Thursday, November 10, 2011

Justice Stevens on Clinton v. Jones

The Court's unanimous opinion in Clinton v. Jones (1997), involving the postponement of the civil case by Paula Jones against then-President Clinton, is excerpted in most Constitutional Law casebooks, usually right after United States v. Nixon (1974), involving the subpoena duces tecum seeking Watergate material from then-President Richard Nixon.

_407332_paula_bill300The statement in the Clinton v. Jones opinion, authored by Justice Stevens, that the Jones litigation was "highly unlikely to occupy any substantial amount of petitioner’s time,"  seemed to have been proven false by subsequent events.  In his new book, Five Chiefs, Justice Stevens, defends his statement:

[T]he Court had been confronted with the question whether either the Constitution or respect for the office of the president required a federal district court to defer the trial of a damages claim against President Clinton until after the end of his term.  In a unanimous opinion that Bill [Rehnquist] assigned to me, we upheld the decisions of the lower courts denying the request for a stay of the trial.  Among the arguments that we rejected was a claim that permitting the trial to proceed would violate the doctrine of separation of powers.

While I am not aware of any significant scholarly criticism of the legal analysis in my opinion, numerous commentators have rather enthusiastically suggested that only the village idiot could have authored one statement that I made.  In my response to the argument that the burdens of the litigation would impair the president’s ability to discharge his official duties, I declare: "If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.  As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.”  Clinton later gave deposition testimony that triggered his impeachment, which, in turn, obviously occupied a huge amount of his time.  These events, it is argued, proved my comments to have been ludicrous.

That appraisal depends on a failure to recognize both the difference between the trial proceedings and the unforeseen impeachment.  A postponement of the trial would not necessarily have justified a postponement of the president’s deposition.  Indeed, as the president’s lawyers stated at oral argument, a delay in the trial would have increased the need for depositions because of the risk that key witnesses’ memories might fade.  Given that case (Clinton v. Jones [1997]) was settled, we will never know just how much time a trial would have consumed.  We did know that our ruling did not give rise to the predicted avalanche of litigation.  And the impeachment proceedings were certainly not a part of “the case at hand” referred to in our opinion. 

Still the reaction to my words illustrates that an author is seldom the best judge of how readers will react to his work. 

 (emphasis added). 

Note however that Court did not simply uphold "the decisions of the lower courts denying the request for a stay of the trial," as Stevens states.  Instead, as Stevens' opinion for the Court stated:

we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The complaint was filed within the statutory limitations period--albeit near the end of that period--and delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.

Here's a quick overview of the case and developments from WaPo.

[image via]

November 10, 2011 in Books, Executive Authority, Executive Privilege, Gender, History, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, October 24, 2011

Bork’s “75 page” Memo to Goldwater on the 1964 Civil Rights Act’s Unconstitutionality?

Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?

Bork2Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney.   He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.

Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional.  Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.

When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater.   Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act.   In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate.   Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964.   In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill.  Perry wrote:

The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill.  They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.

 (at 25).

Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians.  The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees.  The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here).  It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964.   As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.

Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files?  Did it ever?     

Almost a half-century has passed.  It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be).  But page-number precise references to a document that is not available is intriguing. 

So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.

[image: Robert Bork, 2007, via]

October 24, 2011 in Books, Commerce Clause, Congressional Authority, Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Gender, History, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Monday, September 26, 2011

Banned Books Week: Nickel and Dimed Makes the List of Most Banned Books

It's banned books week again.

NickelDimed This year one of the  "top ten" books being challenged, according to the American Library Association, is Nickel and Dimed: On (Not) Getting by in America, by Barbara Ehrenreich, with the reasons given as "drugs, inaccurate, offensive language, political viewpoint, religious viewpoint."

 Ehrenreich's more recent book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America, caused a bit of a stir as we discussed here, but the decade old Nickel and Dimed has recently become more controversial.  The objections seem to be to Ehrenreich's unpopular view of capitalism.  Ehrenreich's "update" on her book argues that things have gotten worse.

Banning Sherman Alexie's National Book Award winning novel, The Absolutely True Diary of a Part-Time Indian, on the list again this year, is understandable in the context of the history of banning books for sexual language.  A bit less understandable, but still within some interpretations of the sexual, is the number one book on this year's list yet again, And Tango Makes Three, a children's book based on the true story of two penguins in the Central Park Zoo who come together to raise a chick.  The problem, presumably, is that the penguins are both male. 

Yet the banning of Ehrenreich's Nickel and Dimed seems exceedingly problematical under the First Amendment.  While "obscenity" has a special (and devalued) position within First Amendment doctrine, first-person reporting that casts capitalism in an unfavorable light would seem to be the type of political speech that Americans most highly valued, in doctrine as well as practice.



September 26, 2011 in Books, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 29, 2011

Greece, EU, and Constitutional Democracy: Saint-Exupéry's The Little Prince

Today's vote in the Greek Parliament regarding "austerity measures"  is important to Greece's continued membership within the European Union (EU), although precisely how important is subject to debate.  Also subject to debate, and much protest in Greece, is whether such "austerity measures" will work.  Gavin Hewitt, whose coverage and analysis for the BBC has been excellent, notes with understatement today, "Greek democracy is under strain." 

This may be a good day to reread Antione de Saint-Exupéry's The Little Prince.  Not only is it Saint-Exupéry's birthday (he was born in 1900 in Lyons, France), but his best known work, The Little Prince may be relevant to discussions of constitutional democracy and the European Union. 

Greek prince

For example, Professor Mattias Kumm, in To Be A European Citizen? The Absence Of Constitutional Patriotism and The Constitutional Treaty, 11 Columbia Journal of European Law 481 (2005), discusses the ill-fated Constitutional Treaty  of 2004 when it seemed as if it would be ratified.  His theorizing about constitutional patriotism necessary to support the European Union (or even the Eurozone) still resonates.  As does the use of The Little Prince to discuss the withdrawal of nations from the EU:

The king was the sole inhabitant of asteroid 325. When the little prince arrived he was happy to see the little prince (Aha! A Subject!). “Clad in royal purple and ermine” and “seated on a throne at the same simple and majestic” he claimed to have absolute authority, though it was unclear over what and from where his authority derived. His air of authority sparked the curiosity of the little prince.

“Sire over what do you rule?”
“Over everything,” said the king, with magnificent simplicity.
“Over everything?”
The king made a gesture that took in his planet, the other planet, and all the stars.
“And the stars obey you?”
“Certainly they do,” the king said. “They obey instantly. I do not permit insubordination.”

The Little Prince then asks the king to order the sun to set, because he desired to see a sunset. At this point, the king starts to provide deeper insights into the nature of his authority.

“If I ordered a general to fly from one flower to another like a butterfly, or to write a tragic drama, or to change himself into a sea bird, and if the general did not carry out the order that he had received, which one of us would be wrong?”
“Accepted authority rests first of all on reason. If you ordered your people to go and throw themselves in the sea, they would rise up in revolution. I have the right to require obedience, because my orders are reasonable.”

“Then my sunset?” the little Prince reminded him ...

“You shall have your sunset. I shall command it. But, according to my science of government, I shall have to wait until conditions are favorable.”

When asked when that would be, the King consults a bulky almanac before informing the Prince that this evening favorable conditions would occur at twenty minutes to eight.

At this point, the little Prince was beginning to lose interest and wanted to leave. The king, however, refused to let him go because he was proud to have a subject. The little prince turns to the king and says:

“If Your Majesty wishes to be promptly obeyed he should be able to give me a reasonable order. He should be able, for example, to order me to be gone by the end of one minute. It seems to me conditions are favorable ...”

He then leaves, not without noticing the king's “magnificent air of authority.”

[image of The Little Prince in Greek translation via]

June 29, 2011 in Books, Comparative Constitutionalism, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 17, 2011

A More Constitutional Military

Books ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints.   The Court, she argues, has not only engaged in military deference, but in military exceptionalism.

In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values.  Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution.  They assume that constitutional values get in the way of military effectiveness, but that’s not true."

Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks?   She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in  Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.


June 17, 2011 in Books, Fifth Amendment, Foreign Affairs, Gender, Profiles in Con Law Teaching, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Sunday, June 12, 2011

Shakespeare for Lawyers: Yoshino on Justice and Elizabethan Drama

ConLawProf Kenji Yoshino's recent book, A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice, is a delectable addition for ConLaw summer reading lists.

As the subtitle indicates, Yoshino not only discusses a select group of Shakespeare's plays, but then connects them to our contemporary notions of justice and to current events.

Here's a brief snippet, courtesy NYU Law, of Yoshino discussing one of Shakespeare's less popular dramas, Titus Andronicus: (click to start)

In a review, Eric Posner criticizes the book for trying - - - and failing - - - to illuminate current events through Shakespeare, but I suspect that many readers will disagree.  Yoshino's opens Shakespearean texts to contemporary meanings, making important connections for current constitutional law debates.


It seems summer would be much more rewarding if one eshewed the "con law" bestsellers in favor of Shakespeare in the park (or on the beach) with Yoshino's book.


June 12, 2011 in Books, Interpretation, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

The Fundamental Holmes

OWHolmes After reading Heyman on Holmes as Mr. Hyde, one may be in need of a terrific primary source for Holmes' views on free speech.  Look no further than The Fundamental Holmes: A Free Speech Chronicle and Reader – Selections from the Opinions, Books, Articles, Speeches, Letters and Other Writings by and about Oliver Wendell Holmes, Jr., edited by Ronald K. L. Collins.

Paul Weizer's review in Law & Politics Book Review observes:

The main aim of this book is to explore the life of Holmes and the events which led to his free speech jurisprudence. This is done through a careful examination of the personal correspondence, public speeches and judicial opinions of Holmes. This book is billed as the first complete collection of works by Justice Holmes on matters related to free speech. However, it is more than just that. By providing letters and speeches, in addition to the traditional judicial opinions found elsewhere, Collins helps to provide a sense of the man and a view of the Justice.

Weizer does fault the book for having commentary "so thorough" that "often times it is unnecessary to read" the actual passages from Holmes.  Weizer also wonders about the intended audience for the book.  But for scholars citing Holmes' opinions, the book seems an invaluable resource for further contextualizations of the opinions and access to other primary sources.


June 12, 2011 in Books, First Amendment, History, Scholarship, Speech, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 25, 2011

Liu's Filibuster and Constitutional Fidelity

The successful filibuster last week of President Obama's nomination of Goodwin Liu (Boalt Hall) to the Ninth Circuit was hardly based on a principled dispute about constitutional interpretation.  Stated reasons for opposition (and thus for the filibuster) ranged from Liu's alleged position on affirmative action to his opposition to President Bush's nominations of then-Judges Roberts and Alito to the Supreme Court.  (The reasons for opposition are well known; here's the floor debate in the Congressional Record, more or less hitting the highlights.)  Most of the reasons were based on selective reading and misinterpretations of Liu's work (although Liu did oppose the nominations of Chief Justice Roberts and Justice Alito).  Con Law Prof Geof Stone (U. Chicago) summed it up in yesterday's Chicago Tribune, writing that the filibuster was merely "partisanship run amok."

Constitutional interpretation played a bit part in opposition to the Liu nomination--but only a bit part.  And for good reason: Liu's interpretive method, constitutional fidelity, is hardly controversial.  It's reflected in different ways in opinions authored by Justices ranging from Ginsburg to Scalia.  It looks an awful lot like Justice Breyer's pragmatic approach, as described most recently in Making our Democracy Work.  And it has strong theoretical roots, going back to work like Philip Bobbitt's classic, Constitutional Fate.

Here's what Liu wrote (or co-wrote, with two other prominent con law scholars) in Keeping Faith with the Constitution:

To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time.  Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.

Keeping Faith, at 2.

Compare that with Justice Breyer's pragmatism:

Modern American judges working in this tradition, like most judges, use textual language, history, context, relevant traditions, precedent, purposes, and consequences in their efforts to properly interpret an ambiguous text.  But when faced with open-ended language and a difficult interpretive question, they rely heavily on purposes and related consequences.  In doing so, judges must avoid interpretations that are either too rigid or too freewheeling.  They must remain truthful to the text and "reconstruct" past solutions "imaginatively" as applied to present circumstances, at the same time projecting the purposes (or values) that inspired those past solutions to help resolve the present problem.  The judges must seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives.

Making our Democracy Work, at 80-81.  These are just short excerpts, to be sure, and Justice Breyer may have his detractors, but Liu's similarities throughout Keeping the Faith with this sitting Supreme Court Justice suggest that his approach is hardly outside the mainstream. 


May 25, 2011 in Books, Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 28, 2011

Events for March 2011

March is always a busy month for conferences, lectures, events, and symposia.  MARCH

Here are a few that you might not want to miss.

Food Fight, March 1, 6.30 pm, organized by  the law review at City University of New York School of Law, raising First Amendment issues such as "veggie libel laws" and campaign finance.

Rehabiliating Lochner: Defending Individual Rights against Progressive Reform, March 1 [and subsequent dates] sponsored by The Federalist Society.  David Bernsetin will be speaking about his forthcoming book at various venues throughout the month.

Prison Overcrowding, March 2, Noon, organized by the law review at West Virginia University College of Law, featuring Henry Weinstein from UC-Irvine School of Law.

Marlee Kline Lecture in Social Justice, March 3, 5.30 pm, organized by the Faculty of Law at University of British Columbia, Vancouver, Canada, delivered by Ruthann Robson.

Citizens United and Corporate Speech, March 4, 8.30 am, hosted by The John Marshall Law Review and Steven Schwinn at the John Marshall Law School in Chicago, featuring a keynote by Thomas E. Mann of the Brookings Institute and panelists such as Geoffrey Stone, Atiba Ellis, and Monica Youn, director of the Brennan Center for Justice at New York University School of Law.

Writing a Brandeis Biography, March 7, 3pm, at the Oklahoma University College of Law, by Melvin Urofsky, author of notable biography of Justice Louis Brandeis.  Urlovsky will also speak at a Faculty Colloquim at noon on "“Dissent As Form of Constitutional Dialogue."

Justice Clarence Thomas: 20 Years, March 11, 9.30am, at the Detroit Athletic Club, hosted by the University of Detroit Mercy Law Review.  The morning panel is devoted to individual liberties and the afternoon panel focuses on governmental powers.

Moral Imagination in Judging, March 11, noon, at Washburn University School of Law, Bandes by Susan Bandes  (pictured right) delivering the annual Foulstein Siefkin Lecture, organized by the Washburn Law Journal.

Boundaries and Enemies, 2011 Conference of The Association for the Study of Law, Culture and the Humanities, March 11 - 12, at University of Nevada, Las Vegas – William S. Boyd School of Law, organized by the association.  Two packed days of panels and events.

Official Wrongdoing and the Civil Liability of the Federal Government and Officers, March 18, 9am, organized by the law journal at the University of St. Thomas School of Law, Minneapolis.  The afternoon panel is entitled "Constitutional Claims: Bivens Suits."

Perspectives on Prerogative, March 24-26, The LeFrak Forum and the Symposium on Science, Reason, & Modern Democracy, Department of Political Science, Michigan State University, will "examine an especially troubling form of executive power: "prerogative" or "extra-legal" or "extra-constitutional" power."

Other events for which there is some information include two at Chapman University School of Law: Randy Barnett on March 8 discussing the constitutionality of the Patient Protection and Affordable Care Act, and Eugene Volokh on March 16 on "The Mechanisms of the Slippery Slope,"  and at Loyola Law School- New Orleans, on March 11 at noon, Calvin Johnson and Steven Willis on the constitutionality of the Patient Protection and Affordable Care Act, moderated by Cynthia Lepow.


and in April .......

Constitutional Law Symposium: Debating the Living Constitution, April 2, 8.30 am - 12.30 pm, organized by the Center for Constitutional Law at Drake University College of Law, Iowa, featuring speakers such as Rebecca Brown of USC School of Law.



February 28, 2011 in Books, Conferences, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, February 4, 2011

Freedom of the Press as a Universal Value? Clinton, Carter, Canada, and WikiLeaks

Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."  


 Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid.  The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade.  The complaint alleges:

5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.

 The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts.   A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”

North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice."  At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial.  A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog.  In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:

The right to freedom of expression is just as fundamental in our society as the open court principle.  It fosters democratic discourse, truth finding and self‑fulfilment.  Freedom of the press has always been an embodiment of freedom of expression.  It is also the main vehicle for informing the public about court proceedings.  In this sense, freedom of the press is essential to the open court principle.  Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair.  . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.

This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.

The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations.  The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information.  In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms.  Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback.  The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook.    The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.

ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.


February 4, 2011 in Books, Cases and Case Materials, Comparative Constitutionalism, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fundamental Rights, International, Speech, State Secrets, Teaching Tips, Theory, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)

Friday, November 5, 2010

Discussion of Brennan Biography Event

Wednesday, October 27, 2010

Sixth Circuit Holds Teacher Has No First Amendment Right in Assignments

Shelley Evans-Marshall taught English and Creative Writing in high school, to ninth, eleventh and twelfth  graders.  She assigned Herman Hesse's Siddhartha.  She assigned Ray Bradbury's Fahrenheit 451 and to explore that book’s theme of government censorship, she developed an assignment based on the American Library Association's "banned books."0764513117

0764586505 Some parents protested about the book and assignment choices, the principal disapproved, and Ms. Evans-Marshall was terminated.

In its opinion the Sixth Circuit has rejected the teacher's First Amendment challenge.  Applying Garcetti v. Ceballos, the court found that the teacher could not "overcome Garcetti":    "When government employees speak “pursuant to their official duties,” Garcetti teaches that they are “not speaking as citizens for First Amendment purposes.”

The court emphasized how Garcetti controls rather than Pickering v. Board of Education:

When Pickering sent a letter to the local newspaper criticizing the school board, he said something that any citizen has a right to say, and he did it on his own time and in his own name, not on the school’s time or in its name. Yet when Evans-Marshall taught 9th grade English, she did something she was hired (and paid) to do, something she could not have done but for the Board’s decision to hire her as a public school teacher.

Opinion at 11.   As for any "academic freedom" argument, the panel opined that such a concept is limited to universities and does not extend to high schools.  Opinion at 16.



October 27, 2010 in Books, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 19, 2010

Chemerinsky: A Conservative Assault on the Constitution

Erwin Chemerinsky released his new book, The Conservative Assault on the Constitution, late last month.  It's a highly accessible, often first-hand account (through his own cases, his own advocacy) of how a rightward shift in the composition of the federal courts has changed the Constitution.

Conservative Assault 

Among the topics Chemerinsky examines: school segregation; executive authority; religion clauses; rights of criminal defendants; and access to the courts.

Chemerinsky identifies separation of church and state as a key issue--one that happens to be in the headlines today, after Republican and Tea Partier Christine O'Donnell seemed to argue in her debate with Chris Coons that nothing in the First Amendment compels such separation.  Here's part of what Chemerinsky has to say about it:

A major concern of the right wing is the separation of church and state.  For decades, it was understood that the First Amendment's prohibition on the establishment of religion meant that there was a wall separating church and state, a wall that kept American governments secular.  But conservatives, especially starting with the Reagan presidency, have sought to eliminate any such notion.  They argue that the government should have broad latitude to aid religion andto include religion in government activities.  With the arrival of Chief Justice Roberts and Justice Alito, there now appear to be five votes for radically changing the law in this area in a manner that conservatives have advocated for decades.


October 19, 2010 in Books, Establishment Clause, Free Exercise Clause, Interpretation, Religion, Scholarship | Permalink | Comments (2) | TrackBack (0)

Sunday, October 17, 2010

Presidential Power and Torture/Surveillance: New Book

Charles Fried, former Solictor General and ConLawProf at Harvard Law  Because-It-Is-Wrong
and his son, Gregory Fried, philosophy department, Suffolk University, have co-authored  Because it is Wrong: Torture, Privacy and Presidential Power in the Age of Terror.   The book promises both a legal and philosophical discussion of torture and survelliance.  From the publisher's description:

Can torture ever be justified? When is eavesdropping acceptable? Should a kidnapper be waterboarded to reveal where his victim has been hidden? Ever since 9/11 there has been an intense debate about the government’s application of torture and the pervasive use of eavesdropping and data mining in order to thwart acts of terrorism. To create this seminal statement on torture and surveillance, Charles Fried and Gregory Fried have measured current controversies against the philosophies of Aristotle, Locke, Kant, and Machiavelli, and against the historic decisions, large and small, of Jefferson, Lincoln, and Pope Sixtus V, among many others. Because It Is Wrong not only discusses the behavior and justifications of Bush government officials but also examines more broadly what should be done when high officials have broken moral and legal norms in an attempt to protect us.

  An excerpt appears in the current Harvard Magazine; there is also an NPR interview with the authors and a discussion with the Gregory Fried on Firedoglake.


October 17, 2010 in Books, Executive Authority, Fifth Amendment, First Amendment, Foreign Affairs, Fourth Amendment, State Secrets | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 6, 2010

Only the Bible?: Prison Book Policy Challenged

The Berkeley County Detention Center in South Carolina has an exceedingly limited book and magazine policy, according to a complaint which quotes detention center personnel as writing:

Our inmates are only allowed to receive soft back bibles in the mail directly from the publisher. They are not allowed to have magazines, newspapers, or any other type of books.

The detention centerhouses detainees for extended periods of time: with many being confined for more than sixty days, and some being confined for more than one year or two years.  The jail has no library, and also restricts mail to letters and three non-Poloroid pictures.  The Plaintiff, Prison Legal News, alleges the detention policies violate the First Amendment's Free Speech and Establishment Clauses, as well as the Due Process clause.


We recently discussed the September 2010 opinion Couch v. Jabe in which a federal judge declared unconstitutional the Virginia prison policy which excluded Ulysses and Lady Chatterly's Lover. 

UPDATE: See comments for discussion of "postcard only" policies.


October 6, 2010 in Books, Establishment Clause, First Amendment, Speech | Permalink | Comments (1) | TrackBack (0)

Monday, October 4, 2010

New Book on Morse v. Frederick (the "Bong Hits 4 Jesus" case)

This first Monday in October, the start of a new term of the United States Supreme Court, reminds us of all the other cases the Court has decided, including the many which have achieved iconic status.  A relatively recent case in the "iconic" genre is Morse v. Frederick, 551 U.S. 393 (2007). 

After all, a pretty good band (based on the music on its website) has taken its name from the case:

Bong Hits for Jesus is an eclectic mix of genres coming together in an all-out party of rock, funk, reggae and more. The name is based on a Supreme Court Free Speech case, and the band stands for freedom of speech, self-expression, and generally having a good time.

Perhaps of more interest to most ConLawProfs is a new book by James C. Foster, Bong Hits for Jesus: A Perfect Constitutional Storm in Alaska’s Capital

Professor Foster promises an exciting tour not only of First Amendment doctrine but of the "story" behind the case and the strategies and theories of litigation - - - a real benefit when one is teaching the case.  Here's the TOC:

Bong Book


Prologue: A Tale of Three Wars and Zero Tolerance
1.   Harmonic Convergence in Juneau: [In]famous for Fifteen Minutes
2.   The Tentative Tinker Rule
3.   From Black Arm Bands to Colliding Tubas
4.   A New Century, a Different Court
5.   The Ninth Circuit Weighs In
6.   No-So-Brief Battles, Not Such Odd Bedfellows
7.   “Up in Smoke at the High Court”
8.   Five Takes on a Single Event
9.   Lost Opportunities and Failure of Imagination





October 4, 2010 in Books, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, September 25, 2010

"Banned Books Week"

The last week in September is the American Library Association's "Banned Books Week":  "an annual event celebrating the freedom to read and the importance of the First Amendment," which "highlights the benefits of free and open access to information while drawing attention to the harms of censorship by spotlighting actual or attempted bannings of books across the United States."

 A classic example of the situation "banned books week" is meant to address occurred earlier this month when a school board in Stockton, Missouri unanimously banned Sherman Alexie's National Book Award winning novel, The Absolutely True Diary of a Part-Time Indian from the school curriculum.  Lists of the most frequently banned books (which almost always include the legal classic To Kill a Mockingbird) are available here. 


Less usually understood within the purview of "banned books" are prison policies, but federal district judge James Turk's opinion in Couch v. Jabe declaring the Virginia prison policy unconstitutional is certainly in the same spirit.  Judge Turk quotes Walt Whitman's Leaves of Grass, and mentions many other classics, concluding that the prison book policy is not reasonable but an "exaggerated response" to prison conditions. 

And from Alaska, a new statute known as SB 222 is being challenged for its overbreadth in criminalizing books "harmful to minors."  According to an article by Jill Burke in Alaska Dispatch:

The Alaska Library Association is concerned library patrons might be denied access to art books like "The World of Picasso" by Lael Tucker Wertenbaker or the sex education classic "Our Bodies, Ourselves" by the Boston Women's Health Book Collective. . . . .  David Cheezem of Fireside Books wonders if works like "The Absolutely True Diary of a Part-Time Indian" by Sherman Alexie, which contains sexual references, will have to be removed from his website.

More information on the Alaska challenge, including the complaint, is available here.


[image via]

September 25, 2010 in Books, Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 14, 2010

Justice Breyer Promotes His New Book

Justice Stephen Breyer is interviewed by Terry Gross on "Fresh Air."   The 30 minute or so audio is here  and a transcript is here.

Much of the discussion seems to be lifted directly from  41oeQkMQ7aL._SL500_AA300_
Breyer's new book, Making Our Democracy Work, released today. 

An exception is a discussion about the recent threatened Quran burning.

TERRY GROSS:  The Florida preacher who threatened to burn the Quran, some people said well, that's his free speech right and then, but what about the rights of Muslims who would be offended to the core, outraged by that act? As a Supreme Court justice, I wonder how you looked at - if you're willing to talk about it - how you looked at that event and if there's the possibility that burning a sacred text of any religion would be considered a hate crime. Like, how do you balance all of the rights and positions involved in a situation like that?

Justice BREYER: Well, I don't look at those things that - issues and so forth -that might come up in the future, because if they do come up in the future, I'll have the issue in front of me and it will be very, very well briefed. They'll be lots written about it and I'll be able to form a more intelligent opinion. I would say that where you're talking about the freedom of speech and something like this preacher or anything like that, I would keep two cases in mind.

One is years ago, Justice Holmes said you cannot shout fire in a crowded theater because that could kill people. Very well. That sets limits to the freedom of speech. But the court also said where an American flag is being burned in protest, that the Constitution protects that because it is a purely symbolic action which is being done, despite how much people hate it, to express a point of view. So, we probably, were we to have such a case, we'd have to have a law in front of us, see what it says, see what the actions are. But I've given you an outline, which sort of sets boundaries.

Breyer makes a good interview subject, speaking in an accessible manner.  Students will especially enjoy the interview. 


September 14, 2010 in Books, Courts and Judging, First Amendment, Interpretation, Supreme Court (US), Teaching Tips, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 20, 2010

Sotomayor Biography and Memoir

Sonia Sotomayor is "honored to be working with the distinguished publishing house of Alfred A. Knopf on the publication of my memoir,” according to Knopf, which has announced the signing of a contract for the as-yet-untitled memoir. 

There is also no publication date, but for those who are anxious to read about Sotomayor, a new biography Sonia Sotomayor: The True American Dream has just hit the bookstores.  The biographer is Antonia Felix, who has also penned the biographies Condi:The Condoleezza Rice Story; Laura: America's First Lady, First Mother, as well as biographies of Andrea Bocelli, Harry Connick Jr.; and Wesley K. Clark.  

Felix's approach is generally not a critical one.  The Sotomayor biography is likewise flattering.  Steve Weinberg, reviewing the book in the Kansas City Star begins by saying:

Based on the research of Kansas biographer Antonia Felix, U.S. Supreme Court Justice Sonia Sotomayor should perhaps be canonized.

Weinberg also notes that Sotomayor did not cooperate with Felix in the writing of the biography.    The Felix biography joins several others including Sonia Sotomayor: Una sabia decision in the Vintage Espanol series, several young readers books, and a comic book  in the "Female Force" series (excerpt pictured below).



July 20, 2010 in Books, Gender, Race | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 7, 2010

Participatory Democracy Theorists: Panel of Interest

This panel discussion (evening of July 8 in NYC) should be of interest to ConLawProfs whose work includes notions of participatory democracy. 

6a00d8345158e269e20133f218d63b970b-320wi From the panel description:

The fantasy of participation is a powerful one, postulating, as it does, the invitation and inclusion of everyone, everywhere. The Internet, we are told, makes this dream a reality, erasing borders and distinctions, smoothing out differences and hierarchies. We are all equal now, because we believe everyone’s voice can be heard. Political theorist Jodi Dean calls this “communicative capitalism,” an ideological formation that fetishizes speech, opinion, and participation.

With participation now a dominant paradigm, structuring social interaction, art, activism, the architecture of the city, and the economy, we are all integrated into participatory structures whether we want to be or not. How are artists and activists navigating the participation paradigm, mapping the limits of collaboration, and modeling participatory forms of critical engagement?

More information here. 

If you can't make the presentation, there are a host of other events during the exhibit and you could (should!) add Professor Dean's website and books (especially Democracy and other Neo-Liberal Fantasies) to your summer reading list.


July 7, 2010 in Books, Conferences, Interpretation, Scholarship, Theory, Web/Tech | Permalink | Comments (0) | TrackBack (0)