Speech and expression

  • March 7, 2012

    by Jeremy Leaming

    The Occupy Wall Street protests helped amplify discussion of the nation’s growing economic inequality. They highlighted the fact that conservative economic policy has made a tiny few in the country extremely wealthy, while shoving many more people into poverty.

    Not surprisingly, however, those demonstrations have also prompted Congress to react with legislation that as The Daily Agenda reports would undoubtedly work to harm free speech. In its first post on the legislation, H.R. 347, The Daily Agenda dubbed the measure the “anti-Occupy law,” because it is aimed at keeping many federal buildings and grounds free of protestors. The measure is not law yet, but it easily passed both chambers of Congress and has been sent to the president.

    The measure, euphemistically dubbed the “Federal Restricted Buildings and Grounds Improvement Act,” would alter federal criminal law barring persons from “knowingly” wandering onto “any restricted building or grounds without lawful authority.” Those places include the White House, the vice president’s residence, “a building or grounds where the President or other persons protected by the Secret Service is or will be temporarily visiting,” or federal buildings or grounds that are hosting a “special event of national significance.”

    The anti-free speech measure’s chief sponsor is Florida Republican Rep. Tom Rooney, who has railed against President Obama’s landmark health care reform law, the Affordable Care Act. Rooney is also supporting a federal lawsuit lodged by a religious university against a part of the health care reform law that will require insurance companies to pay for contraceptives for workers at religiously affiliated institutions.

  • February 22, 2012
    Guest Post

    By Ruthann Robson, Professor of Law & University Distinguished Professor, City University of New York (CUNY) School of Law. Professor Robson is also the ACS faculty advisor for the CUNY School of Law Student Chapter.


    All of us are not in jail because very few lies are crimes. Falsehoods under oath, or to a government agent or agency, or in a fraudulent scheme, are all criminalized. But lies based on their subject matter are much more rarely the subject of criminal sanctions.

    In the 2005 Stolen Valor Act, Congress has criminalized false statements that one has received a military medal such as the Purple Heart. The lie is a crime even if it is a mere boast in a bar or on E-Harmony.  Importantly, a lie about the same subject matter -- for example, the Purple Heart -- is not criminalized if the false statement is that one has not received the award when one has.

    The Ninth Circuit, in a divided opinion, held this provision of the Stolen Valor Act unconstitutional as content discrimination under the First Amendment. Just last month and after the United States Supreme Court had taken certiorari, the Tenth Circuit also in a divided opinion, held the provision constitutional.

    The Supreme Court will have a choice between two different approaches. On the one hand, falsehoods might be entirely beyond the protection of the First Amendment. Under this so-called categorical approach, while there are no such things as “false ideas,” there are certainly false statements of fact that are not essential to the truth-seeking function of the First Amendment. The government should be able to regulate these false statements, as it regularly does with regard to allowing damages actions for defamation and regulating commercial representations about products.

    On the other hand, government regulations making content or viewpoint distinctions -- regulating the speech because of what the speech is “about” or because of the opinion it advocates -- are highly suspect. Courts demand that the government interest be compelling, with a burden on the government to show there are not less restrictive means.

  • February 14, 2012

    by Jeremy Leaming

    The state that gave the country one of the harshest anti-immigrant laws, spurring an even nastier measure, the one Alabama produced, is now contemplating a sweeping bill aimed at curtailing free speech at the state’s public schools and universities.

    As The Daily Agenda’s Anthony Badami reports the Arizona state senate is considering SB 1467 “that would require schools and universities to refrain from engaging in ‘speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio.’”

    Badami notes that such a measure if adopted could jeopardize teaching literature or history “that include offensive, derogatory, and/or lewd language, creating a special difficulty for the examination of free speech/obscenity cases, esp. in constitutional law courses.” The bill, if enacted, could, as Badami correctly notes, make it incredibly thorny for educators to teach certain works of fiction, say D.H. Lawrence’s Lady Chatterley’s Lover.

    The Republic, a Phoenix daily, reports that the bill is supported by Republican state lawmakers who want to “require teachers to limit their speech to words that comply with the Federal Communications Commission regulations on what can be said on TV or radio.”  

  • February 2, 2012
    Guest Post

    By Russell Wheeler, a visiting fellow in the Brookings Institution’s Governance Studies Program


    The judicial confirmation arena has been a battleground during the Obama administration, as it was during the Clinton and Bush administrations (described at greater length in a recent Brookings post from which this post is drawn).

    CONFIRMATION RATES were in the 90 percent range for court of appeals nominees in the 1970s and 1980s but deteriorated in the Clinton and Bush administrations to the low 70 percent range. The Senate, by the end of 2011, had confirmed 67 percent of Obama circuit nominees — although excluding post-July 2011 nominees from the mix raises the rate to 81 percent. The circuit confirmation rate by the end of Obama’s current term is likely to be closer to 67 than 81 percent.

    District confirmations, on the other hand, hovered around the 90 percent mark through the W. Bush administration, but stand now at 73 percent for the Obama administration — 83 percent for pre-August 2011 nominees.

    DISTRICT COURT VACANCIES, due in part to the comparatively low confirmation rate, have increased during the Obama administration — from 41 in January 2009 to 67 at the end of December 2011. By contrast, district court vacancies fell sharply during the first three years of the Clinton and Bush administrations. Obama has held circuit vacancies fairly steady, as did Clinton, although they decreased during Bush’s first three years.

    The increase in district vacancies during the Obama administration has two drivers besides the confirmation rate. One is the comparatively low number of nominees submitted — 133 by the end of 2011, versus 179 and 165 at the end of Clinton’s and Bush’s first three years. The low number of nominations has exasperated liberals who looked to Obama to offset the results of the Bush administration’s determined judicial nomination strategy. Their only consolation is that the pace of nominations has picked up since the slow start in 2001.

  • January 20, 2012

    By Nicole Flatow

    Opponents of the landmark Supreme Court ruling in Citizens United v. FEC gathered at courthouses around the country today to protest the decision around its two-year anniversary, many petitioning for a constitutional amendment to overturn the ruling.

    The Constitutional Accountability Center released an Issue Brief bolstering the case for a constitutional amendment. To “those who think an amendment overturning Citizens United is a pipedream,” the Issue Brief and an accompanying blog post by Constitutional Accountability Center President Doug Kendall offer the story of Pollock v. Farmers' Loan & Trust Co. and its invalidation through the ratification of the Sixteenth Amendment.

    “Throughout our history, the American people have amended the Constitution in order to undo Court rulings that misinterpreted the Constitution," Kendall writes. "In addition to the Sixteenth Amendment, the Eleventh, Fourteenth, and Twenty-Sixth amendments were all sparked, at least in part, by divided Supreme Court rulings. In these Amendments, the American people agreed that the dissenting opinions, not the majority, better articulated the meaning of the Constitution.”

    But not everyone agrees that a constitutional amendment is the best solution to curb the infiltration of money into politics.

    Roosevelt Institute Senior Fellow Mark Schmitt writes for The New Republic that, unlike other movements to amend, an amendment to overturn Citizens United would “retract rights rather than expand them.” Schmitt suggests that this movement instead focus its energies on rooting out corruption in election spending more generally. He writes: