First Amendment

  • July 18, 2012
    Guest Post

    By Jeffrey M. Shaman, a professor at DePaul University College of Law and author of the just-released ACS Issue Brief, “Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech.”


    Arrogant, defiant, and dogmatic, Supreme Court Justice Antonin Scalia is a true believer in the theory of originalism — the idea that the Constitution should be interpreted according to its original meaning when first adopted in 1787. Originalism is based on the notion that the Constitution has a fixed meaning that does not change with the passage of time. Given the bully pulpit of his high office, Justice Scalia is the nation’s most prominent advocate of this extreme and deeply conservative ideology.

    The problem is that originalism is a fraud that misrepresents the nature of history by presuming that it has an objective meaning that can be discovered through study of the past. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one’s mind. Originalism, then, perpetrates a pretense of objectivity that functions as a facade for policy-making.

    The illusory propensity of originalism is strikingly apparent in District of Columbia v. Heller, the 2008 decision in which the Supreme Court ruled by a slim 5-4 majority that the Second Amendment of the Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

  • July 16, 2012

    by Jeremy Leaming

    Since the Supreme Court issued its opinion in Citizens United v. FEC in early 2010 it has become painfully clear that the majority opinion was poorly crafted and based on wobbly assumptions about the effects of corporate bankrolling of elections.

    In late May, retired Justice John Paul Stevens, who lodged a concurring and dissenting opinion in the case, offered a number of reasons why the high court should revisit the majority opinion's holding.

    Before hitting upon those reasons, Stevens, in a speech at the University of Arkansas Clinton School of Public Service, noted that the majority decision reversed “a century of law [upholding campaign finance regulations]” and it authorized “unlimited election-related expenditures by America’s most powerful interests.”

    The opinion, Stevens continued, placed an enormous “emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity’” and claimed that when it comes to political speech the government is barred from restricting speakers.

    Plenty of constitutional scholars have argued that the majority opinion fleetingly trampled precedent in support of campaign finance regulation to unveil a new right for corporations to spend wildly on politicking.

    But Harvard Law School professor Benjamin I. Sachs in a recent op-ed for The New York Times notes that it also tramples the cherished First Amendment principle that the government cannot force individuals to support politicians or political causes.

    Specifically Sachs notes that the “vast majority of people who work in the public sector – state, local and federal employees – are required to make contributions to a pension plan.” And nearly every state makes it mandatory for workers to participate in those plans. Not surprisingly, Sachs notes workers have little say in how the pension plans are operated and that “pension plans invest heavily in corporate securities: in 2008, public pensions held about $1.15 trillion in corporate stock.”

  • July 5, 2012
    Guest Post

    By Sarah Lipton-Lubet, ACLU Washington Legislative Office. This piece is cross-posted at the ACLU’s Washington Markup.


    Last week, as the nation paid rapt attention, the Supreme Court upheld the Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius.  The decision is especially critical for women, who are more likely to suffer gaps and discrimination in their health care coverage.  Importantly, it means that the contraceptive coverage rule – which ensures access to affordable birth control for millions of women across the country – is still in place.

    That same day, the Supreme Court made a second decision about the ACA to a much quieter reception.  The Court declined to hear Seven-Sky v. Holder, a case alleging that the ACA’s individual mandate provision violates the Religious Freedom Restoration Act (RFRA), a statute that precludes federal laws from placing a “substantial burden” on religious exercise unless the government has a compelling interest in enacting the law.  Here, the plaintiffs argued that they “believe in trusting in God to protect [them] from illness or injury,” and therefore did not “want to be forced to buy health insurance coverage.”

  • July 5, 2012
    BookTalk
    The Catonsville Nine
    A Story of Faith and Resistance in the Vietnam Era
    By: 
    Shawn Francis Peters

    By Shawn F. Peters, who teaches writing and U.S. history at the University of Wisconsin-Madison


    Reverend Daniel Berrigan is still at it. Though slowed a bit by age and infirmity – he’s 91 years old now and in failing health – the firebrand Jesuit priest recently appeared in Zuccotti Park in lower Manhattan to speak out against Trinity Church. The Episcopal parish was backing the criminal prosecution of several protesters who had occupied one of its empty lots – a move that, in Berrigan’s view, seemed equal parts petty and pointless. In characteristically poetic fashion, he prodded the reporters and supporters who had assembled around him in the park, asking, “What is real about real estate, and what is unreal about real estate?”

    For many of those who have participated in Occupy movement protests over the past year, Dan Berrigan is a kind of patron saint. With a commitment to peace and social justice stretching back more than half a century, he repeatedly has placed himself on the front lines of protests against racial discrimination, income inequality, and war. Few public figures in our time – religious or secular – have matched either the breadth or the depth of his devotion to such causes.

    This dedication often has put the indefatigable Berrigan at odds with all manner of local, state, and federal legal authorities. His protest activities have resulted in numerous arrests and several stints in prison. Berrigan has been branded a “holy outlaw,” and not without reason. Whenever the letter or spirit of secular laws or public policies have conflicted with his understanding of the Christian scriptures, he has held true to his religious principles – often at enormous personal cost.

    My new book, The Catonsville Nine: A Story of Faith and Resistance in the Vietnam Era (Oxford University Press), chronicles what might be regarded as the apex of Berrigan’s fabled career as an activist: his participation in a raid on a military draft board in suburban Baltimore on May 17, 1968. In a bold demonstration, Berrigan and eight other Catholics (including his brother Philip) seized and burned more than 350 draft files from the Selective Service office in Catonsville, Md. Their subsequent trial in federal court (at which they all were found guilty on all counts) was so singularly dramatic and intense that a play and film later were based on it. 

    I am a native of Catonsville, and as I grew up there in the 1970s I heard many stories about what Berrigan and his compatriots had perpetrated at the town’s draft office. In piecing together their fascinating story for my book, I realized that a lot of what I heard was incomplete, or simply wrong.

  • July 2, 2012
    Guest Post

    By Anne Marie Lofaso, Associate Dean for Faculty Research and Development and a law professor at West Virginia University College of Law. An extended version of this piece is posted at the Employment Policy Research Network’s blog.


    On June 21, the Supreme Court decided Knox v. SEIU Local 1000, holding that the First Amendment does not permit public-sector unions in non-right-to-work states to require objecting nonmembers, absent express authorization (opt-in), to pay a special fee for the purpose of financing the union’s political and ideological activities. Until Knox, the Supreme Court had never questioned the constitutionality of the opt-out method. So long as unions did not compel union membership and periodically permitted workers to opt-out of non-chargeable expenses, any impingement on the public-sector workers’ (the objectors’) free speech had always been found to be constitutional.

    The majority opinion (Justices Alito, Scalia, Kennedy, Thomas, and Chief Justice Roberts) starts by questioning the constitutionality of requiring non-members to pay even chargeable expenses. Indeed, the majority opinion questions the very existence of the non-“right to work” (RTW) state, which of course is grounded in the idea that workers should pay for representation even though they might not have voted for union representation, just as all of us still had to pay taxes to help finance the wars in Afghanistan and Iraq even though some of us (indeed, a majority of us) didn’t vote for President George W. Bush and even though we might have been ideologically opposed to President Bush’s political agenda. We do that because we are party to what is thought to be a social contract with a democratic government in which we receive the benefits and bear the burdens of majority rule. Notwithstanding these basic principles, the majority opinion dismisses the free-rider justification for compelling nonmembers to pay their fair share of representation services as “something of an anomaly.”

    The majority opinion proceeds to characterize the opt-out pathway as “a remarkable boon for unions” and therefore unconstitutional. This is because, in the court’s view, “[c]ourts ‘do not presume acquiescence in the loss of fundamental rights.’” The Supreme Court, however, has presumed such acquiescence. For example, the Roberts’ Court presumed workers’ acquiescence in a union-employer agreement to waive employees’ right to a jury trial in a Title VII case. 14 Penn Plaza LLC v. Pyett (2009); see also Board of Regents of the Univ. of Wisconsin Sys. v. Southworth (2000) (holding that the“First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral”).The Court moved from that fallacious presupposition to its conclusion — that the opt-out pathway is unconstitutional because dissenting workers should not bear the burden of opting out of payments to support views that are politically distasteful to them. This is so even if the political activity actually benefits the bargaining-unit workers by, for example, lobbying for pro-worker legislation.