FAN 26 (First Amendment News) — Akhil Amar on the “First” Amendment

First: First?

Less cryptically, the first and main question that I shall explore . . . is whether [the First] Amendment is genuinely first — first in fact, first in law, and first in the hearts of Americans. In the process of exploring this question, I also hope to shed some light on the meaning of this amendment in particular and the nature of constitutional interpretation in general. – Akhil Amar

Professor Akhil Reed Amar

Akhil Amar, the Sterling Professor of Law and Political Science at Yale, is well known in the worlds of constitutional law and history. His six books include The Bill of Rights: Creation and Reconstruction (1998) and America’s Unwritten Constitutions: The Precedents & Principles We Live By (2012). Among Professor Amar’s many honors is his 2012 National Archives dialogue with Justice Clarence Thomas. More recently, he has returned to his study of constitutional history by way of a new scholarly essay.

The essay is entitled “The First Amendment’s Firstness,” which appears in the UC Davis Law Review. The work derives from the Central Valley Foundation/James B. McClatchy lecture on the First Amendment, which Amar delivered on October 16, 2013 at the University of California at Davis Law School (see video of lecture here). Below I summarize the Essay by a series of questions and answers based on the author’s observations and conclusions.

Question: “Do the actual words ‘the First Amendment’ or ‘Amendment I’ themselves appear in what we all unselfconsciously refer to as ‘the First Amendment?’”

Answer: No.  The answer has to do with what is known as the “correct copy” of the Constitution.

Question: What, then, was the official (“correct”) name of what we now call the First Amendment?

Answer: The official title was “Article the Third” — no “First” and no “Amendment.” In this regard, what is crucial is the text that was first submitted to and then ratified by the states, which is not the same as the commonplace copy contained in all our books and those pocket-size constitutions some carry with Hugo Black-like pride.

Question: In terms of their importance, how significant is the ordering of the ten amendments in the Bill of Rights?

Answer: Not significant at all. Says Amar: “the ultimate textual ordering of the first set of amendments was a remarkably random thing.” Moreover, he adds: “the initial ordering of the proposed amendments in the First Congress had little to do with their intrinsic importance or relative rank. Rather, the amendments were originally sequenced in the First Congress so as to track the textual order of the original Constitution. Thus an amendment modifying congressional size came first, because that issue appeared first in the original Constitution . . . .”

Question: “who says that the official text of the Constitution must govern for all purposes — even for all legal purposes”?

Answer: Here is how Amar answers his question: “The brute fact that millions of copies of the U.S. Constitution . . . include the words ‘Amendment I’ or something closely approximating these words alongside the amendment’s meat — ‘Congress shall make no law . . .’ — should arguably suffice for us to treat these technically unratified words as if they had indeed been formally voted upon in 1789–91.”

Question: Does the fact that the Reconstruction Amendments were officially captioned “XIII,” “XIV,” and “XV” have any constitutional significance with reference to the Bill of Rights?

Answer: Yes. “The Reconstruction Amendments invite/compel us to read the earlier amendments in a new way,” says Amar.  In other words, at that pinpoint in ratification time “Article the Third” became “Amendment I.” Moreover, adds Amar, “a great deal of what we now think about ‘the Bill of Rights’. . . owes a greater debt to the vision of the Reconstruction generation than to the Founders’ world-view.”

In the process of answering these and other related questions, Professor Amar goes on to examine the First Amendment’s “firstness” by way of structural, historical, doctrinal, and cultural considerations.  Having done so, he raises a more fundamental question:

Might the very strength of the amendment today, its very firstness, be grounds for concern? Precisely because we all love the First Amendment — because it truly is first in our text and first in our hearts — is there a danger that all sorts of less deserving ideas and principles will cleverly try to camouflage themselves as First Amendment ideas when they are really wolves in sheep’s clothing?

Against that backdrop, he questions the First Amendment validity of decisions affirming free speech rights related to alcohol and tobacco advertising, pornography, animal cruelty, and campaign finance. Furthermore, he stresses the importance of “the deeply democratic and egalitarian structure of this free-speech principle, properly construed” — though for Amar freedom of the press “is less intrinsically democratic.”

There is, of course, more to say about this thought-proving essay, which I urge you to read . . . even if some of its claims might raise your ideological eyebrows.

Sam Walker to Launch Civil Liberties Web Site

Professor Samuel Walker

Who is Samuel Walker? Well, he is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha. He is also the author of In Defense of American Liberties: A History of the ACLU (1990, 2nd ed. 1999) and Presidents and Civil Liberties from Wilson to Obama: A Story of Poor Custodians (2012), along with several other other books. While I heartedly recommend those books to you, my immediate reason for writing about Professor Walker does not involve those works. No, my concern centers around a major project he is launching on September 17th (Constitution Day).

On that day Walker will officially launch Today in Civil Liberties History, a web site calendar with civil liberties events for each day. Here are a few descriptions of the forthcoming site:

“First Amendment Fridays”

This from a recent story in the Dallas Observer:

Armed with at least his Infowars.com press pass and his smartphone camera, Frisco resident Brett Sanders is staging a one-man crusade for the Bill of Rights.

For each of the last three Fridays, Sanders, who says he is also involved in the Open Carry movement, has filmed a different entity from public sidewalks. July 11 it was federal contractor Raytheon. July 18 it was the Federal Emergency Management Agency’s Region VI office. Last week he took to the area outside the Drug Enforcement Administration’s Dallas office. In each instance Sanders is told to stop filming and a confrontation of varying level of intensity ensues.

“My main goal is to empower citizens that maybe did not know that they have a right to film in public and maybe did not know that they have a right to refuse to ID themselves if they’re not committing a crime,” Sanders says.

The story includes some tense closeup video clips of Mr. Sanders videoing federal agents.

En Banc D.C. Circuit Upholds USDA Country-of-Origin Labeling Rule

In case you missed it, the Court of Appeals, sitting en banc, handed down its ruling in American Meat Institute v. USDA (July 29, 2014). The vote was 9-2 and the lead opinion was written by Senior Circuit Judge Stephen Williams with Judge Judith Rogers concurring in part, Judge Brett Kavanaugh concurring in the judgment, and Judges Karen Henderson and Janice Rogers Brown filing separate dissents.

Here is Judge Williams’ summary:

Reviewing a regulation of the Secretary of Agriculture that mandates disclosure of country-of-origin information about meat products, a panel of this court rejected the plaintiffs’ statutory and First Amendment challenges. The panel found the plaintiffs unlikely to succeed on the merits and affirmed the district court’s denial of a preliminary injunction. On the First Amendment claim, the panel read Zauderer v. Office of Disciplinary Counsel (1985) to apply to disclosure mandates aimed at addressing problems other than deception (which the mandate at issue in Zauderer had been designed to remedy). Noting that prior opinions of the court might be read to bar such an application of Zauderer, the panel proposed that the case be reheard en banc. The full court shortly voted to do so. Order, American Meat Institute v. USDA (D.C. Cir. Apr. 4, 2014) (vacating the judgment issued on Mar. 28, 2014, and ordering rehearing en banc). We now hold that Zauderer in fact does reach beyond problems of deception, sufficiently to encompass the disclosure mandates at issue here

→ See Professor Eugene Volokh’s commentary here

Loeb School Seeks 1st Amendment Award Nominees

MANCHESTER: “The Nackey S. Loeb School of Communications seeks to honor New Hampshire residents or organizations who have worked to protect free speech and free press. 

Nominations are open for the school’s 12th annual First Amendment Award, honoring diligence in protecting free press and free speech liberties. The recipient will be recognized Nov. 12th at a gala at the Radisson Hotel in Manchester. 

A committee of judges chooses the recipient from public nominations. First Amendment recipients receive a bronze eagle sculpture created by Mrs. Loeb and a $1,500 award. 

Nominations forms are available at www.loebschool.org. The deadline for nominations is Sept. 8th. Event tickets go on sale Sept. 12th.” (Source & more info here)

Back in Print: Princeton University Press Reissues First Amendment Books

From the publisher: “The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.”

• C. Edwin Baker, Advertising and a Democratic Press
• Steven Shiffrin, The First Amendment, Democracy, and Romance

  Professor Leslie Kendrick

Law Reviews: Recent Publications

• Leslie Kendrick, “Free Speech and Guilty Minds,” Columbia Law Review
• Jennifer A. Heerwif & Katherine Shaw, “Through a Glass, Darkly: The Rhetoric and Reality of Campaign Finance Disclosure,” Georgetown Law Journal 
• Thomas E. Kadri, “Fumbling the First Amendment: The Right of Publicity Goes 2–0 Against Freedom of Expression,” Michigan Law Review

Quick Hits

Recent Posts by Professor Steven Shiffrin

• “The Supreme Court’s Coming Attack on Public Employee Unions,” Religious Left Law, July 28, 2014
• “Vulnerable Women Seeking Abortion and Scalia’s Belief That Harassment is a First Amendment Right,” Religious Left Law, July 1, 2014
• “Free Speech for Those the Court Loves,” Religious Left Law, June 30, 2014

→ Note: Professor Shiffrin’s next book is titled What’s Wrong with the First Amendment. Stay tuned. (See FAC 4 (First Amendment Conversations): “Steve Shiffrin, the Dissenter at the First Amendment Table“)

News Stories & Op-Eds

• Heather Clark, “City Pays $50,000 in Attorney’s Fees for Violating First Amendment Rights of Christians,” Christian News, Aug. 6, 2014 (“A city in Kansas has payed $50,000 in attorney’s fees after a court ruled that it had violated the First Amendment rights of Christians who sought to distribute materials about their soccer camp outside of a city-owned soccer complex.”)
• Eugene Volokh, “Speech as evidence, and rap videos,” The Volokh Conspiracy, Aug. 4, 2014
•  Zach Weissmueller, “Bringing the First Amendment into the 21st Century,” Reason, Aug. 3, 2014
• Nermeen Arastu & Diala Shamas, “Stop spying on American Muslims who exercise their First Amendment rights,” Newsday, Aug. 4, 2014
• Bill Dawers, “Free speech ruling puts Savannah’s tour guide test to the test,” Savannah Now, Aug. 3, 2014

  Gene Policinski

• Gene Policinski, “Seeking the ultimate ‘redress of grievances,’” The Morning Sun, Aug. 2, 2014
• Mary C. Tillotson, “Some Anti-Bullying Policies Disrespect Free Speech,” Human Events, Aug. 1, 2014
• Beckett Adams, “Harry Reid just made sure the Senate will deal with amending the Constitution first thing when it gets back from recess,” The Examiner, Aug. 1, 2014
• Claire Zillman, “Corporations have free speech rights, except when it comes to meat,” Fortune, July 31, 2014
• Eugene Volokh, “U.S. Commission on Civil Rights member, on university speech codes,” The Volokh Conspiracy, July 30, 2014
• Katie Mulvaney, “Judge, citing First Amendment, overturns R.I. union official’s cyberstalking conviction,” Providence Journal, July 30, 2014
• Andy Mehalshick, “Questions Raised About First Amendment Violation In Aftermath of Radio Talk Show Host’s Comments,” PA, July 30, 2014
• Dan McQuade, “Del. Beach Trinket Shop Owner Loses First Amendment Fight,” News + Opinion, July 29, 2014
• Barry J. Peek & Hanan B. Kolko, “Marijuana Advertising and the First Amendment,” New York Law Journal, July 11, 2014
• Geoffrey Stone, “Understanding the Supreme Court’s Abortion-Protest Decision,” Huffington Post, June 27, 2014

Last Scheduled FAN Column: #25 – “High Court again asked to intervene in state judicial elections”

Next Scheduled FAN Column: #27, Wednesday, August 13th