« Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?) | Main | Sweet Briar a Victim of Predatory Lending? »

Wednesday, March 18, 2015

Floyd Abrams responds

In this February post, I posited that one reason the ACLU's 2015 Workplan had no First Amendment issues among its 11 "major civil liberties battles" was that, in the ACLU's view, there were no major systematic threats to free speech. In a speech at Temple Law School on Monday, Floyd Abrams responded, identifying two such areas--campus speech and the political left's abandonment of the First Amendment.

First, I am obviously flattered to be on his radar, especially for a blog post. Second, I fear that I was not clear enough in my original post that I was not endorsing the "we won" position, but only proferring one explanation/justification that the ACLU might have been thinking about; on re-reading the post, I do not think that came across as well as it should have or as well as I would have liked.

Third, I agree as to both areas Abrams identifies as systematic problems (I mentioned campus speech codes as one problem area in my post--and that was before Oklahoma and UCLA). Note that they sort of overlap, to the extent many on-campus censorship efforts are directed by the left against right-leaning speech.* And to bring it back to the ACLU Workplan: They share the common feature that the national ACLU and local affiliates may be quite at odds internally and with one another over both issues. And neither are issues that the ACLU is going to use to spearhead its fundraising efforts.

    * Here is an Intelligence Squared debate on that very overlap.

Posted by Howard Wasserman on March 18, 2015 at 02:06 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

I don't see what the corporate veil has to do with anything. Is anyone suggesting that libelous corporate speech is being protected from redress via bankrupcy?

We have Americans with personal net worths of $50+B, how does a "drowning out" doctrine of limited collective speech rights address that?

Posted by: brad | Mar 23, 2015 5:27:44 PM

Anon: I hadn't realized I had done a corporate speech analysis, much less a silly one. But your mentioning the individual speaker proves the point. The concerns that motivate campaign-finance reform are corruption, drown-out, and "dominate the conversation." But those concerns stem from *wealth* and are implicated just as much by individual expenditures by wealthy individuals as they are by expenditures by corporations and unions. If the concern is limiting the power of wealth-created expression, then singling out corporate speech for differential treatment makes no sense.

Posted by: Howard Wasserman | Mar 23, 2015 9:14:25 AM

Adam: I have not read it, but will. My guess is I will disagree with it, as I generally disagree both with communitarian theories of free speech and with the suggestion that speech loses its protection when it becomes bound-up with commercial or economic interests.

Posted by: Howard Wasserman | Mar 22, 2015 8:10:00 PM

Howard, your corporate speech analysis here is silly.

"No one contests that a corporate bookseller, a corporate museum, a for-profit newspaper, etc., are protected by the First Amendment," because no one thinks the corporate form has anything to do with how or why the government is seeking to restrict the speech at issue. NYT v. Sullivan, for example, would be the same exact case if had been Howard Wasserman, individual human blogger v. Sullivan. Citizens United and other instances where you and Abrams seem to think the left is abandoning the 1st Amendment are ultimately about whether or not individuals can use the corporate form to pool extreme amounts of money and wield it as so-called "speech" in ways that dominate the conversation and drown out other voices less susceptible to incorporation, all while protected by the corporate veil. It is not a question of whether individuals have a right to speech, but of whether those individuals have an inalienable right to engage in speech through the corporate form.

The ridiculous insistence on maintaining the legal fiction of corporate personhood in these cases is like the wizard of Oz asking us to ignore the [shareholders] behind the curtain. It is not an abandonment of liberal policies or the ACLU's principles to believe that protecting the individual's rights does not require protecting the inherent interests of capital.

Posted by: Anon | Mar 22, 2015 3:04:04 PM

I'm curious to hear your thoughts about Robert Post and Amanda Shanor's recent piece in the HLR Forum, "Adam Smith's First Amendment." http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2579769

Posted by: Adam Zimmerman | Mar 21, 2015 9:22:39 AM

One person I would like to respond is Burt Neuborne, who is singled out in Abrams' remarks, a veteran in free speech wars.

Posted by: Joe | Mar 20, 2015 10:37:09 AM

Even as to campus speech, a lot of the examples Floyd Abrams uses seem questionable. Consider disinvitations. There is no free speech principle requiring that student groups, or even universities (in the context of specific university-sponsored events like a commencement ceremony), avoid viewpoint discrimination in choosing which speakers to sponsor. Viewpoint discrimination in those contexts is both inevitable and appropriate. Nor is there any free speech principle requiring that other people remain silent about the merits of a choice once a university or a student group has made it. What free speech requires is that no one coercively restrain or forcibly disrupt the ability of other people to bring speakers to campus. There is plenty of fair criticism to make on the substantive merits of student objections to speakers (e.g., that it's gotten too politicized, which seems like the real complaint of many of the critics), but it's not a free speech issue.

Something similar applies to a campus newspaper's editorial decisions in transcribing a panel discussion. You can think those choices reflect bad judgment without mistaking an exercise of free speech for an infringement of it.

Posted by: JHW | Mar 19, 2015 12:52:15 PM

The "exceptions for corporations" to be clear involves certain areas.

Abrams is quite right that corporations were protected in various ways. Brennan wrote NYT v. Sullivan as much as a concurring opinion in Austin.

And, the "exceptions" are regulations, not total bars even there. Since even Citizen United upheld disclosure and/or disclaimer regulations, that is possible, even if regulations also can be unconstitutional.

Posted by: Joe | Mar 19, 2015 10:00:42 AM

I note again that the exceptions for corporations that Abrams flags were around back in the day of "Holmes, Brandeis ... up to Brennan." Since you blithely skip over that -- and it is after all the key aspect of Citizens United -- I don't find it unwarranted to underline the point.

So, it's more complicated -- current law in that area has changed some. The left isn't "abandoning" things by raising a red flag & pressing back. As anon notes, I -- up to a point -- think it's true as to campus speech codes. Many on "the left" though disagree with that while supporting various campaign regulations.

As to "something else" -- yes, the concern isn't really a corporation not having a right to show art at a museum. That's why I think the rhetoric is confused. The people don't suddenly think the Koch Brothers as individuals can spend unlimited funds. This is unfortunate but mainstream thought is confused on various legal issues as suggested by the various posts on the battles in Alabama.

Posted by: Joe | Mar 19, 2015 9:51:12 AM

I think the campus speech point is on firmer ground for sure, but in your post you note two separate points from Abrams, which you then linked - campus speech and the left's abandonment of the First Amendment. Campus speech codes are a problem, and I'll grant that they are more a creature of the left than the right. (I say I'll grant because it looks like it but I don't know for sure.) But the broader point about the left's "abandonment" of the First Amendment is more about Abrams' support of Citizens United and commercial speech doctrine and all other things that have been repeatedly called the Lochnerization of the First Amendment. To oppose that view is not to oppose the First Amendment.

If you only agree with the point about campus speech codes, that's fine. Say so. But Abrams doesn't limit it to that.

Posted by: anon | Mar 19, 2015 9:44:55 AM

But that's his point--No one contests that a corporate bookseller, a corporate museum, a for-profit newspaper, etc., are protected by the First Amendment. So that rhetoric--which is coming from people like a Supreme Court justice and leading free-speech advocate, not just politicians or people outside the legal mainstream--suggests something else is at work.

The interesting thing about RAV is that the national ACLU was strongly behind the petitioner in that case (there is a fine book about the case, "Beyond the Burning Cross"). But two years later, the ACLU abandoned the issue with respect to sentence-enhancement.

No one contests that that the right does limit speech. But the trend on campus seems to be that the left does it more (listen to the debate linked above, where this came up).

Posted by: Howard Wasserman | Mar 19, 2015 7:48:41 AM

I'm unsure how "the left has given up on the traditional vision" of the 1A as a whole. During Holmes' day, e.g., there were various regulations on corporate speech. Buckley v. Valeo itself sets up a compromise that recent cases chip away at; Brennan joined the Austin v. Mich. Chamber of Comm. which Citizens United overruled. He noted in his concurrence:

"The Michigan law at issue is not an across-the-board prohibition on political participation by corporations or even a complete ban on corporate political expenditures. Rather, the statute merely requires those corporations wishing to make independent expenditures in support of candidates to do so through segregated funds or political action committees (PACs) rather than directly from their corporate treasuries."

Speech codes on campus have been an issue for decades and it does split the left to some degree. The split in R.A.V. v. St. Paul in part shows this, given that case had political correctness overtones. But, there have been efforts by the right to keep out speakers there too.

The matter is complex. Abrams responds to some exaggerated rhetoric against corporations. When pressed, the critics don't really resist various of the examples given. They care about privacy of booksellers. They support museums and newspapers etc. His examples show the somewhat confused nature of the criticism more than actual disrespect for speech generally speaking on the left in such areas.

Posted by: Joe | Mar 18, 2015 11:01:59 PM

I'm unsure how "the left has given up on the traditional vision" of the 1A as a whole. During Holmes' day, e.g., there were various regulations on corporate speech. Buckley v. Valeo itself sets up a compromise that recent cases chip away at; Brennan joined the Austin v. Mich. Chamber of Comm. which Citizens United overruled. He noted in his concurrence:

"The Michigan law at issue is not an across-the-board prohibition on political participation by corporations or even a complete ban on corporate political expenditures. Rather, the statute merely requires those corporations wishing to make independent expenditures in support of candidates to do so through segregated funds or political action committees (PACs) rather than directly from their corporate treasuries."

Speech codes on campus have been an issue for decades and it does split the left to some degree. The split in R.A.V. v. St. Paul in part shows this, given that case had political correctness overtones. But, there have been efforts by the right to keep out speakers there too.

The matter is complex. Abrams responds to some exaggerated rhetoric against corporations. When pressed, the critics don't really resist various of the examples given. They care about privacy of booksellers. They support museums and newspapers etc. His examples show the somewhat confused nature of the criticism more than actual disrespect for speech generally speaking on the left in such areas.

Posted by: Joe | Mar 18, 2015 11:01:58 PM

The left never supported a version of the First Amendment in which money was central and the speech rights of corporations could control the rights of citizens. The left has supported meaningful access to speech and the right is anti-government. As against the government, though visions coincide. As against private speech oppressors, they don't and never have - it just hadn't come up as much until recently.

Saying the left has abandoned the First Amendment is like saying the left has abandoned equal protection because they disagree with the right's vision: colorblindness. That's absurd. The right's version of the First Amendment is the same move - formal nondiscrimination at the expense of meaningful exercise of those rights or affirmative commitments to the constitutional values. Kathleen Sullivan nailed it a few years back in her discussion of equality vs liberty models of freedom of speech: http://harvardlawreview.org/2010/11/two-concepts-of-freedom-of-speech/. But to suggest that one side doesn't care about the First Amendment is incorrect, and even irresponsible.

Posted by: anon | Mar 18, 2015 10:13:54 PM

It's not just Abrams particular vision. Abrams vision is a longstanding one that the left, until quite recently, broadly supported. So I think it remains fair to say the left has given up on the traditional vision (the one that largely prevailed from Holmes/Brandeis through Brennan) of the First Amendment.

Posted by: Howard Wasserman | Mar 18, 2015 9:03:55 PM

The political left has less abandoned the First Amendment than the political right has co-opted it. Someone can be committed to the First Amendment and not share Abrams' particular vision of it.

Posted by: anon | Mar 18, 2015 8:52:44 PM

The comments to this entry are closed.