• September 4, 2013
    The Great Dissent
    How Oliver Wendell Holmes Changed His Mind -- and Changed the History of Free Speech in America
    Thomas Healy

    by Thomas Healy, professor of law at Seton Hall Law School. A graduate of Columbia Law School, he clerked on the U.S. Court of Appeals for the Ninth Circuit and was a Supreme Court correspondent for The Baltimore Sun. He has written extensively about free speech, the Constitution and the federal courts.

    Over the past few months, the Obama administration’s effort to crack down on leakers has sparked a heated debate about the scope of First Amendment protection for those who shed light on government misconduct.  The details of this debate are new, but the conflict between national security and expressive liberty that underlies it has a long and stormy past.

    Nearly a century ago, the country was racked by another struggle over the limits of free speech, this one triggered by World War I and the rise of communism.  The outcome of that struggle – and its legacy today – is the subject of my new book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America.

    In many ways, the pressures a hundred years ago were similar to the ones we face now.  The country was at war – although against a known and visible enemy, not a dispersed and shifting one.  Fears ran high, especially with regard to immigrants.  And many citizens were willing to give the government a free rein in dealing with the threats of the day.

    The results, of course, were not pretty.  One month after declaring war on Germany, Congress passed the Espionage Act of 1917, which made it a crime to do or say anything that might obstruct the draft or cause insubordination in the military.  A year later it approved the Sedition Act, which outlawed nearly any criticism of the government or the war.

    Nearly two thousand indictments were brought under these laws, many based on the thinnest of reeds.  One person was convicted for forwarding a chain letter that advocated an immediate peace; another for producing a movie that depicted British soldiers killing Americans during the Revolutionary War; and still another because she claimed that the war benefited capitalists.  The punishments were also severe.  At least two dozen people were sentenced to prison for 20 years, while many others received terms of five, 10 and 15 years.

    Although the Espionage and Sedition Acts ceased to have effect when the war ended, the persecution didn’t stop.  As the fear of German sympathizers was transformed into a fear of communism, the government found new methods to crack down on dissent.  Congress allocated large sums of money to investigate seditious activities, a Senate committee released a list of 62 activists who were said to be enemies of the state, and Attorney General A. Mitchell Palmer authorized a series of violent raids on the homes and meeting places of Russian immigrants.

  • July 24, 2013
    Ghosts of Jim Crow
    Ending Racism in Post-Racial America
    F. Michael Higginbotham

    by F. Michael Higginbotham, the Wilson H. Elkins Professor of Law, University of Baltimore School of Law

    Ghosts of Jim Crow: Ending Racism in Post-Racial America offers a prescription for moving America beyond its destructive race problem once and for all. While tremendous progress has been made, America remains unequal. Black unemployment, poverty, and homelessness are twice that of whites. Wealth accumulation for blacks is one twentieth of what it is for whites. Seventy-five percent of whites graduate from high school compared to less than 60 percent of blacks. While some blame personal choices for the discrepancies, the nation's deeply entrenched history of discrimination cannot be ignored. Emotional racial protests continuing across the country today prove that America is far from becoming "post-racial," to the chagrin of those proclaiming such when President Barack Obama was elected in 2008. 

    Ghosts of Jim Crow notes the three distinct eras, the nation’s founding, Reconstruction, and the civil rights movement, during which progress towards racial equality was marred by periods of resistance and retreat. Talk of building a new nation, on the principles of liberty and equality, in the latter 18th century, meant little to the millions of blacks forced into chattel slavery or to the free blacks who were racially profiled, presumed to be slaves, and denied due process rights simply because they were black (Hudginsv. Wright, 1806). The promise of emancipation, following the Civil War, was cut short when the Supreme Court adopted a “separate but equal” theory in Plessy v. Ferguson, at the end of the 1800s.  In the decades following, state and local governments' massive resistance to desegregation initiatives allowed "Jim Crow" segregation to flourish.  This remained true even after such behavior was ruled unconstitutional, in Brown v. Board of Education, in 1954. During the late 20th century, just as the civil rights movement was beginning to show results, through race-conscious affirmative action programs, the Supreme Court limited the government’s ability to redress all but the most blatant examples of discrimination. The 2013 State of Florida v. Zimmerman case, where a white neighborhood watch volunteer George Zimmerman was acquitted for shooting and killing the black teenager he allegedly profiled, Trayvon Martin, proves Ghosts continue to haunt black America. President Obama, who rarely comments on race, acknowledged as much in his recent comments.

    Subtle, yet pervasive, racism, through presumptions of black inferiority and embraces of black separation and white isolation continue to perpetuate the racial divide. There are two types of racism that prevent equality currently – structural racism and cultural racism. Structural racism involves policies, laws, and programs that embed inequality within society, and in so doing, reinforce cultural racism, those beliefs and actions that embrace racial hierarchy and isolation. Both structural and cultural racism must be ended in order to create equality. 

    Legislative and judicial responses to continuing racial inequality have been inadequate. The approach of simply eliminating government racial classifications is not sufficient. We must eliminate notions of superiority to stop the cyclical process whereby racist thoughts and actions lead to disparities. 

  • June 6, 2013
    Father, Son, and Constitution
    How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy
    Alexander Wohl

    by Alexander Wohl. Mr. Wohl is an adjunct professor at American University Washington College of Law, speech writer in the federal government and a former Supreme Court Judicial Fellow. For more information about his new book on Justice Tom Clark and his son Attorney General Ramsey Clark, visit the Father, Son, and Constitution Facebook page.

    As the only father and son to serve as attorneys general of the United States, Tom and Ramsey Clark are an historically unique pair, a distinction made even more noteworthy by Justice Tom Clark’s decision to give up his seat on the Supreme Court in 1967 so that his son could become President Lyndon Johnson’s attorney general. The tag-team tenure in government of this father and son was an unprecedented shared proximity to power and policy influence during some of the most challenging, divisive, and triumphant periods in U.S. history, from World War II to the attacks of September 11, 2001. But their impact is more far-reaching. In combined careers of more than 100 years and lives spanning three centuries, the Clarks provide a useful lens through which to examine the complex relationship between government and individual citizens that has defined and shaped U.S. legal and social policy through the present day.

    At the heart of both Tom and Ramsey Clark’s work were many issues addressing this balance: the extent to which individuals should be prosecuted for “dangerous” speech or associations, when to use invasive law enforcement tools such as wiretapping, what type or duration of confinement constitutes unlawful detention, and the kind of role the federal government itself can or should play in the development of various policies and the enforcement of individual constitutional principles.

    On these and other thorny questions the Clarks at once offer a set of ideological bookends and proof that views can evolve over time, a combination largely absent in an environment today in which questions about law and policy increasingly lead to ideological stratification and decision makers ever more pigeonholed in their views. While Tom and Ramsey Clark had clear differences in their outlook and approach, they often found common ground on many issues, including gun control, juvenile crime, and civil rights, along the way learning from each other.

  • April 1, 2013
    The Tough Luck Constitution and the Assault on Healthcare Reform
    Andrew Koppelman

    by Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University Law School

    Last spring, the Supreme Court came within one vote of taking health insurance away from over 30 million people, exposing a dangerous intellectual trend that, simply put, threatens to hurt you and your family. The near-success of the constitutional arguments against the Affordable Care Act is scary news, because those arguments silently rely on a philosophy at war with the most fundamental purpose of the Constitution: to empower the American people to solve their most pressing problems.

    The ACA included an individual mandate to have insurance, because no other path to universal insurance was workable. Even Republicans had supported such a mandate for years. Universal health insurance logically means that everyone must have insurance. 

    The litigation depended on a different ideal, which we can call Tough Luck Libertarianism: any obligation of healthy people to contribute to care for the sick is an intolerable imposition on liberty; if you get sick and can’t pay for care, that’s your tough luck.

    The constitutional challenge was devised by conservative lawyers who had, for a long time, been eager to impose limits on Congressional power. They proposed a new and previously unheard-of constitutional rule:  the state can’t make you do things or buy things. It may regulate only those who engage in some self-initiated action.

    This action/inaction distinction came advertised as a great bulwark of liberty. Actually, it was a crude bit of political opportunism. No one can live in the world without engaging in self-initiated actions all the time. This rule is not a serious constraint on government power. It allows Congress to act in every case in which the citizen has voluntarily taken some action. Most of us can’t realistically avoid having jobs and buying things, and it’s not much consolation to be told that I can avoid oppression if I live in the woods and eat berries. This limitation is unlikely to have any application after the ACA litigation, and is patently tailored to bring about a desired result in a single case.

  • March 21, 2013
    Unlearning Liberty
    Campus Censorship and the End of American Debate
    Greg Lukianoff

    by Greg Lukianoff, an attorney and president of the Foundation for Individual Rights in Education

    I went to law school with a particular passion in mind: the First Amendment and freedom of speech. Starting at Stanford in 1997, I took virtually every class the law school offered on the First Amendment, completed six additional credits on the origins of the legal theory of “prior restraint” in Tudor England, and worked for the ACLU of Northern California. I was nonetheless unprepared for the kind of censorship I would see on college campuses, first as legal director and then as president of The Foundation for Individual Rights in Education(FIRE).

    My recent book, Unlearning Liberty: Campus Censorship and the End of American Debate, is my attempt to catalog a small fraction of the terrible cases I’ve seen over the last 11 years and to explain why college censorship matters both on and off campus.

    The cases of censorship I have seen over the years run from the absurd to the serious. I have covered these cases in great detail at The Huffington Post, where I’m a regular contributor, and have for the past two years dubbed some of the offenders the “worst colleges for freedom of speech.” On the high-end of the absurd cases are those involving cartoons, one case involving a quote from the beloved yet short-lived science-fiction series, Firefly, and a politically incorrect flyer that made a joke about the freshman 15, all of which I showcased in an article with the tongue-in-cheek name “Top 10 Pics Too Hot for Campus.”

    I open Unlearning Liberty talking about the currently ongoing legal saga that straddles the chasm between absurd and serious. The case involved a student, Hayden Barnes, who protested against his school, Valdosta State University in southern Georgia, for its decision to build two parking garages on campus. He went about protesting the parking garages by contacting the Board of Regents and writing a letter to the editor of the student newspaper.