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Introducing Guest Blogger Jeffrey Vagle

jvagleWe are happy to host Penn’s Jeff Vagle for the month of November.

Jeff is Lecturer in Law and Executive Director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School. His research interests include cryptography, cybersecurity, electronic privacy, the mechanisms and societal effects of surveillance, Internet architecture, and networked economies and societies. He most recently served as an associate in Pepper Hamilton’s Privacy, Security and Data Protection Group. He earned his JD from Temple University School of Law, where he was Editor-in-Chief of the Temple International and Comparative Law Journal. Jeff writes and speaks regularly on privacy, data security, surveillance, and other cyberlaw-related topics, and is the author of several law review and technical articles, including, most recently, “Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance,” forthcoming in the Indiana Law Journal.

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Poll Taxes and Voter IDs

The voter ID laws from Wisconsin and Texas are sure to reach the Supreme Court at some point, and so I’m trying to think through how the Twenty-Fourth Amendment (banning poll taxes in federal elections) might apply to these laws.

Let’s focus on folks who do not have an ID that a state considers valid.  (Maybe the person is elderly, for example, and never obtained a driver’s license.)  Suppose the state says that this person can get an ID for free, but to do so they have to go through some process.  If that process were onerous, then I think it fair to conclude that this would impose a poll tax.  The question is how burdensome is too burdensome.  Is the standard that if somebody could not vote as a result, then there is a violation?  Or do we judge this by some reasonableness standard?

One thing about the Twenty-Fourth Amendment that makes it different from other constitutional prohibitions is that it imposes a clear rule.  A $1 poll tax is just as unconstitutional as a $500 poll tax.  This may suggest that a conditional poll tax (in lieu of paying the fee for an ID, do this) should be assessed in a similar way black and white way.  In other words, a balancing test is not appropriate in this context.

Of course, this analysis does not cover a situation where someone has an ID and just forgets to bring it to the polls.  In that scenario, there is no poll tax and no constitutional violation–the issue falls under the Voting Rights Act.

 

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FAN 38.1 (First Amendment News) FIRE bursts on out in NYC — Free speech celebration draws committed crowd

FlameandFIRE-390x195EXPLOSIVE. That is as good as any a word to describe the high energy level at the 15th Anniversary dinner of FIRE (Foundation for Individual Rights in Education), the group founded by Harvey Silvergate and  Alan Charles Kors in 1999. People were yelling “FIRE” in the crowded hall all evening long.

Some 280 people came together on Thursday evening last week at the Mandarin Oriental Hotel in NYC. They gathered to show their enthusiastic support for this non-partisan free speech group. Contrary to the mood of our times, liberals, conservatives and libertarians joined together in common cause to endorse FIRE’s campaign to contest unconstitutional campus speech codes.

Guests included Radley BalkoJoan BertinPaul BloomRobert Corn-Revere, Alan Dershowitz, Norman DorsenDonald DownsJoel Gora, Jonathan HaidtWendy Kaminer, Roger KimballMichael McConnellKirsten Powers, Lenore SkenazyNadine Strossen, Matt Welch, and Karen Gantz Zahler, among others.

Morgan Freeman

Morgan Freeman

Students speak out

Aided by film clips on two big screens (see video here), four student activists who challenged campus speech codes spoke of their experiences. They were: Merritt Burch, Morgan Freeman, Chris Lee, and Robert Van Tuinen.

Two Speakers: A First Amendment Lawyer & a Cognitive Scientist 

There were two speeches, which further fired up the audience. The first speech was by the noted First Amendment lawyer Floyd Abrams. His remarks were entitled “Free Speech is in Trouble on Campus.” Here is an excerpt:

[O]nly FIRE … would think of and then respond to the explosion of unconstitutional speech codes that limit student and faculty speech as it did just last month by threatening over 300 colleges with litigation challenging such rules. And only FIRE would do the detailed work of reading each speech code so it could announce that 58% of public colleges and universities are, right now, acting unconstitutionally in limiting sometimes discomforting but First Amendment protected speech, on campus, and then follow that up by actually commencing lawsuits in this area. .  . . FIRE, from the day it was created, has understood this and sought to expose it and deal with it. We are in the midst of an epidemic and FIRE is providing an antidote. 

→ Steven Pinker (the  noted experimental psychologist, cognitive scientist, linguist, and popular science author and Harvard professor) spoke after Abrams.  His remarks were titled “Three Reasons to Affirm Free Speech.” Here is an excerpt from his remarks:

Free speech is the only way to acquire knowledge about the world. Perhaps the greatest discovery in human history—one that is logically prior to every other discovery—is that all of our traditional sources of belief are in fact generators of error and should be dismissed as sources of knowledge. These include faith, revelation, dogma, authority, charisma, augury, prophesy, intuition, clairvoyance, conventional wisdom, and the warm glow of subjective certainty.

Greg Lukianoff — The FIRE Man

Greg Lukianoff

Greg Lukianoff

He is like no other — Lukianoff, FIRE’s president, is a man full of ideas, energy, and the smarts to make it all work. Author, pamphleteeractivist, and Stanford Law graduate, this 40-year-old who grew up in Danbury, CT is changing the world around him by bringing the First Amendment to the doorstep of college bureaucrats bent on squelching freedom of speech and conscience. And Lukianoff and FIRE are winning; they have prevailed (either by a court victory or a settlement) in every one of the challenges they have brought — and they are busily preparing many more. Beyond the courtroom, Lukianoff regularly takes his free-speech message to the pubic, either by testifing before Congress or appearing on the O’Reilly Factor, the CBS Evening News, or by publishing an op-ed in this or that newspaper. Regardless of one’s ideological stripes, he is always prepared to make a strong case for the First Amendment.

Meanwhile, Greg Lukianoff and his colleagues at FIRE have cases pending against the following six colleges:

  1. University of Hawaii at Hilo
  2. Western Michigan University
  3. Chicago State University
  4. Citrus College
  5. Iowa State University, and
  6. Ohio University

 Full disclosure: I attended as a guest of the Davis Wright Tremaine law firm, which works with FIRE in litigating campus speech code cases.

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John Bingham and Thomas Jefferson

101px-John_Bingham_-_Brady-HandyI think I’ve come across an interesting inflection point in constitutional discourse (or what others might call an example of intergenerational synthesis.)

In 1871, John Bingham gave an address on the House floor in support of the Ku Klux Klan Act that offered a detailed explanation of his view that Section One of the Fourteenth Amendment extended the Bill of Rights to the States.  At one point, Bingham declared:  “Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.”

Here’s the problem:  I cannot find any evidence that Jefferson said this.  He was an advocate of a bill of rights after the Constitutional Convention, and many of the subjects that he wanted addressed were covered by the first set of amendments.  As far as I can tell, though, he never said that the first eight were a bill of rights.

What was going on?  Maybe Jefferson did say this and I can’t find the quote.  Maybe Bingham thought Jefferson said this but was mistaken.  Or maybe Bingham just made this up.  In any event, what I find fascinating about this is that many people today believe that Jefferson must have said something like this.  Why do they think that?  Partly because of the importance that we attach to the Bill of Rights.  It also may be that we think Jefferson said this because John Bingham told us so.  In so doing, though, Bingham was changing the Constitution’s meaning.

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Dueling Law

120px-Pistolet_à_silexI’ve been going through the state bills of rights written in the nineteenth century and have come across some wild provisions.  Take this one from the Iowa Bill of Rights of 1846:

“Any citizen of this State who may hereafter be engaged, either directly or indirectly, in a duel, either as principle or accessary before the fact, shall forever be disqualified from holding any office under the constitution and laws of this State.”

Dueling was a practice said something important about how elites viewed dispute resolution early in our history and provides a great teaching lesson about the limits of libertarianism.  (Why should dueling be banned if both parties consent?) Of course, if the Federal Constitution had such a provision that would have meant no President Andrew Jackson, no Vice-President Aaron Burr (after 1804), no Senator Thomas Hart Benton, and more.  (If you include seconds in duels, then even more people would have been excluded from office.)

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FAN 38 (First Amendment News) Abrams Institute to host conference on Net Neutrality

abrams-logoOn November 3rd, the Floyd Abrams Institute for Freedom of Expression will host a conference entitled Net Neutrality: From Debate to Policy Decisions. The conference will take place at the Century Association located at 7 West 43rd Street in New York City. The event starts with breakfast at 7:30 a.m. and ends promptly at 9:20 a.m. Here is a description:

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality. 

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality.

Panel speakers

 Registration

A fee of $35 per person will be charged to cover the cost of the continental breakfast. Go here to register. The registration deadline is Thursday, October 30th.

 CLE Credit 

One and one half (1.5) CLE credit hours in Professional Practice (corporate) will be available for this program, which is transitional and non-transitional in nature. Preregistration is required for CLE credit.

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 Related Articles

→ Upcoming AALS Panel Discussion

Petition to Watch 

At its Conference on October 31, 2014, the Court will consider the following free speech petition:

Issues: (1) Whether compelling a noncommercial pro-life speaker to declare it lacks a medical license passes strict scrutiny; and (2) whether a compelled speech law is unconstitutionally vague if the city can deem speakers as needing to comply, because of their “appearance,” without any ability for the speaker to know whether it must comply.
(Hat tip to Maureen Johnston)
Lithwick takes swipe at Roberts Court
Dahlia Lithwick

Dahlia Lithwick

In a new essay titled “The Courts’ Baffling New Math,” the ever feisty Dahlia Lithwick, the Supreme Court commentator for Slate, argues:

“The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the Court with the utmost reverence and solicitude.”

Later in the same essay, Lithwick adds:

“This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?”

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The (Non)Finality of Supreme Court Opinions

I finally got around to reading Richard Lazarus’s draft paper (forthcoming in Harvard Law Review) on how the Justices revise their opinions after they are issued and before they are officially published.  This is well worth your time.  Lazarus identifies a significant problem, worked hard to identify opinion edits that are not made in a transparent process, and makes some sound suggestions for reform.  I also learned a lot about the role of the Supreme Court Reporter, which I’ve always found a bit obscure, and learned that there is a formal process to point out errors in opinions.