1st Amendment Thread

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Ted Cruz's riposte in the Wall Street Journal.

The Democratic Assault on the First Amendment

Congress has too much power already; it should not have the power to silence citizens.

6/1/14

For two centuries there has been bipartisan agreement that American democracy depends on free speech. Alas, more and more, the modern Democratic Party has abandoned that commitment and has instead been trying to regulate the speech of the citizenry.

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But just when you thought it couldn't get any worse, it does. Senate Democrats have promised a vote this year on a constitutional amendment to expressly repeal the free-speech protections of the First Amendment.

You read that correctly. Forty-one Democrats have signed on to co-sponsor New Mexico Sen. Tom Udall's proposed amendment to give Congress plenary power to regulate political speech. The text of the amendment says that Congress could regulate "the raising and spending of money and in-kind equivalents with respect to federal elections." The amendment places no limitations whatsoever on Congress's new power.

Two canards are put forth to justify this broad authority. First, "money is not speech." And second, "corporations have no free speech rights."

Neither contention bears even minimal scrutiny. Speech is more than just standing on a soap box yelling on a street corner. For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads. Every one of those activities requires money. Distributing the Federalist Papers or Thomas Paine's "Common Sense" required money. If you can prohibit spending money, you can prohibit virtually any form of effective speech.

As for the idea that the Supreme Court got it wrong in Citizens United because corporations have no First Amendment rights, that too is demonstrably false. The New York Times NYT -0.13% is a corporation. The television network NBC is a corporation. Book publisher Simon & Schuster is a corporation. Paramount Pictures is a corporation. Nobody would reasonably argue that Congress could restrict what they say—or what money they spend distributing their views, books or movies—merely because they are not individual persons.

Proponents of the amendment also say it would just "repeal Citizens United" or "regulate big money in politics." That is nonsense. Nothing in the amendment is limited to corporations, or to nefarious billionaires. It gives Congress power to regulate—and ban—speech by everybody.

Indeed, the text of the amendment obliquely acknowledges that Americans' free-speech rights would be eliminated: It says "[n]othing in this article shall be construed to grant Congress the power to abridge the freedom of the press." Thus, the New York Times is protected from congressional power; individual citizens, exercising political speech, are not.

If this amendment were adopted, the following would likely be deemed constitutional:

Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians' records on the Second Amendment.

Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.

Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.

Congress could prohibit labor unions from organizing workers (an in-kind expenditure) to go door to door urging voters to turn out.

Congress could criminalize pastors making efforts to get their parishioners to vote.

Congress could punish bloggers expending any resources to criticize the president.

Congress could ban books, movies (watch out Michael Moore ) and radio programs—anything not deemed "the press"—that might influence upcoming elections.

One might argue, "surely bloggers would be protected." But Senate Democrats expressly excluded bloggers from protection under their proposed media-shield law, because bloggers are not "covered journalists."

One might argue, "surely movies would be exempt." But the Citizens United case—expressly maligned by President Obama during his 2010 State of the Union address—concerned the federal government trying to fine a filmmaker for distributing a movie criticizing Hillary Clinton.

One might argue, "surely books would be exempt." But the Obama administration, in the Citizens United oral argument, explicitly argued that the federal government could ban books that contained political speech.

The contemplated amendment is simply wrong. No politician should be immune from criticism. Congress has too much power already—it should never have the power to silence citizens.

Thankfully, any constitutional amendment must first win two-thirds of the vote in both houses of Congress. Then three-fourths of the state legislatures must approve the proposed amendment. There's no chance that Sen. Udall's amendment will clear either hurdle. Still, it's a reflection of today's Democratic disrespect for free speech that an attempt would even be made. There was a time, not too long ago, when free speech was a bipartisan commitment.

John Stuart Mill had it right: If you disagree with political speech, the best cure is more speech, not less. The First Amendment has served America well for 223 years. When Democrats tried something similar in 1997, Sen. Ted Kennedy was right to say: "In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start."

http://online.wsj.com/articles/ted-cruz ... 1401662112

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A NEW APPROACH TO JUDICIAL SCRUTINY OF VOTER REGISTRATION LAWS

David Feinstein

2014 Cardozo L. Rev. De Novo 69

Private voter registration drives have been remarkably effective in the last few presidential elections. In 2004, groups such as Rock the Vote, Project Vote, and the League of Women Voters registered ten million new voters through voter registration drives. 3 In one particular Florida county that demonstrates the scope of this broad effort, private registration accounted for the majority of all new voter registrations. 4 Recalling the narrow state margins of victory in 2000 helps to shed light on the significance of such activities in the greater national registration scheme. 5 Even in the 2008 electoral landslide, a substantial number of those electoral votes were cast on the basis of fewer than 20,000 individual votes. 6 For this very reason, voter registration has proven a fertile area for partisan maneuvering at the state level, and accordingly has been the subject of a number of legal battles in federal court. 7

Those seeking to increase voter participation champion the activities of third-party voter registration organizations (hereinafter 3PVROs) as demonstrations of civic virtue and preservative of the democratic process. 8 Others, concerned by perceived irregularities at the voting booth, argue that local government should take a greater role in regulating voter registration; their fear is that the process could be abused for political ends. 9 In response, numerous state legislatures have recently debated or enacted restrictions on 3PVRO activity. 10 While employing different tactics for regulating 3PVROs, these laws share marked similarities: mandatory turnaround times for voter registration applications, harsh criminal and civil sanctions for even minor or accidental violations of election laws, training requirements for 3PVROs and their volunteers, and in some cases, strict reporting and archiving responsibilities. 11

Proponents argue that such restrictions are necessary to deter potential fraud. 12 Challengers have responded by claiming that voting registration is intricately entwined with voting, and therefore protected under classic constitutional doctrine surrounding the rights to free speech and freedom of association. 13 More recently, they have also argued that the act of registering voters is itself expressive conduct and political speech conveying the explicit or implicit political message that a potential voter ought to engage civically through voting. 14 However, federal courts have struggled to apply consistent standards in evaluating the constitutionality of state election laws. 15 This is particularly true with regard to laws that regulate voter registration. 16

This Note argues that 3PVRO activities implicate First Amendment rights to a degree that merits substantial constitutional protection, and therefore more robust judicial scrutiny of laws regulating them. The applicable constitutional standard requires a court to ask whether the regulated acts constitute political activity within the meaning of the First Amendment. An approach that more accurately reflects the political nature of voter registration will likewise enhance the utility of that standard, and yield more consistent results. 17 This Note further argues that in certain cases restrictions on voter registration activities severely burden core First Amendment rights, and should therefore be subject to the most rigorous scrutiny. 18

In Part I, this Note presents the prevailing state of the law by reviewing leading Supreme Court cases and detailing the inconsistent application of that law at the trial and appellate levels. Part II analyzes why this dominant case law has been applied incorrectly, and presents a framework for incorporating additional relevant law into an analysis of such regulations. In Part III, this Note proposes an additional framework for especially severe restrictions, arguing that in such cases a balancing test is inappropriate, and heightened standards of review should apply.

Full Article: http://www.cardozolawreview.com/content ... 014_69.pdf

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HOBBY LOBBY, CORPORATE LAW, AND THE THEORY OF THE FIRM: WHY FOR-PROFIT CORPORATIONS ARE RFRA PERSONS

Alan J. Meese and Nathan B. Oman

127 Harv. L. Rev. F. 273 (May 2014)

Sebelius v. Hobby Lobby Stores, Inc. 1 is shaping up to be the blockbuster case of the Supreme Court's October 2013 Term. The 2010 Patient Protection and Affordable Care Act ("ACA") requires most companies with fifty or more employees to provide such workers health insurance, including women's "preventive care and screenings." 2 In August 2011, the Health Resources and Services Administration determined that such care includes "[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures," 3 including medications that some consider abortifacients. Over 300 plaintiffs who object to artificial contraception, abortion, or both have filed dozens of lawsuits challenging the contraception mandate under the Religious Freedom Restoration Act ("RFRA"). 4 Hobby Lobby Stores, Inc., is one such plaintiff.

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This essay argues that these scholars are mistaken. 10 In the real world, shareholders impose religiously motivated policies on corporations all the time. This is no surprise, given a theory of the firm that emphasizes the contractual nature of corporate law. That law, in turn, empowers shareholders to unify corporate ownership and control and thus exercise the ordinary prerogatives of business ownership themselves. There is simply no essence of corporateness that precludes shareholders with such prerogatives from employing for-profit corporations to exercise their religion.

We make three basic claims. First, corporate law does not discourage for-profit corporations from advancing religion. Second, such businesses do not undermine the goals of corporate law, nor would it undermine such goals to grant these firms religious exemptions from otherwise neutral laws in appropriate cases. Third, given the plausible reasons for protecting religious exercise by for-profit corporations, there is no reason to reject the most natural reading of RFRA's text, namely that "person" includes private corporations of all kinds. This does not mean, of course, that every RFRA claim by a for-profit corporation should be successful. In some cases there will be no substantial burden on religious practices, and in other cases the government may have a compelling reason for regulating corporations. RFRA, however, does not assign the task of weeding out such undesirable religious exemptions to the definition of "person." Rather, other statutory provisions do that work. 11

Part I of this essay provides background on RFRA and the debate over for-profit corporations. Part II considers religious for-profit corporations and examines the claim that such corporations violate corporate law or undermine its goals. Part III explains why society should protect religious exercise by for-profit corporations.

Full Article: http://harvardlawreview.org/2014/05/hob ... -the-firm/

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Tinker Gone Viral: Diverging Threshold Tests for Analyzing School Regulation of Off-Campus Digital Student Speech

by Daniel Marcus-Toll

82 Ford. L. Rev. 3395 (May 2014)

In the context of students’ free speech rights, courts have traditionally premised school regulatory authority on geography, deferring to school officials on campus and limiting a school’s capacity to discipline students for conduct taking place beyond school hours or property. In the contemporary setting, however, where wireless devices, mobile phones, and other communicative technologies abound, a student may affect the school environment significantly without setting foot on school property. In the absence of guidance from the U.S. Supreme Court, the limits of school authority to regulate such “off-campus” student speech are uncertain.

Several courts have permitted school discipline in response to off-campus student speech under the “substantial disruption” test developed by the Supreme Court in Tinker v. Des Moines Independent Community School District. Responding to distinct situations, these courts have fashioned separate threshold tests to determine whether to apply the substantial disruption test to off-campus student speech. These threshold tests are inconsistent and risk either overly burdening students’ First Amendment rights or undermining a school’s ability to carry out its educational mission.

This Note argues that the threshold tests that courts have developed neither safeguard the rights of students nor meet the needs of schools adequately. By permitting schools to regulate off-campus student speech that may foreseeably reach school property or which bears a sufficient nexus to a school’s pedagogical interests, the Second and Fourth Circuit’s threshold tests fail to impose a meaningful limit on the kind or amount of speech that schools may regulate. On the other hand, by adopting a stricter threshold test based on identifiable threats of school violence, the Ninth Circuit’s standard may foreclose a school’s ability to protect students from other dangers. By instead redefining “substantial disruption” in accordance with the conception of student-on-student harassment that the Supreme Court has articulated in the Title IX context, courts might better serve schools’ regulatory interests while protecting students’ First Amendment rights in the digital age.

Full Article: http://fordhamlawreview.org/articles/em ... ent-speech

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KILL SWITCHES, FORUM DOCTRINE, AND THE FIRST AMENDMENT'S DIGITAL FUTURE

Enrique Armijo

32 Cardozo Arts & Ent. L.J. 411

Governments play a growing role in providing access to digital speech spaces. This development has important consequences for free expression. Communication's migration from physical public spaces to virtual ones has increased the State's capacity for ex ante interference with speech, from targeted blocking of users, websites, and applications on its communications networks to shutting off access to those networks altogether. Contrary to the conclusions of most Speech Clause scholars, the First Amendment's public forum doctrine is ill equipped to solve these problems, in part because the doctrine under-protects speech that is not expressed in shared physical space. Accordingly, this Article proposes a different path for applying the First Amendment to State-provided speech spaces: When a government transmits user speech over its networks, it should give that speech common carrier-type treatment, and both use-based and user-based discrimination over those networks should be presumptively barred. In addition, established doctrines such as prior restraint, incitement, and content neutrality can resolve any questions concerning digital speech in virtual public space.

There is also the problem of contract law. Like any network service provider, municipalities place terms of use-based obligations on users as a condition of access to their networks, including waiver of government liability for disconnection or other denials of access. These waivers implicate the unconstitutional conditions doctrine. If the State must, as a First Amendment matter, carry the traffic of any willing user on its network subject to certain narrow content and viewpoint-neutral exceptions, it cannot then ask prospective users to waive that right as a precondition to carriage. By demanding waiver of suit for any disconnection as a prerequisite to speak, these terms of service provisions condition receipt of a government benefit upon acceptance of a prior restraint.

Full Article: http://www.cardozoaelj.com/wp-content/u ... o-32-3.pdf

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IT'S THE END OF THE WORLD AS WE KNOW IT (AND I FEEL FINE): HOW COMPARATIVE CAMPAIGN FINANCE SUGGESTS THAT CITIZENS UNITED MAY NOT BE THE END OF THE WORLD . . . AND THAT THE UNITED STATES SHOULD CONSIDER OTHER POLICY ALTERNATIVES

Bret Shaw

31 Ariz. J. Int'l & Comp. Law 159 (Spring 2014)

Believe it or not, the first campaign finance scandal in the United States saw future president and American legend George Washington throw a killer party: “a hogshead and a barrel of punch, thirty-five gallons of wine, forty-three gallons of strong cider, and dinner” for those that supported him when he ran for the Virginia House of Burgesses in 1758.1 Soon after that election, the House of Burgesses attempted a colonial brand of campaign finance reform by banning candidates from providing entertainment and meals to voters in an attempt to buy their support.2

Some 250 years later, the United States Supreme Court left the country’s campaign finance laws in shambles, declaring in Citizens United v. FEC that the ban on corporate and union giving to groups that produced independent electioneering violated the First Amendment to the United States Constitution.3 The decision caused a public outcry and left gaping holes in federal election law that have allowed millions of undisclosed, anonymously-donated dollars to filter into the campaign marketplace.4 The decision left the American campaign finance system broken—meaning that what was once a comprehensive regulatory system has gaping holes that have not yet been patched—and the American public distrustful of its government and its elections.5 Although the decision may seem dire and had negative consequences to this point, I argue that it is not the end of the world. Some of the world’s most successful democracies allow corporations to donate money directly to candidates or parties.6 Perhaps the United States’ problem is not the Citizens United decision itself, but a lack of a comprehensive, Congressionally-approved regulatory scheme that incorporates it. With a more robust, cohesive system of disclosure for independent electioneering that allows for corporate campaign finance and that empowers shareholders to prevent contributions while requiring that anonymous donations be truly anonymous, perhaps we could evaluate politicians without assuming the worst about them.

This note began as a comparative attempt to gauge what impact campaign finance law had on the confidence a nation’s citizenry maintained for its national government and elections. Only one trend arose out of the research, one connected directly to Citizens United. On the whole, countries that allow corporations and unions to contribute directly to the political discourse and to the coffers of political parties and candidates have higher confidence in the honesty of their national elections and in their national governments overall. Therefore, the aim of this note is to consider how nations that do allow corporate participation, financially and otherwise, do so successfully. It will also look briefly at other nations with regulatory schemes similar to the United States that are more successful in terms of the public’s confidence in their elections and in their government to discern what policies they maintain that may improve the United States’ system.

Full Article: http://www.arizonajournal.org/ajicl/arc ... 20Note.pdf

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Church’s sign-restriction challenge will be heard by SCOTUS

By Debra Cassens Weiss - Jul 3, 2014

The U.S. Supreme Court has agreed to hear a First Amendment challenge to a sign ordinance by an Arizona pastor and his church.

The court agreed on Tuesday to hear the challenge by Pastor Clyde Reed, and his church in Gilbert, Arizona, report the National Law Journal, SCOTUSblog, the Arizona Republic and Cronkite News Service. The cert petition identifies the church as the Good News Community Church, but some news stories identify it as the Good News Presbyterian Church.

At issue is the proper test that courts should use when deciding whether a sign ordinance is content-neutral, according to the cert petition (PDF). The petition has identified as three-way split among the circuit courts on the issue.

Alliance Defending Freedom is representing Reed and the church. The cert petition claims that Gilbert’s sign ordinance treats temporary signs directing parishioners to the sites of its church services worse than temporary signs promoting political, ideological and other messages.

The church uses its signs to invite and direct residents to the site of worship services held in rented space at local school districts. The town classifies the church signs as “qualifying event signs” that promote events, meetings and activities of certain nonprofit groups.

The cert petition provides some examples of differing treatment between the church’s “qualifying event signs” and political signs. Political signs can be as large as 32 square feet, while the church signs can be no larger than six square feet. There is no limit on the number of political signs, but the church signs are limited to four per property. Political signs can be displayed for five months if there is a primary election, but the church signs can be displayed for just 14 hours.

Gilbert town attorney Michael Hamblin released a statement to the Cronkite News Service saying the town believes the Supreme Court will reject the church’s claims, as did the federal trial court and the San Francisco-based 9th U.S. Circuit Court of Appeals. The town’s response (PDF) to the cert petition claims the church has “distorted beyond recognition” the 9th Circuit’s opinion in the case “in a misplaced effort to manufacture a ‘circuit split’ on a First Amendment issue.”

The case is Reed v. Town of Gilbert.

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Through a Glass, Darkly: The Rhetoric and Reality of Campaign Finance Disclosure

by Jennifer A. Heerwig & Katherine Shaw

102 Geo. L.J. 1443 (June 2014)

In Citizens United v. FEC, the Supreme Court swept away long-standing limits on corporate spending in federal elections, but it also strongly affirmed the constitutionality of robust disclosure and disclaimer requirements. In the wake of that decision, many proponents of campaign finance regulation have turned their attention to disclosure as the best remaining mechanism by which to regulate money in elections. At the same time, opponents of campaign finance regulation—including the legal team behind Citizens United—have trained their sights on disclosure, filing new challenges to existing disclosure requirements in a number of state or federal courts, although so far with only limited success.

Relying on the Longitudinal Elite Contributor Database (LECD) —an original database developed by one of the authors to track the population of unique individual campaign contributors from 1980 through 2008—this Article tests the Supreme Court’s rhetoric about disclosure, and some of the premises of our current policy debates about money in politics, against the realities of the FEC’s existing disclosure regime. In particular, we find that compliance with existing disclosure regulations is inconsistent and that the current regime fails to identify the most potentially influential players in the campaign finance system. In so doing, the current system fails to provide basic facts about how candidates (and committees) finance their campaigns. We suggest that much of what the Court and reformers assume about disclosure is wrong—that their views are premised on an effective and well-functioning disclosure regime that in fact bears scant resemblance to the system of disclosure maintained by the FEC. Correcting these misunderstandings will be critical to crafting better reform proposals. And the stakes could not be higher: disclosure may well be the only constitutionally viable and politically feasible method of regulating money in elections in a post-Citizens United world.

Full Article: http://georgetownlawjournal.org/article ... isclosure/

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THE PRACTICAL CONSEQUENCES OF MCCUTCHEON

Robert K. Kelner

127 Harv. L. Rev. F. 380 (June 2014)

The U.S. Supreme Court's recent decision in McCutcheon v. FEC, 1 striking down longstanding limits on the overall amount an individual could spend on federal political contributions, will further loosen the reins on major political donors. It probably will not have a dramatic effect on the campaign finance system, however. There are relatively few people who are rich enough to spend more on political contributions than the pre-McCutcheon limits allowed and who have the ideological motivation to do so. Those few can now knock themselves out with profligate political giving. But the fundamental dynamic shaping our campaign finance system today -- the legally enforced advantage that outside groups hold over political parties -- will remain largely undisturbed by McCutcheon.

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One important practical consequence of McCutcheon is that it will further elevate the importance of an obscure campaign finance vehicle called the "Joint Fundraising Committee" or "JFC." JFCs have been around for a long time, but until very recently there were only a handful of campaign finance experts who knew and loved them. JFCs were much discussed (and vilified) in the McCutcheon briefing, so they are now enjoying their day in the sun. In its brief, the FEC suggested that if the overall contribution limits were lifted, a donor could contribute as much as $ 3,628,000 in an election cycle to "entities affiliated with a single party." 3 The FEC warned that "[c]andidates, the national party committees, and their state party affiliates could simply form a 'joint fundraising committee,' which could then receive a lump-sum contribution of hundreds of thousands or millions of dollars." 4 Likewise, Justice Breyer included among the parade of horribles in his McCutcheon dissent a notional "Joint Party Committee," which he described as a JFC whose participants would include all of the national and state party committees of a particular political party, which could accept a check for up to $ 1.2 million from each of its donors.

Full Article: http://harvardlawreview.org/2014/06/the ... ccutcheon/