This morning I attended a panel at the American Constitution Society conference titled “Citizens United Two Years Later: Money, Politics and Democracy at Stake.” The panel was moderated by Democracy editor Michael Tomasky and featured University of Montana law professor Anthony Johnstone, Fordham law professor Zephyr Teachout, longtime campaign finance activist Fred Wertheimer, founder Democracy 21, Capital University law professor Bradley Smith, Brennan Center constitutional fellow Monica Youn, and Laurence Gold, Associate General Counsel, AFL-CIO. It was an interesting panel, and I’ve summarized the discussion below the fold.
Archive for the ‘First Amendment’ Category
In yesterday’s WSJ, Stanford’s Michael McConnell explained why progressives should not blame the Supreme Court’s Citizens United for Governor Walker’s victory over the union-backed recall effort. If anything, Citizens United helped those trying to oust the controversial governor, as unions put far more money into the recall election than did corporations. Governor Walker may have outspent his opponents, but the bulk of his money came from individuals, not corporations (and he also benefited from a quirk in Wisconsin law allowing unlimited donations).
For the most part . . . Mr. Walker’s direct, big-ticket support came from sources that have been lawful for decades.
His opponent, Milwaukee Mayor Tom Barrett, got his support primarily from labor unions, whose participation was legitimized by Citizens United. Without that decision so demonized by the political left, Mr. Barrett would have been at even more of a financial disadvantage.
Speaking generally, Citizens United is likely to benefit Democrats more than Republicans. Corporations rarely make independent expenditures during candidate elections in their own name, because the ads offend customers, workers and shareholders. And direct corporate contributions to candidates tend to be split more or less evenly between the two parties, largely neutralizing their effect.
But unions have no compunctions against running campaign ads, and almost all of their money goes to Democrats. The Republicans’ advantage, when they have one, comes from rich individual donors—and the right of individuals to make expenditures in support of candidates long predates Citizens United.
Today’s NYT reports on the white paper Google commissioned from our host, Eugene (about which Eugene blogged here). I don’t know this area nearly as well as Eugene does, but I found this portion of the article particularly interesting:
there is a bit of a rub for Google, some scholars say. The kind of reasoning Mr. Volokh uses in his paper could come into conflict with one of Google’s policy priorities — the so-called net neutrality rules that call for everyone to get equal treatment on the Internet.
Since Google is not connecting users to the Internet, it is vital for its business that the companies that provide access to the Internet do not play favorites. Yet, if those providers could somehow qualify for First Amendment protection, then the government would have a harder time mandating “net neutrality.”
Mr. Volokh never mentions net neutrality in the paper, but a Duke law professor, Stuart M. Benjamin, who has written an academic paper casting doubt on First Amendment protection for mere transmitters of information like Internet service providers, said he saw a clear connection.
Mr. Benjamin said an Internet provider like Comcast, for example, could offer “a family friendly Web,” which would filter out content considered inappropriate for children; by doing so, “they have now gone to protected speech.”
But he also suggested there was a potential for Mr. Volokh’s reasoning to extend First Amendment protections to transmitters that do even less — for example, those that simply provide faster speeds to companies that pay more money. That is the kind of behavior net neutrality rules are meant to prevent.
The more the First Amendment is applied to how information is transmitted via the Internet, Mr. Benjamin said, the harder it is to regulate. “Whether that is a good or bad thing depends on your political perspective,” he said.
Adam White finds Jeffrey Toobin re-writing history in his much discussed New Yorker article on Citizens United. As Toobin set up the story, Citizens United was a little case, involving a “narrow” statutory question. According to Toobin’s New Yorker article, “There did not see to be a lot riding on the outcome.”
White finds Toobin’s account “preposterous.” As White notes, the day before the argument the NYT editorial page inveighed against the “wide array” of “sweeping” and “dangerous” claims made by Citizens United. Likewise SCOTUSBlog’s Lyle Denniston noted CU was asking the Court for “a sweeping rejection of congressional authority to regulate campaign spendingby corporations.” A CNN analyst named Jeffrey Toobin made the same point, opining the day of the oral argument that CU has “a pretty good case” and that the Court could “either say you have to come up with another way to regulate or this kind of regulation is simply unconstitutional.”
The latest New Yorker has an extensive excerpt of Jeffrey Toobin’s forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court’s Citizens United decision. The story, “Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision,” is everything you’d expect from a Toobin piece. It’s engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.
The heart of Toobin’s article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy’s concurrence apparently swayed enough of the court’s conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court’s liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.
Toobin dwells on Justice Stevens’ complaint that the Court’s broad holding in Citizens United was unnecesary, as the Court could have held for the petitioners on narrower, statutory grounds. Yet as Toobin’s own reporting confirms, no one other than Chief Justice Roberts had any interest in resolving the case on such grounds. Even when the case was first argued, not a single liberal justice was prepared to side with Citizens United, in no small part because the statutory argument was so weak.
Toobin criticizes the Deputy Solicitor General Malcolm Stewart for a concession at the first oral argument that may have sealed the government’s fate.
Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”
Yes, Stewart said: “Those could have been applied to additional media as well.”
The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?
“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”
“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign. . . .
Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.
Yet here it is Toobin who is wrong, not Stewart. The statutory provision at issue was limited to broadcast, cable and satellite communications, and the film at issue was to be shown as a cable on-demand program, but the government never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV. Under this theory, a corporate-funded book with impermissible campaign-related content would receive no more First Amendment protection than a corporate-funded video or film, just as Stewart said. If this is an incredible proposition, that says more about the position the government sought to advance than it does Stewart’s oral argument. Campaign finance activist Fred Wertheimer made the same concession when pressed by the NYT. It’s true that Solicitor General Elena Kagan would back away from this position when it was her turn to argue the case at the second oral argument, but not without first acknowledging that the statute’s language could apply to “full-length books” and that there would, in the government’s view, be no problem with banning corporate-funded pamphlets.
Like many of the decision’s critics, Toobin suggests Citizens United is best seen as the product of the “aggressive conservative judicial activism” of Chief Justice Roberts and the court’s conservative majority.
Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.
As Toobin tells the tale, Citizens United is emblematic of the current Court’s assault on precedent and the prerogatives of the political branches. It’s a nice story, but it’s not true. “Judicial activism” is a notoriously malleable charge, but if “judicial activism” is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least “activist” court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it’s not even close. “Activism” is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented “activism,” it’s not clear what “activism” means.
The most interesting parts of Toobin’s article are those that disclose how Citizens United was handled inside the Court. This is great stuff, and testament to Toobin’s skill as a reporter, but I still have some misgivings. We don’t know the identities of Toobin’s sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won’t know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin’s sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court’s internal deliberations. Even if Toobin’s sources were sitting or former justices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.
In any event, the article is still worth reading — as I am sure Toobin’s book will be as well. Some portions will just go down better with a healthy dose of salt.
UPDATE: Tom Goldstein has a similar reaction to Toobin’s narrative about Chief Justice Roberts:
The theme of the piece is that Chief Justice Roberts orchestrated the case’s metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.
I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court’s O’Connor era. I also disagree with the Citizens United decision.
But despite that, while the article is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.
George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:
Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions....
Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment...
His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations...
McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.
Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of
worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.
One can argue for the constitutionality of campaign finance regulations on several grounds. But doing so on the basis that people organized into corporate entities have no constitutional rights does indeed lead us down the dangerous path dramatically illustrated by the Peoples’ Rights Amendment.
Tags: Citizens United
The case is R.J. Reynolds Tobacco Co. v. United States FDA (D.D.C. Feb. 29); the opinion grants plaintiffs summary judgment, for much the same reasons given in November, when the court issued a preliminary injunction.
The FDA had mandated that “the top 50% of the front and back panels of every cigarette package” must include “color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a bare-chested male cadaver lying on a table, and featuring what appears to be post-autopsy chest staples down the middle of his torso; a woman weeping uncontrollably; ... a man wearing a t-shirt that features a ‘no smoking’ symbol and the words ‘I QUIT’; ... [and] a stylized cartoon ... of a premature baby in an incubator.” R.J. Reynolds challenged this as an unconstitutional speech compulsion. And Supreme Court precedents had held that the government generally may not compel people or organizations to convey government-mandated speech, but had provided an exception for some speech on commercial advertising or labeling.
But the court in R.J. Reynolds concluded that this exception to the ban on compelled speech is limited to “purely factual and uncontroversial disclosures” “designed to protect the consumer from confusion or deception, [or] to increase consumer awareness of ... risks.” The graphics here, the court concluded, didn’t fall within this exception, but were instead advocacy “crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”
Next spring semester, I will be teaching a First Amendment class. So I request advice from commenters about what textbooks they liked, or did not like, and why.
For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.
Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.
Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause, the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).
The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” – a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.
Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:
The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.
The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say....
The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.
“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.
There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court’s Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.
Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from “the 1%” to “the 99%,” including OWS activists themselves.
Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.
Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It’s possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.
UPDATE: Lest there be any doubt, Move to Amend, the OWS offshoot that organized the “Occupy the Courts” protests states on their website that their position is that “human beings, not corporations, are the persons entitled to constitutional rights.” They don’t just think that Citizens United was wrongly decided. They believe that corporate entities should not be able to claim any constitutional rights at all. That, of course, includes not only free speech rights for unions and nonprofit corporations, but also numerous other rights.
UPDATE #2: I should acknowledge an error: Contrary to what I previously thought, most unions are not organized as corporations, but have a separate legal status of their own. I very much regret the mistake and apologize for it.
At the same time, it is important to recognize that unions, like corporations were freed from restrictions on independent campaign-related speech by the Citizens United decision, and the Court’s reasoning in both cases was the same. Moreover, the “corporations aren’t people” argument for restricting corporate speech still applies to unions with equal force. Unions are no more “natural” persons than corporations are. Both are legal entities with special rights, obligations, and privileges defined by the government. In some ways, unions actually have more legal privileges than corporations do. For example, unlike business corporations, they are exempt from federal income taxation.
Tags: Citizens United
SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions. The Court was unanimous in the judgment. Chief Justice Roberts wrote the opinion for the Court. Justice Thomas concurred, and Justice Alito filed a concurring opinion joined by Justice Kagan (!). I have not yet read the opinion, but I’m certainly curious to see what united Justices Alito and Kagan. More background on the case can be found here.
Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”
Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.
I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.” Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.
We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”
Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”
That same year, the Texas Supreme Court unanimously ruled that the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.
It was the Indiana Supreme Court that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).
I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)
By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.
Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment free exercise of religion, rather than a categorical attack on all racial discrimination).
Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”
Because of the press of business at my day job, I’ve had less than usual worth saying recently. In fact, I haven’t posted in months.
But all that blood, toil, tears, and sweat have at least done some good, because yesterday my work was mentioned alongside news that really matters. An amicus brief I did for the Cato Institute, Center for Democracy & Technology, Electronic Frontier Foundation, Public Knowledge, and TechFreedom in the upcoming FCC v. Fox Television Stations was mentioned in the Hollywood Reporter yesterday in its Hollywood Docket feature that included a story on Kim Kardashian.
The brief made paragraphs 1 and 2 of the article; Kim wasn’t mentioned until paragraph 6, and yet somehow she is the one who got the photo that ran in the article. Harrumph.
Yesterday, in Doe v. Reed, Federal District Judge Benjamin Settle rejected an as-applied challenge on First Amendment grounds to a Washington state law requiring the public disclosure of the names of initiative signers. The initiative in question would have blocked the legislatively approved recognition of domestic partnerships. (The initiative made it onto the state ballot but lost, the first time voters in a statewide ballot contest supported same-sex partnerships.) A year ago, the Supreme Court rejected, 8-1 (Thomas dissenting), a facial challenge to the same law.
Judge Settle reviewed the evidence gathered over two-plus years supporting the argument that petition signers had been subjected to threats and harassment. The claims followed a theme developed by anti-SSM activists nationwide. Highlighting such incidents has been part of the ongoing effort to find some “harm” caused by the SSM movement. The evidence in Washington state comprised allegations by initiative supporters, including:
*one supporter received an angry text message from his brother; was “mooned” by someone in a passing car; and was “flipped off” by some people in passing cars;
*one preacher was told by someone that his church would be picketed in an “appropriate” way, although no picket occurred;
*while collecting initiative signatures in a public place, one was glared at by two women who told him, “we have feelings too”;
*several had their pictures taken while in public places;
*some were sent notes containing vulgar language;
*one claimed a death threat was made on a website, but could not identify any such threat on the site, and withdrew the claim.
Other claims involved “bothersome” phone calls, and name-calling using words like “homophobe” and “fascist.” A couple of claims involved alleged physical threats, which were reported to police. There were, however, apparently no prosecutions, much less convictions, for actual threats. There was no actual physical violence. Most of the alleged incidents could not be tied to the initiative, since they were not directed at mere petition signers but to leaders and spokespersons opposed to gay rights over several years.
In Washington, the evidence of intimidation and harassment was unimpressive. The plaintiffs’ attorneys had access to the names and addresses of all those who signed the petition, and all those who contributed funds to the drive, but produced no evidence beyond that pertaining to a few very high-profile individuals. This omission was itself significant, since it suggested the incidents, such as they were, and disputed as they were, were very episodic and isolated. It hardly amounted to a campaign of intimidation by gay-marriage supporters. The court concluded that “the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by [petition] signers cannot be characterized as ‘serious and widespread.’”
Of course, as the district court noted, it is troubling any time a person is threatened with physical violence. Those cases can, and should, be prosecuted, and there is nothing in the First Amendment that prohibits such prosecution. But in Washington state, at least, there appears to have been little or no evidence of such threats. The rest of the evidence suggested only that some of the people who were about to have any recognition and legal protection of their relationships stripped away had strong feelings about that; that some of them confronted those who were sponsoring such efforts against their families in a public setting where signatures were being gathered; that some of that hostility was expressed strongly, and was experienced as hostile and unwelcome by those who were confronted; and that on a few occasions — out of countless public discussions of the issue – the feelings of gay-marriage supporters were indeed stated in an overbearing (though not illegal) way.
The law protects us from violence and threats of violence. But it does not protect us from criticism, even harsh criticism, when we take public positions on public matters. It does not protect us from having our feelings hurt or from having others think poorly of us. The point goes beyond the narrow First Amendment claim, however, and touches on a larger cultural and democratic interest in wide-open, robust, and sometimes even impolite debate. Justice Scalia said it best in a concurring opinion at an earlier stage of this very litigation:
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Today’s Supreme Court decision in Brown v. EMA casts doubt on one of the shibboleths of gun prohibition.
Since the 1960s, some social scientists have been attempting to prove that guns cause violence. They do not make this claim in the straightforward sense that guns, as tools, can be used for malign purposes–for example, that a criminal with a gun might attempt a robbery which would he would consider too risky if he did not have a gun. Rather, the claim is that the presence of makes ordinary people more aggressive, anti-social and violent. Thus, as one study put it, “the trigger pulls the finger.” The hypothesis is known as “the weapons effect.”
Yesterday, in United States v. Brice, the U.S. Court of Appeals for the D.C. Circuit turned away a convicted defendant’s effort to unseal the records of material witness proceedings that were referred to during his sentencing hearing. Even assuming there was a “qualified” First Amendment right of access to material witness proceedings the Court held that any such right was outweighed by countervailing interests. As Judge Kavanaugh explained in an opinion for the court, “the public was not entitled to the records here,
which contained ‘substantial amounts of material of an especially personal and private nature relating to the medical, educational, and mental health progress’ of the victims.” BLT has more here.