PrawfsBlawg

Cross-Border Speech Conflicts

According to this report, two German nationals who were convicted of murder and have served their prison terms have sued the Wikimedia Foundation to have their names expunged from the English language version of an article on Wikipedia relating to the victim.  The plaintiffs have already successfully sued for the same relief with regard to coverage of their crime in German media.  Germany's privacy law apparently provides for such relief, under a high court ruling from 1973.

Cross-border speech conflicts of this sort have become increasingly common in the Internet age.  The report references the case involving an order by a French court enjoining Yahoo! from permitting the auctioning of Nazi memorabilia in France.  So-called "libel tourism," where a plaintiff sues for defamation in a jurisdiction lacking Sullivan-like protections (typically the U.K.) seeks to enforce the judgment in the U.S., has also arisen with some frequency.  Several courts in the U.S. have refused to enforce such judgments.  A few state legislatures have enacted laws prohibiting courts from enforcing certain foreign libel judgments.  Congress is currently considering libel tourism bills that would bar enforcement of foreign judgments and perhaps provide a cause of action for American defendants.  Meanwhile, across the pond, British officials are considering changes to defamation law that would prevent manipulation of its courts by defamation plaintiffs. 

These and other cross-border speech conflicts are complicated by a number of issues, including the lack of global speech and privacy laws, the uncertain "place" of the First Amendment in a digitized and globalized world, the need to develop standards for resolving conflicts among national speech and privacy laws, the "rights imperialism" that may be involved in exporting a single nation's speech or privacy laws to other nations, and the practicalities of enforcement. 

As to the last, it is difficult to see how the foreign lawsuit will provide any meaningful remedy for the plaintiffs in this case.  The Wikimedia Foundation does not appear to have any assets in Germany.  More importantly, it will be practically impossible to scrub the Web, including archival materials, of all references to these plaintiffs.  As Dan Solove explained in The Future of Reputation, this information is part of a permanent chronicle of their lives.   

Property As/And Constitutional Settlement

I've posted a new paper with this title to SSRN.  The article addresses the constitutionality and propriety of governments settling constitutional issues or claims by disposing of public properties through various forms of privatization or by taking the subject properties.  Settlement-by-disposition has occurred with increasing frequency in Establishment Clause contexts.  Salazar v. Buono, which was argued in October and may be decided early next year, is an example.  Public forum properties such as streets and parks have also been disposed of in order to settle constitutional controversies.  Settlement-by-disposition is neither a new phenomenon, nor one limited to the sometimes contentious public display of religious symbols.  In addtion to the foregoing, consider Boumediene v. Bush, in which Justice Kennedy pointedly reminded federal officials that the power granted by the Constitution to acquire and dispose of federal territories does not carry with it the power to "switch the Constitution on or off at will."

The article traces the practice of settlement-by-disposition to the civil rights era, when officials devised a variety of creative dispostions in an effort to avoid integration.  Decisions from the 1960s and 1970s revealed no clear answer to the question whether officials could dispose of constitutional claims by disposing of public properties.  Some lower courts stretched the nascent state action doctrine and equal protection principles to prevent dispositions that were plainly intended to thwart integration orders.  But other courts, including the Supreme Court in a decision involving the disposition of public swimming pools, permitted officials to dispose of properties even though the result was to negate integration.  The Court did resist dual school system and other sham dispositions in the public education context.  But it was never forced to decide whether officials could simply close the public schools entirely in the face of desegregation mandates; although such proposals were made by segregationist public officials, southern parents and officials ultimately rejected the idea.    

In the aftermath of the oral arguments in Buono, some media and commentators seemed rather disappointed that the case might be decided on mere "property" grounds rather than on the Establishment Clause merits.  But I think settlement-by-disposition is actually the most significant aspect of the case, not least because this practice has implications far beyond the "donut hole" in the Mojave.  As Nelson Tebbe recently posed the fundamental question:  "When should we allow governments to deploy private-law rules in order to circumvent public-law obligations?"  I propose a general framework for thinking about and analyzing the constitutionality and propriety of settlement-by-disposition, one that draws upon the lessons of the civil rights experience.  The framework focuses on the fiduciary duties owed by public officials with regard to the critical assets subject to disposition.  The trust analogy I propose is not perfect.  But it responds directly to the danger that settlement-by-dispositon can be used to render constitutional liberties discretionary.    

 I invite those interested to read the draft, and of course would welcome any comments.    

Free Speech and the Furrier

A judge in Portland, Oregon has cited Oregon's elder abuse law as authority for restricting the ability of protesters to approach a 75-year-old furrier.  The animal-rights activists, some of whom apparently shouted profanities at the businessman as he walked to his shop and his car, have been ordered to stay 50 feet from the furrier and 15 feet from his store.  This is another example of the phenomenon of imposing buffers and bubbles around places and persons in public speech contexts.  As is increasingly the case in public speech (and other) contexts, there is some video of the public protests.  In the linked-to video, the furrier and a companion appear to be smiling at certain points as the activists follow them, shouting slogans and profanities (which are "beeped" out of the video).  The protesters claim that other videos show the furrier making threatening gestures and physically assaulting some in their group.  The furrier apparently has video evidence of his own. 

The use of the Oregon Elder Abuse Act in this context may be problematic.  The Act appears to have been intended to prohibit various forms of physical and financial abuse of the elderly.  But it includes in its definition of "abuse" the "[u]se of derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to the elderly person . . ."  Surely the sensibilities of the elderly are entitled to no greater protection than those of women, aliens, or homosexuals in the public square.  To the extent the definition of abuse goes beyond unprotected categories of speech, it is an illegitimate basis for either a restraining order or a civil action by the furrier.

The Elder Abuse Act incorporates a general criminal prohibition on "menacing," which is defined as intentionally placing another, by words or conduct, in fear of imminent serious physical injury.  If the protesters aggressively followed and harassed the furrier, they may have violated this prohibition.  Even so, the scope of the court's restraining order seems questionable.  If the purpose is to protect the furrier from being placed in fear of imminent serious physical injury, a 50-foot protective bubble would seem to sweep more broadly than necessary.  The protesters have no right to threaten the physical safety of the furrier.  But as in other public speech contexts, the intended audience has no right to be shielded from even crude and offensive messages.  

  

Buffers, Bubbles, and Abortion Speech

In my recent book, Speech Out of Doors:  Preserving First Amendment Liberties in Public Places, I examine various restrictions on public assembly and expression including the phenomenon of expressive zoning.  Although not a new tactic (the first speech zones appear to have been used against the Wobblies in the early twentieth century), carving public space into zones in an effort to regulate public speech and assembly has become increasingly common.  The tactic is now used, for example, at every national party convention and mass protest.  Expressive zoning can have substantial negative effects on the ability of speakers to contest particular places and to engage in protected forms of speech such as leafletting.  

Responding to incidents of violence at or near abortion clinics, judges (through injunctions) and legislatures have imposed spatial restrictions on speech and assembly.  These restrictions take two common forms -- the "buffer zone," which typically regulates congregating and demonstrating within some specified distance of clinic entrances, and the "bubble," which restricts the ability of sidewalk counselors and other speakers to aproach within some specified distance of unwilling audiences at certain distances from clinic entrances.  The Supreme Court has upheld both fixed buffer zones and bubbles as valid time, place, and manner restrictions.  But none of the Court's abortion clinic zoning cases upheld the use of both measures at the same time. 

In Brown v. City of Pittsburgh, the Third Circuit recently invalidated a Pittsburgh ordinance that combined a 15-foot buffer zone with an 8-foot bubble applicable within 100 feet of the entrance to hospitals, medical offices, and clinics.  In an opinion by Chief Judge Scirica, the court held the ordinance facially invalid on the ground that, in combination, the zones severely curtailed (if not precluded) the plaintiff, a sidewalk counselor, and others from leafletting near abortion clinics.  The panel held that either measure, operating by itself, would be adequate to serve the City's interests in protecting access to the clinic and preventing harassment of clinic patrons.  

As I argue in the book, efforts to defuse tensions surrounding the abortion debate through expressive zoning have resulted in some questionable limits on public speech and assembly.  Brown is an important decision concerning the validity of spatial restrictions at or near abortion clinics.  By carefully examining the terms and effects of the spatial restrictions, the court was able to demonstrate that Pittsburgh's layered zones burdened more speech that necessary to serve its legitimate interests.  While speakers have no right to harass or threaten anyone at or near the clinics, their right to offer or distribute literature on public ways must be preserved.  

Speech and the Identity Crisis

In terms of assessing speech, it is often helpful for audiences to know who is relaying a message and what, or who, might be influencing the content of the message.  But do audiences have a right to know who is sponsoring or otherwise influencing the information they are receiving?  Put negatively,when does the First Amendment prohibit the state from forcing speakers to disclose their identities or the identities of those who may have influenced their messages?  It may overstate matters to suggest that free speech has an "identity crisis."  But identity and sourcing issues seem to be arising in an increasing number of contexts.  Consider the following examples:

• Proponents of same-sex marriage in Washington state recently sought to force disclosure of the names of those who signed petitions to place the issue of benefits for same-sex partners on the ballot.  (A Ninth Circuit order to disclose the names was recently stayed by the Supreme Court.) 
• The FCC recently created new guidelines that require bloggers and others who publish on the Web to disclose any "material connections" they might have with sellers of products or services.
• After the tea party protests and health care town hall events this summer, proposals were again made to regulate so-called "astroturfing."  One proposal was to require disclosure of sponsorship or support for these events under lobbying laws.    
• Legislators and law enforcement in some states have stepped up efforts to regulate "flogs," bogus product reviews, and other forms of online deception.   
• Congress has long prohibited the use of federal funds for propaganda purposes.  Notwithstanding this prohibition, in recent years there have been a variety of bogus news accounts and other sourcing problems involving government departments and officials.

There are other examples, such as "ghost-writing" of scientific studies and various bogus lobbying efforts.  Some of what we might call speech-sourcing difficulties arise from, or may be exacerbated by, Web-based communication.  But sourcing issues are hardly a new concern.  Anonymous speech,deceptive trade practices, and government propaganda have all been around for a very long time. 

The law of disclosure or speech sourcing is not particularly well developed.  In general terms, the First Amendment provides some breathing space for anonymous speech.  Associational rights also prohibit the state from mandating disclosure in some circumstances, as when disclosure might lead to violence against a particular group.  There is a limited right not to be compelled by the state to speak.  And the press possesses a qualified privilege relating to the confidentiality of its sources.  Despite this cluster of rights, mandatory disclosure of speakers and sources has long been typical in some areas, such as campaign finance and deceptive trade laws.  And the spending prohibition relating to government proaganda is longstanding.  As more trade moves online and political records are retained and made publicly available, courts and legislatures will increasingly have to confront a difficult balancing of anonymity, privacy, transparency, and informational authenticity interests.  I may develop a paper on this subject in the relatively near future.  Some prelimimary thoughts on these issues, in the specific context of the Washington state referendum, after the jump.

   

The move to force disclosure of petition-signers' identities pits the state's interests in transparency and fraud-detection against the signers' interest, if any, in participating in the referendum process anonymously.  Asssuming, as the courts have, that signing a petition constitutes speech, the question in the referendum context may boil down to whether petition-signers have any expectation of anonymity when they participate in the referendum process.  The district court and Ninth Circuit both identified this as an issue of first impression; but they disagreed on the merits.  The district court applied strict scrutiny to the disclosure law, which it viewed as a direct regulation of political speech.  The Ninth Circuit applied intermeditate scrutiny; it disagreed with the district court's conclusion that the speech was "anonymous political speech."   

In the background, of course, is the fact that the identities of the petition-signers, if disclosed, would immediately be broadcast on the Web.  Proponents of disclosure argue that this would further critical democratic interests.  They argue that civil rights causes sometimes require "shaming" others into supporting the cause and that disclosure would facilitate an honest and transparent debate regarding the merits of the measure.  Not surprisingly, the state does not rely on the "shaming" argument.  As a factual matter, petition-signers do not necessarily support the measure; the question at the petition stage is whether it ought to be on the ballot.  In any event, the state obviously cannot justify a law on the ground that it facilitates shaming.  Transparent debate is a much weightier democratic value.  But why does one need to know the identity of each individual participant to have a meaningful debate?  Interest groups square off in the political arena all the time without having such knowledge.  As a practical matter, moreover, it is becoming increasingly difficult to enforce identity- and source-disclosure requirements.  If the state has a substantial or compelling interest in this context, it is the narrower, but important, one of ensuring that the referendum machinery functions properly.  The Supreme Court may have to decide whether that intererst outweighs any interest petition-singers may have in remaining anonymous.

  

The Original Documents by the Original Artists

Left: The 11th Amendment looks like an upturned contestant nametag from "The Price is Right." Right: The top staffer at the National Archives went wild with red ribbon and signed his name in big loopy cursive on the 27th Amendment.

Check out an online exhibit created by the National Archives: Charters of Freedom. There are wonderful high-resolution images of the Declaration of Independence, the original Constitution, and all of the amendments. To paraphrase the K-Tel record company – These are the original documents by the original artists. 

Some of them are awe-inspiring. The 13th Amendment, for instance, signed by Abraham Lincoln, is deeply stirring. 

Many of the documents are visually remarkable. The colors of the original Constitution remain vibrant after 222 years. And the 11th Amendment, signed by John Adams, appears on a funny kind of six-sided paper. The Bill of Rights, however, is sadly faded almost to the point of illegibility.

There are also a few substantive insights to be gained. Perusing the faint script of the Bill of Rights, you are reminded that our cherished First Amendment – what Charles Evans Hughes called "the very foundation of constitutional government" – was not intended to be first at all. In the original list of 12 amendments, our First Amendment was listed third, coming after two proposed amendments that weren't ratified at the time: one limiting congressional pay raises and the other prescribing ratios of population to members of the House of Representatives. 

And then some of the collection is, to my mind, kind of funny. 

Before our current era of sealing precious documents in humidity- and pressure-controlled encasements filled with inert argon gas, the Charters of Freedom received somewhat indelicate treatment. For instance, if you look at the 26th Amendment, you will notice that in 1971, an officious government worker kerplonked a "RECEIVED" date stamp on the front of the original. Thus, the document giving 18-year-olds the right to vote appears to have been treated with all the dignity of a Selective Service postcard. 

Contrast that with the pomp accorded the next amendment, the 27th. This amendment, limiting congressional pay hikes, is what would have been the first amendment if it hadn't taken 203 years to ratify.  

When it finally came in from the cold, the National Archives laid out the 27th Amendment with sumptuous typography on paper bedecked with a glorious gold seal and a generous length of dark red ribbon. The document is truly resplendent. It could make your law-school diploma turn green with envy. 

The funniest bit of all is probably the 21st Amendment – the repeal of Prohibition. It's not the paper itself that is remarkable. It's the fact that it is included in the National Archives' Charters of Freedom exhibit. From the context in which it is presented, we can confidently say that it is the official position of the National Archives that the document supplying America with the right to drink is a "Charter of Freedom."

Reading these original documents, I suppose, has limited usefulness. It allows smart-alecks like me to deride the original Constitution for sloppy penmanship. Other than that, seeing our cherished freedoms reduced to ghostly, fading words on fragile pieces of parchment is a reminder that our civil rights and civil liberties, if they are to endure, must be the subject of never-ceasing vigilance by our citizens and lawyers. 

Or, as the Beastie Boys said – perhaps having in mind one Charter of Freedom in particular – "You've got to fight for your right to party."

More Iqbal: What's a plaintiff to do?

I am trying to put together an essay for a symposium on Iqbal for Lewis & Clark Law Review and am searching for a hook. I think I found it (finally) in last month's decision by the Ninth Circuit in Moss v. U.S. Secret Service.

The plaintiffs were part of a group of anti-Bush protesters who were moved away from the sidewalk directly outside and across the street from an inn where the President was eating (the order to move came from the Secret Service, although the actual moving was carried out by local police). The anti-Bush protesters were to be pushed a block east (they actually were pushed more than two blocks away, as well as subject to some rough policing). Pro-Bush counter-protesters, who had been a block west of the inn, were not made to move.

The plaintiffs brought First Amendment claims against the two agents on the scene, the former director of the Secret Service, and the Service itself (OK, that last one just shows the plaintiffs' lawyer did not entirely know what he was doing). The basic claims were that the plaintiffs were moved because they were presenting an anti-Bush viewpoint, consistent with a sub rosa Secret Service policy of suppressing speech critical of the President.

After the jump, take a look at Iqbal in action in a fairly straightforward Bivens action. It's not pretty.

1) The court followed the two-step approach described in Iqbal: a) Disregard (or at least not accord a presumption of truth to) conclusory allegation and b) Look at the remaining allegations to determine whether they "plausibly" give rise to an entitlement to relief, purportedly by accepting them as true and according reasonable inferences in the pleader's favor.

The court thus disregarded as bald and conclusory the allegations that the on-the-scene agents acted with an impermissible viewpoint-discriminatory motive and the allegations of a discriminatory policy in the agency.

This presents the first problem for the plaintiffs: What facts can they plead as to state of mind at this point, without the benefit of discovery? How can they know what was in the agents' minds until they have had a chance to depose them?* I suppose they might use FOIA to find out about formal Service policies regarding protesters. But the allegation was about a sub rosa policy--in other words, an agency-wide custom, accepted and enforced informally, having the force of law but without being formally established. No FOIA request is going to turn that up. Perhaps allegations about other examples of Service treatment of protesters would lend factual support. But it also would require that superiors knew about those other incidents--again, impossible to allege (in an acceptably non-conclusory manner) without discovery.

2) The court then looked to the remaining allegations and (surprise!) found they did not show a plausible violation. The court considered several distinct allegations. What is noteworthy is how unwilling the court was to draw inferences from these facts in favor of plaintiffs.

a) Only the anti-Bush protesters were moved. But, the court said, the police were ordered simply to move them to a distance equidistant from the Inn as where the pro-Bush protesters already were standing. So the end result (at least of the agents' orders) was pro- and anti-Bush protesters were one block over from the Inn (on opposite sides). Two problems. One is the counter-factual--what if it had been the pro-Bush demonstrators directly in front of the Inn--would they have been moved? We don't know; but is it a reasonable inference (looked at in the light most favorable to the plaintiff) that they would not have been? The other is that the fact that we had a viewpoint-neutral outcome (everyone equidistant from the Inn) does not mean that no viewpoint discrimination occurred--anti-Bush protesters still were moved and a plausible reason is it was because they were anti-Bush protesters.

b) Relatedly, the court insists that if the real purpose of moving the protesters was to suppress the anti-Bush message, the agents would have moved them more than a block away, to where they could not be heard. Hmm; I guess the court never has heard of pretext. It seems to me it is at least potentially a violation (certainly sufficient to withstand a 12(b)(6) motion) for government officers to move a group of speakers, because of their speech, out of the best speaking position and into a lesser one. Even if they could still be heard, they are further away, cannot be seen, and their expression has less impact because of that distance.

c) Plaintiffs alleged that diners and Inn guests were permitted to remain in close proximity to the President without security screening. But, the court said, that allows no inference about the motive behind moving the anti-Bush crowd, which only can be given meaning by reference to the pro-Bush protesters, not the non-protesters in the Inn. Again, I guess the court never heard of pretext. The stated reason for moving the protesters away from in front of the Inn was to keep them out of "firearms and explosives range" of the President. But that reason is belied by the fact that people inside the Inn remained within range of the President without any screening. This at least allows the inference that the concern was not really about firearms and explosives, but something else. And this gets us back to only the anti-Bushies being moved. If the firearms concerns fall away (as plausibly suggested by the non-screening of diners), we are left with the the fact that the antis were moved and there is an inference that the stated reason was not the actual reason. If they got to the spot first, there has to be some reason for moving them. What other reason is there? It is not a legitimate (much less substantial or compelling) government interest to keep the expressive marketplace balanced by making sure both sides are a block away, so that could not be a neutral justification. If the antis got to their spot first, there must be some reason

d) Plaintiffs alleged that they were moved by local police more than a block and subject to abusive police tactics. But these allegations involve local police (who were not named as defendants) and do not mention the Secret Service or the two agents. This seems right to me.

The point of all this is to show the discretion that Iqbal gives courts to ignore the ordinary admonition to draw all inferences in favor of the non-movant/plaintiff. This is where courts really have power in the context of motions to dismiss--in the inferences they draw (or don't draw) in reviewing the complaint and deciding what is or is not plausible based on the facts pled. None of the inferences I have argued for here are essential or necessary. But the inferences I have suggested seem to make a First Amendment violation plausible--certainly enough to get by 12(b)(6). Again, we come back to the question--what more could these plaintiffs have done? And how are they ever to get their claims before a jury?

The court did grant plaintiffs leave to amend, for the stated reason that the complaint was filed prior to Twombly and Iqbal. But as courts start finding more and more complaints factually deficient under Twombly and Iqbal, this is going to become an increasingly common practice.

Interesting stuff. In addition to writing about the case, I may assign the complaint (which, at 92 paragraphs, is reasonably short) as an example for Civ Pro.

• The defendants have vigorously, and thus far successfully, resisted all discovery. This created an interesting secondary issue on appeal, regarding immediate appealability of the trial judge's decision to delay ruling on summary judgment in response to a Rule 56(f) affidavit.

Health-care protests and free-speech models

Recent stories about "tea-party" protesters shouting down Democratic Congresspersons trying to hold constituent meetings raises the question about whether the protesters' actions are appropriate in a freedom-of-speech, as opposed to a democratic governance sense. The answer depends on two competing models of how free speech should operate.

On one hand, Congresspersons are trying to recreate some version of Alexander Meiklejohn's Town Hall Meeting, in which democratic governance occurs via a form of the New England Town Hall meeting and the freedom of speech is designed to ensure that the meeting functions towards that end. (Actually, this is more of a republican adaptation--no governance is occurring at the meeting, but the meeting is designed to enable communication between representative and constituents, which in turn enables the representative to directly participate in the governance process). But the point about the rules of the meeting remains the same: They must be designed to ensure that the meeting can function for its governance purpose; there is no right in every person present to speak; speech can be restricted if it interrupts the ordinary course of the meeting, prevents others from being heard, or otherwise interferes with the meeting; rules can be used to maintain order to the meeting process (Meiklejohn anticipating what has become known as time, place, manner restrictions).

On this conception, the tea folks are acting wrongfully. The meeting should be open to the protesters and those protesters must be permitted to speak, ask hostile questions, and express (even in loud terms) their opposition to health-care reform (none of these Bush-Era faux town hall meetings stocked with handpicked supporters). What they cannot do is interrupt the meetings by booing and jeering, shout down the Congressperson or other attendees and speakers, or otherwise try to prevent the meeting from occurring or functioning as a public conversation.

On the other hand, a competing free-speech model is the person speaking on the public street corner. This ordinarily assumes the lone, powerless speaker alone on a soapbox, railing against authority and government corruption. But I think it is a flexible enough concept to capture a Congressperson out in public, meeting and talking with his constituents or even giving a public statement. This model of speech and the public speaker also carries with it counter-speech and the counter-speaker--someone standing on an adjacent soapbox, countering the first speaker's words, symbols, and ideas, trying to convince the listening audience that she is right and the first speaker wrong, and perhaps trying to get the first speaker to give up and shut up. One speaker attempting to shout-down another--while rude, not conducive to civil or meaningful discussion that can accomplish anyway, and perhaps counter-productive--is consistent with this model of speech.

The tea folks thus are behaving consistent with this model, particularly in less-formal settings (show-ups at restaurants, picnics in the park and other public spaces, etc.). Freedom of speech includes freedom to heckle and shout-down competing speakers; the public space is not the place for the organization Meiklejohn assumes. This idea of the extreme of counter-speech is captured in this scene from Casablanca--what's the difference?

Two final caveats on this. First, I do not suggest that the tea people are behaving in a way consistent with republicanism and democratic governance. Preventing a public conversation about an important issue of public policy is hardly conducive to effective governance. But sometimes there is a divide between speech and governance. Second, Meiklejohn's model, even if appropriate here, does not speak to remedies for those who refuse to play by the rules of the town-hall meeting. Because the reality is there are none. Having even harassing and uncooperative protesters removed from the meeting is not going to play well on TV or the Internet.

Court of appeals reverses injunction on pharmacist regs

This week, the Ninth Circuit decided Stroman's v. Selecky, reversing the district court's grant of a preliminary injunction prohibiting enforcement of state regulations that would have required pharmacies and pharmacists to dispense Plan B contraception, despite pharmacists' religious- or conscious-based objections. (H/T: First Amendment Law Prof Blog). I write about this case for a largely personal reason: One of my earliest posts here at Prawfs, back when I was a bright-eyed and enthusiastic guest prawf, criticized the district court's decision enjoining the regulations.

The district court had subjected the regulations to strict scrutiny (which they, of course, failed), concluding they were not neutral laws of general applicability because they allowed pharmacists not to fill prescriptions for some reasons (such as time of emergency or the belief that the prescription is invalid or technical inability to fill) but not to refuse for religious reasons. I argued why this was wrong in my original post. The Ninth Circuit agreed the lower court was wrong, for basically similar reasons.

The court said that the law was neutral because it did not target conduct committed for religious reasons, but instead sought to eliminate all bases for refusing to fill a prescription other than those refusals that ensure patient health, safety, and access to medication. Importantly, the court recognized that the law disproportionately affected pharmacists with religious objections (because religious objectors would be the primary (only?) group likely to refuse to fill an otherwise-valid prescription), but held that this disparate impact did not render the law non-neutral.

The regs also are generally applicable; the district court erred by not focusing on the proper issue of whether the regs were impermissibly underinclusive. The court of appeals, again correctly, said that the regs required the filling of all lawful, proper prescriptions--no one may refuse to fill a lawful, proper prescription for religious or non-religious reasons. The exceptions in the regs (time of emergency, inability to pay, technical inability to fill, belief that the prescription is fraudulent) are narrow, limited to improper prescriptions or those that cannot be filled properly. The exemptions granted show that the state's purpose was to ensure access to all lawfully prescribed medications, including Plan B. The mere fact that some exemptions were granted does not render the laws not generally applicable. Nor does it require that all exemptions be granted where there is no similarity between the exemptions granted and the exemptions sought, in light of the statute's purpose.

The court of appeals remanded to the district court to reconsider whether the preliminary injunction should issue, applying the proper legal standard. So this case will continue.

Yankee Stadium "God Bless America" lawsuit settles

The Red Sox fan who was kicked out of (old) Yankee Stadium when he tried to leave the seating area during the playing of God Bless America back in 2008 has settled his lawsuit against the City and the Yankees. I wrote about the suit here and here.

According to news reports, the City will pay Bradford Campeau-Laurion $10,001 and the NYCLU $ 12,000 in attorneys fees. The Yankees will pay nothing, although they promise in the settlement agreement that the policy at the new Stadium is and will remain that people are free to get up and move around during the song.

Obviously, we should not read anything about the merits into the decision to settle, but consider two things. First, $ 10,001 is a significant amount, given the lack of apparent actual damages. Second, we might infer that both the City and the Yankees took the view that the state action point was not so obvious that it could be resolved on a 12(b)(6), meaning Discovery would be necessary and perhaps prompting defendants to settle.

Who's afraid of offensive speech?

The pre-argument gag rule that the Court imposed in FCC v. Fox Television earlier this term, as described in Jay's post is appalling. If the words "fuck" and "shit" (see, no euphemisms here) are too unseemly for the Court's "hallowed," doesn't that effectively prejudge the question of their constitutional and legal status? How can the Court genuinely evaluate the words as a legal matter if the Court cannot even utter them or hear them uttered? It would be as if the Court were deciding whether a movie is constitutionally protected without watching the movie or discussing what is going on in the movie.* Or evaluating whether some photographs should be admissible without viewing or discussing what is depicted in those photos. Or evaluating whether racist or sexist words should be protected without discussing these words and their meaning and their context.

It is precisely within the "hallowed" walls of the courtroom (and the classroom, I would add) that we can and should truly deliberate and reason about how we should understand these matters, openly mentioning and discussing things that we might not (or should not) mention in society itself. The courtroom is the last place in which anything that is the subject of a legal dispute should be deemed too unseemly for full discussion and consideration, which necessarily presumes that the unmentionable must be mentioned.

• Justice Douglas famously refused to watch the movies in the Court's obscenity cases, on his belief that it really did not matter what was in the movie because it was constitutionally protected. And I suppose we could criticize him for prejudging matters, just as we would if Justice Scalia refused to watch the movies because regardless of what was depicted, it was obscene. The difference, it seems to me, is that Douglas was not saying that the movies are OK (or potentially OK) for society at large but inappropriate within the courtroom because the courtroom is somehow "cleaner" than the hurly-burly of daily conversation.

The Other Footnote 4 (in Justice Stevens's Fleeting Expletives Dissent) and Its Unintended Consequences?

In the famous Simpsons episode, Marge v. The Monorail (written by Conan O'Brien), Grampa Simpson asks whether the town of Springfield should foolishly put all its eggs in one basket and purchase a multi-million dollar monorail from a singing con man.  But the assembled community misunderstands his rhetorical question, and answers with a resounding "yes," carrying him atop its collective shoulders as he protests that he's not for it but against it.  (Or so I remember the episode from watching it a long time ago.  Those of you with the DVD, or a more recent viewing in your memories, can add any corrections in the comments).

I'm wondering whether the timing of this report of proposed legislation-- banning erectile dysfunction ads from the daytime television -- is just a coincidence, or whether Justice Stevens's recent dissent in FCC v. Fox Television is getting the same treatment as Grampa Simpson got in the monorail incident.  In footnote 4 of that dissent, Stevens mocked the FCC's fleeting expletives ban by noting how ironic it was that the FCC was penalizing fleeting expletives "with only a tenuous relation to sex or excrement" in the middle of shows that cut to commercials asking viewers "if they too are battling erectile dysfunction or are having trouble going to the bathroom."

Rep. Jim Moran's proposed legislation would fix that inconsistency by making sure that Viagra commercials get the same FCC-treatment as fleeting expletives.  It would insist that the FCC treat treat as indecent and bar from network airwaves "between 6 a.m. and 10 p.m . . .  any advertisement for a medication for the treatment of erectile dysfunction or for male enhancement." 

This is not, I think, the response that Justice Stevens intended.  And there's good reason not to intend it. Ads about erectile dysfunction are hardly the only elements of daytime television, apart from swear words, that are unsuitable for children.   As I noted in another recent blog post, long before Justice Stevens noted the underinclusiveness of the FCC's fleeting expletives ban in his dissent last week, George Carlin made fun of similar FCC restrictions many years ago, pointing out that why you can't say the F-word on television, many TV show plots revolve around the sexual activity that that word describes (it's between 6:14 and 7:30 on the video I've linked to).  While I suppose one could argue that in a sitcom like Friends, Seinfeld, or in numerous soap operas, the meanings may be a bit harder for kids to figure out, that's not invariably true.  There are plenty of daytime shows that deal with sex or other topics too frankly to be appropriate for young children.  So Rep. Moran's bill would hardly eliminate the need for parents to monitor their children's television watching, make use of V-chips, and/or find other ways to limit their children to watching particular channels.  (Or do what we've been doing in my household lately and foregoing broadcast and cable TV in favor of DVD and Internet video).

Fifty-two years ago, in Butler v. Michigan, the Court (in an opinion by Justice Frankfurter) rejected a Michigan law aimed at "quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence."  In a frequently-quoted statement, the Court said that the admittedly powerful interest in protecting children cannot serve as an excuse to "reduce the adult population . . .  to reading only what is fit for children."  The same should apply to broadcast television. It would be a strange cultural regime that forced senior citizens with an interest in learning about viagra (or its alternatives) to stay up until 11 pm to see the advertisements.

This isn't to say that parents shouldn't react with surprise or anger when adult themes arise in shows that are promoted as suitable for young children.  I'd certainly consider stopping my kids from watching Sesame Street if Elmo's World started to feature sexual content or violence of the kind one can finding Law & Order-SVU, CSI, or 24 (before 10 pm in some parts of the country).  And some might argue that the problem with the ads is that -- unlike these shows (which adults know are generally inappropriate for children) -- the ads might air in the middle of sporting events or award ceremonies that parents might otherwise assume are suitable for kids. I wonder if this assumption is a fair one when award shows like Oscars and Golden Globes typically feature the celebrities characterized by Justice Scalia (in FCC v. Fox Television) as the "foul-mouthed glitteratae from Hollywood" and when sporting events not infrequently result in brawls, serious physical injuries, or furious gestures and swearing from angry players, managers or coaches. In any event, as Steven Pinker notes in a recent piece in the Atlantic "in a free society, these annoyances are naturally regulated in the marketplace of people’s reactions—as Don Imus, Michael Richards, and Ann Coulter recently learned the hard way. It’s not clear why swearing on the airwaves should be the government’s business."  I think the same is true of the ads that are the focus of Rep. Moran's legislation. If they make enough viewers turn off the TV, or forego watching a particular show in the first place, networks won't air them then (or perhaps more likely, will work harder to adopt technologies that will make the ads shown during a broadcast specific, and acceptable, to the audiences watching them).

Finally! Fan challenges speech restrictions at publicly owned ballpark

A lawsuit was filed in the Southern District of New York yesterday by a baseball fan named Bradford Campeau-Laurion, who alleges that he was kicked out of Yankee Stadium last summer by two uniformed NYPD officers for trying to go the men's room during the Seventh Inning Stretch and the playing of God Bless America. (H/T: One of my civ pro students). He thus violated a Yankee/Yankee Stadium policy, enacted explicitly because the Yankees and others purportedly found people stretching during the Stretch "disrespectful."

Named defendants include New York City, Police Commissioner Raymond Kelly, three Doe officers, and the Yankees. The complaint is loaded with allegations designed to establish that the Yankees are a state actor, primarily through the symbiotic relationship test and the exchange of benefits between the team and the city in ownership and usage of both the old Yankee Stadium and the new one. Campeau-Laurion alleges violations of the First and Fourth Amendments and their state constitutional equivalents, federal and state public-accommodations laws, and various state torts. Interestingly, the defendant plaintiff is represented by the NYCLU and two students at NYU's Civil Rights Clinic (I might have done a clinic in law school if I could have gotten a case this interesting).

I have argued at length (or ad nauseum) that such a claim should succeed and that restrictions or regulations of fan speech, including forced participation in rituals such as GBA, violate the First Amendment. So I obviously buy everything the complaint is putting forward. The Yankees should be deemed a state actor, at least for purposes of operating a publicly owned ballpark over which they have near-exclusive use and control; in any event, here you have the NYPD (through an official program that provides uniformed officers for stadium security) directly involved in enforcing the policy, so state action is pretty obvious. As for the First Amendment argument, people in a public forum cannot be forced to participate in patriotic and symbolic rituals by having to remain in place during that ritual; they necessarily have the right to "symbolically counter-speak" against that ritual by getting up and walking out. After the jump, I reproduce the full First Amendment argument from a post on Sports Law Blog from 2007, when this policy first came to light.

This could be fun to watch. After the jump, I reproduce the full First Amendment argument from a post on Sports Law Blog from 2007, when this policy first came to light.

One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.

The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.

Two thoughts on this. First, there are many ways to decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under Barnette unless the government/Yankees can show that one form affects its interests differently.

This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under Barnette. This goes off the rails, however, because I do not think the disruption argument works.

In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.

The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.

This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during GBA only is disruptive in the more expensive seats?

I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.

But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?

On moral panics and the definition of sexting

I do not plan to be the "sexting blogger" here at Prawfs. But John Parry of Lewis & Clark points me to this story from Oregon. A 17-year-old took a cell-phone video of another girl (then 16), who was drunk at a party, engaging in a sexual act with a dog owned by a 30-year-old man in the room; the filmer showed the video (which lasts for a bit less than one minute) to a male friend, who sent it to his phone. It is not clear whether that person disseminated the video. Arrest warrants were issued for all three of them and the girl and her male friend both have been charged with child pornography, which carries stiff mandatory minimums in Oregon.

I seriously doubt this case qualifies as "sexting." True, the word is a largely meaningless media-created one. But the paradigm that has been established (as described in the Oregonian story) is girls taking pictures/videos of themselves and sending/posting them between one another or to boyfriends. This story seems quite different, because it appears the subject of the video was drunk and the story does not make clear the connection between filmer and subject. But simply referring to this as sexting solely because it involves minors and a cell-phone video fails to capture how this departs the core definition. The word sexting is intended to describe something that is different than child porn (because it is self-depicting, consensual, non-exploitative, and, arguably, harmless). If so, the word cannot be used too broadly or to try to cover situations that do not share the elements or core characteristics of the paradigm.

The Oregonian story engages in this error, probably in an attempt to spice the story up by placing it in the sexy national obsession du jour. The piece cites statistics of teens and twenty-somethings who say they have sent or posted nude/partially nude photos of themselves. And it cites critics who insist "sex-crime laws were never meant to apply to teenage girls sending naughty photos of themselves to boyfriends, for example." (emphasis mine). What the author ignores, of course, is that those statistics and criticisms have absolutely nothing to do with this case, because the filmer was not posting a video/photo of herself or sending it to her boyfriend.

Actually, this is how moral panics pick up steam. We define some objectionable category of conduct broadly (often overly and inappropriately so). In doing so, we make the conduct appear far more pervasive than it really is and potentially more dangerous than the core really is. Policymakers might use the Oregon case as grounds to go after everything they can label as "sexting," even if the cases really are dramatically different.

All that said, we should be more thoughtful about legal categories. This may not be "harmless" sexting, but I am not sure it qualifies as child pornography, either. There must be other options. We can say the filmer did something wrong, without calling it child pornography and subjecting her to the mandatory minimums and sex-offender-registration requirements that come with it. But that may be less a problem of sexting and more a problem of a different moral panic over child pornography and child abuse.

More on Pennsylvania sexting case

Via Josie at First Amendment Law Prof Blog, more on the § 1983 action against the Pennsylvania prosecutor who threatened to bring charges against three teen-age girls for "sexting" photos of themselves. The plaintiffs did move for a TRO and there was a hearing on Thursday, at which, according to news reports, District Judge James Munley indicated that he saw "serious constitutional issues" and that having the victim be the perpetrator did not make sense.

Three points from my initial post stand:

First, the prosecutor could avoid all of this by bringing the charges before the district court rules on the motion for a TRO sometime next week. The fact that he does not seem inclined to do so speaks volumes about the merits of his arguments against the three girls and about his actual intentions.

Second, this case is all about framing. If the plaintiffs' argument in the § 1983 action is that the threatened prosecution lacks merit under state criminal law because the victim and the producer cannot be the same person, federal relief is inappropriate--there is nothing unconstitutional about bringing a weak state-law prosecution. The argument must be that it is a First Amendment rule that the producer and victim cannot be the same person (because there is no exploitation), such that the images in question are protected by the First Amendment (i.e., when subject and produced are the same, the image ceases to be "child pornography" under the First Amendment and thus does not fall outside the scope of the First Amendment). So the threat of prosecution this sexting under the child porn laws would stand on the same footing as a risk of prosecution of a non-obscene porn site under a law prohibiting indecent speech on the internet.

Third, I think I may finally have figured out what bothers me about the consistent focus on the DA's threats of prosecution (during the hearing, their lawyer described them as an abuse of power). I still am not convinced that the threat of prosecution marks an independent violation of the girls' rights; their rights are violated only by an actual attempt to punish First-Amendment-protected activity, which only can be done through a prosecution. This might explain why the plaintiffs seek to enjoin actual prosecution, not further threats (although they do seek a declaratory judgment that that the threats are unconstitutional). The threat of prosecution only makes the federal constitutional claims justiciable--gives the plaintiffs standing or makes their challenge ripe (both, really). But for the risk of prosecution that comes from the DA's threat, the plaintiffs have not suffered any real injury from the mere presence of the state child porn laws, which are otherwise facially valid.

This case is unique in that the threats to prosecute had to be more explicit because the laws in question do not otherwise obviously apply to the conduct and individuals at issue. Ordinarily, the "threat of prosecution" does not require such explicit threats; it comes from a law being on the books and ready for use, where the law obviously applies to some actors (back to my earlier example of a non-obscene porn site and a law expressly prohibiting indecent speech).

Is there something else I am missing here?

Sexting, Prosecutors, and § 1983

Last month, Dahlia Lithwick wrote about teen sexting--teen girls taking nude or otherwise sexy photographs on their cell phones and sending them to friends or boyfriends. Such pictures often get sent all over the school.

In one small town in northeastern Pennsylvania, three girls allowed their pictures to be taken and e-mailed--two girls appeared in one photo lying on the bed in their bras, one girl appeared in the second photo wearing a towel wrapped just below her breasts. The pictures then were being traded phone to phone among male students in the school district, many of whose phones were confiscated by the school and turned over to the DA. The DA threatened to bring felony child pornography charges against twenty teens (the three girls who had been photographer and 17 who had the pictures on their phones--although not the boy(s) who initially mass-disseminated the photos) unless they agreed to probation and to attend a "re-education" program, in which they would do homework and try to “[g]ain an understanding of how [their] actions were wrong,” “[t]o gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “[i]dentify non-traditional societal and job roles.”

The 17 possessors took the deal; the three girls brought a § 1983 action against the DA, alleging that he retaliated against them by knowingly threatening to bring frivolous felony charges against them for exercising their First Amendment rights in posing for the photos and in refusing to engage in compelled expression by participating in the re-education program. (H/T: Josie Brown at First Amendment Blog, via Bashman). The ACLU of Pennsylvania and Seth Kreimer of Penn Law are representing the plaintiffs.

Some interesting things.

1) At one point, the Complaint alleges that the DA told one of the plaintiffs' parents that "the girls were accomplices to the production of child pornography." If true, this is one of the most incoherent legal assertions ever. The reason for child porn laws--and for child pornography as an unprotected First Amendment category--is the conclusive presumption that the children photographed are being exploited, which conclusively presumes that they are too young to consent. So if they could not consent to their actions, how can they be accomplices to that act, since accomplice liability typically requires intent (I believe)? Is this really what the county's chief prosecutor came up with?

2) There is a lurking Younger problem (isn't there always?). The prosecutor could halt the federal lawsuit tomorrow by filing charges against the girls (the Complaint alleges that the DA has "temporarily deferred" prosecution to allow the girls more time to research and decide on their strategy). The complaint was filed on Wednesday; there have not yet been any "proceedings of substance on the merits" in federal court, so a quickly filed state criminal action would trigger abstention. The plaintiffs make a preemptive move, alleging several times that the threatened charges are blatantly meritless, thus any prosecution is brought in bad faith, a recognized (although extremely narrow) exception to Younger. It raises the question of how weak a charge must be qualify as brought in bad faith. Interestingly, the conduct challenged as unconstitutional is the threat to prosecute First Amendment protected activity, although the relief sought is an injunction prohibiting the DA from initiating prosecution. So that probably defeats the argument that the injunction would not interfere with state proceedings.

3) On the other hand, I wonder how strong the claim is on the merits. This case looks different than the typical anticipatory First Amendment action, which says "There is a risk that this state law will be used against me and such an application of the law would be unconstitutional." Here, the argument seems to be that the plaintiffs' conduct does not violate Pennsylvania child porn laws--as a statutory matter, not necessarily because such application would be unconstitutional--and that the threat of such a statutorily invalid prosecution violates the First Amendment. But are there recognized First Amendment (or any other) limits on threatening to bring charges under a facially constitutional statute? And can a federal court enjoin a prosecution not because the law (or its application) is unconstitutional, but simply because the state statute would not be violated on the facts?

4) There is no claim for damages, presumably because the DA enjoys prosecutorial immunity (a fact emphasized to show no adequate remedy at law). We could question whether the threat to charge and pre-charge negotiations are prosecutorial acts or more part of the pre-charging investigative process to which prosecutorial immunity does not attach. But the conduct described in the complaint sounds like plea bargaining, which is core prosecutorial. On the other hand, the plaintiff's real constitutional objections are to the meritless harassment from the threat of prosecution--which is better remedied by damages for the harassment than by an injunction halting future actual prosecution.

Keep an eye on this one.

Jurisdiction, Connecticut, and Freedom of the Church

Rich and Rick commented on the proposed Connecticut bill regulating the structure of religious entities, in pretty clear violation of the Catholic Church's First Amendment liberty to organize itself. I find the story of this bill (which likely will not be enacted, so some of this is academic) interesting for what it indicates about the nature of the so-called "Freedom of the Church" Doctrine.

FOTC prohibits (or at least limits) secular law and/or secular courts from affecting or resolving questions of religious doctrine--such as who may serve as clergy and perform ministerial functions and who owns or controls church property. An ongoing debate is whether that doctrine reflects First Amendment limits on the adjudicative jurisdiction of the courts (as Greg Kalscheur argues) or the prescriptive jurisdiction of the legislative and/or judicial bodies that make substantive secular law (as I plan to argue in a paper, hopefully next year). In my view, the FOTC is an example of a constitutional limit on the power (i.e., the jurisdiction) of a substantive lawmaker (usually the legislature, although it could be common law courts) to create (i.e., prescribe) legal rules regulating certain conduct by certain actors. Which is the quintessential inquiry of substantive merits. For example, the "ministerial exemption" (a First-Amendment-inspired rule that interprets federal employment-discrimination laws such as Title VII not to apply to clergy, ministerial, and religious employment decisions) is best understood not as a limit on the jurisdiction of federal courts to hear and resolve cases, but as a limitation on the jurisdiction of Congress to enact substantive law that would regulate certain church conduct (hiring decisions).

The Connecticut bill is illuminating because it reflects a different application of FOTC.

In most cases, the source of the jurisdiction/merits confusion is how an otherwise neutral law of general applicability (such as Title VII or the rules of property ownership) applies to the affairs of religious organizations. Courts seem to find it too easy to say that, because the First Amendment prevents Title VII from reaching the Church's choice of Priests and from imposing liability on the Church for them, that must deprive the court of jurisdiction. That analysis is wrong, but I see how courts might get there. And courts are correct that there is a jurisdictional limitation at issue--but it is a First Amendment limit on legislative jurisdiction to make substantive law, not on adjudicative jurisdiction to hear cases arising under that substantive law. That confusion is very common.

But the Connecticut legislation is not a law of general applicability; it is a direct and explicit regulation on how churches structure and govern themselves. And if we imagine how a constitutional challenge might play out, it becomes clear that the First Amendment and FOTC are about substantive and legislative/prescriptive jurisdiction.

Assume the bill passes and Connecticut brings an enforcement action against the Catholic Church for failing to organize as required by state law; the Church defends by arguing that the law violates the First Amendment under FOTC. A court agreeing with that defense would hold that the law is unconstitutional and Connecticut cannot enforce it; it cannot lawfully regulate the Church in this way. The court would dismiss the claim not for lack of subject matter jurisdiction (the case probably was brought in Connecticut state court, which is a court of general jurisdiction, and SCOTUS would review it as a final judgment of the highest court of a state). Rather, it was dismissed because the state's claim against the Church fails on its merits because the legal rule sought to be enforced is invalid (or as I put it earlier in this series of articles, the legal rule to be enforced does not exist as law because it constitutionally cannot exist as law).

Alternatively, the Catholic Church might bring a pre-enforcement challenge to the law (probably in federal court) and the federal court will hold (presumably) that the law violates the First Amendment (under FOTC) and is not enforceable. But that clearly is a decision about substantive federal law and the constitutional limits of congressional power to enact substantive law.

If FOTC is about substantive merits in the context of such a pre-enforcement challenge, it also must be about substantive merits when the First Amendment is raised as a defense to an enforcement action. And the analysis for an enforcement action is (or should be) no different with a law of general applicability, such as Title VII.

Eightmaps

Howard Wasserman and Richard Esenberg have blogged about the matter before, but now the New York Times is picking up the story (Prawfs gets results!):

FOR the backers of Proposition 8, the state ballot measure to stop single-sex couples from marrying in California, victory has been soured by the ugly specter of intimidation.

Some donors to groups supporting the measure have received death threats and envelopes containing a powdery white substance, and their businesses have been boycotted.

The targets of this harassment blame a controversial and provocative Web site, eightmaps.com.

I have to admit, I don't know what to think about this.  Intimidation, bad; transparency, good; engaged political participation, good; preventing information gathering-and-flow in today's world, probably impossible; etc.  Thoughts?

I'm leaving (Texas) today . . . New York, New York

A year and a day after the suit was removed to federal court, Judge Ellison of the United States District Court for the Southern District of Texas has dismissed the main chunk of Roger Clemens' defamation action against former trainer Brian McNamee. The suit contained three claims, arising from statements made: 1) to the Mitchell Commission; 2) to SI reporter Jon Heyman; and 3) to Andy Pettitte. The first two claims were based on statements made in New York about conduct occurring in New York and Toronto (and not Texas). Any action on these claims must be brought in New York.

The order is here: Download Clemens_v._McNamee. A few thoughts after a quick read:

1) The personal jurisdiction analysis as to the Mitchell Commission and Sports Illustrated claims takes a very narrow approach to Calder v. Jones, which is not necessarily a bad thing. The court took the requirement that the defendant's contacts be directed towards the forum to be about more than the plaintiff's home state and whether the story was published in the state; much depended on the locus of the comments and the events described in the comments, which meant New York (and certainly not Texas). I do wonder about the decision as to the statements made to SI. He was speaking to a national magazine with a substantial circulation in Texas, so McNamee surely knew that his statements about a Texan would be heard and would sting in Texas. It is hard to think that his statements were not "directed to" Texas.

2) I wonder if Clemens is going to stick with his claim based on the statements to Pettitte. It is properly in Texas and it survived summary judgment on a statute of limitations defense, but the court held that the claim as stated is not libel per se, thus Clemens had to plead actual damages, which he was granted leave to do. But given that he is going to bring the big claims (the statements to Mitchell and SI) in New York, he probably will bring the whole thing there.

3) A couple of things for my civ pro teaching purposes: Including a nice explanation of converting motions to dismiss into motions for summary judgment and a largely unexplained demand for more (and more specific) facts in the complaint, namely facts showing actual damages on the defamation per quod allegations.

Finally, I have gotten several e-mails and comments from Columbia 1Ls who had Jack Greenberg for civ pro in the fall and dealt with this case on the final exam, with an Erie issue thrown in. Any Greenberg students out there who can tell me what the Erie issue was?

R.I.P., Irving Feiner

Irving Feiner died last month at the age of 84. Feiner was the defendant/petitioner in Feiner v. New York, the 1951 decision in which the Supreme Court upheld a conviction of a public speaker for disorderly conduct based on the audience's angry reaction to the speech. The case formally remains good law, although it generally gets taught along with Terminiello v. Chicago, which came out the opposite way in a situation involving a legitimate riot and the general view has become that Terminiello was right and Feiner dead wrong. The Court has basically recognized that a "hecklers' veto," a negative audience reaction to speech, is not a basis to restrict speech, although the principle is not always enforced vigorously enough for my tastes in the lower courts. And the modern definition of incitement should exclude a speaker who says things that cause listeners to become angry at the speaker, as opposed to convincing listeners to agree with the speaker and to act unlawfully. Thus, Feiner's position ultimately prevailed, even if too late.

The obituary says that Feiner, at the time a junior at Syracuse University, was kicked out of school and had his acceptance to law school revoked. In 1984, he went back and completed his undergrad degree. And in 2007, the university invited him to give a lecture on freedom of speech.

(H/T: Dan Levin, political scientist at Utah).

Misunderstood legal quotations

OK, Dear Readers: Let's play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.

My nomination: Justice Stewart's famous concurring opinion in Jacobellis v. Ohio, saying of hard-core pornography "I know it when I see it."

How it comes up: Get into any conversation about the difficulty or impossibility of coming up with a meaningful and workable definition for some concept or idea (say, judicial activism or bipartisanship or what political views are so offensive as to be beyond the pale) and the response often will be something to the effect of, "Well, I think we can just use Justice Stewart's definition," with the implication that this is good enough to resolve the definitional problem and thus resolve the dispute.

Why it misses the point: After the jump:

Jacobellis was one of a series of cases from the mid-1960s when the Court, having established that obscenity is unprotected speech and established a somewhat weak definition in 1957, struggled to apply it. In just about all the cases, the Court reversed the obscenity conviction, but without a majority opinion and without anything close to agreement about a standard. Jacobellis itself was a 6-3 judgment producing four opinions in support of that judgment, including Stewart's two-paragraph statement for the ages.

But Stewart actually was arguing that the Court's definition of obscenity had been an attempt to define the undefinable and was, at some level, unworkable. In the sentence preceding his money quote, Stewart said only hard-core pornography could be obscene, but that he would not try to define that concept, suggesting he "could never succeed in intelligibly doing so." But forced to decide whether Jacobellis' conviction should stand, he concluded that this movie "is not that."

Stewart was not proposing a definition. Nor was he suggesting that "I know it when I see it" should be good enough. Quite the opposite--he was decrying the futility of ever finding a workable or even-handed definition and, to some extent, throwing up his hands at the effort (he would later join with Justice Brennan in rejecting any categorical definition of obscenity as unprotected speech). I do not read Stewart as finding this a good or acceptable state of affairs. And I definitely do not read him as saying that IKIWISI satisfies him or is or should be acceptable as a legal definition for anything. So to say "Oh, we'll just rely on Justice Stewart and we know __ when we see it," as if it can resolve anything, is to completely miss the point he was making.

Other examples to offer?

Media ethics and law-prof blogs

I am quoted today in an op-ed in the Daily Tar Heel. (H/T: My former colleague Joel Goldstein). The op-ed discusses the motion filed by former Durham District Attorney Mike Nifong, the main culprit in the Duke lacrosse mess, seeking to dismiss the § 1983 actions against him on absolute prosecutorial immunity grounds (and without seeing the motion, I have argued previously that he has a pretty strong argument). The op-ed, clearly not coming close to understanding what prosecutorial immunity is all about, argues that Nifong should not have immunity because by "withholding DNA evidence, Nifong clearly deprived the defendants of their right to due process." Um, yeah, but the point of immunity is that does not matter, because other policy concerns trump. AndI did not read the piece as arguing that prosecutors should not have immunity (an arguable point), only that Nifong should not.

Anyway, I am identified as a Saint Louis University law professor and described as saying that Nifong only has immunity for those things he did as an advocate for the state. One problem--I never spoke with anyone at the Daily Tar Heel at any point. (Actually, I suppose a second problem is that I no longer teach at SLU, so there is a pretty glaring factual error there that would get them nailed in a newswriting course). The "comment" attributed to me was something I wrote in one of several posts, here and at Sports Law Blog, analyzing the players' lawsuits against Nifong, Duke, and others.

So, my question--Did the authors of the piece act appropriately (as a matter of journalistic practice) in attributing a comment to me without identifying it as something I wrote on a blog and attributing the blog? Is it OK for reporters to make it sound instead as if we had had a conversation? I am not suggesting that journalists should not read blogs as part of their reporting or that they should not report what they see written here. Indeed, one purpose of blogging is to be part of the broader public conversation beyond the academy, so having newspapers report on what we write here goes a long way to making us part of that conversation. My question is strictly how journalists should describe the source of a comment when they get it not from an interview, but from something the source has written.

Personal information as true threat

Richard posts about a map that same-sex-marriage advocates have created showing names, addresses, and locations of people who donated to the Prop 8 campaign, and points to some discussion about whether this somehow constitutes a threat. The purpose of the map presumably is to enable some type of public shaming, or protest, or boycott against those who supported Prop 8.

The obvious comparison is the Nuremberg Files, a web site run by an anti-abortion group that called for Nuremberg-style tribunals for choice advocates. One feature of the site provided names and home addresses of doctors who perform abortions. The en banc Ninth Circuit upheld a massive judgment under the Free Access to Clinic Entrances Act against the American Coalition of Life Advocates, holding that the site constituted an unprotected true threat.

Now first off, Planned Parenthood was among the worst free-speech decisions of the decade. And although SCOTUS denied cert there, I am not sure it would let the Ninth Circuit expand the threats in a web-based, attempted-public-shaming/boycott/protest case a second time, if it used that case against this map. What is interesting, of course, is that the broad political valences are reversed. Pro-choice groups celebrated that decision, so the irony of it being used against a fellow-liberal cause is plain. So this could be another demonstration to the Left of the folly of abandoning broad conceptions of the First Amendment when the speaker is on the other side politically--it frequently comes back to bite you.

The cases are different, however. The Nuremberg Files site did more than give addresses. It also displayed "Wanted" posters with the names of abortion providers and others. And in listing the names on the site, it crossed out those providers and advocates who had been killed and grayed out those who had been wounded. The latter element, considered in the context of anti-abortion violence (that is, so far, absent in the same-sex marriage debate) was the key and may serve to distinguish that web site from this map, which thus far seems to only provide information.

The hangman's noose and whither R.A.V.

Great, another post where I get to defend egregious expression.

David Hudson has this essay about attempts in several states to prohibit the display of nooses with the intent to intimidate or harass. (H/T: First Amendment Law Prof Blog). Apparently incidents of noose displays are on the rise. A noose display triggered the mess that was the Jena SIX controversy and a noose was hung (hanged?) outside the office of an African-American professor at Columbia University law fall in the weeks following the visit of Iranian President Mahmoud Ahmadinejad. And it could pick up steam if we continue hearing sporadic stories about hanging effigies of Barack Obama.

Nooses are seen, properly, as "a symbol of the racist, segregation-era violence enacted on blacks. … an unmistakable symbol of violence and terror that whites used to demonstrate their hatred for blacks." So the logic of banning noose displays to threaten or intimidate follows the logic of banning the burning of crosses to threaten or intimidate, which the Supreme Court upheld in Virginia v. Black. Black rested on the uniqueness of the burning cross as a symbol of the KKK and racial violence and intimidation; Justice O'Connor's opinion for the Court went into exhaustive detail about the social, legal, and political history of the Klan and the burning cross and how that symbol was particularly threatening and intimidating. The state thus could specially ban burning a cross as a threat (provided the burning cross, in context, could qualify as a "true threat" for First Amendment purposes), rather than simply relying on a general statutory ban on threats and intimidation.

A few problems.

First, my thought after Black was "for what other symbols can the exact same argument be made and the exact same history be invoked"? Swastikas immediately leaped to mind. Many state legislators now believe that the hangman's noose is another. The same for hanging effigies, at least if the effigy is of an African-American. It should not be difficult to think of more symbols that carry unique and uniquely threatening or intimidating meaning to different groups or segments of society and thus should be subject to unique prohibits. And, within enough historical and sociological analysis, that ban would be upheld on the same reasoning as in Black.

Actually, a smart politician looking to pander to the anti-flag-burning crowd might be able to use Black. Imagine a law prohibiting the use of a burning flag as anti-veteran or anti-American (say, pro-Islamic Terroris) fighting words, provided the legislator could throw together some social history about how the burning flag is uniquely insulting to, and thus likely to provoke a violent reaction by, a veteran or someone who lost family on 9/11 or in the War. The underlying logic is the same, relying on something unique about the symbol to permit its unique regulation.

Second, what does all of this do to R.A.V. v. City of St. Paul? The Court there overturned an ordinance that, as construed, uniquely prohibited fighting words that targeted categories such as race, sex, and religion. The Court held that the First Amendment prohibited government from making content- and viewpoint-based distinctions in statutes, even with unprotected categories of speech. Government could prohibit fighting words; it could not prohibit only fighting words that targeted certain characteristics. Under a strict application of R.A.V., the ban on cross-burning should have fallen, as well. The state can ban all threats, it should not have been able to ban racially charged or racially motivated threats. The Black Court got around that because of the particular history of the burning cross. But given that the same arguments are being made about nooses (and could be made about lots of symbols, see above), R.A.V. ceases to have much, if any doctrinal force. Sociology and history gets around the force of the precedent.

Third, note the creative attempts to get around the R.A.V. problem. According to Hudson's essay, Connecticut prohibited the displaying of a noose with the intent of intimidating "on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability." See, Connecticut says, the law is not only prohibiting racist threats, but also threats against women or the blind or the disabled. Of course, there is no unique historical or social connection between the noose and lynchings and women or the blind. Was there some history of lynching the visually impaired such that the display of a noose would threaten a blind person (putting aside how she would know a noose was displayed)? How about as to women? Nice try--but if you are going to ban a particular type of symbolic threat, you are going to have to explain what is unique about that symbol. And the noose is unique only to its racial (and possibly national origin, although this is debatable) context.

Finally, what is the future of the hanging effigy as a political protest? This country was founded on hanging effigies (they were a central feature of anti-colonial protests and against laws such as the Stamp Act). Hanging effigies historically have been viewed as rhetorical excess rather than any sort of true threat. Hell, Dean Smith was hanged in effigy in his early days as basketball coach at UNC. But does that calculus change if the person being protested (i.e., President Obama) is African-American, because the effigy of an African-American carries with it the unique history of lynchings? If so, we have a situation in which I can hang Vice President Biden in effigy but not President Obama or Attorney General Holder. I find the notion that one is a greater threat than the other, and thus more proscribable, because of history to be troubling as a constitutional matter.

[Legalize] Bong Hits 4 Jesus!

The then-18-year-old  Alaskan who held up that infamous "Bong Hits 4 Jesus" banner has received a $45,000 settlement from the school district according to this story in the Anchorage Daily News.  Apparently the student, Joseph Frederick, had additional claims that weren't decided by the Supreme Court including a claim that his free speech rights were violated under the Alaska Constitution, which states: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."  The settlement also reportedly requires the school district "to spend as much as $5,000 to hire a neutral constitutional law expert to chair a forum on student speech."

I became tangentially involved in this case when it was before the 9th Circuit by writing an amicus brief for the Student Press Law Center in support of the student.  When Kenneth Starr later stepped in on behalf of the school district and filed for cert, I repeatedly assured the SPLC that the Supremes would never take the case -- it's a far too messy vehicle, it's not even clear the kid was at school, and, most importantly, nobody has any idea what this crazy sign meant!  I, of course, soon ended up writing another amicus brief when the petition was granted. 

The interesting question I think this settlement raises is whether Frederick had broader free speech rights under Alaska's Constitution than he had under the U.S. Constitution.  It certainly seems doubtful that the Alaska Supreme Court would have concluded -- as the U.S. Supreme Court did -- that there is a free speech exception if public school students engage in speech that can reasonably be construed as advocating illegal drug use.  The "on all subjects" language in Alaska's provision strikes me as contrary to such a specific subject-matter based exception.  I wonder if this might signal a trend where citizens begin relying more on their state civil liberties than on their federal ones.

I'm also intrigued by the mandated forum on student speech.  After this case, what guidance can this "neutral constitutional law expert" offer to administrators, teachers and students?  When the next banner is raised should the principal feel safe in confiscating it and punishing the student or is there still too much risk that she would be violating the student's rights under the Alaska Constitution.  And the next time a student wishes to express himself can he take much comfort in the caveat by Justices Alito and Kennedy that nothing in the Court's opinion supports "any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"  How much protected student speech will be chilled? What's a well-meaning, law-abiding principal to do?   And we all thought "Bong Hits 4 Jesus" was confusing and ambiguous . . .

Know Hope . . . and Expletives

While everyone is running around worrying about that little election thing today, the Supreme Court will hear oral argument in FCC v. Fox Television Stations, considering the FCC's policy on "fleeting" or "isolated" expletives in broadcasting. Officially, FCC v. Pacifica and the constitutional lunacy of the entire project of regulating indecent speech is not on the table. But, hey, today is a day for hope.

To that end, let me recommend this Atlantic essay by psychologist Steven Pinker. And this needs no introduction:

Defining what is beyond the pale of public debate

Last weekend, the Stonewall Legal Alliance at FIU College of Law hosted a day of panels on Florida's Amendment 2, a ballot initiative amending the state constitution to define marriage as a union of one man and one woman and prohibiting creation of substantially equivalent unions. At the heart of the event was a debate between my friend and colleague Professor Jose Gabilondo (Stonewall's faculty adviser) and Marge and Shirley Phelps of the Westboro Baptist Church--an anti-(inter alia) gay rights group best known for picketing at the funerals of fallen soldiers.

The invitation was met with anger and criticism from all sides. Some on the left argued the invitation gave Westboro legitimacy in the public debate that it did not deserve. Jose has told me that he received letters of protest from a number of groups, including the Anti-Defamation League and the Southern Poverty Law Center, as well as letters from individuals directly critical of him. Requests were made to both the COL and University administrations to intervene and rescind the invitation. And some campus student groups were urged by administrators not to attend the event so as to avoid being confronted by insulting words and ideas. Some on the right complained that inviting Westboro to present the pro-Amendment 2 position was stacking the rhetorical deck in the anti-amendment side's favor, because the opponent is incapable of presenting the "true" intellectual arguments against same-sex marriage and can do nothing other than turn the event into a circus that will horrify observers into opposing the ballot proposal and make Prof. Gabilondo's anti-amendment arguments look better.

Jose discusses the controversy here, including a strong defense of uniquely open intellectual exchange in a university setting, including the presence of non-"mainstream" speakers and views. (And, to the extent it matters, Stonewall invited a number of local and national amendment supporters, all of which declined the invitation.

The common theme, left and right, is that Westboro is not (and should not be treated as) part of the legitimate public debate or public discourse on these issues. The Phelps are not capable of engaging in an intellectual or academic debate, because their views are too out-of-the-mainstream, and thus should not be included. They are a hate-spewing, bigoted circus show that either (from the left) does not deserve to be legitimized and treated as having something useful to say or that (from the right) should not be allowed to make the case for the conservative, anti-same-sex-marriage side because they cannot make it well and will have the effect of making those who agree with their conclusions, but for legitimate, non-bigoted reasons, look like bigots. Westboro is not part of the "mainstream" of public views and thus should be excluded from the discussion. Not to say that they cannot speak in their own fora (although multi-million-dollar civil judgments will curb that); only to say that they should not be invited into the fold of "polite" public fora, such as at a university event.

Jose's post offers a strong defense of expanding the range of speakers and ideas to be included in the debate, a position I share. It is not clear how one defines "mainstream," a politically loaded term. And even the most reprehensible views (or most reprehensible manner of expressing some views) should be given the opportunity to be exposed to the light of day, if only to be ridiculed and defeated appropriately.

This incident brings to mind two somewhat similar controversies. The first occurred when I was in college in the late '80s. Northwestern had a tenured engineering professor whose hobby was Holocaust denial and who had written a book on it. Around the same time, a Holocaust denial group published several editorial advertisements in The Daily Northwestern, pitching its views and seeking to debate (or at least sit down for a beer with) Peter Hayes, an NU history professor and leading Holocaust scholar. This was in the relatively early days of both the Holocaust as a subject of scholarship and pedagogy in the U.S. and of Holocaust denial as an open subject, at least in the U.S. And Hayes explained to me that he (and others in the discipline) refused to engage on the subject with deniers (either the engineer or the head of that group), whose views were deemed intellectually unserious and unworthy of engagement.

The second is ongoing. Last week, FIU's College Republicans hosted a two-day display by a group called the "Genocide Awareness Project," an anti-abortion group that compares legalized abortion to, among other things, the Holocaust, slavery, apartheid, and the Cambodian Killing Fields, and features graphic photographs of terminated fetuses. FIU's decision to allow the group to set-up has been met with protests and criticism from faculty and student organizations, in part based on the view that the Genocide Awareness Project is an extremist, out-of-the-mainstream group that has no place on campus. Stay tuned on this one; I expect it to become a topic of discussion on campus, about which I likely will write more.

I am not sure of the answers here (although I know what my normative preference is). Is there some difference between what views and ideas are acceptable in political debate (broadly defined) and what is acceptable in academic or university debate--and if so, should the university be more inclusive of non-mainstream ideas? I throw this out for consideration.

$ 150 million worth of speech

The Obama Campaign announced Sunday that it raised $ 150 million in September, an obscene, record-breaking figure that more than doubles the previous record (which was Obama's haul in August). This certainly justifies Obama's decision to opt-out of public financing. What is especially interesting to me is that 3.1 million people have contributed to his campaign, including more than 630,000 new contributors in September. And the average donation was around $ 86. Of course, by definition "average" means there were donations of more than that, including several large fund-raising events, including one hosted by Barbra Streisand that netted $ 11 million.

But I would like to hear how these numbers--donors, new donors, average donation amount--compare with past primary and general elections. And what do these numbers tell us about the debate over campaign-finance rules and public funding? The theory of Buckley v. Valeo (which never has been entirely repudiated) is that making campaign contributions is a First-Amendment protected way of expressing support for a candidate, albeit a right subject to fairly close regulation and limitations in amount (a principle with which I generally agree). The theory of campaign-finance regulation has been that politicians will simply cozy-up to a small number of big-money donors who use large contributions to gain access and influence, resulting in various forms of corruption (indeed, that was the warning from the McCain Campaign in response to the Obama announcement).

But if a campaign can fund itself, at least in part, on smaller contributions from a substantial number of voters looking to do their part and have their say, do we come close (or at least closer) to a First-Amendment regime of "The People" speaking through their pocketbooks to support a candidate, without the same risk of corruption or influence-peddling? I think McCain's criticism misses the mark because the corruption rationale works when a campaign receives $ 2 million from one contributor; it looks very different, and has a different effect, when the campaign receives $ 2 million from 20,000 contributors. The corruption criticism looks out of place when it becomes not a problem with the amounts of money people are able to contribute (which remain restricted), but of the number of people who are able to contribute, particularly in small amounts.

Can what Obama has achieved tell us anything about how candidate fundraising can work, especially with the power of the internet? Is Obama a unique candidate and no (or few) other candidate can generate this kind of excitement and support?

Updated: Tuesday morning

Publius at Obsidian Wings links Obama's expansive fundraising to Madison's theory of republicanism. Recall that Madison argued that the way to limit the power of factions in a republic is to increase the size of the republic and thus the number of factions, preventing any one from seizing control. Similarly, dramatically expanding the size of the donor base, the Obama model (and Publius recognizes, as does one of our commenters, that Howard Dean started us down this road in 2004) prevents any one donor from gaining influence.

Heller’s First Amendment – and the Extra Protection it Just Might Provide for Dada and Surrealism

“It is often suggested we may be floating in a sea of radio messages from other civilizations, messages which we do not yet know how to decipher.”   
(from the book, Godel, Escher, Bach)

“It's like a book elegantly bound,
but in a language that you can't read just yet”
(from the song, “I Will Possess Your Heart”)

These quotes – respectively from computer scientist Douglas Hofstadter and the rock band Death Cab for Cutie – were not, but could have been, about The Codex Seraphinianus.  The Codex is a beautiful book by the artist Luigi Serafini that purports to be an encyclopedia of an alien civilization written in that civilization’s language.  It’s filled with paintings of bizarre creatures, swimming trees, unfamiliar weaponry, and a sexual encounter that morphs into a crocodile.   Nobody – probably not even Serafini himself –  has any idea what it’s telling us. 

So unlike The O’Reilly Factor or Hardball with Chris Matthews, it’s unlikely to count as an example of the “political speech” that the Supreme Court has described as being “at the core of what the First Amendment is designed to protect.”  Virginia v. Black, 538 US 343, 365 (2003).  Indeed, under certain theories of the First Amendment that prioritize political speech, Serafini’s encyclopedia would receive no protection at all.  Alexander Meiklejohn once argued for limiting the First Amendment’s scope to speech that contributes to self-government.  Robert Bork offered a similar argument that the First Amendment protects only political speech. Meiklejohn and Bork each retreated from their respective arguments for limiting the First Amendment in this way, and modern First Amendment law certainly protects expression, including a lot of surrealistic and abstract art, that is not about politics at all.

Still, speech sometimes gets extra insulation from government restriction when it has political content.  The Supreme Court plurality in Morse v. Frederick, for example, implied that the nonsensical slogan in that case (“Bong Hits 4 Jesus”) would have been protected from school censorship if it had contained a “political message” like the armbands worn by students in the 1968 Tinker case to protest the Vietnam War. 127 S. Ct. 2618, 2626-27.  And the Court has said, in a similar vein, that government employee speech qualifies for First Amendment protection only when it touches on a “matter of public concern” – “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” San Diego v. Roe, 543 U.S. 77, 84-85 (2004).

But the Supreme Court’s recent Second Amendment decision in Heller suggests that help may be on the way.  Why?  Because the Court in Heller seems to suggest that where a right is not expressly limited to political purposes in the constitutional text, then it should not be so limited by judicial interpretation.  Even if the Framers were concerned first and foremost with political applications of the right, that doesn’t mean these applications limit the scope of the right itself.  Thus, Justice Scalia concedes that the Framers probably codified the right to keep and bear arms in the Constitution to address the “the threat that the new Federal Government would destroy the citizens' militia by taking away their arms.” 128 S.Ct. 2783, 2801 (2008).  But even if our Constitution’s drafters valued the right for that purpose, their purposes for codifying it don’t have to be our purposes in invoking it:  Americans, at the time of the founding and more recently, might have considered the right  “more important for self-defense and hunting” and can invoke it for these reasons since, while self-defense may have been secondary for the founders, it was “the central component of the right” the founders codified. Thus, as my OCU colleague Mike O’Shea has observed on Concurring Opinions (in his edifying play-by-play analysis of the Heller case) the Court had little trouble concluding that the Second Amendment had “[p]rimarily private purposes.”

It occurs to me there’s a probably a case to be made that such an analysis applies to the First Amendment as well as the Second.  In fact, in his book, The First Amendment, Democracy, and Romance, Steven Shiffrin made an observation about the First Amendment that is similar to Justice Scalia’s argument against confining the right to keep and bear arms to political purposes:  He notes there that “[i]t is one thing to show that the Founders focused on political speech; it is quite another to show that they intended that only political speech be protected from subsequent restraints.” (p. 191).  The fact that political speech was foremost in their minds did not mean that this was the only speech to which late 18th century Americans sought to give constitutional protection.  On the contrary, he points out, the 1774 Address to the People of Quebec also identified other important purposes for freedom of speech, such as “the advancement of truth, science, morality, and the arts in general.”  Of course, as I’ve noted above, modern First Amendment law does not exclude non-political speech from its coverage.  But why give it any less protection or treat it outside the “core” of the First Amendment if it was just as much a part of the original freedom?
One might argue that this case against limiting the right to political purposes (or prioritizing such purposes) is even stronger for the First Amendment:  The Second Amendment has a prefatory clause that emphasizes a public purpose (collective self-defense).  If that language doesn’t give the right to keep and bear arms a political character, why should the First Amendment speech clause’s silence on its own purposes?

There are two possible justifications I can think of for continuing to give political speech, or speech on matters of public concern, a privileged place in First Amendment law.  One is that it all depends not on the language surrounding the Constitution’s mention of the right (e.g., the prefatory clause preceding the mention of the right to keep and bear arms) but rather on the public understanding of the right itself at the time it was given constitutional status.  One might argue that unlike the right to bear arms, which – as Justice Scalia emphasizes – was a right understood by 18th century Americans to encompass personal as well as collective self-defense, “freedom of speech” may have been generally understood to protect only the speech necessary to public debate and self-government, or at least to give such speech far more protection from government restriction than speech that lacking political value.  Michael Kent Curtis’s history of popular conceptions of free speech (Free Speech, ‘The People’s Darling Privilege’ Struggles for Free Expression in American History) emphasizes that while freedom of speech was understood as protecting more than speech about politics, “the popular tradition emphasized free speech in relation to democracy, as well as free speech as an inherent human right.”  (pp. 18-19).

Still, it’s not clear to me why – if freedom of speech was understood to cover literature, art, and science as well as political speech – we should be locked into the Framers’ ranking of different kinds of speech any more than we are stuck with their ranking of different purposes for the possession and use of arms, if they codified only the right, and not their ranking, into the Constitution’s text.   Perhaps, it could be argued, it is because the right to freedom of speech was not “’a right inherited from our English ancestors,” Heller, 128 S. Ct at 2802, like the right to keep and bear arms, but rather a break with English political tradition on the subject, giving the Framers more leeway to define it as they wished.

There’s also a second possible reason for believing that political speech should retain a place at the top of a First Amendment hierarchy – which is that even if the Constitution has not placed it there, the court’s precedent has.    Justice Scalia emphasizes in Heller that “nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment.” Heller, 128 S. Ct at 2816.  By contrast, the Court has issued a number of decisions in which it suggests that speech on politics or matters of public concern is at the core of the First Amendment’s free speech protection, and sometimes receives protection that other speech does not.

I’m far from certain what I think about all this – and would be interested in all of your illuminating thoughts (or historical research).  I do think that there would be something odd about having a communitarian and civic republican First Amendment sitting above an individualistic Second Amendment in The Bill of Rights, but maybe the Constitution is a little unusual in this respect.  In any event, I highly recommend taking a look at The Codex Seraphinianus, when you get a chance, if the rules of your school or workplace permit it.

Note:  For some more thoughts on what Heller might tell us about First Amendment free speech, you might check out this post on The Legal Satyricon.

More on § 1983 and Government Incentives

At CoOp, Tim Zick links to a news report (via the First Amendment Center) that the City of St. Paul announced that charges were being dropped against a number of journalists arrested during the RNC earlier this month. Mayor Chris Coleman announced, apparently with great self-satisfaction, that this move shows "the values we have in St. Paul to protect and promote our First Amendment rights to freedom of the press." Of course, can we think of a better way to protect and promote the freedom of the press? Yeah, maybe by not arresting journalists in overbroad mass arrests.

Additional money quote from Mayor Coleman (no doubt running for state-wide office soon): "At the scene, the police did their duty in protecting public safety. In this decision, we are serving the public's interest to maintain the integrity of our democracy, system of justice and freedom of the press." In other words, the mayor is quote happy to strike the balance by arresting everyone at the time--halting public expression, media reportage of that expression, and media reportage of the halting of that expression--then using charging decisions to avoid the obvious constitutional problems. Tim calls this "a sort of preemptive strike used to control mass contention." And as I said last week, this is entirely a product of the incentive structures created by the § 1983 liability regime. The City and its officers face no liability (or at least no meaningful monetary exposure) for this strategy. Even if the reporters sued, got past officer qualified immunity, and could establish that all of this was part of city policy, the damages available for such a First Amendment violation are too small to be meaningful.

And one final point on the RNC. A lot of attention (and criticism) has been focused on the arrest of journalists, as though this somehow reflects a unique First Amendment concern with St. Paul's strategy. And, at some level, it does, if we see the freedom of the press as protecting broad informative purposes. And, as Tim notes, the City has adopted a broad definition of "press" in dealing with arrestees. But too much focus on the press should not be allowed to obscure the fact that St. Paul arrested hundreds of peaceful protesters who did nothing more than try to make their voices heard in the public square.

Charities & Politics III

Thanks to Rick G. for taking my comments seriously enough to respond to, notwithstanding their obviously silly rhetoric.  First, let me commend to readers Rick's essay, which I would certainly count as among the more serious and thoughtful criticisms of existing political rules. 

One of Rick's central arguments in the essay is that IRS regulation of political activity itself corrupts religion by suggesting to the faithful that their religiously-inspired views should be "cocooned" in the private sphere and do not belong in public discourse.   Certainly some casual observers might come away with that impression.  But, as Justice O'Connor asks us all to do when we observe the state dance around the question of faith, I'd suggest we look at the whole context of the regulation.  There are two alternative implications of regulations that withhold  subsidies for politically active churches: Rick's thesis, and mine.  Mine is that, whatever the benefit of religious participation in politics, it carries harmful side-effects that outweigh those benefits. 

Or, putting this another way, both Rick and I worry that churches and other charities will abandon their efforts to "compete with the liberal state."  But I think that the immediate danger of corruption is a more substantial threat than the long-term, subtle, and disputable symbolism of withholding subsidies for politically active churches.      

In his post, Rick responds to this point by doubting that there will necessarily be large money rewards for charities that sign on to political platforms.  To be clear, not all the rewards that I think tempt charities are palpable.  Some of the rewards might be logrolling, or at least moving their own otherwise marginal agenda closer to the mainstream.  Examples here are obvious, but to reduce angry e-mails I'll leave them to readers to supply. 

Incidentally, I'll add that Lloyd's work is among the best out there, but I found the paper Rick linked to unpersuasive.  Ultimately, the argument is that so-called "internal" church communications should be protected from regulation under the First Amendment as essential to the continuing survival of the entity.  But I'm not sure I follow how this overcomes the "if you don't like the conditions, turn down the grant" response the Supreme Court wielded in the Yale military-recruiter-ban case.  The political participation rules do not threaten the internal cohesion of churches; they threaten the ability of churches to get tax benefits for their wealthier parishioners.  Also, to get practical: So, um, I'm a televangelist, and my congregation meets me in their own living rooms.  No limits on what I can say?  This is the proverbial exception that swallows the rule.

This is getting awfully close to First Amendment stuff, about which as "tax guy" I officially know nothing (other than what we they excerpt in the Nonprofits casebook).  So I'll leave it there.  But thanks again, Rick, for a fine post.   

Charities and Politics: A Phillipic

Lately there have been lots of calls for loosening the Tax Code's restrictions on political activities by charities.  Some of these calls have been really thoughtful and well crafted.  They're all wrong.

Background: churches and other qualifying charities (hereinafter "charities") don't pay corporate income tax.  Donations to them are deductible, which means that the richer you are, the more your contribution is worth.  Section 501(c)(3) prohibits charities from participating in any campaign for public office.  There are detailed regs describing what it means to "participate," and suffice it to say that existing guidance has more holes than a practice dummy at an accupuncture training school.  Still, critics want yet more hole and yet less dummy.

I don't get it.  Deductibility magnifies the power of rich contributors, who are already over-represented in the political process.  And money corrupts.  Charities are supposed to be independent innovators, offering us alternatives to the same old stale government solutions.  But if there is a big infusion of cash or other rewards in store for charities that support the part line, well, I betcha they line up.  Goodbye, innovation.  Hello, Dobson.

Now, one could tell a political market-failure story for why we might want to subsidize political activity by genuine grassroots organizations.  It's hard, as we all know by now, to overcome free riding by individual voters.  So I can see a case for a subsidy for organizations that try to do that.  But that's not a reason to allow charities, which happen also to receive a subsidy, to also act as political entrepreneurs.  We should have two separate kinds of organizations, each with its own subsidy.  This way, we can design the political-actor subsidy to reduce the disproportionate rewards to rich donors, and reduce the corruption of the charitable sector. 

But wait, our straw wo/man might say.  (Wow, talking straw.  Cool.)   If charities, especially churches, are already the most powerful centralizing force for free-riding individuals, shouldn't we leverage that power?  Two responses.  One: if my corruption point is right, then this is a tactic that only works for the relatively short term.  Then, the organizations drift far enough from their purposes that they fail in their original mission, and they can't politically organize the disaffected former members, either.  Two: the existing organizational advantages of charities may themselves exist because of tax incentives, and so may be easily replicable. 

Tell me why I'm wrong, o skeptics. 

Negotiating Protest

The AP reports (via First Amendment Center) about negotiations taking place between Denver police and certain protest groups to establish rules and details about parades and parades for next month's Democratic National Convention. Similar negotiations are underway between protesters and police in Minneapolis and St. Paul in advance of the Republican National Convention. The goal of such negotiations is to "make sure everybody is on the same page to clear up any misunderstandings and rumors that are out there." As a police spokesperson said, "Instead of a bullhorn (on the streets) you’re having a conversation across the table." Of course, by negotiating all the rules in advance, protesters bind themselves to play by the government's rules, although those rules are increasingly restrictive and inconsistent with vigorous public expression and the fullest opportunity for individuals and groups to engage in meaningful speech. Last week, a district judge in Minnesota rejected challenges to limits on parade routes outside the convention center.

Timothy Zick has done some great work criticizing what he calls "negotiated management," through which protester and protest target (the government) agree to minute details as to the timing, routes, locations, participation, and all aspects of large-scale expressive events. The result is that public expression is less spontaneous and more controlled and the message carries less "sting." This is a part of the broader problem of what Zick calls the "institutionalization" of public contention, which has routinized and neutered public protest and speech. Ironically, negotiation makes confrontation and violence between police and protesters more likely, since even the slightest deviation from the precise protest/parade guidelines (which, of course, the protesters agreed to) likely will be met with massive police resistance, crowd disperals, and mass arrests.

My current project (hopefully to be submitted early next month) looks at the connection between video and civil-rights enforcement, particularly in cases of police confrontations at protests. In it, I use Zick's arguments as a starting point to discuss the increasing importance of video as an issue in civil-rights disputes arising from protests-gone-wrong. First, the media presence (and media recording of these events) at such protests tends to be greater, because the high potential for conflict from a larger, tightly managed protest with a heavy police presence is a media draw. Second, protesters themselves are capable of capturing protests-gone-wrong on video. The recording then can be disseminated (through YouTube, blogs, etc.) as part of its group's protest message ("Look at how we were stopped from speaking out") and can be used as evidence in the § 1983 First Amendment actions that inevitably follow the indiscriminate mass arrests and police crackdowns against otherwise peaceful protesters who step out of line (literally) or whose numbers overwhelm police.

For all the talk about unprecedented protester access and establishing conversant relations between police and protesters, expect both conventions to contain more of what we saw in Philadelphia in 2000 and New York in 2004. And expect much of it to be captured on video.

Judge McConnell on "pervasively sectarian"

Today, in an opinion written by law-and-religion scholar Michael McConnell, the United States Court of Appeals for the Tenth Circuit ruled that Colorado violated the Constitution when it refused, on the ground that the school is "pervasively sectarian", to permit otherwise-qualified students to use publicly funded scholarships at Colorado Christian University.  Here is a link to the opinion.  The court found "the exclusion unconstitutional for two reasons:  the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice."  Any reactions?

Irony and context

As you would expect, a cartoonist, Tom Toles in the Washington Post, captures the context debate. (H/T: Kathleen Bergin at The Faculty Lounge):

This reflects an additional about what about the importance of context. It is not just cartoon v. factual reportage. It also is the place in which a comment or image appears. Yes, there is a difference between The New Yorker and American Racist Monthly, just as there is a difference between The Daily Show and Bill O'Reilly and The New York Times or Wall Street Journal. All these sources and contexts together are important to a rich, complete public dialogue. And I believe that the sophisticated and unsophisticated alike can tell the difference. And the ones who do not--such as G. Gordon Liddy--probably are being willfully disingenuous.

New Yorker Cover

People are talking about this week's New Yorker cover, too many to try to link to. Both Barry Blitt, the cartoonist, and New Yorker editor David Remnick responded to the immediate outcry on Huffington Post. The Obama campaign called the cartoon "tasteless and offensive." Remnick insists the cartoon "hold[s] up a mirror to the prejudice and dark imaginings" of some on the right about the Obamas, that it is a satire not of Obama, but "about the distortions and misconceptions and prejudices about Obama." And Obama supporters are threatening to cancel their subscriptions or to stop buying the magazine. Jack Shafer offers comments at Slate, noting that people from all institutions--both campaigns, the press, and the public--seem to be offended by this.

Of course this is satire. It is obviously a ridiculous mash-up of all the inconsistent and incoherent smears about the Obamas. In fact, standing alone the notion of Barack as a bin-Laden-supporting Muslim fundamentalist sharing political sensibilities with Michelle as a 70s-era Black Panther militant is absurd. I can imagine Saturday Night Live or Jon Stewart or Stephen Colbert doing something like this. But I join with liberal blogger John Cole in admitting to being tone deaf for these sorts of issues. For my part, my free-speech instincts kick-in. And one fundamental principle of free speech is that we ought not censor speech because some in the audience may misinterpret it--especially when it takes a certain amount of ignorance or willful blindness to misinterpret this. And especially with cartoons, a medium whose purpose is to "mock and dismiss the content" of its target. Shafer quotes a great line from Boss Tweed, who was more concerned with Nast cartoons lampooning him than with written criticism--"My constituents can't read. But, damn it, they can see pictures!"

Some thoughts after the jump.

First, in trying to identify this as satire or not (and thus to decide whether it truly is tasteless and offensive), context matters. Our experience with the New Yorker, its cartoons, and Barry Blitt cartoons in particular squarely pegs this as satire, especially combined with the magazine's left-leaning politics. In fact, in context, it should be clear that the cartoon supports Obama and mocks those who spread or believe the crazy noise about Obama's religion, politics, and patriotism. And I think this responds to the "what would have happened if this had been on FoxNews or the Weekly Standard or the National Review" objection. The same image has a very different meaning in those contexts, both because of political leanings and because of the magazine's history with the cartoon medium. This cartoon is making fun of Fox and Limbaugh and those who get their information from them.

Second, the problem seems to be a fear that a lot of people will see the cartoon and believe it an accurate depiction rather than a joke. More sinisterly, the lefty blogosphere fears that the GOP, conservative media and blogs, and GOP true-believers will use this to perpetuate the worst rumors, fears, and smears about the Obamas among those easily fooled among the masses--"see, even the New Yorker is reporting this stuff about the Obamas, so it must be true." But none of this renders the picture tasteless and offensive; what is tasteless and offensive is how some ill-informed people might understand the cartoon. Again, this is an argument that the New Yorker should watch what it says (or how it says it) because people are stupid and may misinterpret or misuse it. Shafer puts it succinctly: "Calling on the press to protect the common man from the potential corruptions of satire is a strange, paternalistic assignment for any journalist to give his peers, but that appears to be what The New Yorker's detractors desire."

Third, in his well-received speech to AIPAC in June, Obama said the following:

I also want to mention that I know some have been receiving provocative emails that have been circulated throughout the Jewish communities across the country and a few of you may have gotten them. They’re filled with tall-tales and dire warnings about a certain candidate for President and all I want to say is let me know if you see this guy named Barak Obama because he sounds pretty scary.

I think this got a laugh line, as intended. It seems to me this cartoon is a visual representation of all those tall tales, ridiculing them precisely as Obama did in the speech, only visually rather than verbally.

Fourth, and somewhat related, the Obama campaign last month made a show of establishing a rapid-response area on its web site, where false slams about Islam and lapel pins and the Pledge of Allegiance could be quickly addressed and rebutted. Some asked whether this was a good strategy, since in order to rebut the falsehood the campaign must repeat the falsehood, and may, incidentally, help it spread. This cartoon again seems to be doing the same thing--rebutting the stories (through humor and ridicule), but perhaps incidentally calling attention to them. So what is the difference? Is it the use of humor as opposed to a direct, serious response? Again, the objection becomes "people won't get the joke." Is it the source--the campaign itself as opposed to an outside commentator?

Fifth, I think the worst thing that can be said about the cartoon is that it does not work--it is not funny or biting or out there. That is Drum's basic point. But that is the great risk when using humor as a rhetorical device--a point that came out in the comments to Dave's discussion last week about judges and professors using humor in legal writing. The question is whether failed humor morphs into serious comments, and thereby becomes offensive and outrageous, or whether it simply remains bad humor. I hope the latter. Humor and satire fails all-too-often. If the satirist must hesitate less the satire fail and be taken as a serious, thus offensive, assertion, satire will disappear as a mode of criticism.

Finally, the image on the right is courtesy of Napsterization, responding to Drum's suggestion that a really gutsy cartoon would have featured McCain imagining the scene as the way he wants the country to view Obama. This version would have made it clearer that the target of the satire was the right-wing belief in, or hope for, this image of the Obamas, and not at the Obamas themselves. I do like the remixed version. But the need for it reflects a different version of the stupid-people-are-going-to-misunderstand-this criticism--don't withhold the image, but make the image so much more obvious and less subtle so people can't misunderstand.

I welcome anyone to tell me why I am wrong.

"Thou Shalt Not Annoy"

World Youth Day 2008 is being held this summer in Sydney, Australia.  According to the event's official web site, "[o]rganised by the Catholic Church, WYD brings together young people from around the globe to celebrate and learn about their faith on a more regular basis.  WYD08 will be the largest event Australia has ever hosted. It will attract over 125,000 international visitors - more than the 2000 Olympics.  WYD08 will mark the first visit of His Holiness Pope Benedict XVI to Australia."  (During the pontificate of Pope John Paul II, these events were huge, and quite formative, I'm told, for many young Catholics.)

Well, if you put on a big Catholic jamboree, with the Pope in attendance, in a free country, you are going to stir up conversation, debate, disagreement . . . and some protest (some of it, no doubt, malicious and offensive).  And so, local authorities have enacted a new, temporary set of regulations that "will allow police to arrest and fine people for 'causing annoyance' to World Youth Day participants."  In response, as this headline puts it, "Catholics are split on [the] freedom to annoy":

[The] prominent Catholic priest and lawyer Frank Brennan has condemned new police powers for World Youth Day as a "dreadful interference" with civil liberties and contrary to Catholic teaching on human rights.

Any thoughts?  What free-speech rule or principle (if any) should control this situation, and others like it?  Readers might want to check out this post, at Commonweal magazine's blog (where I got the story) and also the comments.

George Carlin and the First Amendment

Comedian George Carlin died yesterday of heart failure at age 71. He dies just after being named recipient of (but before receiving) the Mark Twain Prize for American Humor.

Ironically for Carlin's status as a hero of the First Amendment, his death also comes less than two weeks before the 30th anniversary of the Supreme Court's decision in FCC v. Pacifica Foundation, a case that centered on Carlin's famous, indecent-but-not-obscene "Filthy Words" routine, where the Court held that a comedy routine discussing the seven basic dirty words in the English language is not fully protected on broadcast radio and television. He also dies the term before the Supreme Court hears arguments and decides FCC v. Fox Television, a case dealing with FCC regulation of "fleeting expletives," that might, depending on what course the Justices take, tell us something how much doctrinal vitality Pacifica still has.

Of course, Pacifica remains a doctrinal outlier, a case loathed by most highly speech-protective scholars, myself included. It rested on the specious rationale that broadcast radio and television is uniquely pervasive and intrusive into the home and may easily assault unwilling listeners in their home who flip a switch not realizing what awaits them (never mind that the complaint in the case was filed by someone who heard the routine while driving in his car). The Court has spent thirty years distinguishing the case as to every other medium--cable, telephone, and the internet--although it is not clear why those media are any less intrusive or any ore likely to catch an unwilling listener off-guard. Indeed, one of the funnier arguments against the Communications Decency Act of 1996 (the first, blanket ban on indecent speech on the internet) was that it rendered unlawful the internet posting of the Pacifica opinion itself, which included an appendix containing the full text of the routine.

Ronald K.L. Collins offers more thoughts, with which I agree, on Carlin's free-speech legacy. And Deven Desai offers a different, non-free-speech, piece of Carlin's comedic best.

"Do Churches Matter?"

I have posted on SSRN an essay -- originally presented as a lecture at Villanova -- called "Do Churches Matter?  Towards an Institutional Understanding of the Religion Clauses".  Here's the abstract:

In recent years, several prominent scholars have called attention to the importance and role of "First Amendment institutions" and there is a growing body of work informed by an appreciation for what Professor Balkin calls the "infrastructure of free expression." The freedom of expression, he suggests, requires "more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]." The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain institutions, newspapers, political parties, interest groups, libraries, expressive associations, universities and so on. These "First Amendment institutions" are free-speech actors, but they also play a structuralý014or, again, an "infrastructural" role in clearing out and protecting the civil-society space within which the freedom of speech can be well exercised. These institutions are not only conduits for expression, they are also "the scaffolding around which civil society is constructed, in which personal freedoms are exercised, in which loyalties are formed and transmitted, and in which individuals flourish.

Similar "infrastructural" claims can and should be proposed with respect to the freedom of religion. Like the freedom of speech, religious freedom has and requires an infrastructure. Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience. The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them. Accordingly, the theories and doctrines we use to understand, apply and enforce the First Amendment's religious-freedom provisions should reflect and respect this fact. If we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Professors Lupu and Tuttle have put it, whether "religious entities occupy a distinctive place in our constitutional order[.]"

Readers (if any) will notice immediately my debts to my fellow Prawf, Paul Horwitz.  That said, the piece is not his fault.  Comments welcome!

Consensus on vouchers and the Establishment Clause?

I've been away, for the past few days -- crashing Princeton's Reunion and participating in the annual Law and Public Affairs reunion conference (on "Law and Religion") -- and so have missed the conversation on civility, slippery slopes, and the like.  In any event -- and I hope this is not too awkward or clunky a segue -- I was struck, at the conference, by the proximity-to-consensus revealed at the conference, among a wide range of engaged law-and-religion scholars, on the proposition that the Constitution's no-establishment rule need not, and should not, be understood to prohibit using public funds to pay the tuition of students attending qualifying religious schools.  The "Memorial and Remonstance" / "three pence" / violates the conscience argument seemed to receive -- again, from a number of people who disagree on many other things -- a respectful wave, but little more.  If I remember correctly, Sandy Levinson suggested that the argument is, in today's conditions, pretty much irrelevant to the school-voucher and charitable-choice questions.  (That said, Laura Underkuffler, I should emphasize, did present clearly and powerfully a no-funding argument.)

Now, this near-consensus is, in my view, a good thing.  Still, I couldn't help but be struck by the fact that what is often, in the First Amendment course, taught as, and treated in the cases as, something of a constitutional Ur-text, seemed to carry so little weight with respect to what was, just a few years ago, *the* law-and-religion question.  Interesting.

Symbolic Counter-speech and the Pledge of Allegiance

Commentators have been talking about four middle-school students in Minnesota who were suspended for not standing during the Pledge of Allegiance. District policy requires students to stand, although they need not recite the Pledge. The local ACLU sent a letter to the district and over the weekend the suspensions were lifted and the students' records cleared. Good to see the District came to its senses, although it is a shame it took the ACLU, the threat of a lawsuit, and some bad publicity to get it to do so.

Calvin Massey, writing at the Faculty Lounge, suggests that the case is troubling, although not as clear-cut as the ACLU suggests. I would suggest that it at least should be that clear-cut.

The students engaged in what I have described as symbolic counter-speech: Brandeisian counter-speech responding to a symbol, using the symbol and its surrounding details as the vehicle for that counter-speech. One common mode of symbolic counter-speech is nonparticipation in a symbolic activity, such as the ceremonies or rituals designed to honor or affirm that symbol.

Nonparticipation can be understood in two ways. First, it is a protected refusal to engage in expression aganst your wishes. Under West Virginia State Board of Educ v. Barnette, the First Amendment protects unwilling students from being compelled to salute the flag and recite the Pledge. Importantly, however, the symbolic celebration of the flag (to which Barnette provides protection from compulsion) resides the entire ceremony--everything from standing, to facing the flag, to placement of a hand over the heart, to the recitation of some or all of the words. Thus, to have any force, the liberty not to be compelled to participate must apply to every part of that symbolic celebratory ceremony.

But nonparticipation itself is expressive; the act of refusing to join sends a counter-message (silent and non-specific though it might be) about the symbol and its message. An individual's ability to protest a symbol must include the ability to opt-out from everything surrounding that symbol, even something seemingly as innocuous as being made to stand silently.

Massey does raise the spectre of the fact that this occurred in the school setting and the argument that the school has a legitimate pedagogical interest in preventing interference with school business that might come from sitting students fostering a "climate of sullen disrespect." But I do not see how sitting fosters any more of a climate of disrespect than not saluting or remaining silent or omitting certain words. It is a bit more obvious perhaps, but shows the same refusal to engage with the symbol and its surrounding details. I might agree if students engaged in more-disruptive modes of symbolic counter-speech--shouting down the flag, loudly uttering different words (hence the above cartoon), or perhaps even more-dramatic non-participation, such as turning away from the flag (although I would be troubled by the last one). But merely sitting this one out does not cause any sort of disruption in the Tinker sense or even interfere with the school's mission or message in the Morse v. Frederick sense.

More on "Bush Lied, They Died"

Two more interesting procedural points on the "Bush Lied, They Died" t-shirts lawsuit.

First, there is a nice personal jurisdiction question here. Frazier lives in Arizona and runs his company from there, selling his products via the web. The lawsuit was brought in Tennessee (the plaintiffs' home state) and most of the complaint is devoted to jurisdictional allegations showing the defendant's contacts with Tennessee.

Second, on a closer look at the amended complaint, I noticed the following: In the paragraph immediately after the reference to the "mentally-challenged monkey," the plaintiffs state that they are amending the damages request by bringing this as a class action, "[a]s a result of defendants, jointly and severally, stating that they are “not worried” about this litigation." Then, after laying out the ridiculous amount the class is seeking, the complaint states "[e]ven the aforesaid 'mentally-challenged monkey' should be worried about potential exposure in this amount."

In other words, after likening the defendant to a "mentally-challenged monkey," the amended complaint is asking for a ridiculous amount of damages solely in retaliation "as a result of" the defendant's media statements of confidence in the strength of his First Amendment defense and solely as a way to make the defendant worried. Hmmm. Doesn't Rule 11 prohibit pleading for "improper purposes"? And doesn't it require factual allegations (including damages requests) to have some evidentiary basis?

Obviously, these rules are not and should not be so rigidly enforced. And nothing is as clean as we like to present it in first-year Civ Pro. But how often do we see a complaint that so blatantly flaunts most of the basic rules in setting out a complaint?

Bibles on the Bayou

Earlier this week, a federal district court judge in Louisiana ordered the rural Tangipahoa Parish School Board to stop allowing the Gideons to pass out pocket bibles to fifth graders during school hours.  The ruling came in response to a suit filed by the local chapter of the ACLU, one of seven suits filed in recent years challenging such violations of the Establishment Clause.  Other Tangipahoa School District practices challenged have included: (1) Disclaimers placed in science books stating that evolution is a theory that does not necessarily disprove creationism; (2) Schools allowing a minister to give out pizza and teach Christianity on school grounds during lunch periods; (3) Prayers said over the intercom, at school-sponsored events such as football games, and at school board meetings; and (4) Prayers led by a teacher in the classroom.

Two of the cases are still pending.  In all of the others, the ACLU has won or obtained a favorable settlement.  What is really remarkable is that despite their repeated losses in the courts, and the expenditure of tens or even hundreds of thousands of dollars in attorney fees, public officials in Tangipahoa simply cannot be deterred from their attempts to introduce religion into the schools.  The School Board has already announced that it plans to appeal the bible case to the Fifth Circuit. In several instances, the ACLU has had to seek contempt sanctions against the School Board for refusing to comply with court orders.  And the School Board continues to look for ways to impose its religious beliefs on public school students.  It is a kind of defiance to federal law that is reminiscent of earlier battles over desegregation.

Symposium on Morse and Free Speech

In case anyone is interested . . . my contribution to a forthcoming symposium, in the Lewis & Clark Law Review, on the Morse case is available here (on SSRN).  The paper is called "Can There Really Be 'Free Speech' in Public Schools?".  Comments appreciated!

Is reading "Notre Dame v. the Klan" at work racial harassment?

Here's a story, that hits close to home, from FIRE (Foundation for Individual Rights in Education):

In a stunning series of events at Indiana University - Purdue University Indianapolis (IUPUI), Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book during his work breaks.

Sampson is in his early fifties, does janitorial work for the campus facility services at IUPUI, and is ten credits shy of a degree in communication studies. He is also an avid reader who usually brings books with him to work so that he can read in the break room when he is not on the clock. Last year, he began reading a book entitled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. The book, which has garnered great reviews in such places as The Indiana Magazine of History and Notre Dame Magazine, discusses the events surrounding two days in May 1924, when a group of Notre Dame students got into a street fight in South Bend with members of the Ku Klux Klan. As an historical account of the students' response in the face of anti-Catholic prejudice, the book would seem to be a relevant and worthwhile read, both for residents of the state of Indiana and for anyone interested in this chapter of American history.

But others at IUPUI clearly did not see it that way. First, a shop steward told Sampson that reading a book about the KKK was like bringing pornography to work (apparently this holds true in his eyes regardless of the context in which a book discusses the KKK, the position it takes, and so on). Likewise, a co-worker who happened to be sitting across the table from Sampson in the break room remarked that she found the KKK offensive. On both occasions, Sampson tried to explain what the book was really about. Both times, the other individual refused to listen.

A few weeks later, Sampson was notified by Marguerite Watkins of the school's Affirmative Action Office (AAO) that a co-worker had filed a racial harassment complaint against him for reading the book in the break room.

I do not know as much as I'd like to know about workplace-harassment law.  But, assuming this account is true, is it remotely plausible that reading this book (which is a great read, by the way) at work -- a book that celebrates the defeat of the Klan, by a group that, in Indiana, was, like African-Americans, a target of Klan hatred -- constitutes racial harassment, or should be the ground for disciplinary action?

UPDATE:   A Prawfs reader (and fellow law-blogger) pointed out to me that several others had also posted, on several other blogs, this story.  For what it's worth, I got the story directly from a reader of my other blog, Mirror of Justice, and so didn't realize, at the time I posted it here, that other bloggers were on the case.  Otherwise, I would (and should) have given the old "hat tip" to the source.  Sorry for creating any confusion!

A Question for Rick Hills: On Constitutional Decision Rules and the Institutional First Amendment

I think Prawfsblawg is extremely lucky to have Rick Hills as a guest.  I hardly need justify that statement, but I do want to single out one article in particular: Rick's splendid piece The Constitutional Rights of Private Governments, 78 NYU L. Rev. 144 (2003).  Those of you who have followed my thoughts here know that I am among those who believe we would benefit greatly from a closer consideration of the ways in which a variety speech institutions operate and govern themselves, and that in many respects First Amendment doctrine would benefit from an approach that builds itself from the ground up, closely tracking the practices of these institutions and effectively piggybacking on their own mechanisms of self-governance, rather than attempting to impose ill-fitting doctrines from the top down.  In this intellectual project, Rick's article is a constant source of inspiration and provocation.  Welcome, Rick.

If I may, Rick, let me go ahead and kill two birds with one stone: engaging you in a discussion of some interest to me while simultaneously engaging in relentless self-promotion.  In my article Three Faces of Deference, forthcoming in the Notre Dame Law Review, I attempt to draw connections between two ostensibly disparate emerging areas of constitutional scholarship.  The first is what I was discussing above: that set of scholars, including Rick and myself but also many others, notably including Fred Schauer, who have argued that we ought to pay increased attention to the role and value of institutional speakers (and worshippers, in the Free Exercise context) in our social firmament.  The other emerging area of scholarship is the study of constitutional decision rules.  We might sum this up roughly as the study of the distinction between constitutional meaning and constitutional implementation, the recognition that there may be a difference between the two, and the elaboration of a richer understanding of the ways in which courts implement constitutional norms in institutionally (in)appropriate ways.  Charter figures here include Richard Fallon, Kim Roosevelt, Mitchell Berman, and others.

Rick, you've also written usefully (and in an extremely readable fashion -- it's a great piece!) about this area of scholarship, in the Harvard Law Review Forum.  (If I'm not mistaken, you expand on these thoughts in a work in progress on anti-pragmatic constitutional theory.  Would you send me a draft of that paper one of these days?  Pretty please?)  As  I understand your piece, you argue that the distinction between constitutional meaning and constitutional implementation is "seductively misleading" because, ultimately, it's implementation all the way down.  Nevertheless, you agree that a focus on implementation is itself "extraordinarily helpful," both because it sharpens our understanding of constitutional doctrine and because it helps remind us of, and disabuse us of, "a deeply felt desire of judges and scholars to  achieve noninstrumental certainty in the law."

One of the goals of my Notre Dame piece is to argue that although these two fields of constitutional scholarship are seemingly disparate, they are in fact intimately related -- and that what ties them together, to a substantial degree, is the centrality in both fields of the concept of deference.  I write: "[L]inked at the focal point of deference, both of these emerging bodies of constitutional literature have much to gain from each other.  Institutional First Amendment theory advances the practical goals of constitutional decision rules theory.  In turn, decision rules theory supplies First Amendment institutionalism with legitimacy and a place on the constitutional map."  I conclude that these schools of thought "might profit considerably from a deeper mutual engagement."

With typical and unseemly bravado, Rick, I say that it is ironic that scholars have not already recognized and/or drawn a more explicit connection between these two areas of constitutional scholarship -- especially given that you have contributed to both bodies of literature.  So let me ask: Do you think there are connections between these two areas?  Do you think that your NYU piece and your Harvard piece are connected in ways that perhaps have gone unspoken so far?  Is a focus on the "constitutional rights of private governments," and perhaps more broadly still a concern for the place of institutions in our social and constitutional universe, one way of "resist[ing] the call to hunt for the Snark of 'pure,' noninstrumental constitutional value," as you put it?  Inquiring minds -- one inquiring mind, anyway -- want to know.          

Is Bill Maher's Audience A Greek Chorus?

Ann Althouse here links to some interesting live TV footage of 9/11 Truthers disrupting, and being kicked out of, Bill Maher's HBO show.

It's right that a host would throw out any disruptive audience member regardless of the nature of the disruption.   But I found one interesting moment in Maher's reaction that complicates things a bit.  It was when Maher exasperatedly said, "'Audience' comes from the Latin word meaning 'to listen.'"  A funny line at a tense moment, to be sure.  It showed Maher's skill as an entertainer that he was able to be funny at a moment like that while still asserting control over his show.

But it did get me thinking about the audience in these sorts of shows -- shows that mix political opinion with comedy, like Jon Stewart's and Steven Colbert's.  On these shows (unlike, say a sitcom with a live studio audience) the role of the audience is not merely "to listen."  The audience is instead a character on these shows -- and the shows' directors and stars very much use them that way.  These audiences audibly react -- often in quite predictable ways -- to the political opinions that the show and its guests present.  The audiences boo and hiss jokes and opinions of which they disapprove (which are very often jokes and opinions advancing a perspective friendly to the policies of the current Administration) and react with glee and approval to the sauciest of the jokes and opinions with which they agree (which are very often jokes and opinions critical of the policies of the current Administration).  Sometimes when the audience is being tough on a guest, the guest will either respond to the audience, or turn to the host and criticize it.  At times the audience and the guest will get into a short back-and-forth. 

My point here does not depend on the particular political alignment of the audience; it is instead that the audience on these shows really is a character -- not just a group of "listeners."

Does this fact make the audience a public forum, or make it appropriate for individual audience members to speak?  No, it doesn't.  But it does suggest that something more complex is going on on these shows than their hosts might have us believe -- something that places the disruptive 9/11 Truthers in at least a slightly different context than might first appear.

Might He Also Have Mentioned The Governator?

An amusing moment in today's Supreme Court argument in the Washington State Grange case:

JUSTICE SOUTER:  [G]oing back to my question, do you know any people who go around saying, well, you know, I really prefer the Democrats; I'm a Republican myself?  I mean, that doesn't happen.

MR. MCKENNA:  Well, the example of Senator Lieberman comes to mind, where he said I really prefer the Democrats and I'm running as an independent.

(Laughter)

JUSTICE SOUTER:  There's always one.

CJR @ SU follow-up (BG)

Incidentally, there were about 6-8 individuals apparently "protesting" the Chief Justice's appearance.  Two held signs saying "Bong Hits 4 Jesus" (one included a citation to the case!); another person's sign read "Roberts, Don't Taser me, Bro!"

Chief Justice Roberts at Syracuse University (Blumenthal Guest)

I’ve just returned from a speech by Chief Justice Roberts here at Syracuse University, where he delivered a keynote address celebrating the dedication of a new building for the Newhouse School of Communication (“Newhouse III,” the third building in their complex). At the moment he is involved in the actual ribbon-cutting and reception festivities, while I type away here.

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I’ll try to simply report what was said, without comment.  Note, too, though, that this is usually paraphrasing from my notes, so my rendering of his comments may be infelicitous.  I imagine that shortly the text of his remarks will be up on a Syracuse University website.

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The first speaker was David Rubin, Dean of the Newhouse.  He discussed the Newhouse III building, emphasizing what really is a striking feature—the building has a glass exterior, with the words of the First Amendment etched in 6-foot tall letters around the building. He told a story of being approached by the father of a visiting high school senior who saw the building and told Dean Rubin, “Now I know this is Newhouse—with the First Amendment etched on the outside, what other building on campus could it be?” (I will not report my response and the response of every law school individual I spoke with. . . .)

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Dean Rubin emphasized the importance of the First Amendment to Newhouse, recalling New York Times v. Sullivan.  He recalled the dedication of the first Newhouse building, in 1964, by President Lyndon Johnson, where the Gulf of Tonkin speech was delivered.  (Newhouse II was dedicated in 1974.)  President Johnson was introduced by S.I. Newhouse; Chief Justice Roberts was next introduced by S.I. Newhouse, Jr.

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Newhouse Jr. spoke briefly, mentioning a closed session this morning at which the Chief Justice met with about 40 journalism and law students.  As a hearsay digression, after the speech I spoke with a student who was told by other law students who had attended that session, that the Chief Justice was more relaxed and informal there, more comfortable giving “off-the-record” responses, though he “avoided” questions about cases such as the upcoming Guantanamo case.

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The Chief Justice then spoke.  He made quite a good impression as a speaker: comfortable, witty, well-spoken--unsurprisingly. After the obligatory joke about Syracuse weather he commented about the building renovation project going on at the Supreme Court building, the first, he said, since 1935. He admired Newhouse III's glass exterior, saying it brought to mind Justice Brandeis’s comment that “sunlight is the best disinfectant.”

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He built the remainder of the speech around the First Amendment inscription. He noted that the First Amendment is part of an entire Constitution; it “draws on and gives support” to the remainder of the constitutional text. He’ll discuss that idea in the context of freedom of the press:

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The First Amendment was a break with English policy. It is a limitation, he emphasized, on government’s power, not individuals’. Discussion between members of the public isn’t the purview of the First Amendment, but rather that of communication. But even the protection of the First Amendment is limited—the “fire in a theater” example.

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The First Amendment was part of a Constitution that was designed to encourage government that was responsive to the public. Thus, the Framers recognized that a democratic government needs public discussion. The press has an important role in disseminating information to encourage that sort of debate.

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Quoting a 2006 interview with William Safire, he suggested that the press has always acted as a check on government.  The Framers developed the First Amendment to protect freedom of the press because of their familiarity with, and understanding of, working without a free press.  He recounted the Zenger trial, focusing on his view that its verdict was a break with the English view that the sovereign is beyond criticism.

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He then turned to what was probably his real message. He said that the words of the First Amendment were wonderful, but words alone won’t protect you. He quoted at length a document that guaranteed freedom of press, of speech, of religion, of assembly—the “1977 Constitution of the Soviet Union.” “All lies,” he said.

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Society needs an independent judiciary to give substance to constitutional guarantees.  He cited Alexander Hamilton in Federalist No.78, saying that an independent judiciary was designed explicitly to preserve the Constitution's limits on the other two branches.

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This is especially so, he suggested, in the First Amendment context.  We need the First Amendment to protect unpopular speech, especially in the context of political debate, as government often responds to public criticism by using its power to silence its critics.

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The Framers knew courts would end up rendering unpopular decisions, especially in the First Amendment context.  Courts might not rule the way they do in the judiciary were subject to political and public response.  So he is "surprised" at calls for limits on judicial independence, such as term limits, etc.

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The First Amendment, he said, would be the first victim of a non-independent judiciary.  Anyone valuing freedom of speech should value an independent judiciary.  It's not just the words: we need an independent judiciary to protect and enforce the First Amendment.  Don't respond to disagreement with court opinions by weakening the judiciary.