendered 30 First Amendment free expression opinions. For First Amendment purposes, what is your sense of the Court? What are its strengths and/or shortcomings as you see them?

Answer: That question is even less compatible with a short response than the previous one, and I’d rather let the fourth chapter of my forthcoming book (co-authored with a superb recent student of mine, Joshua Matz), Uncertain Justice: The Roberts Court and the Constitution (Henry Holt, June, 3, 2014), speak for itself on that issue. The chapter, which expresses both my sense and Joshua’s of the free speech jurisprudence of the Roberts Court, is entitled “Freedom of Speech: Sex, Lies, and Video Games.”

Question: As you know, this term the Court heard yet another campaign finance case, McCutcheon v. FEC. I gather you favor a constitutional amendment to curb what you see as the Court’s constitutional excesses in this area. Can you say a few words about why you think it would be wise to amend the First Amendment? 

Answer: Actually, although I did assist my former student Adam Schiff (D. Cal.) in drafting a proposed constitutional amendment that I thought would be better than the alternatives floating around at the time, and although at one point I thought some such amendment would be wise to consider seriously, I haven’t joined forces with those who currently urge vigorous pursuit of the amendment path, which I think probably represents a political dead end. I think that there’s both more promise and less danger in pushing for greater transparency and disclosure of the sort the Court held permissible in Citizens United, for reforms in the laws determining how and when corporations can spend their shareholders’ money on speech, and for possible ways to get around the Court’s post-Citizens United decision striking down the calibrated public finance mechanism at issue in Arizona v. Bennett (2011).

Thanks Larry, I hope we can continue this conversation again sometime. 

I hope so, Ron. I’ve enjoyed this opportunity to address your excellent questions.

The next FAN (First Amendment News) column (to be posted this Wednesday) will be devoted to Justice Stevens’ proposal to amend the First Amendment, replete with comments from noted First Amendment scholars and lawyers.