First Amendment

  • October 7, 2013
     
    * This post originally appeared on Talking Points Memo.
     
    The government shutdown has not resulted, so far, in the Supreme Court shuttering its doors and its 2013-2014 Term starts Oct. 7. The new Term might fairly be dubbed a stealth term, especially after two "blockbuster" ones that produced major rulings on health care reform, marriage equality, voting rights and affirmative action. But the new term, like many terms, carries the potential for significant change.
     
    Justice Ruth Bader Ginsburg recently tagged the Roberts Court as the most activist in terms of overturning acts of Congress. It's also a Court that has made it more difficult for many Americans to access the court system and produced win after win for business interests.
     
    So let's look at a few of the cases that should be on everyone's radar. These cases should also remind us of the importance of judges who interpret the Constitution with a deep understanding of our challenges today and the ability to apply the Constitution's broad language and principles to them. For it makes little sense, as Erwin Chemerinsky notes in this ACSblog post, "to be governed in the 21st century by the intent of those in 1787 ...." For additional discussion of the forthcoming Term, see the annual preview hosted by the American Constitution Society for Law and Policy (ACS).
     
  • October 4, 2013
    Guest Post
     
    The latest wrecking ball flailing around in the rubble of America’s election and campaign finance laws, McCutcheon v. Federal Election Commission, will be argued in the Supreme Court on October 8.  Once again we can expect counsel and some members of the Court to be on the lookout for deviant, “forbidden” thinking about money and democracy. 
     
    As in Citizens United in 2010, the Arizona public funding case in 2011 (American Free Enterprise Club’s Freedom Club PAC v. Bennett), and the Montana challenge to Citizens United in 2012 (American Tradition Partnership v. Bullock), the McCutcheon plaintiffs ask five members of the Court to override longstanding law,  ignore common-sense and historical conceptions of corruption, and denounce widely-shared American values such as equal participation in elections and self-government,  to impose a preference for unregulated money in elections. 
     
    At issue is whether the federal aggregate contribution limits (currently $48,000 to candidates and $74,000 to party committees) violate freedom of speech under the First Amendment. One plaintiff is Shaun McCutcheon, CEO of a company that services the coal and mining industry. Although he was among a handful of people who contributed hundreds of thousands of dollars to candidates and SuperPACs in the last election cycle, he claims that his freedom of speech is violated by the federal aggregate limit of $123,000. The other plaintiff is the Republican National Committee, whose members naturally wish to receive as much money as they can, and claim that the aggregate limits violate their freedom of speech.
     
  • September 27, 2013
    Guest Post
     
    This post originally appeared on SCOTUSblog.
     
    One of the unanticipated challenges I encountered along the path to my recent biography on Supreme Court Justice Tom Clark and his son, Attorney General Ramsey Clark, was the shadow cast on the elder Clark as the result of an unverified and probably inaccurate, but still highly influential historical reference.  It is an impact exacerbated by our Google-based world, where even erroneous references can create a lasting marker, repeated so often that both casual observers and scholars assume its accuracy.  As Nora Ephron once quipped, “You can’t retrieve your life, unless you’re on Wikipedia, in which case you can retrieve an inaccurate version of it.”
     
    The burden of biographical inaccuracies existed long before Google or Wikipedia, of course – think George Washington chopping down a cherry tree. But when these references undermine a subject’s character – and cannot be disproven – that can mean trouble for a biographer.
     
    For instance, the biographer of Al Shanker, the famous teachers union president and education innovator, never could disprove the frequently cited (though never documented) quote purportedly made by his subject: “When schoolchildren start paying union dues, that’s when I’ll start representing the interests of school children.” A similar question was faced bybiographers of Justice William Brennan, who could neither completely confirm or refute an oft-cited comment said to have been made by President Eisenhower, to the effect that his appointment of Brennan and Chief Justice Earl Warren were the two worst decisions of his presidency.
     
    All of which brings us to the story behind the purported disparagement of Justice Tom Clark by President Harry Truman, the man who appointed Clark as attorney general and later as Supreme Court Justice. The alleged controversial remarks, as well as a number of other provocative statements from the former president about other prominent subjects, derived from a series of conversations between Truman and writer Merle Miller as part of a television series that never aired and which subsequently were compiled by Miller for his 1974 best-selling book, Plain Speaking. According to Miller, Truman called Clark was “my biggest mistake,” adding, ”He was no damn good as Attorney General, and on the Supreme Court . . . it doesn’t seem possible, but he’s been even worse.” Asked by Miller to explain the comment, Truman stated further: “The main thing is . . . well, it isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across.” This is juicy stuff that, not surprisingly, has been included in various forms in nearly every subsequent biographical reference about the former Justice.
     
  • September 4, 2013
    BookTalk
    The Great Dissent
    How Oliver Wendell Holmes Changed His Mind -- and Changed the History of Free Speech in America
    By: 
    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 26, 2013
    Guest Post
    by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law 
     
    Liberty University v. Lew, the Fourth Circuit’s recent decision about the Affordable Care Act [ACA], should please no one. The opinion demonstrates the dangers of exempting religious organizations and individuals from the law. Take your pick. The court either exempted too many, or too few. Its middle ground unsatisfactorily addresses the First Amendment challenges to the Act.
     
    Individual plaintiffs and Liberty University opposed the individual and employer mandates of the ACA. The individual mandate requires individuals to obtain minimum essential health care coverage or pay a penalty in their taxes. The employer mandate requires employers to provide affordable minimal essential health care coverage to full-time employees or face a tax penalty.
     
    All plaintiffs are Christians morally opposed to abortion except to save the life of the mother. The most straightforward of their complaints alleged that their mandated insurance payments would wind up paying for abortions in violation of their constitutional and statutory rights. This is the simplest exemption argument in the case: plaintiffs think they should be exempt from the ACA because it burdens their religion.
     
    The court quickly dismissed that argument. Under the Free Exercise Clause, it ruled, the ACA is a neutral law of general applicability that applies to everyone without singling out religions for disfavor. Moreover, the court decided, plaintiffs’ religion was not burdened by the mandates. Although plaintiffs alleged that their money would be used for abortion, other provisions of the ACA required that a plan without abortion coverage would always be available as a choice for consumers. Without a substantial burden on religion, neither the Free Exercise Clause nor the Religious Freedom Restoration Act (which prohibits the federal government from substantially burdening religion without a compelling government interest) was violated.