Archive | First Amendment

Which First Amendment Decision Would You Overturn?

In his Brown v. Allen concurrence, Justice Robert Jackson famously said of the Supreme Court “We are not final because we are infallible, but we are infallible only because we are final.”  The Supreme Court inevitably makes mistakes and reaches the wrong result in some non-trivial number of cases.  Accordingly, for the past two years I have included the following question on the exam in my First Amendment constitutional law course:

As Justice Jackson observed, the Supreme Court does not necessarily arrive at the correct conclusion in every case, and even when the Supreme Court does reach the proper result, it may not always do so on the best grounds. Accordingly, please identify a Supreme Court decision covered in this course that you believe was in error, explain your reasons for believing it was wrongly decided, and either a) explain what you believe the Court should have done instead and the rule or interpretation it should have adopted or b) propose a constitutional amendment to correct the Court’s error.  Be sure to identify possible objections to your recommended outcome or proposed amendment and explain how you would address such concerns.  So, for example, it is important to consider how overturning one decision would or would not affect other cases and other parts of First Amendment doctrine.

As one might expect, many students write on highly controversial decisions, such as Citizens United, Lee v. Weisman, Locke v. Davey, or Holder v. Humanitarian Law Project. Interestingly enough, however, in each of the last two years more students have chosen to address Marsh v. Chambers than any other decision. The numbers aren’t large — 4 of 26 chose Marsh last year, 7 of 35 this year — but it’s interesting nonetheless.  One question I have is whether students write about Marsh because [...]

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Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?

My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right to anonymous authorship. The right can be breached in cases of abuse, as when a civil libel plaintiff needs to discover the identity of the person who libeled him.

Some readers may disagree with the first part of Rob’s analysis, but the point about the right to exercise the Freedom of the Press anonymously seems indisputably correct. Rob extends the anonymity argument far beyond the points made by Justice Thomas in his Citizens United concurrence. [...]

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Priest Sues DoD Over Shutdown

A Catholic priest and a religious military veteran are suing the Department of Defense over the federal government shutdown, BLT reports.  According to the complaint, they allege that the federal government has violated their First Amendment rights by preventing the priest from performing, and the veteran from receiving, religious services at military facilities due to the federal shutdown.  The priest claims he would provide these services free of charge during the shutdown, but that such conduct is barred by regulations implementing the Anti-Deficiency Act.

I am somewhat skeptical of the underlying constitutional claim, though the associated Religious Freedom Restoration Act (RFRA) claim may have more strength.  Barring the use of federal facilities for religious purposes while they are shut down would not seem to violate the Free Exercise clause under current doctrine.  If a facility is shut down, it’s shut down.   There is no First Amendment exception, for speech or religion (contrary to the claims of the National Park Service).  RFRA, however, imposes a greater burden on the federal government to accommodate religious practice and thus could preclude federal regulations from barring a priest from continuing to minister to soldiers and veterans at military facilities during a shutdown. [...]

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Harris v. Quinn and the Future of Abood

In response to my post about today’s orders list, I’ve heard the suggestion that Harris v. Quinn is a “sleeper” case in which the Court might overrule or dramatically limit its prior precedent in Abood v. Detroit Board of Education. Abood was a First Amendment/employment decision that says basically that public employers can require all of their employees to pay union dues, so long as those who object are allowed to opt-out of paying the portion of the dues that go to ideological activities.

While my eyes had originally glazed over when seeing the word “medicaid” in the Harris QP, I now take the point; Harris does seem to implicate some similar issues of mandatory contribution and collective representation and Abood’s meaning is disputed by both sides.

While I did not notice an explicit call to overturn Abood in the Harris papers, the Court has already fired a warning shot two terms ago in Knox v. SEIU. In a several-page disquisition that didn’t seem particularly necessary, the Court said that Abood’s tolerance of non-member fees was an “anomaly,” that the opt-out burden “appears to have come about more as a historical accident than through the careful application of First Amendment principles,” and that the Court’s “prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate” (emphasis mine).

Knox also quoted, with apparently complete approval, this passage from a book review by Professor Clyde Summers:

If a community association engages in a clean-up campaign or opposes encroachments by industrial development, no one suggests that all residents or property owners who benefit be required to contribute. If a parent-teacher association raises money for the school library, assessments are not levied on all parents. If an association of university professors has as a

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The New York Times Loves Arguendo

A few weeks ago, I posted about Arguendo, a new show by Elevator Repair Service Theater (ERS), which opened last night at the Public Theater in New York City. Arguendo is a sort of topsy-turvy dramatization of the oral argument in Barnes v. Glen Theatre, an important Supreme Court case about nude dancing and the First Amendment. As a board member of ERS and an advisor on this project, I am pleased to report that the New York Times loves the show. Per Ben Brantley this morning: “A cool, obsessive genius animates the ever more fevered proceedings of ‘Arguendo,’ the Elevator Repair Service’s foray into the hallowed mazes of American jurisprudence….” It is, he says, a “wittily inventive” show that “keeps growing richer and more insightful in the remembrance.” The review is here. Details and tickets are available here. [...]

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Corsi’s Life of Political Crime

If you want to get together with friends to talk about politics, hear speakers on policy issues, and perhaps create a website promoting policy ideas, do you need to register as a political actin committee even if you don’t endorse candidates or get involved in elections?  In Ohio the answer can be “yes,” as Ed Corsi discovered after he set up the “Geauga Constitutional Council.”  Although Corsi only spent several hundred per year on the Council, the Ohio Elections Commission concluded it was required to register and report on its activities, and this conclusion was upheld in Ohio courts.  Now Corsi is seeking Supreme Court review, aided by the Center for Competitive Politics.

In yesterday’s WSJ CCP Chairman and former Federal Election Commission Chair Bradley Smith wrote about the potential significance of the case:

It is inconceivable, however, that America’s founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to  . . . complex regulations. They wanted to prevent government from doing precisely this sort of thing. Yet Mr. Corsi lost in state court. Now he waits to see if the Supreme Court will agree to hear his case.

The “big money” in politics can afford the accountants, consultants and lawyers needed to cope with campaign- finance law. The burdens frequently fall more heavily on grass-roots politics—the very thing we ought to be encouraging. There also is abundant anecdotal evidence that the main result, if not the purpose, of campaign-finance laws is to allow political insiders and government officials to harass grass-roots activists. . . .

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee

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Former Solicitor General Seth Waxman to Participate in Elevator Repair Service Theater Benefit

Last week, I posted about the excellent avant-garde theatre company Elevator Repair Service and the upcoming world-premiere of their new show, Arguendo, at the Public Theater in New York City. Arguendo is a dramatization of the oral argument of Barnes v. Glen Theatre, an important Supreme Court case about nude dancing and the First Amendment.

As I mentioned in my prior post, there will be a special benefit performance on Sept 17th, followed by a post-show discussion with Amy Adler (NYU Law) and Jeff Toobin (CNN & The New Yorker).

I am now delighted to report that Seth Waxman, superb former Solicitor General of the United States, will also participate in the discussion.

After the discussion, there will be a party at my home.

Details and tickets are available here. [...]

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Elevator Repair Service Theater: Arguendo

Acclaimed avant-garde theatre company Elevator Repair Service (ERS) will soon present the world-premiere of their new show, Arguendo, at the Public Theater in New York City. Arguendo is a dramatization of the oral argument of Barnes v. Glen Theatre, an important Supreme Court case about nude dancing and the First Amendment.

ERS has a following far beyond the usual downtown theatre crowd, largely because of the great triumph of their last show, Gatz!, which Ben Brantley of the New York Times called: “The most remarkable achievement in theater not only of this year but also of this decade.” I have been a fan of ERS for 20 years now, and I was proud to join the Board of Directors earlier this year.

Arguendo will run at the Public Theater in New York City, Sept 10 – Oct 6. On Sept 17th (Constitution Day), there will be a special benefit performance, followed by a discussion with Jeff Toobin (CNN & The New Yorker) and Amy Adler (NYU Law), and then a party at my home.

Ordinary tickets are available here. Tickets for the benefit are available here. [...]

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Must Public Schools Collect Dues for Public School Employee Unions?

Last week, the U.S. Court of Appeals for the Sixth Circuit decided an interesting case concerning the collection of union dues for public school employees in Michigan. In Bailey v. Callaghan, a divided panel upheld Michigan’s Public Act 53 which provides: ““A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.” In other words, under this law, public school employee unions (including teachers’ unions) cannot rely upon payroll deductions to collect union dues and fees, but must shoulder the burden of collecting member dues themselves.

Unions challenged PA 53 on First Amendment and Equal Protection grounds. Judge Kethledge, joined by Judge Gibbons, made quick work of the union claims. Writing for the court, Judge Kethledge explained,

The theory behind their First Amendment claim runs as follows: unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.

The problem with this theory is that the Supreme Court has already rejected it. “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355 (2009). Here, Public Act 53 does not restrict the unions’ speech at all: they remain free to speak about whatever they wish. Moreover, “nothing in the First Amendment prevents a State from determining that its political subdivisions may not

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“A Bad Time for Press Freedoms”

The Columbia Journalism Review has an interesting interview with James Goodale, former general counsel and vice chairman of The New York Times and author of the forthcoming book Fighting for the Press. Goodale is very critical of the current Administration’s hostility to press freedoms — “Worse than Nixon” — and the relative lack of critical response from journalists. As the CJR story notes, the Obama Administration “the Obama administration has prosecuted more alleged leakers of national security information under the 1917 Espionage Act than all previous administrations combined.” Goodale also expressed particular concern about Administration efforts to force journalists to reveal sources of classified information.

Why aren’t more people angry about what they see as Obama’s aversion to press freedom?

They don’t believe it. I actually have talked to two investigative reporters who are household names, and I said, “Do you realize what’s happening to you if this goes forward?” And I talk, I get no response, and the subject shifts to other parts of the book. No one seems to care.

So you think that if John McCain or Mitt Romney were the president and doing this, there would be a different response?

We’d be screaming and yelling and the journalists would be going crazy. And that doesn’t speak well of journalists.

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That Troublesome First Amendment, Michigan Edition

On January 18, 2013, the Circuit Court in Wayne County preliminarily approved a settlement in a class action charging that  McDonald’s had sold non-”halal” Chicken Mcnuggets that had been advertised as “halal.”  A local activist named Majed Moughni was unhappy with the settlement terms (which required McDonalds to pay some money to two local Dearborn charities, along with a hefty fee to the plaintiffs’ lawyers, but nothing for the other class members), so he began a Facebook campaign (“Dearborn Area Community Members”) where he criticized the settlement terms and tried to  organize opposition to it.

So far, so good.  But the plaintiffs’  lawyers filed an action seeking an injunction against Moughni’s Facebook page, asking  that Moughni be required to take everything he had said about the case down, and to post on his Facebook page instead what they said (and what the Court had said).

Unbelievably enough, the court granted the motion and entered a preliminary injunction; finding that  Moughni had made “materially false, deceptive and misleading statements concerning the settlement . . . and concerning the rights of the members of the Settlement Class,” and that Moughni “thereby engaged in deliberate and abusive conduct which has created a likelihood of confusion of class members, adversely has effected the administration of justice and has undermined this Court’s responsibility and authority to protect Class members from such abuses,” the Court

(a) ordered Moughni to remove all statements about the case from his Facebook page and to replace them with the Court’s own expression, and the parties’ own expression, about the proposed settlement, in the form of the preliminary approval order and class notice;

(b)  enjoined him from making any other statements about the case in any other forum—whether in person or electronically, or to the press;

(c)  ordered him to identify [...]

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May Plaintiff Cut off a Poor Defendant’s Appeal, by Having the Sheriff Sell off Defendant’s Right to Appeal?

That is the question I’m facing with the latest twist in Obsidian Finance Group, LLC v. Cox, a pro bono First Amendment case that I’m litigating before the Ninth Circuit. For more on the substantive First Amendment issue, see the materials collected here. But this twist is all about procedure (as so many legal questions are).

Here’s the matter in a nutshell, and somewhat oversimplified:

  1. Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.
  2. Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.
  3. But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of … Cox’s right to appeal.

That’s right: Plaintiff’s plan is to have the sheriff sell off Cox’s right to appeal, so that “Cox will be incapable of continuing the suit and the highest bidder at the foreclosure sale (whether that be plaintiffs or someone else) will take an assignment of Cox’s interest in the appeal, becoming the real party in interest.” Presumably the plan is that the highest bidder would be the plaintiffs, who will buy Cox’s rights for a modest amount, and then use those rights [...]

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Citizens United and the Fall of the Roman Republic

In a recent Slate article, Rob Goodman and Jimmy Soni claim that the history of the fall of the Roman Republic strengthens the case against the Supreme Court’s decision in Citizens United, which ruled that the First Amendment protects corporate and union political speech against restriction by government. The influence of money in politics, they claim, was what brought down the Republic. Dubious analogies between the modern US and ancient Rome are all too common. This one has two serious flaws: the problematic use of money in ancient Roman elections involved outright bribery and corruption rather than merely spending on speech; and even that wasn’t really what caused the republic to collapse.

As Goodman and Soni recognize, the financial corruption that plagued ancient Rome was not spending on campaign speech, but flagrant bribery of voters and public officials:

Ancient politicians were just as skilled as modern ones at identifying and exploiting loopholes in election law. In Rome, the key loophole lay in the fuzzy distinction between ambitus (electoral bribery) and mere benignitas (generosity). Roman elections were often won on the strength of free food, drinks, entertainment, and sometimes hard cash offered directly to voters and financed by private fortunes. In fact, Roman campaign slogans were sometimes inscribed on the bottom of commemorative wine cups—you could drain the cup and find out whom to vote for. Most of the Roman elite relied on the gentleman’s agreement that the line between bribery and generosity would not be strictly patrolled. At worst, rank vote-buying was something your opponents engaged in; you, on the other hand, were simply being a good neighbor….

Politicians able to afford the massive bribes were usually able to afford protection after the fact. Worse, with no enforceable limits on spending and a heavy premium on one-upsmanship, the

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Final Thoughts: Changing the Culture on Campus

This week I survived Hurricane Sandy, a massive tree covering the entire front of my house, an intermittent Internet connection, and even guest-blogging for The Volokh Conspiracy. For my last post, I wanted to end on a positive note. First, I wanted to let you all know that I am having a book event for Unlearning Liberty at the Los Angeles Press Club on November 29. Tickets are free, but please register to attend and tell your friends to do so too. It should be a good time.

I also wanted to share some of the ways the Foundation for Individual Rights in Education (FIRE, where I am president) is working to positively “change the culture” on today’s college campuses to one that better understands the importance of freedom of speech, freedom of conscience, freedom of association, due process, etc. After all, the problems I describe in Unlearning Liberty run deep.

In order to provide a much-needed basic introduction to the core concepts of free expression — something fewer and fewer high schools seem to be doing — FIRE authored a five-book series of Guides to Student Rights on Campus. We just updated our flagship Guide to Free Speech on Campus and released the new edition (available free for download) this summer. The books earned praise from Nadine Strossen, Alan Dershowitz, and Ed Meese. I hope you’ll read them and pass them along to students you might know who could use them.

But to truly “change the culture” we must stop rights abuses from happening in the first place by preparing and educating students for the challenges they will face. FIRE is trying to do this through several programs: our Campus Freedom Network of more than 5,500 students, professors, and alumni; our “Freedom in Academia” High [...]

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