Charles Koch Institute's Senior Fellow for Free Speech and Toleration Casey Mattox, who spoke on campus free speech at the RNLA's National Policy Conference in April, described how three First Amendment cases from the Supreme Court's October 2017 term would impact free speech on college and university campuses. First, on Minnesota Voters Alliance v. Mansky:
The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. . . . In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination.
Some attorneys have argued that this "unbridled discretion" doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. . . . But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.
Second, Mr. Mattox writes of the impact of Janus v. AFSCME:
Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” . . . In Southworth v. Board of Regents, University of Wisconsin System, the Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. . . . After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.
And finally, on NIFLA v. Becerra:
Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment.
The Roberts Court, particularly in the last term with the addition of Justice Gorsuch, has been a strong speech-protective Court. Judge Kavanaugh has a strong record on free speech cases and will likely continue this trend when he is confirmed to the Supreme Court. While the Court does not hear many campus free speech cases, mainly because universities' speech-suppressing policies are usually clearly unconstitutional and quickly dropped or invalidated once challenged, its First Amendment jurisprudence has many implications for free speech on campus.
As America celebrated Independence Day yesterday, our first freedoms are increasingly under threat from those who would set them aside to advance their progressive policy goals. As Robert Shibley of the Foundation for Individual Rights in Education (FIRE) wrote of the emerging liberal strategy:
Those on the left who argue that it’s time to jettison our nation’s uniquely liberal conception of free speech are making a grievous mistake, but not a new one. . . . The underlying assumption of the new First Amendment critics is that it is self-evident that progressive positions (whatever those may be) are correct. Therefore, if the application of free speech principles makes accomplishing their aims more difficult, it’s freedom of speech that is the problem. . . .
Censors of all stripes worry that without proper guidance and regulation, our society might make the “wrong” choices, as determined by, well, them. But policies adopted under conditions where all sides have a right to be heard carry the legitimacy they do precisely because free discussion and debate increase people’s confidence in the conclusions that are ultimately reached. . . . Whether in science, in a criminal trial, or in society at large, there is no reason to trust a conclusion that was reached without access to and consideration of all of the relevant information—the very information that censors wish to suppress.
Mr. Shibley described how First Amendment protections do not favor one side of the political aisle but benefit all speakers equally. He concluded by noting how free speech is fundamental to our freedom and system of government:
Especially in today’s hyper-polarized politics, labeling an idea or proposition as merely a weapon for, or a conspiracy by, the other side is akin to giving partisans a permission slip to turn off their brains. It’s an easy, expedient measure that gives your “team” one less thing to think about in a world deluged with news and information. It’s much harder to step back and consider that what you see as a “sword” in the hands of your opposition—a metaphor sometimes used by the left-leaning thinkers discussed above—might look a whole lot more like a shield to the other side.
Trying to see the argument from the other side is hard work. But then, governing a heterogeneous nation of more than 300,000,000 is hard work, and in our political system, we all share in that responsibility. When asked on the last day of the Constitutional Convention what kind of government the Framers had produced, Benjamin Franklin famously replied, “A republic, if you can keep it.” The First Amendment, and the culture of free speech for which it serves as a touchstone, is a key part of what makes our great experiment work.
Thanks to FIRE and the many other organizations fighting to defend First Amendment rights (unlike liberal organizations like the ACLU, which are increasingly only defending progressive speech), thereby preserving freedom for all Americans, not only those who want to say what is politically correct.
The RNLA will cover current First Amendment issues in politics at its National Election Law Seminar on August 3-4 in St. Louis, Missouri. More information and registration details are here.
Today, the Supreme Court decided National Institute of Family and Life Associates (NIFLA) v. Becerra. Justice Thomas wrote for the five-member majority concerning the two pro-abortion notices required of pro-life pregnancy center by the California law at issue (the FACT Act) (citations omitted):
The licensed notice is a content-based regulation of
speech. By compelling individuals to speak a particular
message, such notices “alte[r] the content of [their]
speech.” . . . Although the licensed notice is content based, the Ninth
Circuit did not apply strict scrutiny because it concluded
that the notice regulates “professional speech.” Some Courts of Appeals have recognized “professional
speech” as a separate category of speech that is
subject to different rules. . . . But this Court has not recognized “professional speech”
as a separate category of speech. Speech is not unprotected
merely because it is uttered by “professionals.” . . .
The dangers associated with content-based regulations
of speech are also present in the context of professional
speech. As with other kinds of speech, regulating the
content of professionals’ speech “pose[s] the inherent risk
that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or information.” . . . “[T]he best test of truth is the
power of the thought to get itself accepted in the competition
of the market,” and the people
lose when the government is the one deciding which ideas
should prevail. . . .
In sum, neither California nor the Ninth Circuit has
identified a persuasive reason for treating professional
speech as a unique category that is exempt from ordinary
First Amendment principles. We do not foreclose the
possibility that some such reason exists. We need not do
so because the licensed notice cannot survive even intermediate
scrutiny. California asserts a single interest to
justify the licensed notice: providing low-income women
with information about state-sponsored services. Assuming
that this is a substantial state interest, the licensed
notice is not sufficiently drawn to achieve it.
If California’s goal is to educate low-income women
about the services it provides, then the licensed notice is “wildly under inclusive.” . . . Yet “[p]recision . . .
must be the touchstone” when it comes to regulations of
speech, which “so closely touc[h] our most precious freedoms.” . . .
Turning to the other notice requirement:
We need not decide what type of state interest is sufficient
to sustain a disclosure requirement like the unlicensed
notice. California has not demonstrated any justification
for the unlicensed notice that is more than “purely
hypothetical.” . . .
Even if California had presented a nonhypothetical
justification for the unlicensed notice, the FACT Act unduly
burdens protected speech. The unlicensed notice imposes
a government-scripted, speaker-based disclosure requirement
that is wholly disconnected from California’s informational
interest. . . . And it covers a
curiously narrow subset of speakers. . . . This Court’s
precedents are deeply skeptical of laws that “distinguis[h]
among different speakers, allowing speech by some but not
others.” Speaker-based laws run the risk
that “the State has left unburdened those speakers whose
messages are in accord with its own views.”
The majority did not reach the plaintiffs' viewpoint discrimination claim (see footnote 2 on page 6). Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch, agreed that the Court was correct not to reach the viewpoint discrimination question but concurred to note that the "apparent viewpoint discrimination here is a matter of
serious constitutional concern":
It does appear that viewpoint discrimination is inherent
in the design and structure of this Act. This law is a
paradigmatic example of the serious threat presented
when government seeks to impose its own message in the
place of individual speech, thought, and expression. . . . This compels individuals to contradict
their most deeply held beliefs, beliefs grounded in basic
philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive
application suggest a real possibility that these individuals
were targeted because of their beliefs. . . .
Governments must not be allowed to force persons to
express a message contrary to their deepest convictions.
Freedom of speech secures freedom of thought and belief.
This law imperils those liberties.
While liberals will use any means to attempt to force people to support their policy agenda, the First Amendment stands against government efforts to force people to speak contrary to their personal views just as it stands against restricting people from speaking. Today the Supreme Court once again relied on the First Amendment to vindicate the rights of the people against government oppression.
The Supreme Court also upheld President Trump's so-called "travel ban" today in Trump v. Hawaii.
The Court's last decision day for this term is tomorrow. The decision in Janus v. AFSCME (concerning compelled union dues for government employees) is expected, and if any justices are retiring, it will likely be announced tomorrow. Follow the RNLA on Twitter for news tomorrow morning.
The stifling of speech on college campuses has become an issue at virtually every institution of higher learning across the country. On Monday, Attorney General Sessions and the Justice Department took a major step in the fight for preserving the First Amendment rights of college students everywhere.
The Department of Justice today filed a Statement of Interest in Speech First, Inc., v. Schlissel in the Eastern District of Michigan. The plaintiff, Speech First, a nationwide organization dedicated to defending civil liberties, alleges that the University of Michigan has adopted policies prohibiting and punishing speech protected by the First and Fourteenth Amendments. Speech First alleges that the University of Michigan’s policies on “harassment,” “bullying,” and “bias” are so vague and overbroad as to prompt students to limit their speech out of fear that they might be subject to disciplinary sanction, including “individual education” or “restorative justice” at the hands of the University’s Bias Response Team.
The United States’ Statement of Interest argues that the University of Michigan’s Statement of Student Rights and Responsibilities, which prohibits “harassment,” “bullying,” and “bias,” is unconstitutional because it offers no clear, objective definitions of the violations. Instead, the Statement refers students to a wide array of “examples of various interpretations that exist for the terms,” many of which depend on a listener’s subjective reaction to speech.
According to the Plaintiff free speech organization Speech First, the speech policies of the University of Michigan make it far too easy for conservative speech to be silenced. Virtually any student could get another in trouble with the university through a claim of “harassment” or “bullying” just because they disagree with certain political opinions. Higher education should be a place that stimulates differing opinions and intellectual curiosity, not to place arbitrary limitations on certain viewpoints. Acting Associate Attorney General Jesse Panuccio shared this very sentiment in issuing the following statement:
“Freedom of speech and expression on the American campus are under attack. This Justice Department, under the leadership of Attorney General Jeff Sessions, is committed to promoting and defending Americans’ first freedom at public universities.”
The RNLA commends the Department of Justice’s fight to preserve our First Amendment rights at the University of Michigan and other colleges and universities across our nation.
This morning, the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Based on his religious beliefs, Colorado baker Jack Phillips refused to create a cake for a same-sex wedding in 2012, and the Colorado Civil Rights Commission, a state Administrative Law Judge, and the Colorado Court of Appeals all found that Phillips had violated the Colorado Anti-Discrimination Act.
Today, the Supreme Court, in a majority opinion by Justice Kennedy, held 7-2 that the Colorado Civil Rights Commission acted with "clear and impermissible hostility" toward Phillips' sincerely held religious beliefs (partially from the syllabus; internal citations omitted):
As the record shows, some of the commissioners
at the Commission’s formal, public hearings endorsed the view that
religious beliefs cannot legitimately be carried into the public sphere
or commercial domain, disparaged Phillips’ faith as despicable and
characterized it as merely rhetorical, and compared his invocation of
his sincerely held religious beliefs to defenses of slavery and the Holocaust.
No commissioners objected to the comments. Nor were they
mentioned in the later state-court ruling or disavowed in the briefs
filed here. The comments thus cast doubt on the fairness and impartiality
of the Commission’s adjudication of Phillips’ case.
Another indication of hostility is the different treatment of Phillips’
case and the cases of other bakers with objections to anti-gay messages
who prevailed before the Commission. The Commission ruled
against Phillips in part on the theory that any message on the requested
wedding cake would be attributed to the customer, not to the
baker. Yet the Division did not address this point in any of the cases
involving requests for cakes depicting anti-gay marriage symbolism.
The Division also considered that each bakery was willing to sell other
products to the prospective customers, but the Commission found
Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer
Phillips’ concern that the State’s practice was to disfavor the religious
basis of his objection.
For these reasons, the Commission’s treatment of Phillips’ case
violated the State’s duty under the First Amendment not to base laws
or regulations on hostility to a religion or religious viewpoint. The
government, consistent with the Constitution’s guarantee of free exercise,
cannot impose regulations that are hostile to the religious beliefs
of affected citizens and cannot act in a manner that passes
judgment upon or presupposes the illegitimacy of religious beliefs
and practices. . . . [T]he record
here demonstrates that the Commission’s consideration of Phillips’
case was neither tolerant nor respectful of his religious beliefs. . . .
The Commission’s hostility was inconsistent with the
First Amendment’s guarantee that our laws be applied in
a manner that is neutral toward religion. Phillips was
entitled to a neutral decisionmaker who would give full
and fair consideration to his religious objection as he
sought to assert it in all of the circumstances in which this
case was presented, considered, and decided. In this case
the adjudication concerned a context that may well be
different going forward in the respects noted above. However
later cases raising these or similar concerns are
resolved in the future, for these reasons the rulings of the
Commission and of the state court that enforced the
Commission’s order must be invalidated.
Justice Thomas, joined by Justice Gorsuch, wrote a concurrence because the Colorado Court of Appeals' "reasoning flouts bedrock principles
of our free-speech jurisprudence and would justify
virtually any law that compels individuals to speak." Justice Gorsuch, joined by Justice Alito, wrote separately to respond to Justices Ginsburg and Kagan's attempts to defend the Commission's actions (internal citations omitted): "In the face of so much evidence
suggesting hostility toward Mr. Phillips’s sincerely held
religious beliefs, two of our colleagues have written separately
to suggest that the Commission acted neutrally
toward his faith when it treated him differently from the
other bakers—or that it could have easily done so consistent
with the First Amendment. But, respectfully, I do not see
how we might rescue the Commission from its error."
Whatever one's view of the background social policy debate over same-sex marriage, what happened to Jack Phillips should strike fear into the heart of every liberty-loving person who respects the rule of law. An unelected government commission pre-judged his case according to the commissioners' own beliefs without regard for his constitutional rights. (As a side note, this "bipartisan" commission is currently composed of four Democrats, one Republican, and two independents. Given their outright "hostility" to Mr. Phillips, one can only imagine how fairly they evaluate Republicans that come before them.) The Supreme Court righted this wrong today.
Yesterday, a judge for the U.S. District Court for the Northern District of California granted in part and denied in part the defendants' motion to dismiss in the challenge to U.C. Berkeley's disparate treatment of conservative speakers:
U.S. District Judge Maxine Chesney found the plaintiffs adequately alleged that UC Berkeley used an overly broad events policy to charge excessive fees and impose other unreasonable restrictions on conservative speakers. . . .
Chesney rejected claims that university officials engaged in intentional “viewpoint discrimination,” finding the same security concerns were not an issue with more liberal speaking events compared to conservative speakers.
RNLA Vice President for Communications Harmeet Dhillon is counsel to the plaintiffs:
“We’re very pleased that our lawsuit against UC Berkeley officials in their individual and official capacities is moving forward,” said plaintiffs’ attorney Harmeet Dhillon. “We look forward to litigating these issues.” . . .
Plaintiffs’ attorney Dhillon called the case “an example of student groups fighting back” against universities across the country suppressing conservative speech, especially schools in California.
“It’s a core constitutional right being impeded by the government, so we will move forward and vindicate their core First Amendment speech rights in court,” Dhillon said.
Free speech on campus is an important current issue that will be discussed at our National Policy Conference tomorrow.
South Texas Law Professor Josh Blackman, who was years
before head of the RNLA’s George Mason Law School Chapter, was speaking at a Federalist
Society Chapter event at City University of New York Law School when he was
protested. He details some of the
reactions on
his blog (post censored):
A student shouted out “F--k the law.” This comment stunned
me. I replied, “F--k the law? That’s a very odd thing. You are all in law
school. And it is a bizarre thing to say f--k the law when you are in law
school.”
Cato Institute Senior Fellow in Constitutional Studies Ilya
Shapiro quotes
another one of the ridiculous and self-defeating student protesters from the
protest of Professor Blackman:
My favorite was probably the juxtaposition of signs saying
“Your legal analysis is lazy and wrong” and “F-ck off”—both held by the same
person. I mean, wow. Where to begin?
As Shapiro points out about the
protest of Professor Blackman:
The latest “non-platforming” of a speaker at a purported
academic institution happened to my good friend and sometime co-author Josh
Blackman at City University of New York Law School two weeks ago, when he
attempted to give a lecture on the importance of free speech on campus.
The last part is going to be of focus of a breakout panel at RNLA’s National Policy
Conference on Friday featuring RNLA Vice President for Communications
Harmeet Dhillon and Casey Mattox of the Charles Koch Institute. The war on free speech is serious as shown
when liberals ignore the law or attack those with whom they disagree. Free speech on campus is an essential component
of a viable debate. Professor Blackman
did his best to fight this and actually finished talking to six times as many
students as he started.
“I actually want to start by using the one legal argument
you actually made.” (I deliberately paused to give them a chance to get the
laughter out of their system.) I continued, “The violence exists in the law and
it is a myth that law is inherently neutral. You said there is a myth of legal
objectivity. So let me talk about legal objectivity for a few minutes. Someone
did some excellent opposition research. Whoever did this, I applaud you. You found
seven or eight bullets on various videos I’ve given over the years. I’d like to
make a few points. You wrote, that I supported the President’s decision to
rescind DACA. Now let me tell you something. I actually support the DREAM Act.”
As Shapiro concludes:
He also showed his skill as a teacher by making an object
lesson of Obama’s Deferred Action for Child Arrivals executive orders, which
seemed to be at the heart of the student opposition. “The lesson is you can
support something as a matter of policy,” he began to explain before yet
another interruption, “but find that the law does not permit it. And then the
answer is to change the law.” . . .
Gee, it’s no surprise that so many law students struggle to
find jobs, and that was the case at CUNY even before the Great Recession. But
more broadly, it saddens me that these kinds of attitudes have infected our
public discourse. Everyone assumes the absolute worst about the other side’s
motivations and couldn’t care less about following the proper procedures for
getting what they want.
In what is turning out to be a blockbuster term for the First Amendment (Janus v. AFSCME & Minnesota Voters Alliance v. Mansky) and redistricting cases (more generally), today the United States Supreme Court heard another highly controversial case involving compelled speech and the First Amendment: National Institute of Family and Life Advocates v. Becerra.
From Amy Howe at SCOTUS Blog:
The Supreme Court heard oral argument today in National Institute of Family and Life Advocates v. Becerra, a highly anticipated case that combines two often controversial topics: the First Amendment and abortion. The question before the justices today was whether a California law that directs “crisis pregnancy centers” to provide their patients with specific kinds of information – including, for some, the availability of low-cost or free abortions – violates the First Amendment’s free speech clause. After roughly an hour of oral argument, the law appeared to be in some jeopardy, not only among the court’s more conservative justices but also perhaps at least with Justice Elena Kagan, one of the more liberal justices. . . .
Overall, a majority of the justices seemed skeptical over the law and its impact on First Amendment rights. SCOTUS Blog continues:
Justice Samuel Alito...was concerned that the law unfairly singles out anti-abortion facilities like crisis pregnancy centers while providing exemptions for other kinds of health-care providers. “If you have a law that’s neutral on its face” but then contains “a lot of crazy exemptions,” he asked, “isn’t it possible to infer intentional discrimination?” After Joshua Klein, the deputy state solicitor general who argued for California, agreed that it was, Alito peppered him with questions about various exemptions in the California law and concluded that “when you put all this together, you get a very suspicious pattern.”
Perhaps more crucially for the state, [Justice Elena] Kagan seemed to share some of Alito’s concern that, as she put it, California might have “gerrymandered” the law – that is, drawn it to target crisis pregnancy centers. If so, she declared, “that’s a serious issue.”. . . Klein tried to assure Kagan and Alito that the law also applies to a “significant” number of clinics that are not opposed to abortion, but Kagan nonetheless pressed him to explain why and how the state decided to create the exemptions [and the laws impetus].
Ms. Howe noted, Justice Neil Gorsuch astutely declared: “[I]t’s pretty unusual to force a private speaker to do that for you under the First Amendment.”
Even the current swing-vote, Justice Kennedy, seemed to question the soundness of this law, at issue. Ms. Howe notes:
Justice Anthony Kennedy also expressed doubts about the law. In one question that may prove to be pivotal in the case, he asked [Michael] Farris [attorney arguing on behalf of the centers] what would happen if an unlicensed clinic wanted to put up a billboard that said only, in large letters, “Choose Life.” Would that message trigger the law’s notice requirement? . . . Farris responded that the billboard would indeed have to disclose that the nonprofit does not provide medical services – a point with which Klein seemed to agree. . . Farris’ answer drew a sharp response from Kennedy. Requiring the inclusion of a 29-word notice on a billboard displaying a two-word message, Kennedy suggested, seems to impose an “undue burden” on the nonprofit’s speech “that should suffice to invalidate the statute."
Ms. Howe closed by noting:
By the time the oral argument ended this morning, California’s law seemed like it could be in real trouble. And although we normally think of the Roberts court as being closely divided on high-profile cases, today’s argument suggested that the ruling might not necessarily be a close one. The justices could ultimately decide to strike down part or all of [this California law]. . . .
We will keep you posted on major U.S. Supreme Court cases as arguments begin to wind-down and opinions are issued by the Court leading up to the close of this term.
Professor Ron Rotunda, a stalwart leader of the conservative and Republican legal movements, has unexpectedly passed away. A consummate scholar, he was an expert on constitutional law, federalism, free speech, professional responsibility, legal history, and many other areas of law. His legal and political analysis was always insightful and witty, enabling non-lawyers and lawyers alike to easily understand complicated concepts and making him a sought-after commentator on many issues.
RNLA President Elliot Berke said: "When I was in law school, Ron became a legal giant to me as a Constitutional Law scholar. He had worked on Watergate with my Con Law professor so I then only knew him by reputation. Within a few years of graduating, I was fortunate to work with him in the Independent Counsel's office and to become his friend. He leaves behind a tremendous legacy in the law and will be greatly missed."
Here are some recent highlights from his prolific writing and speeches:
John Marshall and the Cases That United the States of America - published in January, this critically acclaimed book contains Prof. Rotunda's rewritten and condensed version of Beveridge's biography of John Marshall. It is a fascinating read for scholars of legal history and constitutional law.
"Facebook, Russian Interference and the Monsters on Maple Street" - Verdict, Dec. 18, 2017:
There is nothing new under the sun and there is nothing new about Russian interference. The Russians (and the Soviets before them) spread agitation-propaganda, or “agitprop,” a Russian blend of agitatsiya (agitation) and propaganda (propaganda). Its purpose is to sow discord, fan hatred. . . .
Non-democracies spread fake news to undermine democracy and manipulate people. . . . There is nothing unusual, or even new, in all of this. When we express surprise, we emulate French Captain Renault in Casablanca who said, “I am shocked—shocked—to find that gambling is going on in here!” (Right after that, an employee says to him, “Your winnings, sir.”)
What we know of Russian interference tells us much about Putin, the former KGB operative, and much about ourselves. Russia used Facebook and other social media in the year or so preceding the 2016 presidential election, and the period following, to sow discord and mayhem. The point is to amplify social divisions . . . by promoting opposite sides of the political spectrum . . . .
"Using the Licensing Power of the Administrative State: Model Rule 8.4(g)" - The Federalist Society's National Lawyers Convention, Nov. 18, 2017: Prof. Rotunda provided a chilling, yet amusing, analysis of free speech implications of the American Bar Association's new Model Rule of Professional Conduct 8.4(g).
"George Wallace at Harvard—The Good Old Days of Campus Free Speech" - Verdict, May 8, 2017:
Every generation must relearn the lessons of free speech. It is no accident that Eastern European Communists suppressed speech and art as well as politics and religion. And when the people overturned the Communist dictators of Eastern Europe, they regarded freedom of expression as a premier right. The Czech revolution began in the theatres, and that country’s first freely elected president since World War II was a playwright.
"An English Teacher Corrects Shakespeare" - Verdict, Apr. 10, 2017:
There is also the problem of free speech. People have a right to use ordinary English. Perhaps because we have passed 1984 unscathed, we often ignore the significance of George Orwell’s “Newspeak”. Words both reflect and mold the way that people think, which is why they are so powerful and why the First Amendment is so important. [Northern Arizona University's] Dr. [Anne] Scott is using her power of grading as a way to control how people talk. . . .
There are limits to the power of words, but there is also a magic in them: not the magic of “abracadabra,” but magic nonetheless. Words have the ability to confuse and to clarify, to help legitimate policies, to generate loyalty, to give the appearance of action, to mold people’s perceptions of the world, to affect the way they approach a problem, and to reflect their innermost thoughts. When people argue about “mere words,” they are talking about fundamentals, about infrastructure, not superstructure.
When Dr. Scott and Northern Arizona University force students to use certain words and shun others, they are tapping into this power—a power easy to abuse. That is why we have the First Amendment. The government should not punish people for using words that our dictionary blesses.
"The Electoral College Works Fine, Just as It Is" - Verdict, Dec. 5, 2016:
Our Electoral College system prevents candidates with only regional appeal from winning. Statistically, a rule requiring the winner to prevail in a number of sub-elections produces a better result for the country. For the same reason we count the number of games won in the World Series (rather than the total number of runs, which would be heavily influenced by an anomalous game). After all, if Clinton in 2016, won 100% of the popular vote in her home State of New York, thereby prevailing in the nationwide popular vote, those extra votes would not show she had more support nationwide, only that she is a candidate popular in one very populous state.
The Electoral College penalizes political parties that have only regional strength. In the 2016 election, the Democrats had regional appeal. If you look at a map of the vote for president based on counties, with counties colored red (for Republican), you will see the country painted with a sea of red except, primarily, at the seashores. This regional influence extends in congressional races as well. In the House of Representatives, just three coastal states, California, Massachusetts and New York, now account for a third of all House Democrats.
The Framers of our Constitution built for the long term and created a system to last for generations. They established a democracy while protecting the rights of the minority. . . .
The structural limits do not stop here. They created the Electoral College to protect the residents of the smaller states, and they rejected government by simple majority because plebiscites historically have been the tool of dictators, such as Hitler & Benito Mussolini. In modern form, plebiscites arose out of the French Revolution. Madison feared what he called “tyranny by the majority.”
"The ABA Decision to Control What Lawyers Say: Supporting 'Diversity' But Not Diversity of Thought" - The Heritage Foundation Legal Memorandum, Oct. 6, 2016:
These changes show that the ABA is very much concerned with what lawyers say and who teaches them. The only thing that does not concern the ABA is diversity of thought. The language that the ABA uses to promote its latest foray into political correctness makes this all too clear. Moreover, what the ABA does affects all of us, even if we are not lawyers, because of its governmental power. . . .
Even when a court does not enforce this rule by disbarring or otherwise disciplining the lawyer, the effect will still be to chill lawyers’ speech, because good lawyers do not want to face any nonfrivolous accusation that they are violating the rules. The ABA as well as state and local bar associations routinely issue ethics opinions advising lawyers what to do or avoid, and most lawyers follow this advice. . . .
Is it the best use of scarce bar resources to discipline lawyers who may violate a vague rule that prohibits speech because that speech violates the new Rule 8.4(g)? It is not as if the disciplinary authorities are looking for things to do. There are plenty of lawyers who are incompetent, who commingle trust funds, or who cheat third parties.
The purpose of the new Rule 8.4(g) is to promote a “cultural shift” in the United States. Until now, that was not within the job description of the ABA or of the Rules Governing Professional Conduct.
Rest in peace, Professor Rotunda.
Today is International Women's Day, "a global day celebrating the social, economic, cultural and political achievements of women." Yet as we learn all too often, these neutral-sounding words really mean: a day to celebrate liberal women advancing progressive policy goals.
As 2016 RNLA National Policy Conference speaker, Network of enlightened Women President, and conservative female attorney Karin Agness Lips reminds us, Republican, conservative, and libertarian women are stereotyped, attacked, and not welcomed by modern feminists:
“If you would gather a group of leaders in the women’s empowerment movement, their definitions would vary dramatically,” Lips says. “The problem with modern-day feminism is that it lacks a universally agreed upon definition, and that it’s been co-opted by political liberals and progressives as a vehicle to pass their political agenda.”
Lips, who is also a senior fellow at the Independent Women’s Forum, believes in what she calls “opportunity feminism, which seeks to maximize women’s opportunities to build fulfilling and meaningful lives they want to build.” . . .
“Too often, in my experience, and for a lot of women on campus, once you speak out as a conservative, you turn in your ‘woman card‘ and you don’t count anymore,” Lips says. “[Liberals] attack conservative women, often with a vitriol expressed more for conservative women than men.” Indeed, there are those left-of-center talking heads who guard their political beliefs as viciously as some on the right.
Ms. Lips' "opportunity feminism" fits within the broader framework of conservative and libertarian values of greater individual freedom and less government regulation and is therefore better for women and everyone else as well:
She says this version of feminism prioritizes maximizing opportunities and choices for women, rather than seeing them as victims "that need every interaction regulated."
Opportunity feminism prioritizes equality of opportunity over equality of outcome, meaning that so long as women have the same opportunities as men in education, the workplace and politics, it doesn’t matter if they are represented in equal numbers.
"I'm hoping that that's going to be a way for conservative women to reclaim the feminist title," said Agness Lips. "The left claims they are the women's empowerment movement and they're not. And our policies are actually better for women."
In a world where law students disrupted Christina Hoff Sommers' Federalist Society speech at the Lewis and Clark Law School in the name of anti-fascism on Monday (the sheer ignorance of relatively recent history displayed by these supposedly educated law students--our future colleagues in the practice of law--is frightening), we are immensely grateful to have conservative and libertarian female attorneys who can provide a good example on International Women's Day. Women who can think independently, fight for good policies, and be strong leaders, supporting the rule of law, without attacking our country. RNLA women leaders like:
- Co-Chair Joanne Young
- Vice President for Communications Harmeet Kaur Dhillon
- Former Chair Kimberly Reed
- Vice President for Membership Audrey Perry Martin
- Vice President for Washington, D.C. Operations Claudia Hrvatin
- Board of Governors member Kathleen Jones Goldman
- Board of Governors member Heather Heidelbaugh
- Board of Governors member Anne Lewis
- Board of Governors member Beverly Weiss Manne
- Board of Governors member Nancy Taylor
- Arkansas Chapter Chair Bilenda Harris-Ritter
- Hawaii Chapter Chair Adrienne King
- Pennsylvania Southeastern Chapter Chair Linda Kerns
- Tennessee Chapter Chair Linda Knight
As Republican female attorneys are bombarded with messages about "equality" and progressive policy goals that women must embrace to be welcomed in the modern women's movement, remember that we conservative and libertarian women are not alone. We may not be as (obnoxiously) vocal as many highly educated liberal women, but we are capable, we are many, our ideas are better, and we are having an enormous impact on the policies and future of our country.
Today, the Supreme Court heard oral arguments in Minnesota Voters Alliance v. Mansky, a challenge to Minnesota's ban on political apparel at the polling place. RNLA member Ilya Shapiro summarized the problems with the law in the Wall Street Journal:
Minnesota’s ban, by contrast, finds no historical parallel. A generic pro-voting message like “Rock the Vote” is arguably a political statement forbidden by the law. But how could it possibly be construed as pressuring anyone to vote for a particular candidate? Whatever legitimate concerns the state may have about the electoral process, it can’t justify a ban on voters’ nondisruptive speech—let alone on unobtrusive paraphernalia that’s unrelated to any issue or candidate on the ballot.
Minnesota’s ban on political apparel is so sweeping that another Supreme Court precedent is far more relevant than Burson. In the 1987 case Airport Commissioners v. Jews for Jesus, the high court unanimously struck down a ban on “First Amendment activity” at Los Angeles International Airport. The court explained that such a ban was overbroad because it necessarily extended far beyond speech “that might create problems such as congestion or the disruption of the activities of those who use LAX.” . . . That’s not to say that places with security or governmental-integrity concerns have to be free-for-alls. Burson was right to allow reasonable regulations that ensure orderly elections. Courtrooms and other sensitive areas—what lawyers call “nonpublic forums”—can impose certain restrictions. But “the wearing of a T-shirt or button that contains a political message,” the court explained in Jews for Jesus, “is still protected speech even in a nonpublic forum.”
Most fundamentally, Minnesota’s law is unjustified because its fear of political expression is so disconnected from normal society. . . . As the Court found in Tinker, which upheld students’ rights to wear black armbands to school in protest against the Vietnam War, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
It’s vital that the Supreme Court defend voters’ right to express themselves so long as they don’t prevent other voters from going about their civic business. . . .
RNLA member Steve Klein described highlights from oral arguments during today's Federalist Society teleforum call:
- Except for Justice Thomas, a lot of participation from all the justices, questioning both sides intensely.
- Justice Kennedy, Alito, and Roberts wanted an articulation of a limiting principle of what is “political.” David Breemer arguing for MVA said that it’s clear this law is overbroad.
- “Please ID me” buttons – Mr. Breemer acknowledged they could be banned under anti-fraud/deception laws; whether display of an ID (as a means of making other voters think that ID was required) could be banned in the polling place was not raised during oral arguments.
- Justice Alito laid out the absurdity of breadth of prohibition.
- State has backed off breadth, perhaps in poll worker instructions, saying political is related to election and well-known. Justice Alito said that actually makes it worse. Justice Alito asked if wearing a rainbow shirt was ok, state said yes, as long as gay rights were not on the ballot.
- Fact that election judges, who have authority to judge what is allowed, are selected from both major parties is supposed to alleviate concerns about viewpoint discrimination.
- Justice Roberts pointed out that the punishment belies the interest in polling place orderliness that state puts forward, because person is allowed to vote but name is taken down for later fine. The force of the law is the chilling effect on speech.
- Even if the Court uses non-public forum analysis, there would be de facto viewpoint discrimination (NRA banned but “Parkland Strong” ok; Colin Kaepernick jersey ok, All Lives Matter not). Respondents said these are tough calls but poll workers need to be able to make these calls to maintain order.
- Justice Kagan had lighthearted criticism of polling place as place of reverence where we can suspend politics.
- Chilling conclusion by Respondents: Justice Kagan jokingly said, maybe you should make the law broader, and they said yes, we could make it broader.
- Effort to find limiting principle but aside from Justice Alito, no clear indication where any justice stood
- Burson v. Freeman was plurality opinion, and we will likely see different perspectives here also.
- Overbreadth law protects against arbitrary and discriminatory enforcement.
- Mr. Breemer pointed out several times that disruption and delay in the polling place is not caused by a person coming in an NRA shirt but by a poll worker saying the voter cannot wear it, subsequent discussion, taking down the voter's name, etc.
- Justice Gorsuch pointed out that state has to put forth an interest that justifies the ban.
- Mr. Klein concluded by noting that voting is very important, but there have to be limits on power of polling place workers to restrict voters’ rights; the law especially should not punish voters for participating in our democracy.
Given the state's counsel's different responses to hypotheticals proposed by the Court (notably, that a shirt with the text of the Second Amendment would be political, and therefore banned, but not a shirt with the text of the First Amendment), this tweet by Baker Hosteler attorney Andrew Grossman summarized the key issue in the case well:
The entire transcript in this important case can be read here, and our past coverage of the case is here.
Today, the Supreme Court heard oral arguments in Janus v. AFSCME, a First Amendment challenge to an Illinois statute requiring non-union members to pay mandatory union dues to the union deemed to represent the non-members' interests in collective bargaining activities.
RNLA Advisory Council member Robert Alt described an irony at the heart of this compelled speech case:
What is surprising is the fact that Mark Janus is personally funding a cadre of high-priced lawyers with one goal: making sure that Mark loses his case. Why would he pay for the lawyers arguing against him? Because he has no choice. Mark is required to pay agency fees to the union, which are used for chargeable expenses like litigation, or he can be fired. And, of course, he is required to pay for political collective bargaining speech, or he can be fired.
This is the real story of the money behind the Janus case—a story of forced contributions for political speech. But the story could have a happy ending. The Supreme Court will hear arguments today in a case that could vindicate the First Amendment rights of millions of Americans like Mark Janus. For Rebecca Friedrichs, for Mark Janus, and for all the workers who are being denied a voice and a choice, let’s hope that the second time is the charm.
Mr. Alt referenced Rebecca Friedrichs, the challenger in the 2016 case that raised the same issue and on which the Supreme Court deadlocked after Justice Scalia passed away a few weeks after oral arguments.
RNLA member Ray LaJeunesse, Jr., summarized the history of compulsory union fees cases at the Supreme Court and gave some highlights of today's oral argument in a Federalist Society teleforum this afternoon:
- Ruling for Janus requires overturning Abood v. Detroit Board of Education, where Justice Powell concurred in the judgment but identified two
flaws in the majority opinion that are at heart of Janus
argument.
- Chicago Teachers Union v. Hudson required that employees must be given adequate advanced notice of fees and basis.
- Knox v. SEIU (2012) –
SEIU local imposed special assessment to oppose two ballot measures after Hudson notice sent; Supreme Court held
additional notice must be sent and no fee could be imposed on non-members
without their consent; compulsory subsidies for private speech are subject to
exacting scrutiny; free-rider arguments insufficient to overcome First
Amendment objections.
- Harris v. Quinn (2014) – majority refused to extend Abood
because analysis was questionable on 6 grounds.
- Friedrichs v. California Teachers Association (2016) –
directly presented question of whether Abood
should be overruled and it was expected to be before Justice Scalia passed away; same question presented as in Janus.
- In Citizens United, Court held it does not hesitate to overrule decisions offensive to the First
Amendment.
- Assuming monopoly bargaining is a compelling government
interest, forced agency fees are not required to achieve that interest as such bargaining occurs at the federal level
and in right to work states without forced fees. Respondents argued that forced fees are not subject to
heightened scrutiny.
- There were competing demonstrations outside the Supreme Court. It was the longest line of
attorneys Mr. LaJeunesse had ever seen to get in to a case - over 100 in line and he was number 77 in the overflow room.
- National Right to Work Legal Defense Foundation attorney Bill Messenger, arguing for Mr. Janus, was 42 seconds into his argument before Justice Ginsburg asked the first
question, about mandatory student fees, bar fees, and private-sector unions. Court in Harris distinguished all those scenarios
(imposed for university’s interest in neutral forum for exchange of ideas,
governmental regulation of practice of law, and private-sector bargaining is not
political like public-sector bargaining).
- Justice Breyer asked about stare decisis, private-sector
bargaining distinction, and Prof. Charles Fried's amicus brief that proposed compromise of different
test for what is chargeable in public sector (charge only for union's statutory
duties); Justice Alito pointed out compromise was not a solution because legislature could make
union monopoly for purposes of lobbying, which California already has done.
- Solicitor General Noel Francisco argued that monopoly bargaining works without force
fees at the federal government and postal service. Justice Kagan asked how many times Trump Admin has switched its
position at Supreme Court in this and other cases; he said 3 times (had faced
question in other cases and appeared prepared for it).
- Illinois Solicitor General David Franklin was questioned closely by Justices Alito and Kennedy,
both or whom clearly still ascribe to their opinion in Harris. Justice Roberts asked whether it would make unions more responsive
if they had to attract voluntary support (indicates his continued support for Harris opinion as well). Justice Breyer brought up Prof. Fried's potential compromise again.
- Appellate lawyer David Frederick argued for the union and was again questioned
closely by Justices Alito and Kennedy. Justice Kennedy asked if this case would affect the political influence
of unions if the Court rules for Janus, Frederick said “yes,” and Kennedy said, isn’t that
the end of the case? Justice Roberts asked how union negotiations over a collective bargaining agreement not affect
state budget? Mr. Frederick answered that they do.
- Mr. Frederick said there is real reliance here because there is a
trade-off of agreeing not to strike in the collective bargaining agreement. Mr. Messenger in rebuttal said that in other words, the scheme
is racket protection, paying the union to ensure lack of uprising against the
government and that grievance processing to enforce public policy according to the collective bargaining agreement is as much
advocacy as making the agreement.
- Throughout the arguments, Justices Breyer and Kennedy were most active questioners. Notably, Justice Gorsuch did not ask any questions.
The oral argument transcript is here. While this case may be released at the end of the term like many other important cases are, Mr. LaJeunesse noted that opinions may have already been drafted and circulated for the Friedrichs case and the lines for all of the justices except Justice Gorsuch were already drawn in Harris, which might expedite the release of the decision. This case will have serious implications for the free speech rights of public employees and their importance constitutional right against compelled speech.
RNLA member Ken Klukowski wrote a piece for last month's SCOTUSblog symposium on Minnesota Voters Alliance v. Mansky. Mr. Klukowski analyzes how the Supreme Court will likely apply the controlling precedent, Burson v. Freeman (1992), which did not have a majority opinion, in light of current First Amendment doctrine and subsequent decisions regarding evidentiary burdens when applying strict scrutiny.
He also discusses the relevant First Amendment law, under which Minnesota's ban on all political apparel at the polls is clearly overbroad:
Minnesota’s law bans all political speech in whatever form, including all passive speech. . . . Here, in 2010 a Minnesota voter wore a Gadsden flag T-shirt (a picture of a rattlesnake with the phrase, “Don’t Tread on Me”), a symbol associated with the Tea Party, and a lapel button that said, “Please I.D. Me.” That voter, Andrew Cilek, was initially denied the opportunity to cast a ballot. He was later allowed to do so, but only after officials recorded his identity for possible prosecution.
Yet neither of those clothing items should be a problem. Regarding the T-shirt, the Tea Party is a governing-philosophy political movement, not an actual political party that runs candidates. There was no “Tea Party candidate” on the ballot alongside Democrats and Republicans. Regarding “Please I.D. Me,” Minnesota has no voter-ID law, nor was that issue on the ballot in 2010, so the button had nothing to do with the 2010 election. . . .
Under the overbreadth doctrine, laws facially violate the First Amendment if they permissibly burden some types of speech, but also go beyond that to restrict substantially more speech than necessary to achieve the permissible outcome. Such laws have a “chilling effect” on constitutionally protected speech. The courts frequently invalidate such laws, sending the issue back to the legislature to formulate a narrower law that achieves the permissible goal without scaring people away from saying things that the Constitution protects. . . . In this case, the discussion revolves around why Minnesota must go beyond blocking vote solicitations and campaigning to also ban T-shirts, baseball caps and other types of passive communication unrelated to candidates and issues on the current ballot in order to stop fraud and intimidation. In today’s environment, people can regard all sorts of innocuous messages as conveying some kind of political content.
But as important as the overbreadth analysis is (and the law is certainly far from narrowly tailored), the government has simply failed to prove that its governmental interests in preventing fraud and intimidation are advanced by the prohibition:
The question is not whether the Minnesota statute violates the First Amendment as an overbroad restriction on speech. Rather, the question becomes whether Minnesota has proven that its statute does not violate the Constitution — that is, proven that banning NRA and Tea Party shirts and hats is necessary to prevent fraud and intimidation. The government failed to carry that burden.
The Supreme Court will hear oral arguments in this important case next Wednesday, and we look forward to a decision this term protecting the right of voters not to be turned away from the polls for their passive speech.
