The Volokh Conspiracy

A local controversy here in Colorado involves an auto dealer who used the billboard on his property to ask the question ““PRESIDENT or JIHAD?” The rest of the billboard attempts (not very successfully in my view) to connect this question to the issue of Obama’s birth certificate. Last night I was briefly interviewed about the billboard by Channel 7 News, the local affiliate of ABC. My view is that there is not a scintilla of evidence to suggest that our President is a jihadi. Accordingly, I exercised my First Amendment rights to criticize someone else’s foolish use of his own First Amendment rights. As is the norm, not every portion of a taped interview gets used on the air. One portion that didn’t make the cut was my equating the allegation of “jihad?” with the earlier claims of some mean-spirited extremists that President Bush was as evil as Hitler.

From a Magistrate Judge’s Report and Recommendation in Griffin v. N.H. Dep’t of Employment Security (handed down Nov. 16):

For six years prior to May 19, 2009, Griffin worked for the Hospital as a radiology technician. Prior to May 19, Griffin had a conversation with a patient in which he recounted a news story regarding the number of firearms purchases that had occurred in the first quarter of 2009. The patient complained about the conversation, and Linda Nestor, Director of the Radiology Department, contacted the patient on May 19 to investigate. The patient said that Griffin had made remarks about President Obama and had reported that he was stocking up on food and weapons. Nestor did not ask Griffin to provide his side of the story, concluding that she did not need to investigate further because Griffin had made inappropriate comments in the past.

Griffin was fired by the (private) hospital “for making inappropriate remarks to a patient about guns and politics,” and was then denied unemployment compensation by the government agency in charge of unemployment claims because he “was terminated for misconduct.”

Now it’s clear that Griffin’s firing doesn’t violate the First Amendment, because the hospital is a private entity, and thus not bound by the First (or Fourteenth) Amendment. But in a long and well-known line of cases, the Supreme Court held that when an employee is fired because he refuses to do something (e.g., work Saturdays) because of his religious beliefs, a denial of unemployment compensation on the grounds that the firing was “for misconduct” (there, insubordination) presumptively violates the Free Exercise Clause. I think this logic is dicey, but the Court has accepted.

I’ve often wondered whether the same logic would also apply to firings for speech, the subject of a parallel clause of the First Amendment. And in Griffin, the magistrate’s report says “yes”:

Griffin’s claim resembles those arising under the Free Exercise Clause of the First Amendment, involving employees terminated for religious practices conflicting with a private employer’s policy but not otherwise barred by law, who have successfully challenged administrative rulings or state laws denying them unemployment benefits. See, e.g., Hobbie v. Unemp. App. Com’n, 480 U.S. 136, 140–41 (1987) (denying unemployment benefits to Seventh-Day Adventist who was fired because she was unwilling to work on Saturdays impermissibly burdens free exercise of religion); cf. Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (denying unemployment benefits to employees fired for their criminal misconduct in using peyote did not violate Free Exercise clause because state law criminalizing use of peyote passed constitutional muster). The Court has characterized these cases as standing for the proposition that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Employment Div., 494 U.S. at 884 (citation omitted). Lower courts have extended this line of authority to cover claims like Griffin’s asserting that the state violated the First Amendment when it determined that an employee fired for engaging in political speech at work was ineligible for unemployment benefits. See, e.g., De Grego v. Levine, 362 N.Y.S.2d 207, 208–09 (N.Y. App. Div. 1974) (First Amendment barred State from denying unemployment benefits to employee fired for wearing “Impeachment with Honor” button), aff’d on other grounds, 347 N.E.2d 611 (N.Y. 1976).

An interesting case. Note: If you want to offer legal analysis about the case, you should probably make sure you have read Sherbert v. Verner, the source of the Free Exercise Clause doctrine on which the Court relies; as applied to unemployment compensation, Sherbert survives Employment Division v. Smith’s general holding that the Free Exercise Clause isn’t violated by religion-neutral laws of general applicability.

From the Indianapolis Star, discussing this blog post (my backup version is here):

Some have called for [Purdue University professor] Bert Chapman to resign or be fired for his Oct. 27 posting, which laid out an argument that the cost for AIDS research and treatment should factor into the national debate over the acceptance of gays and lesbians.

“The most concrete way to protect the university’s reputation against academic dishonesty and mediocrity is for him to resign,” said Purdue senior Kevin Casimer, who is organizing a petition campaign against the professor.

“However, if Purdue administrators and faculty make a unified statement that (Chapman’s writings) are unprofessional and detrimental to Purdue’s reputation and not reflective of the university, the same effect might be made.”

Purdue officials say they have no plans to discipline Chapman, a library science professor who serves as the university’s government information and political science librarian.

“There are many things on the Internet that would be offensive to a lot of people but protected by the First Amendment,” said Purdue spokeswoman Jeanne Norberg. “The best response is to speak up, which is exactly what our students and some faculty are doing.” ...

Note that Purdue is a public university, so that it indeed likely constitutionally barred from firing or otherwise disciplining Prof. Chapman for his speech. Private universities (even ones that get substantial government funding) are not bound by the First Amendment, but only by professional academic freedom principles and by contractual obligations under its tenure contracts (and other employment contracts). For more on this story, see this Inside Higher Ed column by Scott Jaschik.

From the Connecticut Post, apparently discussing this column (my backup version is here):

... The Fairfield Mirror ...[, an] independent student publication[,] faces harassment charges before the school’s Student Conduct Board....

The controversy erupted over a satirical column in the Sept. 30 edition of The Mirror that poked fun at female students who agree to one-night stands. The “He Said” column described a female’s “walk of shame” leaving a male’s dorm, and used words like “pounding” and “hood rat” to talk guys through the morning after consensual sex....

The student editors [of the newspaper agreed, in response to complaints and a threat of being deprived of school funding,] to make changes to ensure editorial content in the paper has no divisive, offensive language that could result in emotional or physical harm to anyone....

If anyone can point me to a copy of the new Fairfield newspaper policy, I’d love to see it; if it is as quoted, this sounds like an appallingly broad policy for a newspaper to agree to, or for any university to demand. The one reference I could see to “divisive, offensive” in the Mirror archives, here, is an assurance only as to the “Coffee Break” section — still troubling, but more limited in scope. On the other hand, it said nothing about “emotional or physical harm,” so perhaps some other policy is out there.

Note that Fairfield University is a private Jesuit university, and therefore not bound by the First Amendment. Nonetheless, it is apparently trying to apply general “sexual harassment” principles, presumably on the theory that the newspaper column created a “hostile, abusive, or offensive educational environment” for the complainants and for reasonable readers based on the readers’ sex. And this could equally be applied under many university speech codes, including public university speech codes. What’s happening to the Fairfield newspaper is an indicator of what might equally happen at public universities as well, so long as those universities believe (as I’ve heard many people argue) that “sexual harassment”-based speech codes are constitutional.

A couple of weeks ago I mentioned a new book on constitutional interpretation and language by my colleague, Washington College of Law professor Robert Tsai — Eloquence and Reason: Creating a First Amendment Culture.  Constitutional rhetoric and interpretation are not my areas, but I started reading the book and have found it to be a lively, provocative essay, though I don’t really feel competent to comment on the content deeply.

One thing I will say, though, is that I appreciate both the quality of writing in this essay, even as a non-expert, and also appreciate very much the method of the humanities that it represents.  I have thought that traditional methods of the humanities — the interpretation of text in its linguistic as well as historical richness — has suffered somewhat in legal scholarship in recent years under a certain economics-oriented reductivism.  That’s a broader topic for a different day, however.  But Robert Tsai is a gifted writer and thinker, and even as (maybe especially as) a non-specialist, his book is a pleasure to read.

The comments to my original post, in particular Orin’s question about results and rhetoric, caused me to go back to Robert Tsai and ask if he might give us a short statement on the book, and say something about the interpretive question.  Robert was kind enough to do so, and so I am putting up his short response here.  Robert — our thanks for joining us here at Volokh with a contribution!

Many thanks to Ken and everyone at the Volokh Conspiracy for the opportunity to say a few words about Eloquence and Reason.  The book examines First Amendment law as a cultural system: not simply a collection of legal decisions or even a normatively desirable set of substantive commitments, but also a shared political belief system and popular vocabulary.

Because the text of the First Amendment has never changed, those interested in constitutional transformation have always used text instrumentally to secure a hegemony of preferred values, outlooks, and modes of talking about the provision.  Whether insiders admit it or not, the task of judging involves sorting through competing claims to determine which cultural and political perspectives ought to be validated and which ones should be resisted.  Judges have always played a role in this social process, even if theirs is rarely the last word on a subject.  There is no such thing as neutral interpretation; there is only how transparent an interpreter chooses to be about her methodologies and substantive commitments.

Eloquence and Reason examines historical episodes in which activists, lawyers, and presidents such as FDR and Ronald Reagan worked to dislodge reigning constitutional ideas and reshape our understandings of free speech and religious freedom.  Then, as now, each party to a constitutional debate claims to bear the “authentic” or “correct” reading of the text.  Because my model of constitutional change is agnostic to political ideology, it allows anyone to try to speak on behalf of the people and their charter.  For the most part, such claims are filtered through existing institutions.

Two episodes taken up in the book may interest readers of this blog.  The first involves a wartime turnabout on whether the First Amendment should prevent public schools from punishing a student for refusing to salute the American flag.  Laying Gobitis (1941), where the Justices said no, and Barnette (1943), where the Justices changed their minds and said yes, side by side shows very different worldviews.

The first ruling prized unity, majoritarianism, and ritual nationalism enforced at the local level; whereas the second decision valued individual dissent, pluralism, and uncoerced political attachments.  Drawing on speeches and writings by FDR and high-ranking officials, as well as unpublished drafts of the Barnette decision, I argue that out-of-court statements had an impact in publicly recasting the constitutional stakes in the dispute.  The administration blamed the Supreme Court’s Gobitis decision for the persecution of Jehovah’s Witnesses and urged the Justices to overrule themselves.  Officials also aggressively presented the very values eventually ratified in Barnette, signaling that such values were crucial to the post-war legal and international order.  And they are to this day.

A second episode has to do with the Anti-Establishment Clause.  The “wall of separation” metaphor appeared as part of an official post-war strategy to keep the peace.  As originally conceived, Justice Black’s version of the boundary idea conveyed liberalism’s commitment to equal respect, to the protection and empowerment of religious minorities, and to guaranteeing a strong state uncorrupted or divided by religious strife.

Over time, these connotations were consciously reconfigured through litigation, activism, and the electoral process.  Through a process of composition, reaction, adaptation, and dissolution, the wall of separation began to acquire negative connotations.  Those outside of the courts began to say that the wall signified hostility or discrimination, oppression of religious minorities, and a state weakened by the alienation of its citizens. Eventually judges endorsed this way of describing the wall of separation, shunning it as a trope and divorcing it from their analyses of the controversies that arose.

A word about the causal connections between language, motivations, and outcomes [going to Orin’s comment/question — KA].  The mere existence of a legal discourse does not compel any particular outcome in a dispute.  That would run counter to the idea of “rhetorical freedom,” which even the Framers acknowledged would continue after the Constitution’s ratification.  Whatever a party’s instrumental reasons for taking position X, constitutional language circumscribes the range of options available for portraying X as a defensible position, thereby limiting the range of linguistic options.  Broader shifts in constitutional language reveal changes in a nation’s political beliefs, institutional priorities, and even how a community sees itself.

I’ve been traveling recently, and so have been away from posting.  One of the enforced virtues of traveling — one of the few virtues of traveling for me these days — is the plane flight with no internet.  And if the big guy in front of me reclines his seat, as he always does, I can’t even get to my computer.  So I read  on flights.  I should have some reading gadget, Kindle or whatever, but I’m not that far along yet, and for that matter I should get an economy class friendly little word-processor to use on flights, but I’m cheap.  Here’s a selection across the varied reading on my flights.  No particular theme or order, I’m afraid (on account of the mixed-up topics here, I think I won’t open to comments; too jumbled to be productive). Continue reading ‘Reading While Traveling, Hard Copy and No Internet’ »

As I mentioned before, I’m litigating a pro bono free speech / cyberspace law case before the Nebraska Supreme Court. My client, Darren Drahota, was convicted of two counts of breach of the peace for sending two rude messages to William Avery, who had earlier asked him to stop sending such messages. Avery was Drahota’s University of Nebraska professor and a candidate for the Nebraska Legislature. (Avery was elected and is now a state legislator.) We argued that such speech did not constitute breach of the peace, and was in any event constitutionally protected under the First Amendment; for more details, see here. The Nebraska Supreme Court granted our petition for further review, and agreed to hear the case; we filed the opening brief Oct. 20, and the state’s brief was due yesterday.

Today, we learned that the state has apparently elected not to file a brief. The local prosecutors had of course prosecuted the case, and the Nebraska Attorney General’s office had briefed the case before the Nebraska Court of Appeals. But at the Nebraska Supreme Court stage, no brief is apparently forthcoming. (The Nebraska Attorney General’s office does make such a decision every so often.)

Naturally, the state supreme court will still have to consider the case, since there is a Nebraska Court of Appeals opinion on the books, and the court needs to decide what to do with it. But the state’s decision not to defend the opinion, or the result it reached, strikes me as heartening.

This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture.  I have it on my shelf for night reading, but unfortunately even my “free reading” time has been swept up in other things.  However, I note that it just received an enthusiastic review from Kevin Kosar in the Weekly Standard, October 26, 2009 (maybe sub reqd.).  Kosar’s review notes (along with some criticisms of the book):

Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment’s prohibition against making a law ‘respecting an establishment of religion’.

Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes’s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a ‘marketplace of ideas’. When one metaphor ceases to provide the desired results, the Court crafts a new one....

Inevitably, as Tsai shows, metaphors fail. Speech may be like fire, but it is not fire; it is speech. When people have wised up to this, the Court has concocted a new metaphor and eased an old one from the scene. And as it has repeated this rhetorical switcheroo, the Court’s decisions have grown increasingly estranged from the plain language of the First Amendment and the Constitution generally. The word ‘speech’ no longer means talking; it now includes actions, such as burning the American flag and peddling pornography via the Internet. Taking all this in, the average American might well wonder if the justices are making things up as they go.

Tsai has written a fine book, but I cannot help but think that the late Justice Stanley Reed got it right in his dissent inMcCollum v. Board of Education (1948): “A rule of law should not be drawn from a figure of speech.”

Most of the university student speech debate has focused (rightly, in my view) on restrictions that apply to student speech outside class — in student conversations, demonstrations, newspapers, flyers, and so on. But Harrell v. Southern Oregon University (Oct. 30) involves in-class speech, albeit in an online classroom. (Here’s the magistrate judge’s decision, which the decision I cited above adopts.)

The Southern Oregon University Code of Student Conduct prohibits

Disruption, obstruction or interference with educational activities in classrooms, lecture halls, campus library ... or any other place where education and teaching activities take place including, but not limited to, talking at inappropriate times, drawing unwarranted attention to self, engaging in loud or distracting behaviors, displaying defiance or disrespect of others, or threatening any University student or employee.

Peter Harrell was taking some online classes, in which the class discussion took place through an online discussion board. He was at first apparently admonished by his instructor for disrespectful statements, and then eventually disciplined by the university (by being put on probation) for such statements. 

The opinions aren’t rich in details about the statements, and the Complaint highlights some of the statements in a way that leaves them unreadable. But the statements appeared to be statements to classmates such as “clearly you haven’t bothered to read the rest of the board on this topic” and “but you clearly haven’t bothered to do your reading. Feel free to post some concrete information on your own, however.” Those are probably not seen as especially rude by the standards of online discussion generally, but are in my view quite rude but not extremely rude by the standards of in-class discussion. (I would, for instance, promptly admonish a student for making such statements in my classroom.)

So Harrell sued, claiming that the Code provision was facially unconstitutional — vague and overbroad — and that it was unconstitutional as applied to him. The court said no, specifically because the provision was limited to classroom speech. In context, the magistrate judge concluded, and the district judge agreed, that the policy is not vague because in context the ban on “disrespect[ful]” speech is limited to “disruption or interference with classroom activities.” And so read, the policy is not overbroad, because of the university’s legitimate power to restrict speech in the classroom (especially because the speech wasn’t “core religious [or] political speech,” and because “it attempts not to limit the ideas of an individual but the way in which an individual interacts with others, unrelated to political speech”).

Here’s my thinking on the matter:

1. Speech in university classes is rightly much less constitutionally protected than speech outside class. An obvious example is that students generally may not speak at all unless called on by the professor. But beyond that, the professor may choose to limit discussion by subject matter, by perceived quality, and even by viewpoint. He might, for instance, cut off a student who’s going off-topic (and avoid calling on habitually off-topic students). He might specifically ask for students to make an argument in favor or against a particular result (and if a called-on student doesn’t comply with this, he may cut the student off). He might prefer to call on students who, in his experience, have what he see as higher-quality things to say. And he might cut off even on-topic arguments that he sees as expressing incorrect or logically unsound viewpoints.

2. Professors also rightly exercise this power as to rude speech. I think I’ve either never or almost never encountered student rudeness in the classroom. (I vaguely recall one possible hissing incident, which was condemned at the time, but it would have been so long ago that I’m not even sure that it happened when I was a professor or a student.) But if someone did say something rude in class, I would cut the student off, and admonish him. And if this happened often enough, I’d stop calling on the student until he gave me assurances that he’d be more polite.

This is in part because classroom discussion is itself a teaching tool, a kind of orchestrated speech product that is provided for the benefit of listeners as well as speakers. The professor is the conductor of the performance, or the editor of the aggregate product; he deliberately uses students’ own speech, but in a way that’s channeled by his own editing decisions. And if students are rude to each other, the result will generally be a lower quality and less effective class discussion, which is to say that the professor won’t be able to generate as effective a speech product as he would have if he had prevented the rudeness.

Much as this justifies, in my view, editing of online discussion lists (and comment threads), it even more justifies professor-as-editor/conductor control of classroom discussions. And this necessarily includes content– and viewpoint-based controls, though in imposing such controls the professor himself should be subject to constraints — but likely not judicially enforceable constraints — of fairmindedness, open-mindedness, and politeness.

3. So far, though, all that I’ve discussed chiefly involves restrictions imposed by the professor, where the sanctions consist only of (1) the professor’s cutting off a student comments, (2) the professor’s not calling on a student in the future, (3) the professor’s publicly or privately admonishing the student, and (4) the professor’s grading down the student for in-class participation, in classes where participation is graded (a process that likewise necessarily involves content-based judgment, and even in some measure viewpoint-based judgment). The university disciplinary process only needs to be invoked, I think, when the student refuses to accept the professor’s in-class restrictions, and talks when not called on.

4. It’s more troubling, however, when disciplinary sanctions are possible not just for talking out of turn — or continuing talking after the professor has tried to cut one off — but for saying things that “disrupt[], obstruct[], or interfere[] with educational activities ... including ... displaying ... disrespect of others.” For instance, consider one of the examples given by the University of Michigan of sanctionable conduct, in the speech code struck down by Doe v. University of Michigan: “A male student makes remarks in class like ‘Women just aren’t as good in this field as men,’ thus creating a hostile learning atmosphere for female classmates.” In fact, at the University of Michigan, “At least one student was subject to a formal hearing because he stated in the context of a social work research class that he believed that homosexuality was a disease that could be psychologically treated.”

Likewise, another “incident involved a comment made in the orientation session of a preclinical dentistry class. The class was widely regarded as one of the most difficult for second year dentistry students. To allay fears and concerns at the outset, the class was broken up into small sections to informally discuss anticipated problems. During the ensuing discussion, a student stated that ‘he had heard that minorities had a difficult time in the course and that he had heard that they were not treated fairly.’ A minority professor teaching the class filed a complaint on the grounds that the comment was unfair and hurt her chances for tenure. Following the filing of the complaint, the student was ‘counseled’ about the existence of the policy and agreed to write a letter apologizing for making the comment without adequately verifying the allegation, which he said he had heard from his roommate, a black former dentistry student.” And the court held the speech code unconstitutionally overbroad in part because of its effect on in-class speech:

Doe said in an affidavit that he would like to discuss questions relating to sex and race differences in his capacity as a teaching assistant in Psychology 430, Comparative Animal Behavior. He went on to say:

An appropriate topic for discussion in the discussion groups is sexual differences between male and female mammals, including humans. [One] . . . hypothesis regarding sex differences in mental abilities is that men as a group do better than women in some spatially related mental tasks partly because of a biological difference. This may partly explain, for example, why many more men than women chose to enter the engineering profession.

Doe also said that some students and teachers regarded such theories as “sexist” and he feared that he might be charged with a violation of the Policy if he were to discuss them. In light of the statements in the Guide, such fears could not be dismissed as speculative and conjectural. The ideas discussed in Doe’s field of study bear sufficient similarity to ideas denounced as “harassing” in the Guide to constitute a realistic and specific threat of prosecution.

All of these statements, and many more like them, could be seen by university administrators as “displaying ... disrespect of others” and thereby “disrupt[ing], obstruct[ing], or interfer[ing] with educational activities.” Nor does the magistrate judge’s supposed clarifying construction, which is that the “disrespect” ban only “prohibits disrespect that would interfere with educational activities,” solve the problem — in the university’s view, the expression of such ideas in class might well “interfere with educational activities” in some measure.

5. It therefore seems to me that it’s much better to leave control of in-class speech to the professor, backstopping the control with administrative sanctions only when the student talks out of turn, or otherwise disobeys the professor’s clear prohibition on speaking. Such a policy would leave the professor with the flexibility to constrain rudeness — and distractions of all sorts — and orchestrate class discussion in the way he sees as most pedagogically effective. But at the same time, it would pose far less of a deterrent effect than would a policy under which students could be disciplined by the university simply for saying certain things in class. (There would still be a substantial deterrent effect on certain statements, especially in classes where class participation is grade; but some such deterrent effect is inevitable.)

The question is whether university discipline for the content of in-class speech (not just passive speech as armbands, but active participation) — even speech that is seen as “disrespect[ful]” and therefore “disrupt[ive]” — is (1) unconstitutional, likely because of its extra deterrent effect on in-class speech, or (2) a bad idea but constitutional, because the government has unquestioned authority to restrict in-class speech through its agent the professor (who may well be a government agent for his teaching, though not for his scholarship) and is therefore free to restrict such speech through the administrative sanctions process as well. I tentatively lean towards item 1, and I do think that Doe v. University of Michigan supports that. But it strikes me as a difficult question.

The recent UN Human Rights Council Resolution endorsed by the Obama Administration exemplifies a key weakness of international human rights law that John McGinnis and I have focused on in our academic work (e.g. here and here): the heavy influence of repressive authoritarian governments over its content. In this case, the resolution was initially promoted primarily by authoritarian Islamic governments who hoped that it would legitimize efforts to suppress “anti-Muslim” speech. The Obama Administration supported the resolution, I would guess, primarily in order to improve the US image with those governments and their traditionalistic Muslim and Islamist sympathizers. 

For reasons indicated by co-blogger Eugene Volokh (here , here, and here), Jonathan Turley, and others, the resolution does indeed justify gross infringements on freedom of speech. As they point out, it threatens free speech not only in the authoritarian states that initially proposed it, but also (though to a much lesser degree) in those Western nations that tend to incorporate international human rights law into their domestic law. While the Resolution probably doesn’t count as international law in and of itself, it is the sort of document that many experts claim can be emobided in “customary international law” over time (see the discussion in this article, and also Eugene’s take here).

It is unlikely that the US and other Western nations would have agreed to this resolution if not for the influence of authoritarian Muslim states that they sought to appease. Thus, the influence of repressive regimes helped promote the enactment of “human rights” law that legitimate their abuses and could potentially weaken protection for freedom of speech and other important liberties in the West.

This danger is not unique to this particular resolution. Rather, as John McGinnis and I discuss in this article, it infects the entire body of modern international human rights law. For example, the Universal Declaration of Human Rights — generally considered the most important international human rights treaty — includes repressive elements introduced at the behest of the Stalinist USSR and its allies. Even when a particular human rights proposal has been endorsed by liberal democracies, it often reflects dubious compromises with repressive states, and thus promotes principles that undermine freedom more than democratic governments would if left to decide for themselves, free of authoritarian influence. The HRC resolution is a good example of this phenomenon, as is the Universal Declaration.

Given the great influence of repressive regimes over its content, it is likely that international human rights law, as currently developed, does more to legitimize repression than to protect freedom. This is especially likely in light of the fact that repressive regimes can usually disobey those aspects of such law that might genuinely weaken their grip on power. By contrast, liberal democratic states are likely to take the rule of law more seriously and therefore to actually obey repressive elements of human rights treaties that they ratify and commit to incorporating into their domestic law.

None of this proves that every aspect of international human rights law is harmful. Even the worst governments might sometimes support relatively beneficial legal rules. It does, suggest, however, that we should view the current body of law in this area with great suspicion, and be very reluctant to allow it to override or influence the domestic law of liberal democracies.

UPDATE: I have changed the title of this post to make it clearer.

UPDATE #2: I previously blogged about the influence of repressive regimes over international law in this series of posts.

I’ve read most of Mel Urofsky’s new biography of Louis Brandeis, and it’s an extremely good, and very informative, book.  But I’m afraid that Mel vastly exaggerates Brandeis’s influence on the Supreme Court’s adoption of the “incorporation doctrine”, to wit:

(1) p. 618: “Scholars now believe that the Fourteenth Amendment ... was intended to extend the protection of the Bill of Rights to the states.  Brandeis took this position in his dissent in Gilbert v. Minnesota.”  False.  You can read the dissent here. The last paragraph contains everything Brandeis wrote about the Fourteenth Amendment in that opinion, and he certainly did not take the position Mel attributes to him, or anything like it.

(2) p.619 “Within a few years the first fruits of Brandeis’s dissent appeared in, of all places, an opinion of Justice McReynolds [Meyer v. Nebraska]”.  False.  There is no reason to believe that Justice McReynolds’ opinion was influenced in any way by Brandeis’s Gilbert dissent.   Rather, McReynolds, who hated Brandeis both as a Jew and as a “radical”, cited a long string of liberty-of-contract decisions, including Lochner v. New York.

(3) p. 619 McReynolds in Meyer “found a violation of free speech,” and “applied the clear-and-present danger test” without using those words.  False.  Meyer was not decided as a free speech case, and neither the concept of freedom of speech nor the text of the First Amendment appears in the opinion.

(4) p. 641 “Brandeis’s assertion that the Due Process Clause implicated rights other than property is the starting point for the idea of incorporation by which the states become bound by the same standards for individual liberties as the national government.”  False.  The first Justice Harlan had argued over a period of decades, always in dissent (but getting as many as two additional votes, includng, if I recall correctly, Justice Stephen Field’s), that the rights enumerated in the Bill of Rights also applied to the states.

Earlier, on p. 619, Mel correctly notes that Brandeis only identified the rights to speech, education, choice of profession and travel [only the first of which is actually specifically mentioned in the Bill of Rights] as fundamental rights deserving protection under the Due Process Clause.

And it’s not like the idea of applying some of the rights in the Bill of Rights to the state was otherwise unheard of before Brandeis. In 1908, the Supreme Court stated that “some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”   A year earlier, the Court had reserved for the future the question of whether “there is to be found in the Fourteenth Amendment a prohibition [of restriction of freedom of speech] similar to that in the First.”

Moreover, Brandeis would have preferred that the Due Process Clause not apply to any substantive rights at all, but insisted that all fundamental rights be protected if liberty of contract was to be protected.

Also, in 1897, well before Brandeis joined the Court a unanimous Supreme Court noted that the Fourteenth Amendment’s Due Process Clause protected not just liberty of contract, but “freedom from all substantial arbitrary impositions and purposeless restraints.”

Finally, if we are going to anachronistically consider pre-New Deal Due Process opinions that protect rights that happen to be mentioned in the Bill of Rights to be “incorporation” cases, even when no provision of the Bill of Rights was relied upon, it turns out that the Supreme Court “incorporated” the Takings Clause of the Fifth Amendment in 1897, twenty-three years before Brandeis’ dissent in Gilbert.

(5) p.632: Brandeis “especially wanted to advance the idea that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the states.”  False.  Again, the pre-World War II Justice who consistently plugged something resembling the modern incorporation doctrine was Harlan, and it was he, not Brandeis, whom Justice Hugo Black later cited in advocating incorporation (though unlike Black, Harlan believed that the Fourteenth Amendment also protected unenumerated rights).

(6) p. 632 “Brandeis had first planted the seed [of the incorporation doctrine]” and McReynolds had advanced the cause in his two school opinions [Meyer and Pierce v. Society of Sisters].   False.  Neither case had anything to do with incorporation of the Bill of Rights.  Both cases were quite clearly what we now refer to as pure “substantive due process” opinions, applying unenumerated rights against the states via the Due Process Clause without any reference, even implicit, to the Bill of Rights.

I think I had noticed a few other examples, but I can’t find them right now, and I think I’ve made my point.

Don’t let this discourage you from buying this book, which is a wonderful resource on the life and accomplishments of Justice Brandeis. But on this particular issue of Brandeis’s influence on incorporation, it happens to be wrong.

This morning NPR ran a story on Yale University’s decision to force the Yale University Press to remove all depictions of the prophet Muhammed, including several controversial Danish cartoons, from Jytte Klausen’s book The Cartoons that Shook the World.  As had already been reported, the University’s decision was based, in part, on various outside experts on national security, terrorism, and Islam who beleived republication of the cartoons could spark further violence.  What I had not previously known, but NPR reported today, is that the experts consulted by Yale University were not asked to read the book, only to comment on the cartoons.

just a few weeks before publication, Yale University, which owns the Yale Press, mounted a second review. The university asked some 20 scholars, counterterrorism officials and national security experts to asses the risk of more violence if copies of the cartoons were included in the book.“It was fairly overwhelming that the people who knew the most about this kind of situation said ‘Don’t do it,’ that this was likely to provoke violence,” Yale Press director John Donatich said. . . .

The university told Yale Press to eliminate the cartoons from the book, along with all other images of Muhammad. And Klausen was told she’d have to sign a nondisclosure agreement if she wanted to read the experts’ comments. She declined to do so. But she says she was even more dismayed to learn that the panel had not read her book.

“My first reaction was that it was stunningly similar to what happened during the conflict itself,” said Klausen. “I disagreed with the experts’ advice. I felt that had the experts read my book, they would not have given the advice they produced.”

So we are clear: A prominent University censored content from a book based on the opinions of experts who had not read the book in question.

Originally posted Dec. 2003. Just came across it, and though it was worth reposting in light of recent controversies over hate speech prosecutions in Canada:

Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon. The Canadian left has a penchant for importing left-wing ideas from the U.S. and elsewhere, adopting them as public policy, and then accusing anyone who objects of being “anti-Canadian” because these policies somehow define Canadian identity. I like Canada a lot myself, but I should hope that there is more to Canadian identity than national health insurance, gun control, and aggressive hate speech laws.

This is the opinion the court promised last Thursday. I have to run, but I hope to blog more about this later tonight or tomorrow.

UPDATE: D’oh! Forgot to post the link; just updated the post to include it.

with one Justice dissenting. So reports SCOTUSblog; I’ll post more when I learn more. 

My post about Justice Kennedy’s similar action yesterday is here. For now, I continue to think that the Ninth Circuit’s decision overturning the district court’s preliminary injunction against release of the signatories’ names — and thus allowing the state to release the names — is correct, and I think the Supreme Court won’t even agree to reconsider the decision on the merits. But it makes sense that the Court would temporarily stay the opinion below, at least pending the state’s filing its arguments and possibly pending the Court’s considering the petition for certiorari (which in turn won’t come until after the Ninth Circuit announces its reasoning): Once the names are released, the attempt to enjoin the release will become moot, so it makes sense to take some time now to consider the matter on the merits.

Thanks to Rick Hasen (Election Law Blog) for the pointer.

UPDATE: Justice Stevens was the one dissenter, but he didn’t issue a written opinion explaining his vote (and neither did the majority). The order says,

The September 10, 2009 order of the United States District Court for the Western District of Washington, case No. C09-5456BHS, granting the motion for preliminary injunction shall remain in effect pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

That makes sense, for the reasons I mentioned above — in order for the Court to even be able to consider the petition for certiorari, the names can’t be released, since their release would make the matter moot. But I still think that the Court won’t grant certiorari, for reasons I mentioned earlier.

I can’t find the order online yet, but the AP so reports:

Kennedy’s ruling today temporarily blocks a federal appeals court ruling last week that ordered the release of the names. Kennedy said his order would remain in effect while he considers a request by a pro-marriage group that asked him to reverse the appeals court ruling.

The case involves Referendum 71, a ballot initiative that asks Washington voters to approve or reject the state’s so-called “everything but marriage” law, which grants registered domestic partners the same legal rights as married heterosexuals.

As I mentioned early this morning, I think that the Ninth Circuit’s decision overturning the district court’s preliminary injunction — and thus allowing the state to release the names of the signatories — is correct, and I think the Supreme Court won’t even agree to reconsider the decision on the merits. But it makes sense that Justice Kennedy would temporarily stay the opinion below, at least pending the state’s filing its arguments and possibly pending the Court’s considering the petition for certiorari (which in turn won’t come until after the Ninth Circuit announces its reasoning): Once the names are released, the attempt to enjoin the release will become moot, so it makes sense to take some time now to consider the matter on the merits.

Thanks to Richard Winger’s Ballot Access News blog for the pointer.

The Ninth Circuit order states that “An opinion setting forth the reasons for the court’s reversal of the Preliminary Injunction Order shall be issued expeditiously and in due course,” so I can’t speak directly to the Ninth Circuit’s reasoning. But for reasons I mentioned when the release of the signers’ names was first enjoined, I think the injunction was mistaken: There is no First Amendment right to block the state from releasing the names:

I don’t think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don’t think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act — it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.

The government is surely entitled to require that people who want their signature to have such a legally operative effect must disclose their identities to the government. And I see no reason why the government might not then disclose those identities to the public, who after all are in charge of the government. To do that is to inform the people about who is taking legally operative steps to change the state’s laws (or the state’s elected representatives, in the case of a recall).

Informing the public about this might well deter such legally operative acts, though of course leaving people free simply to engage in persuasive speech, which can indeed generally be done anonymously rather than in legally significant signing of petitions. But I don’t think that deterrence is unconstitutional, especially since the legal significance of the signature is there only because state law creates it. Even overt government condemnation of certain speakers is not a First Amendment violation, though such condemnation might deter speakers. The same is even more true, I think, of a simple release of over 100,000 names, though again I can’t deny that there would be a deterrent effect.

I agree that there are plausible plausible arguments that voter signatures shouldn’t be publicly released by the government. Just as we have a secret ballot for the ultimate votes, we could have at least a quasi-secret signature system for the signing of referendum, initiative, recall, and candidate nomination petitions. Both an election and a threshold signature requirement to put something on an election are generally aimed at accurately measuring public opinion. Such an accurate measurement is much more likely if the measurement is undistorted by people’s fear of being attacked, fired, ostracized, or even annoyed by those who disagree with them.

To be sure, unlike with a secret ballot, a petition signature would not be fully secret -— for instance, the government would know what you signed, though it doesn’t know how you voted, and it’s possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there’s just one signature per page, and each page is concealed after it’s signed). But there are good reasons why we might choose to make it as close to a secret ballot as possible.

Still, the judgment about how secret signatures or even ballots should be is a judgment that should be made legislatively (or by voter initiative). The First Amendment and First Amendment caselaw does not preclude either option, and the court’s opinion here doesn’t persuade me to the contrary.

Thanks to Religion Clause for the pointer.

Peter Berkowitz takes up the argument over Yale and, by extension, the rest of the American academy, concerning Yale University Press’s shameful censorship of a book on the Muhammed cartoons — with his usual careful argumentation and coherence.  Kudos to Peter; here in the WSJ.

So reports the Foundation for Individual Rights in Education, discussing the case we blogged about in May. Here are some excerpts from FIRE’s summary; there are more details, and pointers to the relevant documents, here:

[A] student threatened with punishment for attempting to form a gun-rights group at Community College of Allegheny County (CCAC) is finally allowed to distribute pamphlets about the group on campus. The college has also rescinded its unconstitutional policy demanding “prior written approval” for “personal contact with individuals or groups related to non-sponsored college material or events.” ... Christine Brashier, who wanted to form a chapter of Students for Concealed Carry on Campus (SCCC), was told that her pamphlets were unacceptable “solicitation” and that any further efforts would be considered “academic misconduct” ....

After FIRE took Brashier’s case public in May, generating national news coverage, CCAC attorney Mike Adams finally replied to FIRE. Adams assured FIRE that Brashier did not face any disciplinary action and that she did have the right to try to form a SCCC group, but he reported that CCAC would not budge from its unconstitutional policy of prior review of materials....

But, FIRE reports, the policy has finally been changed; “Michael J. Rinaldi, a FIRE Legal Network attorney in the Commercial Litigation Practice Group at Drinker Biddle & Reath LLP in Philadelphia, ... successfully pressed CCAC to allow not only Brashier but all CCAC students to exercise their fundamental rights on campus.” Good work.

Disclosure: I will be a keynote speaker at FIRE’s Tenth Anniversary event this month, but my enthusiasm for FIRE’s work of course long preceded that invitation.

I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment, and so alas don’t have time to comment more than a few paragraphs about this. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later.  Many of them are about the intellectual community of international law, which I take as relevant here in part because Eugene is trying to sort out what various international law experts say is or is not the import of the free speech drafts in the UN Human Rights Council; I think it matters to have a sense, even if it’s just my personal and idiosyncratic one, of the baseline of international law experts.  (I don’t promise that I have re-read this closely despite some aggressive characterizations here; I’m simply out of time.)

This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning.  Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.

Even to “engage” in the process, as a consequence, leads to tears no matter where it goes.  A compromise on the issue will inevitably mean that the first amendment is weakened in its substantive American understanding.  If the US engages in the process, however, but then does not accept the result, then it is understandably accused of negotiating in bad faith.

But that’s the consequence of a policy of “always, or nearly always, engage” with the UN or with international institutions.  There are certain institutions in which the US should always engage; the Security Council is one of them.  There are certain institutions or processes with which it should never engage and actively seek to undermine; Durban I and II come to mind.  The HRC is another institution with which engagement is a mistake, and an obvious one.  The decision to engage or not engage is one that by itself is an exercise in political capital.  I admit to finding unpersuasive the position of some (HRW made these arguments around Durban, but it is a fairly common trope) that

• (a) the US should always engage with UN institutions because engagement is an important symbolic act that shows US commitment to international institutions and
• (b) the US should not be concerned about always engaging with institutions or processes at the UN, because these are “merely” symbolic processes and one can always walk out, because as a realist matter no one can “make” the US do anything it doesn’t want.

This is looking to have it both ways.  Which is it to be?  Does symbolic engagement matter or doesn’t it? Continue reading ‘Globally Managing American Speech?’ »

That’s what it looks like, with this Joint U.S./Egypt draft U.N. Human Rights Council resolution (dated Sept. 2009). The resolution generally seems to be an attempt to urge more protection for free speech throughout the world, and some praise it for that; moreover, it lacks the exception for “defamation of religion” that some Muslim countries have urged. It may therefore be a step forward for Egypt, and an attempt to urge a step forward for some other countries.

But I’m worried that it might be a step backward for our own constitutional rights, because of what seems to be the U.S. endorsement of the suppression of “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” and possibly of “negative stereotyping of religions and racial groups.” I say “seems to be” because some of the language in the resolution is pretty slippery, and of course it’s always possible that I’m misunderstanding it. (It’s also possible that past U.S. Administrations have taken similar views before, which I would condemn as well.) Here, though, is my thinking (all emphases added by me):

1. Paragraph 4 of the draft resolution “expresses ... concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative stereotyping of religions and racial groups continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their international human rights obligations, to address and combat such incidents.”

2. Paragraph 6 likewise “[s]tresses that condemning and addressing, in accordance with international human rights obligations, including those regarding equal protection of the law, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is an important safeguard to ensure the enjoyment of human rights and fundamental freedoms of all, particularly minorities.”

3. I suppose it’s possible that the “effective measures” might simply include denunciation or other counterspeech, but that seems unlikely. The resolution quotes favorably the International Covenant on Civil and Political Rights and Human Rights Council Resolution 7/36. And article 20 of the Covenant (which in turn is favorably cited by resolution 7/36) expressly commands that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” This suggests that the urgings in paragraphs 4 and 6 (possibly limited to the “incitement to discrimination, hostility or violence” language but possibly even including the “incidents ... of negative stereotyping” language”) are urgings that such speech “be prohibited by law.”

4. Nor does this call for narrow prohibitions that would fit under the U.S. Supreme Court’s narrow exception for “incitement.” My understanding is that international definitions of “incitement” are considerably broader than the Court’s definition in Brandenburg v. Ohio. First, I don’t think “incitement” in such international documents is generally seen as limited to intentional incitement to imminently likely conduct (our First Amendment rule). Second, advocacy of mere hostility — for instance advocacy that people should hate and be hostile to radical strains of Islam (and its adherents), or to Scientology, or to Catholicism, or to fundamentalist Christianity, or for that matter to religion generally — is clearly constitutionally protected here in the U.S.; but the resolution seems to call for its prohibition.

5. Paragraph 10 also “expresses regret at the promotion by certain media of false images and negative stereotypes of vulnerable individuals or groups of individuals, and at the use of information and communication technologies such as the Internet for purposes contrary to respect for human rights, in particular the perpetration of violence against and exploitation and abuse of women and children, and disseminating racist and xenophobic discourse or content.” That might indeed be just condemnation — and, depending on what it means, might be perfectly sound condemnation — and not a call for coercive action. But note that the language of “express[ing] regret” is softer than the earlier paragraphs’ calls for “addressing” and “taking effective measures ... to address and combat.” And the presence of this softer “express[ing] regret” language here reinforces my view that the more insistent language in the other paragraphs calls for coercive measures.

6. But why the fuss, some might ask, if we’re protected by the First Amendment? First, if the U.S. backs a resolution that urges the suppression of some speech, presumably we are taking the view that all countries — including the U.S. — should adhere to this resolution. If we are constitutionally barred from adhering to it by our domestic constitution, then we’re implicitly criticizing that constitution, and committing ourselves to do what we can to change it. 

So to be consistent with our position here, the Administration would presumably have to take what steps it can to ensure that supposed “hate speech” that incites hostility will indeed be punished. It would presumably be committed to filing amicus briefs supporting changes in First Amendment law to allow such punishment, and in principle perhaps the appointment of Justices who would endorse such changes (or even the proposal of express constitutional amendments that would work such changes).

To be sure, I think it’s quite unlikely that the Administration would indeed work to enact a specific Anti-Hate-Speech Amendment, or make support of article 20 of the International Covenant on Civil and Political Rights into a litmus test for Supreme Court appointees. But it seems to me that the Administration’s and the Nation’s international representatives’ calling for the suppression of “hate speech” throughout the world would have some significance. At least it would let other countries fault us for inconsistency when American law fails to punish such speech. 

7. And beyond that, I’m worried that the Executive Branch’s endorsement of speech-restrictive “international human rights” norms will affect how the courts interpret the First Amendment, so that over time, “an international norm against hate speech ... [would] supply a basis for prohibiting [hate speech], the First Amendment notwithstanding.” And that worry stems not just from my fevered imagination, but from the views of Prof. Peter Spiro, a noted legal academic who is a supporter of this tendency. That’s not fearmongering on his part, but hope (hopemongering?) and prediction. So anything that an Administration does to endorse international speech-restrictive norms might well have an effect on our own constitutional rights as well.

8. Finally, I’ve considered whether our reservation to the International Covenant, specifically saying that “Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States,” provides us with a loophole: The theory would be that the proposal only commits states to “take effective measures, consistent with their international human rights obligations,” and our reservation means that suppressing supposed hate speech isn’t one of our “international human rights obligations.” 

But I don’t think that’s a fair reading of the joint U.S./Egypt proposal, or at least the reading that fair third parties would take of our position. It seems to me that the proposals calls on everyone to act consistently with what the U.N. Human Rights Council and similar bodies see as everyone’s “international human rights obligations” — which unfortunately includes an obligation to ban supposed hate speech — and not just what each country has expressly promised by the treaties they signed, subject to the reservations they attached.

In any case, that’s my tentative thinking; please let me know what you think.

I’m delighted to say that the Nebraska Supreme Court has just agreed to review State v. Drahota (Neb. Ct. App. June 16), a case that I am litigating pro bono. We don’t have an oral argument date set yet, but it will probably be during the first week of November.  Here is my argument, from the 10-page petition for further review, on why the Nebraska Supreme Court should agree to hear the case; the argument on the merits — about why the Nebraska Supreme Court should reverse the decision below — will be quite similar, though of course not identical. Thanks again to Mayer Brown LLP (the firm with which I’m an academic affiliate) for providing support through their pro bono program; to Gene Summerlin of Ogborn, Summerlin & Ogborn for being pro bono local counsel; and, for their help as amici, to my coblogger David Post and the law professors who were willing to sign on to his amicus brief, to the Foundation for Individual Rights in Education, and to the ACLU of Nebraska.

Facts

In early 2006, Appellant Darren J. Drahota was a University of Nebraska student who had been in William Avery’s political science class. Avery was still a University professor, but had announced that he was running for the Nebraska Legislature.

Drahota e-mailed Avery on Jan. 27, 2006, which led to an exchange of 18 e-mails over two weeks. At least one of Drahota’s e-mails used epithets and personal insults of Avery, alongside political commentary. One of Avery’s e-mails used an epithet and an insult of Drahota as well, saying “I am tired of this shit” and saying Drahota “and the ‘Chicken Hawks’ in the Bush Administration” didn’t “have the guts” to join the military. At the end of the exchange, Avery e-mailed Drahota saying, “Please consider this email a request that you not contact me again for the purpose of spilling more vile [sic].” Drahota responded with an apology.

Four months later, Drahota sent two more e-mails to Avery, this time from the address “averylovesalqueda@yahoo.com.” In the first, Drahota wrote concerning the death of an Iraqi terrorist, and asked Avery: “Does that make you sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq? . . . You . . . and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments.” The second had the subject line “traitor,” and read, in relevant part,

I have a friend in Iraq that I told all about you and he referred to you as a Benedict Arnold. I told him that fit you very well. . . . I’d like to puke all over you. People like you should be forced out of this country. Hey, I have a great idea!!!! . . . Let’s do nothing to Iran, let them get nukes, and then let them bomb U.S. cities and after that, we will just keep turning the other cheek. Remember that Libs like yourself are the lowest form of life on this planet[.]

After a bench trial, Drahota was convicted of breach of the peace. The Court of Appeals affirmed the conviction, based solely on the last two e-mails. 17 Neb. App. at 685, 687.

Argument

I. The Importance Of This Constitutional Precedent Warrants Review By This Court

The decision below sets an important precedent, in Nebraska and elsewhere, that sharply limits the constitutional protection for political speech. It appears to be the first published decision allowing criminal punishment for nonthreatening but insulting politically themed speech to an elected official or candidate for office. Prosecutors throughout Nebraska and the country will now be more likely to conclude that such speech could indeed lead to a prosecution. And citizens throughout the country will now be rightly concerned that their critical e-mails to government officials and political candidates will lead to criminal prosecution if a prosecutor concludes the e-mails contain “epithets” (even clearly political ones such as “traitor”) or “personal abuse.”

It is thus important for this Court to review the case, notwithstanding Drahota’s labeling his assignments of error in his pro se appellate brief as “issues” instead of “assignments of error.” 17 Neb. App. at 683. Drahota’s briefing was incorrect on this score. Nonetheless, he supported his claims with detailed argument. The state’s brief did not claim any waiver on Drahota’s part. The opinion below dealt fully with his arguments. And while the Court of Appeals stated it was reviewing the case for plain error, Id. at 684, it concluded there was no error at all.

The precedential force of the decision below is thus not limited to plain error cases. Because of this, reviewing the constitutional issue “is necessary to a reasonable and sensible disposition of the issues presented,” State v. Conover, 270 Neb. 446, 449, 703 N.W.2d 898, 902 (2005), both in this case and for the benefit of future speakers who might be deterred by the precedent set below. See, e.g., Linn v. Linn, 205 Neb. 218, 221, 286 N.W.2d 765, 767 (1980) (reviewing constitutional question in “‘the interests of substantial justice,’” though the issue had not even been raised below (quoting Wittwer v. Dorland, 198 Neb. 361, 253 N.W.2d 26 (1977))).

II. The First Amendment, And A Proper Understanding Of Breach Of The Peace Law, Bar Punishing Drahota’s E-Mails As “Breach Of The Peace”

The decision below is not only important but mistaken, both as to what constitutes “breach of the peace” and as to what the First Amendment protects. It is therefore likely to be confusing to lower courts, as well as likely to improperly deter constitutionally protected speech.

The e-mails in this case do not fit within any exception to First Amendment protection, nor are they like the speech that this Court has treated as a breach of the peace in the past. The e-mails do not contain “true threats” of illegal conduct; the opinion below did not suggest that the e-mails were threatening. Nor are they libelous, despite the assertion by the opinion below that the e-mail address from which they were sent (“averylovesalqueda@yahoo.com”) was “libelous,” 17 Neb. App. at 685, and despite the use of the word “traitor.” First, there can be no libel “‘when the words are communicated only to the person defamed.’” Molt v. Lindsay Mfg. Co., 248 Neb. 81, 91, 532 N.W.2d 11, 18 (1995). Second, in context Drahota’s “allegation” was a hyperbolic statement of opinion, not a statement of fact. See Letter Carriers v. Austin, 418 U.S. 264, 284, 286 (1974) (noting that “traitor” can be used not as a “representation[] of fact” but “in a loose, figurative sense”); Wheeler v. Neb. State Bar Ass’n, 244 Neb. 786, 792, 508 N.W.2d 917, 922 (1993) (endorsing the Letter Carriers analysis).

A. The E-Mails In This Case Are Not “Fighting Words”

Continue reading ‘Pro Bono Free Speech Case Headed to the Nebraska Supreme Court:’ »

The New York Times has published two reviews of Mel Urofsky’s new biography of Louis Brandeis.  I haven’t seen the book yet, but Mel had sent me the page proofs of several chapters earlier this year, and they were great.

Whiles the parts of the book I read struck me as admiring but with appropriate cautionary notes, Brandeis hagiography otherwise appears alive and well.  In his review of the book,  Alan Dershowitz writes that “the First Amendment’s right of free expression, the Fourth Amendment’s right to privacy and the due process clause’s focus on personal liberty (rather than property) all owe their current vitality to the creative genius of Justice Brandeis.”

With some reservations (Brandeis’s view of the First Amendment was much more utilitarian, in the sense of supporting free speech because he thought it would lead to further Progressive reform, than modern, more libertarian-oriented doctrine), I’ll concede the First Amendment point.

But Brandeis was no great hero of the Fourth Amendment. Brandeis, of course, authored a famous dissent in the 5–4 decision in Olmstead v.  United States,  holding that the fourth amendment prohibits warrantless wiretapping.  But Brandeis was not a consistent advocate of a broad Fourth Amendment.  For example, in Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court upheld a warrantless search of a car on suspicion of transporting alcohol.  The majority, including Justice Brandeis, concluded that automobiles are distinct from private dwellings for Fourth Amendment purposes.  Justice McReynolds, joined by Justice Sutherland, dissented.  More generally, the most consistent advocates of Fourth Amendment protections against the excesses of Prohibition enforcement came from several of the “conservative” Justices, especially Justice Pierce Butler, with Brandeis consistently voting in favor of the government.

When the liberal Warren Court chose to strictly enforce the Fourth Amendment, it naturally looked to helpful precedents, and also naturally sought to cite a “Progressive” forebear, and not one of the discredited “conservative” “Four Horsemen.”  And therefore Olmstead became a canonical Fourth Amendment case.

With regard to the due process clause and personal liberty,  Brandeis had little to do with the application of the due process clause to non-economic rights.  The pioneer in this regard was Justice James McReynolds, who wrote the Court’s seminal opinions in Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige.  Brandeis joined all of these opinions, but he also made it clear in private conversations with Justice Felix Frankfurter that he supported limiting the Due Process Clause to procedural matters, or even repealing it entirely.  If the Court was going to insist on applying the clause to substantive matters, however, Brandeis thought that educational freedom and other personal liberties should be given as much weight as economic concerns.

In short, it’s hard to see how Brandeis gets credit for “the due process clause’s focus on personal liberty,” except, again, that his presence in the majority in these cases allowed the Warren Court to rely on them, rather than ignore or dismiss them as products of the reactionary liberty of contract era.

Testing.

One two

• three
  • three and a half
• four

1. five
2. six

Block quote.

More in the block quote.

Continue reading ‘Testing 123’ »