The headline on the official website of New York State reads: “Governor Cuomo Signs First-in-the-Nation Legislation to Combat Citizens United.” The news story begins by noting: “Governor Andrew M. Cuomo today signed first-in-the-nation legislation (S.8160/A.10742) to curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission. The legislation also takes significant steps to strengthen disclosure requirements for political consultants and lobbyists who provide services to sitting elected officials or candidates for elected office by requiring them to register with the state and reveal their clients.”
“This new legislation,” the news release continues, “will work to restore the people’s faith in government by instituting the strongest anti-coordination law in the country and explicitly prohibiting coordination in New York State election law for the first time. The legislation expressly identifies which activities constitute prohibited coordination, and strictly prohibits coordination in egregious scenarios, such as the ‘independent’ spender being an immediate family member of the candidate, as well as in subtle scenarios, such as the dissemination of a candidate’s campaign material by supposedly ‘independent” groups.'”
“Additionally, the legislation increases penalties for lobbying violations, while providing enhanced due process for individuals under investigation for potential violations.”
NYCLU Opposes Law
Robert A. Perry, the Legislative Director of the New York Civil Liberties Union, took issue with the law shortly before Governor Andrew Cuomo signed the legislation. “The bill,” he stressed, “is not only constitutionally unsound; it would promote public policies that are inimical to the mission of not-for-profit organizations that operate in the public interest.”
The legislation, he added, “includes several provisions that would regulate activity that is unrelated to electoral campaigns — including lobbying, as well as communications outside the definition of lobbying that addresses matters of public concern. Nevertheless, if enacted in law, the proposed legislation would direct government officials to regulate, and circumscribe, New Yorkers’ rights of speech and association.” Mr. Perry summarized his the NYCLU’s opposition to the measure this way:
- “[G]overnment regulation of lobbying and the imposition of disclosure requirements are consistent with the First Amendment only if they are limited to ‘direct communication’ with elected officials to influence legislation.”
- “[T]he legislation as well ast the state’s lobbying law and rules require the disclosure of information on contributors to organizations that engage in lobbying, even if the contributed funds are never utilized for that purpose.”
- [T]he mandated disclosure of personal information about contributors will undoubtedly have a ‘chilling effect’ on the exercise of protected speech and petition activities,” and
- [T]he First Amendment requires that the proposed regulations provide for exemptions for controversial organizations upon a showing of a ‘reasonable’ likelihood of harm from the disclosures.”
For those reasons and others, “the NYCLU objects to the legislation.”
[NB: The proposed measure was not amended after the NYCLU filed its letter of opposition to Governor Cuomo.]
→ See generally: National ACLU amicus brief (July 29, 2009) in support of Appellant in Citizens United.
Liberal Groups “Strongly” Oppose Legislation
Opposition to the New York law was also expressed by the following groups:
- Citizens Union
- Common Cause of New York
- League of Women Voters of New York State
- New York Immigration Coalition, and
- New York Public Interest Group
In an August 22, 2016 letter to Governor Cuomo, the groups stated:
“This poorly constructed bill will seriously harm some of New York’s most prestigious institutions, and infringe upon the rights of many public-minded New Yorkers to engage in their constitutionally protected right to comment and criticize. As a result, rather than advancing the public good, the legislation ends up as a secretly developed, clumsily drafted piece of legislation that in the end does little to advance meaningful reform other than dealing directly with problems caused by Citizens United. In fact, the legislation causes more problems than it solves by trying to solve a problem that wasn’t defined publicly and doesn’t really exist. We strongly urge you to veto” the measure.
* * * *
→ See also David Keating, New York vs. the First Amendment: New ‘campaign finance’ legislation is an assault on political speech rights, New York Daily News, June 30, 2016 (“The legislation creates expansive new definitions of what constitutes illegal coordination between independent groups and candidates, and forces unprecedented reporting to the state by advocacy groups like the American Civil Liberties Union and the National Rifle Association.”)
Citizens United Group Loses Charitable Solicitation Suit
Jack Bouboushian, writing for the Court House News Service, reported that a “federal judge on Monday dismissed Citizens United’s claims that its donors would face harassment or retaliation if their names are made public, as required by New York law. New York requires every charitable organization to file a copy of its IRS Form 990 Schedule B, a list of its donors, with the state’s attorney general before the charity may solicit donations in the state.”
In a story by Lia Eustachewich, writing in the New York Post, it was reported that a federal judge “sided with New York Attorney General Eric Schneiderman . . . in shooting down a lawsuit filed by Citizens United over the disclosure of key information about the group’s donors.”
“The conservative not-for-profit sued Schneiderman in 2014 in order to block him from making it reveal the names, addresses and contribution amount from donors before soliciting state funds — as charitable organizations are required to disclose.”
“Citizens United argued it was in violation of its First Amendment rights and invaded the privacy of its donors.”
“‘The complaint states not a single plausible claim upon which relief can be granted,’ federal judge Sidney Stein wrote in an 18-page opinion that granted Schneiderman’s motion to dismiss.”
“Last year, then judge also dismissed Citizens United’s motion for a preliminary injunction against the enforcement of the state policy.”
Possible appeal
This from New York Daily News: “‘We are reviewing all of our options at this time, including a possible appeal to the 2nd Circuit U.S. Court of Appeals, and are confident that in the end today’s order will not stand,’ said Michael Boos, Citizens United vice president and general counsel, in a statement.”
→ See also Judge: Citizens United must disclose donor information to NY, Associated Press, August 29, 2016
APSA Panels on Money in Politics
→ This from Rick Hasen over at the Election Law Blog:
From Campaign Finance Institute:
If you are going to the American Political Science Association convention in Philadelphia September 1-4, we’d like you to know about a panel being sponsored by the Campaign Finance Research Group as well as two related panels. We hope to see you there!
CAMPAIGN FINANCE RESEARCH GROUP
Round Table: Money and Politics, 2016: Sat, September 3, 12:00 to 1:30pm, Marriott, Room 411
On the weekend before the traditional start of the general election season, this round table will focus on what we have learned about post-Citizens United politics from fundraising and spending in the four elections since the case was decided. Was Super PAC and other non-party money (and advertising) in the presidential primaries a major factor, or largely wasted? What about in the less visible congressional primaries? What questions should we take into the general elections from lessons learned in this year’s primaries and other recent elections? How does 2016 so far give us a better handle on the systemic impacts of change in these past four federal election cycles? And what do we predict for the weeks between now and November 8 (Election Day)?
Participants: Robert Boatright (Clark U.); Erika Franklin Fowler (Wesleyan U.); Robin Kolodny (Temple U).; Michael Malbin, (University at Albany and The Campaign Finance Institute); Travis Ridout -(Washington State U.)
LAW AND POLITICAL PROCESS GROUP
Buckley v. Valeo at 40: New Thinking, New Directions on Campaign Finance
Thursday, September 1, 8:00 to 9:30am, Marriott 414
Forty years ago, the United States Supreme Court decided the case of Buckley v. Valeo, allowing some but not all limits on campaign financing in U.S. elections. In more recent years, including in the 2010 case of Citizens United v. FEC, the Court has moved in a deregulatory direction. What is the future of campaign financing in the U.S.? Do reform attempts lead to increased political polarization? Should the Court reconsider whether equality is a compelling reason for reform? This panel considers recent works and new directions in campaign finance law, including La Raja and Schaffner’s “Campaign Finance and Political Polarization,” Hasen’s “Plutocrats United,” and Drutman’s “The Business of America is Lobbying.”
Chair: Guy-Uriel Charles (Duke Law School). Presenters: Richard Hasen (UC, Irvine Law Scool); Raymond La Raja (U. Mass.); Brian Schaffner (U. Mass); Lee Drutman (New America); Diana Dwyre (Cal. State, Chico); Joel Gora (Brooklyn Law School).
U.S. Federal Campaign Finance in a time of Transition / Sat, September 3, 8:00 to 9:30am, Marriott, Salon KL
A group of academics are working together to identify what we do and don’t know about campaign finance in American federal elections. The U.S. system of campaign finance is undergoing a major transformation. The group’s efforts are being funded by the Hewlett Foundation, and we were convened by Nate Persily of Stanford University. The group is comprised of Steven Ansolabehere, Robert Boatright, Adam Bonica, Bruce Cain, Diana Dwyre, Erika Franklin Fowler, Kenneth Goldstein, Rich Hall, Keith Hamm, Eitan Hersh, Robin Kolodny, Ray LaRaja, David Magleby, Kenneth Mayer, Nolan McCarty, Jeffrey D. Milyo, David Primo, John Sides, James Snyder, Charles Stewart, Lynn Vavreck, and Abby Wood. Two prominent election lawyers, Robert Bauer and Ben Ginsberg, one from each party, are also participating in the conversations and facilitating contacts for the task force with the two parties.
Chair: Nathaniel Persily (Stanford). Participants: Diana Dwyre (Cal. State, Chico); Erika Franklin Fowler (Wesleyan U.); Robin Kolodny (Temple U); Travis Ridout (Washington State U.); David Primo (Rochester); David Magleby (Brigham Young); Jeffrey Milyo (Missouri); Abby Wood (USC Law)
U Chicago “Welcome” Letter Triggers Controversy
“Historically, the left has been much more protective of academic freedom than the right, particularly in the university context,” said Geoffrey R. Stone, a University of Chicago law professor who specializes in free speech issues. Conservatives “suddenly became the champions of free speech, which I find is a bit ironic, but the left is divided.”
→ In a welcome letter to freshmen, the College made clear that it does not condone safe spaces or trigger warnings, The Chicago Maroon, August 2016 (letter signed by John Jay Ellison, Dean of Students in The College)
→ Geoffery R. Stone, Free Expression in Peril, Chronicle of Higher Education, August 26, 2016
→ Committee on Freedom of Expression at the University of Chicago, Report of the Committee on Freedom of Expression (2015) (Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, Chair)
- Jonathan Turley, Free speech should not be big news, USA Today, August 29, 2016
- Mark Tushnet, More on the University of Chicago letter on “trigger warnings” (Parts I & II), Balkinization, August 28, 2016
- Stella Xu, It’s obvious that U of Chicago is clueless about what trigger warnings actually mean, The Tempest, August 28, 2016
- Mark Graber, University Speech and “Safe Spaces,” Balkinization, August 26, 2016
- Kwevin Gannon, U Chicago’s anti-safe spaces letter isn’t about academic freedom. It’s about power, Vox, August 26, 2016
- Richard Perez-Pena, Mitch Smith & Stephanie Saul, University of Chicago Strikes Back Against Campus Political Correctness, New York Times, August 26, 2016
- Emily Willingham, U Chicago Dean Gives Trigger Warning In Letter Denouncing Trigger Warnings, Forbes, August 26, 2016
- Robby Soave, Outrage Over U. Chicago Trigger Warning Letter Shows Power of Political Correctness, Reason, August 26, 2916
- University Of Chicago Letter To New Students Addresses PC Culture On College Campuses, Fox News, August 26, 2016 (YouTube clip)
- Lisa Belkin, Behind the University of Chicago ‘trigger warning’ letter, Yahoo News, August 26, 2016
- Steven Strahler, U of C welcome letter ignites ‘safe space’ debate, Crain’s, August 25, 2016
- Kevin Gannon, Trigger Warning: Elitism, Gatekeeping, and Other Academic Crap, The Tattooed Professor, August 24, 2016
Upcoming Conference: Balancing First Amendment Rights with an Inclusive Environment on Public University Campuses
→ 2016 Minnesota Law Review Symposium, Friday, October 21, 8:15 a.m.–4:00 p.m., Mondale Hall, University of Minnesota Law School
Key Note Speech (Broad Issues Facing Higher Education)
- Geoffrey Stone
- Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Panel One: University Code of Conduct Policies that Limit Student Speech
Universities, to promote inclusion, have instituted policies that punish students for offensive or discriminatory speech. These codes of conduct raise an important question: how much prohibition on speech is too much?
- Will Creeley
- Vice President of Legal and Public Advocacy, FIRE
- Censorship by Crying Wolf: Misclassifying Student and Faculty Speech as Threats
- Mary-Rose Papandrea
- Professor of Law and Associate Dean for Academic Affairs, University of North Carolina School of Law
- The Free Speech Rights of University Students
- Alexander Tsesis
- Raymond & Mary Simon Chair in Constitutional Law and Professor of Law, Loyola University, Chicago, School of Law
- Campus Speech Codes: History, Contemporary Issues, and Proposal
Panel Two: Perspectives on the First Amendment and Public Universities
This panel will begin with a discussion led by Richard Delgado about the many ironies created by the collision of the First Amendment and public universities. We will then turn to two panelists with valuable insights from their experiences outside of the academy—Judge Alex Kozinski and Nekima Levy-Pounds.
- Richard Delgado
- John J. Sparkman Chair of Law, University of Alabama School of Law
- Four Ironies of Campus Climate
- Alex Kozinski
- Judge, United States Court of Appeals for the Ninth Circuit
- Nekima Levy-Pounds
- President, Minneapolis chapter of the NAACP
Panel Three: Academic Freedom
The Supreme Court in Keyishian v. Board of Regents wrote: “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
This panel will discuss how universities may balance the creation of a safe and welcoming environment with academic freedom. How may a university, if at all, shape professorial conduct through its policies?
- Heidi Kitrosser
- Professor of Law, University of Minnesota Law School
- Higher Education, Free Speech and the PC Narrative
- Robert M. O’Neil
- Professor of Law Emeritus, University of Virginia Law School
- Academic Freedom to Deny the Truth – Beyond the Holocaust
- Vikram Amar
- Dean and Iwan Foundation Professor of Law, University of Illinois College of Law
- How Much Expressive Freedom do Professors at Public Universities Really Enjoy
October Conference: Scalia & the First Amendment
On October 28th, 2016, the First Amendment Law Review will be hosting a symposium titled, “The First Amendment Legacy of Justice Scalia.” In wake of Justice Antonin Scalia’s death earlier this year, FALR will host a spirited discussion and assessment of the late Justice Scalia’s effect on First Amendment jurisprudence from different ideological perspectives.
As the symposium’s keynote speaker, Judge Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit, will initiate the event. Judge Sutton served as a law clerk under Justices Antonin Scalia and Lewis Powell from 1991-1992. Having served on the bench for longer than a decade, Judge Sutton will share his experiences working with Justice Scalia as a law clerk, and Justice Scalia’s influence on his own judicial philosophy.
The confirmed panelists presenting and attending the symposium are:
- Nina Totenberg, National Public Radio
- Mary-Rose Papandrea, University of North Carolina School of Law
- Lyrissa Barnett Lidsky, University of Florida Levin College of Law
- Timothy Zick, William and Mary Law School
- Ashutosh Bhagwat, University of California-Davis School of Law
- Caroline Mala Corbin, University of Miami School of Law
- Guy-Uriel Charles, Duke University Law School
- RonNell Andersen Jones, University of Utah College of Law
- Theodore Shaw, University of North Carolina School of Law
- John Inazu, Washington University in St. Louis School of Law
→ For more information about the symposium, please contact the FALR Symposium Editors, Hannah Smoot, hsmoot@live.unc.edu and Ryan Arnold, rmarn@live.unc.edu.
Texas Road Sign Law Struck Down
The Austin, Texas Statesman reported that a “state appeals court has overturned a law that allowed Texas officials to regulate signs along highways and interstates, saying key sections of the 1972 Texas Highway Beautification Act violate free speech rights”.
“Limits on outdoor advertising, the legacy of efforts by Lady Bird Johnson to reduce eyesores along the nation’s growing highway system, cannot be enforced because the law improperly regulates billboards and signs based on what they say, the Austin-based 3rd Court of Appeals ruled.”
“Signs, for example, are treated differently if they relate to elections, advertise activities at a business or point to a scenic or historic attraction, the court said. . . .”
“Historic HOWL” — Flying Dog Brewery Hosts Latest Free Speech Lecture
Writing in the Frederick News-Post, Imade Borha reported on the latest lecture hosted by the Flying Dog Brewery:
Ron Collins (the one on the right)
“During the nuclear family conformity of America’s postwar era, Allen Ginsberg wrote a poem about drugs, homosexuality and casual sex. Years before the Stonewall riots, Ginsberg was an unknown poet reciting “Howl” on the dirt floor of Six Gallery in 1955. What followed included the 1957 obscenity trial of Ginsberg’s publisher, Lawrence Ferlinghetti, the owner of City Lights Books. Ferlinghetti won the case, and “Howl” is now an influential poem that expanded free speech rights.
“Author and First Amendment law professor Ronald K.L. Collins recounted the history and legacy of Howl at Freedom Reads, Flying Dog Brewery’s event series, in mid-August. Collins spoke from the extensive research of Mania, an in-depth look at the troubled lives of the Beat Generation artists, that he co-authored with David M. Skover. Passionate about artistic free speech, Collins stood for his entire lecture on the tiny Flying Dog Brewery stage while audience members sipped beers in the tasting room. He played snippets of Ginsberg’s Howl performance and an elderly Ferlinghetti reflecting on his defiance. Collins frequently paused to share anecdotes of the first “Howl” performance, from the crowd’s reaction, to the mythical note Ferlinghetti sent offering a publishing deal. . . . “
→ First Amendment lawyer Robert Corn-Revere is scheduled to give the next lecture (on Anthony Comstock and censorship).
New & Forthcoming Books
-
Robert J. McWhirter, Bills, Quills and Stills: An Annotated, Illustrated, and Illuminated History of the Bill of Rights (American Bar Association, 2015)
Abstract: At a time when much of the national debate regards the basic rights guaranteed by the Bill of Rights, it’s vital to understand exactly what that means: what did the Framers know?
Lawyer and scholar Robert J. McWhirter’s monumental history of the Bill of Rights traces the origins of the amendments over the span of nearly a thousand years, with many tangents into the history of literature, religion, film, sports and popular culture, and ensures that his fellow citizens will be well-armed to defend their rights.
A tour de force of legal scholarship, historical perspective, and cultural allusion, this book belongs on the bookshelf of every citizen, history buff, and lawyer.
- Eric Heinze, Debating Hate Speech (Hart Publishing, June 1, 2017)
New & Forthcoming Scholarly Articles
- Claudia Haupt, Unprofessional Advice, University of Pennsylvania Journal of Constitutional Law (forthcoming 2017)
Claudia Haupt
Abstract: Professional speech should receive robust First Amendment protection. It should be shielded from state interference that seeks to prescribe or alter the content of professional advice. But how should we decide what advice falls within the scope of defensible professional knowledge? Where, in other words, does First Amendment protection for professional speech end and tort liability for professional malpractice begin? This Article provides a theoretical foundation to distinguish professional from unprofessional advice.
- Jack Balkin, Information Fiduciaries and the First Amendment, Davis Law Review (2016)
- Jane Bambauer, The Relationships Between Speech and Conduct, Davis Law Review (2016)
- John T. Bennett, The Harm in Hate Speech: A Critique of the Empirical and Legal Bases of Hate Speech Regulation, Hastings Constitutional Law Quarterly (2016)
- Ruben J. Garcia, Politics at Work After Citizens United, Loyola Los Angeles Law Review (2016)
- Hadey Phillips, Online Bullying and the First Amendment: State Cyberbullying Statutes After People v. Marquan M., North Carolina Law Review Addendum (2016)
- Kyle Langvardt, The Doctrinal Toll of Information as Speech, Loyola University Chicago Law Journal (2016)
- Marc A. Greendorfer, The Inapplicability of First Amendment Protections to BDS Movement Boycotts, Cardozo Law Review de novo (2016)
- Alexander Epstein, Shaun McCutcheon v. FEC: More Money, No Problem, California Law Review (2016) (student note)
- Steven Ballew, Panhandling and the First Amendment: How Spider-Man is Reducing the Quality of Life in New York City, Brooklyn Law Review (2016) (student note)
- Katherine P. McGrath, Developing a First Amendment Framework for the Regulation of Online Educational Data: Examining California’s Student Online Personal Information Protection Act, Davis Law Review (2016) (student note)
- Katherine Geddes, Student Speech — Why Bell Tolls a Review of Tinker’s Application to Off-Campus Online Student Speech, Southern Methodist University Law Review (2016) (student note)
- Alison J. Best, Elonis v. United States: The Need to Uphold Individual Rights to Free Speech While Protecting Victims of Online True Threats, Maryland Law Review (2016) (student comment)
New & Notable Blog Posts
- Eugene Volokh, University of Chicago tells freshmen: Don’t expect ‘trigger warnings,’ ‘safe spaces’ or disinvitations of controversial speakers, The Volokh Conspiracy, August 26, 2016
- Ilya Somin, A warning against trigger warnings, The Volokh Conspiracy, August 25, 2016
- Ruthann Robson, Sixth Circuit’s Mixed Ruling on First Amendment Challenges to Kentucky’s Ethics Code for Judicial Elections, Constitutional Law Prof Blog, August 24, 2016
News, Editorials, Commentaries, Op-eds & Press Releases
- Sara Maslar-Donar, University of Missouri to hold forum on new free speech policy recommendations, ABC17News, August 30, 2016
- Kelsey Kendall, Flag etiquette is overridden by the First Amendment, The Collegian, August 30, 2016
- Kevin Baker, Liberals Criticize Bill That Would Make First Amendment Subservient to Planned Parenthood Privacy , Breitbart, August 30, 2016
- Paul Sherman, Does Alabama’s lobbying policy violate the First Amendment?, AL.com, August 29, 2016
- Beneath Louis Vuitton’s Distaste for Jokes, a Serious First Amendment Question, The Fashion Law, August 29, 2016
- Jennifer Kabbany, Man Praying at Clemson U. Stopped By Campus Official: ‘Not a Designated Free Speech Area’, Fox News, August 29, 016
- Randy Evans, Free Speech Incidents In Waterloo, Calhoun County Teachable Moments, Iowa Starting Line, August 29, 2016
- Robert Coleman, Bye-Bye, Gawker. Seems Sensationalism Isn’t Protected by the 1st Amendment, Newsweek, August 28, 2016
- Donald Downs, Clinton doesn’t understand First Amendment, Billings Gazette, August 28, 2016
- M.D. Kittle, All honor to the First Amendment, Washington Times, August 28, 2016
YouTube
- How the Left Is Silencing Free Speech, Kimberley Strassel & Stefan Molyneux, YouTube, August 29, 2016
- Gary Johnson on free speech, Fox News, August 26, 2016
- Wendy Kaminer & John H. McWhorter vs. Jason Stanley & Shaun Harper, Free Speech Is Threatened on Campus, Intelligence2 Debates, posted March 2, 2016
Floyd Abrams on The Open Mind (9-23-09)
- Richard Heffner’s The Open Mind: Unlimited Free Speech When Money Talks? (interview with Floyd Abrams (posted August 26, 2016)
The Court’s 2016-2017 First Amendment Free Expression Docket
Pending Petitions*
- Armstrong v. Thompson
- Williams v. Coalition for Secular Government
- Wolfson v. Concannon
- Lee v. Tam
- Dart v. Backpage.com
- Pro-Football v. Blackhorse
- Packingham v. North Carolina
→ The Court’s next Conference is on September 26, 2016.
* Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.
Last Scheduled FAN, #120: Snapshots of David Cole #2: Chipping Away at Citizens United
Next Scheduled FAN, #121: Wednesday, September 7, 2016