Professor Randy Kozel
Start here: “Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis.” Okay, so much for the gospel regularly taught in law schools.
But there is another gospel — the one actually practiced by judges. (Somewhere the old Florentine grins.)
Now consider this: “[W]ithin the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.”
So contends Notre Dame Law School Professor Randy Kozel in a draft of an article titled “Second Thoughts About the First Amendment.” As his research reveals, “in recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech.”
And why? What accounts for this purported demise of stare decisis? “The best explanation for this phenomenon,” say Professor Kozel, “is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay.”
And is all of this a problem? Here is how the former Kozinski-Kennedy law clerk turned law professor answers that question: “Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.”
With a guarded measure of nuance, Professor Kozel adds: “For some, this state of affairs may be unobjectionable. There is no denying that robust expression is a core tenet of American legal and political culture. Still, there is something to be said for stare decisis, even when continuity comes at a hefty price.”
→ Of course there is more, much more in this thoughtful work-in-progress. I urge readers to take a look at it and send along your thoughts. Who knows, it might even make for an interesting topic for a future First Amendment salon?
Speaking of that salon, I may soon have some news on that front. Stay tuned.
Another great quote from Justice Jackson
[T]he very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.
– Justice Robert Jackson, in-chambers opinion in Williamson v. United States (1950):
→ Hat tip to Eugene Volokh
Two New Books
Professor Rick Hasen
Two books, one just published and the other to be available next week, should be of interest to FAN readers.
→ The first book is by election law expert Professor Rick Hasen and is entitled Legislation, Statutory Interpretation, and Election Law. The Table of Contents can be found here. Of particular interest to those who follow First Amendment law in the campaign finance context are the following chapters (pp. 319-400):
- 13 — “Introduction to Campaign Finance: Spending Limits from Buckley to Citizens United”
- 14 — “Campaign Contribution Limits from Buckley to Citizens United and Beyond”
- 15 — “Campaign Finance Disclosure”
- 16 – “Public Financing”
Professor Danielle Citron
→ The other book is by Professor Danielle Citron and is entitled Hate Crimes in Cyberspace. Here is the publisher’s summary:
Most Internet users are familiar with trolling—aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. Less familiar but far more serious is the way some use networked technologies to target real people, subjecting them, by name and address, to vicious, often terrifying, online abuse. In an in-depth investigation of a problem that is too often trivialized by lawmakers and the media, Danielle Keats Citron exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. A refutation of those who claim that these attacks are legal, or at least impossible to stop, Hate Crimes in Cyberspace reveals the serious emotional, professional, and financial harms incurred by victims.
Persistent online attacks disproportionately target women and frequently include detailed fantasies of rape as well as reputation-ruining lies and sexually explicit photographs. And if dealing with a single attacker’s “revenge porn” were not enough, harassing posts that make their way onto social media sites often feed on one another, turning lone instigators into cyber-mobs.
Hate Crimes in Cyberspace rejects the view of the Internet as an anarchic Wild West, where those who venture online must be thick-skinned enough to endure all manner of verbal assault in the name of free speech protection, no matter how distasteful or abusive. Cyber-harassment is a matter of civil rights law, Citron contends, and legal precedents as well as social norms of decency and civility must be leveraged to stop it.
Senate to Vote on Amendment to First Amendment
A procedural vote has been scheduled for Monday, September 8, 2014 at 6 p.m. EDT concerning a proposed amendment to the First Amendment. More on this next month.
Lauren Bacall & Humphrey Bogart lead a Committee for the First Amendment march in Washington, D.C., Oct. 27, 1947 (AP photo)
Lauren Bacall — First Amendment Activist
“In 1947, as the “Red Scare” enveloped America, [Bacall and Bogart] joined the Committee for the First Amendment. The CFA was a star-studded group of Hollywood liberals who opposed the tactics of J. Parnell Thomas’ House Committee on Un-American Activities, which had subpoenaed 43 Hollywood figures who were allegedly Communists to testify about their politics; 19 said they would not cooperate, and 11 of them were called before the committee, facing the possibility of jail time. (One, Bertolt Brecht, ultimately decided to testify and then leave the country, hence the term “the Hollywood 10.”) On Oct. 26, 25 CFA members—the Bogarts the most famous—chartered a flight to Washington to sit in on the following day’s hearings, meet with members of Congress and present a petition defending their colleagues’ First Amendment rights. They stopped in major cities along the way to try to rally public support behind their colleagues, and massive crowds greeted them everywhere.”
→ Scott Feinberg, “Lauren Bacall, Political Activist: She Knew How to Whistle… and Speak Her Mind,” Hollywood Reporter, Aug. 20, 2014
Press Groups Rally Behind James Risen
This from Catherine Taibi’s article in the Huffington Post (Aug. 15, 2014):
James Risen
“Press freedom organizations submitted a petition with more than 100,000 signatures to the US Department of Justice Thursday in support of New York Times reporter James Risen.The petition demanded that the government stop all legal action against Risen, who has been involved in a six-year battle for press freedom, McClatchy DC reported Friday.Risen has been ordered by the DOJ to testify against one of his alleged sources, former CIA agent Jeffrey Sterling, who is believed to have given him confidential information about the CIA for his 2006 book State of War. Prosecutors believe that Sterling gave Risen specific details about a failed CIA operation in Iran that then appeared in his book. Risen has refused to name his source, stating that he would rather go to jail than “give up everything I believe in.”In a news conference at the National Press Club in Washington Thursday, Risen said that his refusal to give up the name was ‘for the future of journalism.’”
→ See also Katherine Fung, “James Risen: Obama Is ‘Greatest Enemy To Press Freedom In A Generation‘” Huffington Post, Aug. 17, 2014
Center takes applications for James Madison Award
“The Scripps Howard First Amendment Center in the School of Journalism and Telecommunications at the University of Kentucky College of Communication and Information annually recognizes a Kentuckian who has made an outstanding contribution to the First Amendment. The James Madison Award, created in 2006, honors the nation’s fourth president, whose extraordinary efforts led to the ratification of the Bill of Rights. The center at the University of Kentucky is seeking nominations for its 2014 award. The nomination deadline is Sept. 15. The winner will be honored at the annual First Amendment Celebration on Oct. 8.”
“Nominees must have significant ties to Kentucky, and their efforts must have resulted in the preservation or expansion of freedom of the press and/or freedom of speech. The award recognizes a long-term commitment to these ideals.”
→ Nominations should be sent to Mike Farrell, Scripps Howard First Amendment Center, School of Journalism and Telecommunications, 220 Grehan Building, University of Kentucky, Lexington, KY 40506-0042, or emailed to farrell@uky.edu. [Source here]
Government Ordered False Information
Whatever the standards applied to professional speech, it seems obvious that government has no legitimate interest in compelling doctors to give false information to patients. We need not wait for a Satanist to have an abortion and be provided with false information. To the extent [that] any of the laws in the 35 states with special informed consent laws for the abortion context require that false or misleading information be provided, . . . the First Amendment stands in the way.
– Steve Shiffrin, “Satanists, Hobby Lobby, and Free Speech,” ReligiousLeft.com, Aug. 18, 2014
→ Re a discussion of compelled speech of doctors in the abortion context with citations to the cases and relevant literature, see Stuart v. Loomis (MD, NC, Jan. 17, 2014) (per Dist. Ct. Judge Catherine Eagles)
Third Circuit Ruling re Police Campaign Contributions
Can a city prohibit police officers from making monetary contributions to political campaigns, including contributions to their union’s political action committee? The Third Circuit, in its opinion in Lodge No. 3, Fraternal Order of Police v. City of Philadelphia concludes that such a rule violates the First Amendment.
→ Opinion by Judge Thomas Hardiman.
→ Thomas W. Jennings successfully argued the case for the Appellants
→ Ruthann Robson, “Third Circuit Holds Philadelphia Police Campaign Contribution Rule Violates First Amendment,” Constitutional Law Prof Blog, Aug. 19, 2014
The First Amendment in Ferguson
→ Margaret Gillerman, “Judge denies ACLU motion for an order to stop police tactics,” St. Louis Post-Dispatch, Aug. 18, 2014
A federal judge Monday night denied a motion by the American Civil Liberties Union for a temporary restraining order to stop police from requiring people to keep moving on sidewalks and thoroughfares in Ferguson unless they’re gathered in a designated protest area. . . . The suit by the ACLU was filed Monday against St. Louis County, Highway Patrol Superintendent Ronald Replogle and five individual unnamed police officers. The ACLU says that the practice orders “people who are violating no law … to refrain from gathering or standing for more than five seconds on public sidewalks.”The suit also said that the measure places “restrictions on the ability of the media to witness and report on unfolding events.”Missouri Attorney General Chris Koster defended the law enforcement measures, including the designated protest area. He said the measures were designed to protect public safety in Ferguson. Koster’s office said the action by U.S. District Judge Catherine Perry clears the way “for law enforcement officers to continue their efforts to protect the people and property of Ferguson.”
→ ACLU of Missouri complaint in Hussein v. County of St. Louis & City of Ferguson (“This is civil rights action filed by Mustafa Hussein, an individual who has recorded the interactions of the police and demonstrators on public streets and sidewalks within the City of Ferguson and who would like to do so in the future. He brings suit pursuant to 42 U.S.C. § 1983 to challenge intimidating demands and direct orders (made by Defendants, their officers or agents, or those working in concert with them) that members of the public and media stop recording interactions between the police and the public in Ferguson, Missouri.”) ACLU lawyers: Anthony Rothert, Grant Doty & Gillian Wilcox.
* * * *
I support the First Amendment like crazy gun people support the Second Amendment, and I’ll do anything for the First Amendment,” said Chappelle-Nadal, a Missouri state senator (Dem.).
- Christine Conetta, “Missouri State Senator Reminds Police, ‘We Have A First Amendment Right‘,” Huffington Post, Aug. 19, 2014
- Jose Diaz-Balart, “First Amendment rights in question in Ferguson,” MSNBC, Aug. 19, 2014 (video clip interview with reporters Amy Nelson & Ryan Reilly)
- Associated Press, “D.C.-based journalist among latest arrests in Ferguson,” Aug. 19, 2014
- Will Baude, “Is there any good argument against the right to record the cops?,” The Volokh Conspiracy, Aug. 18, 2014
- Leonard Pitts, Jr., “First Amendment suspended in recent police brutality,” Houston Chronicle, Aug. 17, 2014
- Eugene Volokh, “The Missouri Highway Patrol, St. Louis County, and the City of Ferguson agree that public has the ‘right to record public events’,” The Volokh Conspiracy, Aug. 15, 2014
- Alona Sistrunk, “Know Your Rights, Ferguson, Missouri,” ACLU Website, Aug. 15, 2014
- Catherine Talbi, “Press Freedom Groups Condemn Police Treatment Of Media In Ferguson,” Huffington Post, Aug. 14, 2014
- Gene Policinski, “First Amendment: Media and Missouri: What the heck is going on?,” Gazette Xtra, Aug. 14, 2014
- William Freivogel, “Police Force and First Amendment Trespasses in the Ferguson Protests,” St. Louis Public Radio, Aug. 14, 2014
- Eugene Volokh, “First Amendment right to videotape police extends even to probationers, and to one’s own home as well as public places,” The Volokh Conspiracy, Aug. 11, 2014
The sign that gets no protection from the First Amendment — so ruled the 6th Circuit
Quick Hits
Other News Stories, Editorials, Op-eds & Blog Posts
- James F. McCarthy, “Garfield Heights man’s three-year First Amendment sign fight ends in defeat,” The Plain Dealer, Aug. 19, 2014
- Ryan Poppe, “Perry’s Legal Team Says Indictment Violates Governor’s Right To Free Speech,” Texas Public Radio, Aug. 19, 2014
- Merrill Hope, “Dallas Bans Free Speech, Overpasses For America Sues,” Breitbart, Aug. 19, 2014
- Travis Weber, “A speech code for the pulpit?,” Washington Times, Aug. 15, 2014
- Ruthann Robson, “ConLaw Profs Pen Letter Criticizing University of Illinois Rescission of Offer to Academic for Tweets,” Constitutional Law Prof Blog, Aug. 14, 2014
- Eugene Volokh, “The First Amendment protects even Nazi, Communist, and Islamic State flags,” The Volokh Conspiracy, Aug. 13, 2014
Last Scheduled FAN Column: # 27 — “Humanitarian Law Project petition before High Court”
Next Scheduled FAN Column: # 29 — Wednesday, August 27, 2014