First Amendment

  • April 14, 2015
    BookTalk
    The Workplace Constitution
    from the New Deal to the New Right
    By: 
    Sophia Z. Lee

    by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School

    “Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court.  Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws.  The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract).  So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?

    The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign.  As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment.  In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.

    The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots.  Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union.  When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position.  In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union.  DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.

    But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime.  Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.  

    In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation.  When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated.  Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits.  The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.

  • April 7, 2015
    Guest Post

    by Mark S. Kende, James Madison Chair Professor of Law and Director of the Drake University Constitutional Law Center, and Bryan Ingram, Notes Editor of the Drake Law Review

    In 2009, the Texas Department of Motor Vehicles Board (DMVB) rejected a controversial license plate design proposed by the Sons of Confederate Veterans (SCV), a Texas non-profit group.  The plate features a confederate battle flag surrounded by the words “Sons of Confederate Veterans 1896,” a faint confederate flag design in the background, an outline of the state in the upper-right-hand corner, the words “Texas” at the top of the plate, and the words “Sons of Confederate Veterans” at the bottom. 

    The DMVB’s action triggered a First Amendment battle between the state and the SCV, which is presently before the Supreme Court.  After the recent oral arguments, many believe the issue will hinge on whether the design constitutes government or private speech.  The question of whether such a plate contains racist hate speech is also relevant.  Most foreign nations ban racist hate speech.  The U.S. Supreme Court, however, has said racist hate speech is protected.  Some have called this American free speech exceptionalism, but the SCV says they are just committed to preserving the history and legacy of confederate veterans.

  • February 16, 2015
    Guest Post

    by Harvey Fiser, Associate Professor of Business Law at Millsaps College

    All eyes are once again focused on our southern states and their leaders for again defying federal court orders.  This time, as last, is about violating the constitutional rights of its citizens.  The latest in the long line of outspoken obstructionists is Alabama Supreme Court Justice Roy Moore.  Moore, infamous for once being removed from his position on the Alabama Supreme Court for defying a federal court order to remove a 2.6-ton monument of the Ten Commandments from the rotunda of Alabama’s Supreme Court building, is the lead mouth-piece on the current issue of same-sex marriage. 

    On Monday, February 9, after a denial of a stay request by both the Eleventh Circuit and the United States Supreme Court, United States District Court Judge Granade’s order took effect.  The order declared Alabama’s bans on same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  On that Monday, same-sex couples were allowed the same marriage rights as all other couples in Alabama – until they weren’t. 

    Perhaps forgetting the commandment, “remember the Sabbath and keep it holy (Exodus 20:8),” Justice Moore, on Sunday, February 8, set aside any Sabbath work restrictions and issued an Administrative Order prohibiting all probate judges in Alabama from granting marriage licenses to same-sex couples despite the federal court order.  Moore supported his order with the technical fact that neither the United States Supreme Court nor the Supreme Court of Alabama had ruled on the Alabama laws – never mentioning the denial of a stay by the U.S. Court of Appeals for the Eleventh Circuit five days prior.  The U.S. Supreme Court did act the next day, and, on Monday, February 9, the path was cleared for same-sex couples to marry in Alabama again.  Surely this satisfied Moore’s Sunday declaration.  Except, it didn’t.

  • January 30, 2015

     
    Five years after the Supreme Court in Citizens United struck down restrictions on corporate spending in elections, the American political landscape has become one where influence can be bought and the voices of wealthy donors drown out other perspectives. 

    Almost immediately after the Citizens United decision, outside spending in elections spiked.  Over the next five years, it more than doubled.  Super PACs used hefty budgets to produce attack ads against candidates who were not to their liking—affecting outcomes in not only political races, but also in state judicial elections. 

    Judges perceived as being unfriendly to PACs’ interests were attacked under the pretense of being “soft on crime,” resulting in measurably harsher treatment of criminal defendants by state supreme court justices.  Further, the last five years have seen a flood of dark money into elections.  As many commentators have noted, donor secrecy breeds mistrust and, possibly, corruption.

    Americans expect the courts to be fair and impartial, but as special interest groups spend more and more money to influence courts, public faith in these institutions is waning.  Soon, the Supreme Court will have to decide how important judicial independence is to our justice system in Williams-Yulee vs. The Florida Bar, a case that could, if wrongly decided, further diminish public trust in the courts.  For those concerned about Citizens United, Williams-Yulee, or the corrosive impact of unrestrained special interest spending on our democracy, see the following ACS resources:

    Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, Joanna Shepherd and Michael S. Kang

    Five Years Later, Citizens United Wreaks Havoc on Our Democracy, Fred Wertheimer, ACSblog

    The Top Five Myths About the Democracy For All Amendment, John Bonifaz, ACSblog

    Supreme Court Briefing: Williams-Yulee vs. The Florida Bar, Video

    Interview with Professor Tracey George on Williams-Yulee, Video

    Democracy and Our State Courts: Fighting Back After Citizens United, Video

     

  • January 22, 2015
    BookTalk
    Madison's Music: On Reading the First Amendment
    By: 
    Burt Neuborne

    by Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU Law, and Founding Legal Director, Brennan Center for Justice

    We honor James Madison as the driving force behind the Bill of Rights.  We recognize him as Thomas Jefferson’s indispensable political lieutenant.  We applaud him as the nation’s fourth president.  But we will never do Madison full justice until we revere him as a great poet.

    Not a literary poet like Wallace Stevens, or a prophet-poet like Abraham Lincoln, or even a peoples’ poet like Ronald Reagan.  Madison’s poetic genius was structural – a mastery of the interplay between democracy and individual liberty.  His poetic voice speaks to us in the harmony of the 462 words, 31 ideas, and 10 amendments – each in its perfectly chosen place and all interacting to form a coherent whole – that is the magnificent poem to democracy and individual freedom called the Bill of Rights.

    Today, we hear only broken fragments of Madison’s music.  Madison’s poetic vision of the interplay between democracy and individual freedom is hiding in plain sight in the brilliantly ordered text and structure of the Bill of Rights, but we have forgotten how to look for it.  Instead of seeking harmony and coherence in the Bill of Rights, the current Supreme Court majority reads the Bill of Rights as a set of self-contained commands, as if each clause – and at times, each word of each clause – existed in splendid isolation from the body of the constitutional text.  Consider the fate of the 45 words in Madison’s remarkable First Amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.