The U.S. Supreme Court extended copyright protection to foreign works created from 1023 to 1989 and already in the public domain thereby shutting down creative uses of these works to protect profits of the owners of old works.

The overall result, argues Ken Paulson of the First Amendment Center, is a loss of free speech. -db

In a commentary from the First Amendment Center, January 20, 2012, by Ken Paulson.

Full story

Although the Supreme Court shot down the violent video game law authored by California state senator Leland Yee (D-San Francisco), AP has reported that Yee will review “the dissents in hope of finding a way to reintroduce the law in a way it would be constitutional.”

Video: Court: Calif. Can’t Ban Violent Video Game: The Associated Press

Yee published a written response to the Supreme Court decision on his website stating that “While we did not win today, I am certain that this eight year legislative and legal battle has raised the consciousness of this issue for many parents and grandparents, and has forced the video game industry to do a better job at appropriately rating these games,” said Yee.

U.S. Supreme Court Puts Corporate Interests Before Protecting Kids

On the winner’s side of the video game case, Entertainment Software Association, which represents the games industry and is responsible for the annual Electronic Entertainment Expo, better known as E3, also released a statement regarding the SCOTUS decision:

“This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere. Today, the Supreme Court affirmed what we have always known — that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music,” said ESA President Michael D. Gallagher. “The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children.”

Senator Yee Hopes to Reintroduce Videogame Violence Law : 1up.com

The court ruled 7-2 Monday to strike down Brown vs. the Entertainment Merchants Association by a vote of 7-2.

Writing for the court, Justice Antonin Scalia allowed that “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” but nonetheless determined that “…these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy.”

The ruling prompted strong dissents from Justice Clarence Thomas, Justice Stephen Breyer, and Justice Samuel Alito.

The 2005 law passed by the California State Assembly bans the sale of graphically violent video games to children under the age of 18, with a fine of up to $1,000 for each violation.

Read the story: The First Amendement Giveth and Taketh Away, Too: The Atlantic

The First Amendement Giveth and Taketh Away, Too: The Atlantic http://www.theatlantic.com/national/archive/2011/06/the-first-amendment-giveth-and-taketh-away-too/241089/

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Democrats are suing the Federal Election Commission to force them to disclose which private companies and nonprofit groups are contributing millions of dollars in secret donations to Republican causes.

There has been an avalanche of spending after the Supreme Court decision granting First Amendment rights to corporations, and Republicans have blocked legislation in Congress requiring full disclosure of political contributions. -db

From The New York Times, April 21, 2011, by Eric Lichtblau.

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BY PETER  SCHEER–An inebriated John Galliano, sitting in a Paris bar, unleashes an anti-semitic rant (“I love Hitler”) that is captured on a cellphone camera and posted on the internet. Within days the Dior designer is not only fired from his job, but is given a trial date to face criminal charges for his offensive remarks.

In the same week, the U.S. Supreme Court extends First Amendment protection to the homophobic proclamations of a fringe religious group whose founder and members, picketing near a funeral for an American soldier killed in Iraq, hold signs stating, among other things, “Thank God for Dead Soldiers,” “God hates fags” and “You’re Going to Hell.” The Court, in Snyder v. Phelps, bars a suit against the religious group for emotional distress because the demonstrators’ message, although causing “emotional distress” to the dead soldier’s family, dealt with “matters of public concern.”

The contrast between these cases reflects fundamentally different views about the role of free speech in a democracy. France, hardly an intolerant or autocratic country, imposes criminal fines for racial epithets, Holocaust-denial, anti-immigrant advocacy and other forms of “hate speech.” And the French are not alone. To varying degrees, Germany, the Netherlands, New Zealand, South Africa and Canada–liberal democracies, all–enforce similar laws banning hate speech.

The United States is an outlier when it comes to freedom of expression. Although we share other countries’ repugnance for hate speech, particularly the race- and religion-baiting variety, the First Amendment reflects a uniquely strong aversion to government censorship of any kind. As interpreted in Supreme Court decisions going back nearly a century,  the First Amendment forbids government suppression of ideas, no matter how vile, deranged or offensive—as long as the speaker doesn’t cross the line separating speech and illegal action (or succeed in inciting others to engage in violent crimes).

Galliano, if he lived in New York, could not be prosecuted for giving vent to his bigoted views. (His defenestration from Dior, on the other hand, likely would stand.) In New York he would be a free man, although there are certain neighborhoods in Brooklyn and elsewhere that Galliano would be well-advised to avoid (to paraphrase Humphrey Bogart speaking to a Nazi officer in “Casablanca.”)

Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

The Constitution’s protection of hateful speakers and their hateful speech is based on considerations that are fundamentally pragmatic. One is the insight that trying to block the spread of an idea is self-defeating because it serves only to give that idea legitimacy–why else would government wish to discredit it?–and, by making the idea illicit, to increase its potential audience. This hypothesis is supported by the experience of China and other autocratic governments in censoring the internet.

The First Amendment also reflects the view that the best way to neutralize a bad or dangerous idea is to force it to compete in an open “marketplace of ideas” where its defects and shortcomings will be exposed through debate. For example, blogger-critics of Galliano–whose background is Jewish and Gypsy–were quick to skewer him with the observation that his affection for Hitler would have been reciprocated, during World War II, with a one-way trip to Dachau. France’s piling on of criminal charges is hardly necessary to discredit Galliano’s views.

Still another consideration embedded in First Amendment cases is the prevention of self-censorship caused by uncertainty about what is, and isn’t, protected. The Court has sought to minimize this uncertainty by adopting rules, in the case of expression about public officials or issues of public importance, that are highly speech-protective–even to the point of protecting, in some circumstances, expression that is false or extremely hurtful.

To foreigners, America’s protection of hate speech is baffling because the rants of bigots and hate mongers are not worth protecting. Americans do not really disagree. Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

Intolerance of censorship is a powerful First Amendment value. It is a value worth remembering, and honoring, during Sunshine Week.

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition, a nonprofit organization dedicated to protecting freedom of speech and the public’s right to know. www.firstamendmentcoalition.org

The Supreme Court gave open government a significant victory by reversing decades of practice in discrediting a prominent interpretation used by government agencies to reject Freedom of Information Act requests.

The Navy had tried to use an FOIA exemption for records “related solely to the internal personnel rules and practices of an agency” to reject a request for data showing where damage might occur in Puget Sound if explosives were detonated there by accident or intentionally. In writing for the 8-1 majority, Justice Elaine Kagan rejected the Navy’s argument that “personnel rules” could be almost any procedure followed by its employees. -db

From Politico, March 7, 2011, by Josh Gerstein.

Full Story

The U.S. Supreme Court will not hear a lawsuit brought by a student at East Hamption High School suspended after he allegedly made a comment “one down, forty thousand to go” in reaction to the death of a Latino student in an motorcycle accident.

The student accused of the remark wanted to return to school to declare his innocence in a letter read in a student assembly. After an investigation, the school determined that the student made the remark and suspended him for the rest of the school year. -db

From the Courthouse News Service, March 1, 2011.

Full Story

The American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington and Alliance for Justice are urging the Senate to pass a bill allowing television coverage of Supreme Court hearings. -db

American Civil Liberties Union
Press Release
October 28, 2010

WASHINGTON, D.C. – A coalition of public interest advocates led by the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington and the Alliance for Justice sent a letter to the Senate today urging action on a bill that would allow television coverage of open Supreme Court proceedings. In the letter, the groups argue that broadcasting Supreme Court arguments would lead Americans to have a greater understanding of the justice system and the government overall.

The bill, S. 446, was introduced by Senator Arlen Specter (D-PA) early last year and was passed out of the Senate Judiciary Committee in June on a bipartisan vote of approval.

“The Court decides too many questions of monumental importance to the American people to deny them the opportunity to observe its proceedings,” the groups said in the letter. “Even the majority of those who are able to visit the Court in person receive just three minutes to watch before they are shuffled out to make room for others waiting on line. The Court’s public-seating area accommodates only 300 visitors. Not surprisingly, most Americans increasingly favor television coverage of the Court.”

Though some oppose cameras in the courtroom because they believe broadcasting trials would distort the serious decision-making process of the courtroom, today’s letter challenges that argument by pointing out that the Supreme Court has no juries to expose nor any witnesses to intimidate. Further, S. 446 would allow for exceptions in any case that would violate the due process rights of any party. The groups also point out that cameras in the courtroom have been used without negative consequences in both the United Kingdom and Canada, which have allowed broadcasting of their highest courts’ arguments for years.

“Allowing cameras to broadcast Supreme Court arguments will bring a crucial part of our government’s proceedings to the vast majority of the American public for the first time,” said Michael Macleod-Ball, ACLU Legislative Chief of Staff and First Amendment Counsel. “A democracy cannot thrive without transparency or an engaged public. This bill will help to educate our citizens about how our highest court operates and ensure that there is no branch of government that is inaccessible. This bipartisan bill should be passed swiftly by both the Senate and the House in the coming post-election session.”

The letter to the Senate can be found here: www.aclu.org/free-speech/coalition-letter-urging-passage-s-446-bill-allowing-broadcast-supreme-court-arguments

FAC Content Use Policy

Two Supreme Court justices refused to enjoin Maine’s campaign laws before the Nov. 2 election The laws set disclosure requirements, capped individual contributions to governor candidates to $750 and provided matching funds for some candidates. -db

Courthouse News Service
October 25, 2010
By Annie Youderian

(CN) – The Supreme Court late Friday refused to block three Maine campaign-finance laws, citing the “difficulties in fashioning relief so close to the election.”

Justice Anthony Kennedy rejected a second Supreme Court bid for an emergency injunction, saying the laws’ challengers failed to meet the heavy burden for an order blocking a “presumptively constitutional state legislative act.”

Respect Maine PAC, Rep. Andrew Cushing III and donor Harold Clough challenged the constitutionality of state election laws that set disclosure requirements, capped individual contributions to gubernatorial candidates at $750 and provided matching funds for some candidates under the Maine Clean Election Act.

After losing their bid for relief in the 1st Circuit, the challengers asked Justice Stephen Breyer to issue an emergency injunction. When Breyer turned them down, they refiled their plea with Justice Kennedy.

But Kennedy on Friday evening also refused to enjoin Maine’s campaign-finance laws before the Nov. 2 elections.

Justices Antonin Scalia and Samuel Alito would have barred enforcement of the matching-funds provision, which is similar to an Arizona law the high court blocked earlier.

Kennedy noted that opponents of the Arizona law had appealed a 9th Circuit decision, while the Maine challengers wanted an emergency injunction.

“Such a request ‘demands a significantly higher justification’ than a request for a stay because, unlike a stay, an injunction ‘does not simply suspend judicial intervention that has been withheld by lower courts,” Kennedy wrote, quoting a 1986 Supreme Court decision.

Copyright 2010 Courthouse News Service      FAC Content Use Policy

In a paper in the upcoming edition of the Harvard Law Review, two law school scholars suggest that the freedom granted by the recent Supreme Court decision should carry with it new responsibilities to align their spending on political campaigns with the interests of their stockholders. -db

Social Science Research Network
September 1, 2010
By Lucian A. Bebchuk and Robert J. Jackson Jr.

Abstract:
As long as corporations have the freedom to engage in political spending – a freedom expanded by the Supreme Court’s recent decision in Citizens United v. FEC – the law will have to provide rules governing how corporations decide to exercise that freedom. This paper, which was written for the Harvard Law Review’s 2010 Supreme Court issue, focuses on what rules should govern public corporations’ decisions to spend corporate funds on politics. Our paper is dedicated to Professor Victor Brudney, who long ago anticipated the significance of corporate law rules for regulating corporate speech.

Under existing corporate-law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Consequently, political speech decisions can be made without input from shareholders, a role for independent directors, or detailed disclosure – the safeguards that corporate law rules establish for special corporate decisions. We argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, and that these decisions may carry special expressive significance from shareholders. Accordingly, we suggest, political speech decisions are fundamentally different from, and should not be subject to the same rules as, ordinary business decisions.

We assess how lawmakers could design special rules that would align corporate political speech decisions with shareholder interests. In particular, we propose the adoption of rules that (i) provide shareholders a role in determining the amount and targets of corporate political spending; (ii) require that political speech decisions be overseen by independent directors; (iii) allow shareholders to opt out of – that is, either tighten or relax – either of these rules; and (iv) mandate disclosure to shareholders of the amounts and beneficiaries of any political spending by the company, either directly or indirectly through intermediaries. We explain how such rules can benefit shareholders. We also explain why such rules are best viewed not as limitations on corporations’ speech rights but rather as a method for determining whether a corporation should be regarded as wishing to engage in political speech. The proposed rules would thus protect, rather than abridge, corporations’ First Amendment rights.

We also discuss an additional objective that decisional rules concerning corporations’ political speech decisions may seek to serve: protecting minority shareholders from forced association with political speech that is supported by the majority of shareholders. We discuss the economic and First Amendment interests of minority shareholders that lawmakers may seek to protect. We suggest that decisional rules addressing political spending opposed by a sufficiently large minority of shareholders are likely to be constitutionally permissible, and we discuss how such rules could be designed by lawmakers.

Copyright 2010 Social Science Electronic Publishing, Inc.    FAC Content Use Policy

Press Release/ UF

July 21, 2010

By University of Florida

GAINESVILLE, Fla. — The University of Florida’s Marion B. Brechner First Amendment Project joined three other free speech groups to file a friend-of-the-court brief with the U.S. Supreme Court last week.

They filed it as part of Snyder v. Phelps, a free speech case centering on military funeral protests by members of Westboro Baptist Church in Topeka, Kan.

“The Snyder case pits the First Amendment right to engage in controversial, offensive and even abhorrent expression against a grieving father’s ability to sue over that same speech because it allegedly causes him emotional suffering and allegedly invades his privacy rights outside of a funeral ceremony,” said Clay Calvert, director of the UF project.

Oral argument in the case will take place this fall in Washington, D.C.

“Free speech is not always pretty or nice,” Calvert said, “but it is important to defend, lest courts start carving away exceptions for expression that people find offensive or disagreeable.”

This is the third friend-of-the-court brief that Calvert and the project have filed this year.

Joining the project in the brief are the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia, the National Coalition Against Censorship and the Pennsylvania Center of the First Amendment at Pennsylvania State University,

The project is a nonprofit, nonpartisan organization dedicated to current and contemporary issues affecting the First Amendment freedoms of speech, press, thought, assembly and petition. It’s part of the UF College of Journalism and Communications, a national leader in the professional education of future journalists and other communication practitioners.

The Supreme Court has ruled that Hastings College of The Law in San Francisco can legally deny recognition to a Christian Student group that openly discriminates against homosexuals.

The Examiner

First Amendment/Commentary

July 8, 2010

By Ana Kasparian

The 5-4 ruling indicates that the Christian Legal Society will not get funding or official recognition from the public law school. Hastings has a strict nondiscrimination policy and does not recognize anycampus group that excludes people due to religious beliefs or sexual orientation.

Unsurprisingly, conservative Justice Samuel Alito wrote a strong dissent for the Supreme Court’s ruling, and said the outcome of the case was “a serious setback for freedom of expression in this country.”

“Our proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’” Alito said, quoting a previous court decision. This “decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

But Justice John Paul Stevens disagreed with Alito, and said that while the Constitution “may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them.”

Stevens also added that “other groups may exclude or mistreat Jews, blacks and women – or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”

Justice Stevens is 100 percent correct in his assessment of the situation. If the law school has a clear policy against discrimination, they have the right to deny funding to a student group that discriminates against homosexuals, blacks, women, or any other group of individuals. That does not harm the Christian group’s “freedom of expression” since they are not banned from the campus for their discriminatory behavior. On the other hand, it would violate the law school’s freedom of speech if the administrators were forced to fund something that they vehemently disagreed with.

It’s important to understand the distinction between denying funding to a group, and banning a group. Had the law school banned the Christian Legal Society, they would be in the wrong. But denying funding and official recognition is completely warranted. The school’s actions are consistent with their policy.

The Supreme Court’s decision in Citizen United v. Federal Election Commission, could change American democracy. Along with strong Democratic opposition, 76% of Republicans and 81% of independents believe the Citizens United ruling was wrong. -SMD

TIME Magazine

Commentary

July 7, 2010

By Adam Cohen

When the Supreme Court ended its term last week, its ruling extending gun rights was the big news. But the real headline of the term was the court’s decision earlier this year giving corporations and unions sweeping new rights to spend money to elect candidates to office. It is not an overstatement to say that the 5 to 4 decision in Citizens United v. Federal Election Commission, which was handed down in January, could permanently change American democracy.

When the Citizens United case was working its way through the courts, it seemed like a limited dispute over the fine points of campaign-finance law. But the court blew it up into something larger, asking the parties to submit briefs reconsidering a doctrine that had been settled law for more than half a century: that corporations and labor unions are not allowed to spend money on federal elections.

The parties raced to finish their briefs last summer, and the court set the case down for oral argument before the term officially began in October — a highly unusual breakneck pace for Supreme Court litigation. By January, the court had struck down congressional limits on corporate and union spending on federal elections, ruling that they violate the First Amendment. Congress can no more stop corporations from speaking about elections, the five-member conservative majority said, than it could stop private individuals from speaking.

The new rule that the court laid down completely reshapes the political landscape. Until January this year, if companies such as ExxonMobil or Walmart wanted to throw their weight around in federal elections, they could encourage their employees to contribute their own money to a political-action committee, an indirect route that had inherent limits — notably the fact that there is only so much money employees are willing to give to fight their company’s political battles.

Now, ExxonMobil or Walmart can simply go into the district of a member of Congress who is giving them a hard time and spend as much money as it wants to defeat him. The amount of money that is available is staggering. According to Democracy 21, a group that advocates for campaign-finance regulations, corporations had revenues of $13 trillion and profits of $605 billion during the last election cycle. (Unions have far less.)

Of course, corporations may not even have to spend the money. If a member of Congress knows that General Motors or ConAgra could spend millions of dollars to defeat him in the next election, he may be a lot more sympathetic to the company’s request for a bailout or for favorable language in a pending bill. In his dissenting opinion in Citizens United, Justice John Paul Stevens argued, on behalf of four Justices, that the ruling “threatens to undermine the integrity of elected institutions across the nation.” Days after the ruling came down, President Obama declared in his State of the Union address that the decision “reversed a century of law to open the floodgates for special interests.”

Popular opinion has sided strongly with Justice Stevens and President Obama. An ABC/Washington Post poll found that 80% of Americans oppose the ruling, 65% of them “strongly.” Although the Supreme Court was divided on ideological grounds, the general public apparently is not. Along with strong Democratic opposition, 76% of Republicans and 81% of independents believe the Citizens United ruling was wrong.

Congress is considering a bill to rein in Citizens United‘s impact. The Disclose Act would, among other things, require CEOs of companies that fund political ads to personally appear in those ads, saying they approve the message. That would not necessarily stop the special-interest spending, but it would make the spenders more accountable.

The act would also stop foreign-controlled corporations from spending on American elections. The Supreme Court’s ruling seems to have left that door open, raising the possibility that foreign powers, even enemies of the U.S., operating through innocuous-sounding front groups, could have a sizable influence on U.S. elections.

The Disclose Act passed the House, although it picked up a controversial loophole along the way, which would exempt the National Rifle Association, the Sierra Club and some other large advocacy groups. Its prospects in the Senate — where it could face a filibuster — are uncertain. A few states, including New York, are considering passing legislation that would go further, requiring corporations to get approval from their shareholders before spending on elections.

As advocates on both sides fight over these bills, they have been making the same arguments that were made to the Supreme Court, and in the media, when the Citizens United ruling came down.

Critics of corporate spending on elections say it will give special interests more influence than ever over politics and elected officials, and it will further erode the public’s faith in government. Supporters of corporate spending insist those fears are overblown. They argue that corporations are likely to be wary about abusing their new powers, and that in any case, more speech is a good thing.

As we head into the first congressional elections to be conducted under the new rules, one thing seems clear: we are about to start finding out which side is right.

The Supreme Court’s just-ended term was marked by mixed results and “inconsistent” rulings on First Amendment cases according to Los Angeles Times. – SMD

First Amendment Rulings

Opinion/Commentary

July 5,2010

Los Angeles Times

The Supreme Court term that ended last week will be remembered for several important decisions. The court ruled that juveniles couldn’t be imprisoned for life without parole for any crime but homicide, that the individual’s right to bear arms must be respected by the states as well as by the federal government, and that a law used in white-collar and political corruption prosecutions was too vague. Some of the most significant rulings, however, involved the free-speech provisions of the 1st Amendment. They are a reminder that the apparently simple language of that amendment — “Congress shall make no law … abridging the freedom of speech” — depends for its definition on the court.

The best-known and most controversial 1st Amendment decision of the term was the Citizens United case, in which the court upended decades of restrictions on election spending by corporations and unions. The decision, which was denounced by President Obama and has loomed large in the confirmation hearings of Supreme Court nominee Elena Kagan, ostensibly was about whether a nonprofit group that received some money from corporations could air a documentary critical of Hillary Rodham Clinton during the 2008 presidential primary season. Instead of resolving that issue narrowly, the conservative majority of the court unnecessarily decided that corporations had a 1st Amendment right to spend their own funds on political advertising. One can disagree with the decision — as we did — and still note that it continued a tradition of the court imposing the strictest scrutiny on laws challenged on 1st Amendment grounds.

Another far-reaching decision involved what seemed to be a fringe issue: whether Congress could outlaw the sale of videos depicting cruelty to animals. In fact, the case presented the court with an opportunity — which it rightly declined — to create a new category of speech that, like child pornography, would be totally outside the protection of the 1st Amendment.

The Federal Elections Commission ruled that the conservative Citizens United was a media organization and as such did not have to disclose the donors behind their documentaries. -db

The Washington Post
June 9, 2010
By Carol D. Leonnig

The conservative political group Citizens United has won a ruling from federal election authorities that it does not need to disclose the donors that finance its political documentaries.

Citizens United successfully argued to the Federal Elections Commission that because it primarily produces films, it should be considered a media organization and be exempted from disclosure requirements for political activist groups.

Citizens United has become a familiar name in Washington and beyond since winning won a landmark Supreme Court ruling in January. The court lifted a longtime ban on corporate funding of political campaign ads and ruled that companies should be allowed to spend unlimited dollars advocating their positions and exercising their free speech rights.

It is run by former Whitewater investigator David Bossie, who formed the group in part to provide a conservative answer to far-left liberal filmmaker Michael Moore. The group’s most famous product is “Hillary, the Movie,” a highly critical documentary focused on then Sen. Hillary Clinton and Clinton administration scandals.

In his letter to the FEC, Citizens United attorney Olson said the nonprofit group has produced and distributed 12 documentary films on a variety of subjects since 2004, including the 2008 Clinton film, which formed the heart of the recent Supreme Court case. Citizens United has spent about 25 percent of its budget on films over the past six years and has been accredited as a member of the “press” when filming some news events, Olson added.

Copyright 2010 The Washington Post Company

CNS News
May 12, 2010
By Matt Cover

After losing a First Amendment case to the Westboro Baptist Church in federal court, the father of a Marine must pay $16,000 in legal fees to the church. -db

A federal court has turned back an effort by the Republican National Committee to lift restrictions on raising soft money for use in state elections. It was one of the first tests of the limits of the recent Supreme Court decision rolling back laws limiting corporate campaign spending. -db

JURIST
March 26, 2010
By Zach Zagger

“Soft money” refers to contributions beyond the ceilings imposed by campaign finance [JURIST news archive] laws. The case tests the limits of the Supreme Court’s recent decision in Citizens United v. Federal Election Commission [Cornell LII backgrounder], which eased restrictions [JURIST report] on political and campaign spending by corporations based on the First Amendment grounds.

Specifically, the RNC tried to challenge Section 323(a) Bipartisan Campaign Reform Act (BCRA) [text] of 2002, which banned raising or spending “soft money,” defining it as donations greater than $30,400 during a federal campaign, and limited state and local campaigns from donations greater than $10,000 from any one donor. The RNC argued that since the money would be used for state campaign purposes, it did not fall under the restrictions of the 2002 ban.

With the polls showing that 80 percent of the public is against unleashing special interest money in elections, analysts suggest that the president and others may have some leeway in stemming the effect of the Supreme Court’s  recent decision allowing unrestricted spending for and against political candidates. -db

The Atlanta Journal-Constitution
March 15, 2010
By Cynthia Tucker

A new Washington Post-ABC News poll finds that nearly 80% of Republicans, Democrats, and Independents are  united in their opposition to the recent Supreme Court ruling that opens the door for corporations, labor unions, and other organizations to spend money directly from their general funds to influence campaigns.

Left and right united in opposition to controversial SCOTUS decision

The Newsroom
By Brett Michael Dykes, a contributor to the Yahoo! News blog

Much has been made of late about the hyper-partisan political environment in America. On Tuesday, Sen. Evan Bayh explained his surprising recent decision to leave the senate by lamenting a “dysfunctional” political system riddled with “brain-dead partisanship.”  It seems you’d be hard-pressed to get Republicans and Democrats inside and outside of Washington to agree on anything these days, that if one party publicly stated its intention to add a “puppies are adorable” declaration to its platform, that the other party would immediately launch a series of anti-puppy advertisements.

But it appears that one issue does unite Americans across the political spectrum.

A new Washington Post-ABC News poll finds that the vast majority of Americans are vehemently opposed to a recent Supreme Court ruling that opens the door for corporations, labor unions, and other organizations to spend money directly from their general funds to influence campaigns.

As noted by the Post’s Dan Eggen, the poll’s findings show “remarkably strong agreement” across the board, with roughly 80% of Americans saying that they’re against the Court’s 5-4 decision. Even more remarkable may be that opposition by Republicans, Democrats, and Independents were all near the same 80% opposition range. Specifically, 85% of Democrats, 81% of Independents, and 76% of Republicans opposed it. In short, “everyone hates” the ruling.

The poll’s findings could enhance the possibility of getting a broad range of support behind a movement in Congress to pass legislation that would offset the Court’s decision. Of those polled, 72% said they supported congressional action to reverse its effects. Sen. Charles Schumer, who’s leading the reform effort in the Senate, told the Post that he hoped to get “strong and quick bi-partisan support” behind a bill that “passes constitutional muster but will still effectively limit the influence of special interests.”

The findings of the poll are a bit surprising considering the fact that the case split the Supreme Court, with the five conservative justices in favor and the four more liberal justices against it. The decision was almost universally hailed by Republicans in Washington, who saw it as a victory for the free speech provided for under the Constitution, while President Obama and prominent Democrats in Washington almost universally derided it as a dark day for American democracy.

However, Sen. John McCain, one of the original sponsors of the campaign finance law struck down by Court’s decision and one of its few prominent Republican opponents, may have been prophetic when he predicted Americans would turn against the Court. McCain told CBS’s “Face the Nation” that there would be a “backlash” once awareness grew about “the amounts of union and corporate money that’s going to go into political campaigns.”

Perhaps the new poll numbers show that McCain might have been onto something.

The Supreme Court’s majority opinion written by Justice Kennedy and the dissent by Justice Stevens shows contrasting views of the First Amendment, one, that untrammeled free speech will eventually produce good results in a democracy, and, two, that free speech must sometimes be regulated to produce the free flow of ideas so essential to a flourishing democractic society. -db

With a flood of money expected in judicial elections after the Supreme Court decision unleashing corporate money in political campaigns, some reformers are suggesting that the public will react adversely to that trend and abolish judicial elections. -db

In making their recent decision to dismantle key provisions of the campaign finance law, Justice Anthony Kennedy writing the majority opinion, said that even though media are now exempt from restrictions on their expression, if the justices ruled to restrict the free speech of corporations, Congress could take that ruling and enact laws to restrict the media since the media’s size and power, like that of corporations, distorts public discussion. -DB

The executive director of the Sunlight Foundation says that the Supreme Court’s decision striking down key provisions of the McCain-Feingold campaign finance law will unleash a flood of money in the political arena making it even more likely money will influence executive and legislative decisions. -DB

In another 5-4 decision, the U.S. Supreme Court ruled that given the notoriety of the same-sex marriage trial and that the public had insufficient time to comment on the decision to televise the trial, there would be no live telecasts or delayed broadcasts on YouTube. The Court did not rule on whether any federal trial could be televised. -DB

The U.S. Supreme Court let stand a ruling that upheld a school district’s ban on all messages on student clothing, another in a long line of decisions restricting student speech. -DB

In refusing to hear a Miami book  banning case, the Supreme Court left in place a ruling by a federal appeals court that the Miami school board could remove a book from the school libraries because it presented too rosy a picture of life in Cuba under the communists. -DB

Miami Herald
November 16, 2009
By Kathleen McGrory

The U.S. Supreme Court will not hear a case challenging a Miami-Dade School Board decision to remove a controversial children’s book about Cuba from public schools, the court announced Monday.

In February, a federal appeals court ruled the board did not breach the First Amendment when it pulled Vamos a Cuba from school libraries in 2006.

The majority opinion said the book, part of a series of books on two dozen nations, presented an “inaccurate” view of life under former Cuban leader Fidel Castro.

The American Civil Liberties Union of Florida filed an appeal to the U.S. Supreme Court.

But the high court on Monday declined to hear the case.

“Frankly, this clears the path for the Miami-Dade School Board to remove the entire series of books against which there was not a single protest,” said Howard Simon, executive director of the ACLU of Florida.

Copyright 2009 Miami Herald Media Co.

When Supreme Court Justice Anthony M. Kennedy, a vigilant defender of the First Amendment, visited Dalton School in Manhattan last week, he came with a set of stipulations one of which was that his office would approve any article about his address to the students. Kennedy reviewed the article with dispatch, but it was still too late for the Dalton newspaper staff to include the article in last week’s edition. Frank D. LoMonte of the Student Press Law Center said the request for prior approval showed students that image control was more important than the principles of an untrammeled press. -DB

The New York Times
November 11, 2009
By Adam Liptak

WASHINGTON, D.C. — The school newspaper at Dalton, a private school in Manhattan, contained a cryptic note from its editors last Friday. “We are not able to cover the recent visit by a Supreme Court justice due to numerous publication constraints,” the note said. It promised “an explanation of the regrettable delay” in the next issue.

It turns out that Justice Anthony M. Kennedy, widely regarded as one of the court’s most vigilant defenders of First Amendment values, had provided the newspaper, The Daltonian, with a lesson about journalistic independence. Justice Kennedy’s office had insisted on approving any article about a talk he gave to an assembly of Dalton high school students on Oct. 28.

Kathleen Arberg, the court’s public information officer, said Justice Kennedy’s office had made the request to make sure the quotations attributed to him were accurate.

The justice’s office received a draft of the proposed article on Monday and returned it to the newspaper the same day with “a couple of minor tweaks,” Ms. Arberg said. Quotations were “tidied up” to better reflect the meaning the justice had intended to convey, she said.

Ms. Arberg indicated that what had happened at Dalton was unusual. “Justice Kennedy does not have a general policy for making such requests,” she said. “The request was most likely made by a member of his staff in an effort to be helpful.” Justice Kennedy declined a request for an interview.

Ellen Stein, Dalton’s head of school, defended the practice in a telephone interview. “This allows student publications to be correct,” she said. “I think fact checking is a good thing.”

But Frank D. LoMonte, the executive director of the Student Press Law Center, questioned the school’s approach. “Obviously, in the professional world, it would be a nonstarter if a source demanded prior approval of coverage of a speech,” he said. Even at a high school publication, Mr. LoMonte said, the request for prepublication review sent the wrong message and failed to appreciate the sophistication of high school seniors.

“These are people who are old enough to vote,” he said. “If you’re old enough to drive a tank, you’re old enough to write a headline.”

Kevin Slick, The Daltonian’s faculty adviser, said in an e-mail message that “the high school administration communicated a lengthy list of ‘dos’ and ‘do nots’ for Justice Kennedy’s visit.”

The Daltonian “believed we could not publish anything without the approval of Justice Kennedy” or his office, Mr. Slick said, adding that “the series of constraints placed on his visit and subsequent interaction did not diminish the experience at all.”

The article itself, by Kristian Bailey, a Dalton senior and one of the paper’s editors in chief, is a straightforward account of Justice Kennedy’s biography and his wide-ranging remarks. The article is expected to be published in the paper’s next issue. Editors at The Daltonian either would not comment for this article or did not respond to requests for an interview, although a staff member provided a draft of The Daltonian’s article.

At the assembly, Justice Kennedy discussed the separation of powers, federalism, Isaac Newton (“the poster boy for the Enlightenment”) and George Washington (“the poster boy for the Constitution”), according to the article. One student quoted in the article expressed disappointment that Justice Kennedy had not had time to answer the written questions students had been asked to submit.

It is not unusual for Supreme Court justices to exclude the press entirely from public appearances. Justice Sonia Sotomayor, for instance, spoke to more than 1,000 people at Yale Law School last month in an off-the-record session that was closed to the news media.

But Mr. LoMonte said the demand from Justice Kennedy’s office crossed a line.
“It’s a request that shouldn’t have been made,” he said. “That’s not the teaching of journalism. That’s an exercise in image control.”

Copyright 2009 The New York Times

The United States Solicitor General asked the Supreme Court to postpone deciding whether to hear the case over whether abuse photos of detainees should be released to the public. If the Homeland Security Appropriations Bill is signed into law, provisions in the bill would allow the administration to withhold the photos from public scrutiny, making the appeal unnecessary. -DB

The Reporters Committee for Freedom of the Press
October 9, 2009
By Miranda Fleschert

The Solicitor General has asked the Supreme Court to postpone its decision to hear arguments in the case over whether abuse photos of detainees in U.S. custody should be released to the public because if a pending Homeland Security Appropriations Bill is signed into law, the government may have the authority to exempt the photos from release and the appeal would be unnecessary, she contends.

The Supreme Court was set to consider the case at its conference today, but Solicitor General Elena Kagan urged the Supreme Court to postpone its decision in a letter sent to the court Thursday.

The House and Senate had already both passed the bill and sent it to a conference committee to reconcile the differences. On Oct. 7, the committee released a conference report that contained an amendment that “codifies the President’s decision to allow the Secretary of Defense to bar the release of detainee photos.”

The original amendment was introduced by Senators Joe Lieberman, I-Conn., and Lindsey Graham, R-S.C., and passed the Senate in July. House members passed the bill, then voted on Oct. 1 to instruct its members who would attend yesterday’s conference to accept the Senate’s photo-ban amendment.

The ACLU responded to the Solicitor General’s letter Thursday by asking the Supreme Court not to delay its decision. “The government will be free to present any new arguments against disclosure to the district court,” wrote Jameel Jaffer, Director of the ACLU National Security Project.

The dispute over whether the photos should be disclosed began in 2003 when the American Civil Liberties Union filed a Freedom of Information Act request with the Department of Defense. A district court in Manhattan ordered the DOD to release the photos in 2005 and a Second Circuit court agreed when the decision was appealed in 2008.

The Obama administration decided to go forward with an appeal to the Supreme Court in May, despite earlier statements that supported the release of the photos. Administration officials agreed with the Bush administration that disclosing the photos might endanger troops overseas and encourage violence and anti-American sentiments.

Freedom of information advocates disagree. “Congress should not give the government the authority to hide evidence of its own misconduct,” said Jaffer in a news release. “The suppression of these photos will ultimately be far more damaging to the national security than their disclosure would be,” he said.

, 3:20 pm · Comments: 0

Copyright 2009 The Reporters Committee for Freedom of the Press.

A recent survey found that there have been 120 challenges and bans of books in the U.S. since 2007, and many challenges are never reported. -DB

Media and Communications Law Society
Suffolk University Law School
Commentary
September 30, 2009
By Kristin Billera

A New York Times editorial says that the Supreme Court under Chief Justice John Roberts seems to believe that U.S. corporations are entitled to legal rights commensurate to those of U.S. citizens. The Times argues that traditionally corporation rights have been limited for various practical reasons and are not specifically mentioned in the Constitution. -DB

The New York Times
Editorial
September 22, 2009

The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited — far less than those of people.

This Supreme Court, the John Roberts court, seems to be having trouble with that. It has been on a campaign to increase corporations’ legal rights — based on the conviction of some conservative justices that businesses are, at least legally, not much different than people.

Now the court is considering what should be a fairly narrow campaign finance case, involving whether Citizens United, a nonprofit corporation, had the right to air a slashing movie about Hillary Rodham Clinton during the Democratic primary season. There is a real danger that the case will expand corporations’ rights in ways that would undermine the election system.

The legal doctrine underlying this debate is known as “corporate personhood.”

The courts have long treated corporations as persons in limited ways for some legal purposes. They may own property and have limited rights to free speech. They can sue and be sued. They have the right to enter into contracts and advertise their products. But corporations cannot and should not be allowed to vote, run for office or bear arms. Since 1907, Congress has banned them from contributing to federal political campaigns — a ban the Supreme Court has repeatedly upheld.

In an exchange this month with Chief Justice Roberts, the solicitor general, Elena Kagan, argued against expanding that narrowly defined personhood. “Few of us are only our economic interests,” she said. “We have beliefs. We have convictions.” Corporations, “engage the political process in an entirely different way, and this is what makes them so much more damaging,” she said.

Chief Justice Roberts disagreed: “A large corporation, just like an individual, has many diverse interests.” Justice Antonin Scalia said most corporations are “indistinguishable from the individual who owns them.”

The Constitution mentions the rights of the people frequently but does not cite corporations. Indeed, many of the founders were skeptical of corporate influence.

John Marshall, the nation’s greatest chief justice, saw a corporation as “an artificial being, invisible, intangible,” he wrote in 1819. “Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.”

That does not mean that corporations should have no rights. It is in society’s interest that they are allowed to speak about their products and policies and that they are able to go to court when another company steals their patents. It makes sense that they can be sued, as a person would be, when they pollute or violate labor laws.

The law also gives corporations special legal status: limited liability, special rules for the accumulation of assets and the ability to live forever. These rules put corporations in a privileged position in producing profits and aggregating wealth. Their influence would be overwhelming with the full array of rights that people have.

One of the main areas where corporations’ rights have long been limited is politics. Polls suggest that Americans are worried about the influence that corporations already have with elected officials. The drive to give corporations more rights is coming from the court’s conservative bloc — a curious position given their often-proclaimed devotion to the text of the Constitution.

The founders of this nation knew just what they were doing when they drew a line between legally created economic entities and living, breathing human beings. The court should stick to that line.

Copyright 2009 The New York Times Company

President Barack Obama reversed a decision not to appeal a ruling for disclosure of photos showing U.S. troops abusing detainees. The Justice Department faces steep challenges in finding sufficient legal footing to prevail. -DB

The New York Times
Analysis
September 15, 2009
By Adam Liptak

WASHINGTON, D.C. – This spring, the Justice Department decided it would not ask the Supreme Court to block the release of photographs showing the abuse of prisoners inIraq and Afghanistan.

“It was hopeless to appeal,” Robert Gibbs, the White House press secretary, explained, adding that the department considered the case “unwinnable.”

But last month, the government appealed after all, filing a vigorous brief asking the court to hear the case. Lawyers have clients, and it is the clients who make the big decisions. Here the client was President Obama.

“The president, after consulting his military and national security advisors,” the brief said, “determined that the photographs at issue should not be disclosed.”

The Supreme Court is likely to decide next month whether to hear the appeal.

The president’s decision balanced two important interests. The first is the nation’s traditional emphasis on open government. As the historian Henry Steele Commager put it in 1972, “The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.”

Justice William O. Douglas quoted that statement, made in The New York Review of Books, in a 1973 dissent. It has been a while since the Supreme Court has looked to that publication, a flagship of the intellectual left, for inspiration. But majority opinions for the court have since recited variations of Mr. Commager’s formulation with approval from time to time.

On the other side of the balance is the possibility that the disclosure of some kinds of information may lead to lawless violence.

“It was my judgment, informed by my national security team,” Mr. Obama said in a speech at the National Archives in May, “that releasing these photos would inflame anti-American opinion and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, thereby endangering them in theaters of war.”

Yale University Press made a similar calculation last month. In a book about the controversy surrounding the publication of cartoons of the Prophet Muhammad, the publisher decided not to publish the actual cartoons. The government’s brief, in fact, cited the reaction to the publication of the cartoons in a Danish newspaper as a reason to block disclosure of the images of detainee abuse.

But most Supreme Court cases are not about the clash of abstract principles. They tend to involve the interpretation of particular federal laws, and it was probably the difficulty of wrestling the big ideas at play here into the available statutory text that initially caused the government’s lawyers to want to throw in the towel.

The case was brought by the American Civil Liberties Union under the Freedom of Information Act, which makes disclosure of information in the hands of the executive branch mandatory unless one of a list of exemptions applies. The government flailed around a bit before settling on an exemption, in what the appeals court called an “11th-hour ‘supplemental’ argument” that was “raised as an afterthought.”

The exemption the government came to rely on applies to “information compiled for law enforcement purposes” that “could reasonably be expected to endanger the life or physical safety of any individual.”

The question in the case, Department of Defense v. American Civil Liberties Union, is how broadly to understand the phrase “any individual.” JudgeJohn Gleeson, writing for a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, said that at least some specificity was required. Gesturing toward “a population the size of two nations and two international expeditionary forces combined,” he said, is insufficient.

The exemption “may be flexible, but it is not vacuous,” Judge Gleeson wrote. The government’s reading, he added, would create “an alternative secrecy mechanism far broader than the government’s classification system.”

The exemption once applied only to threats to “law enforcement personnel”; in 1986, it was broadened to include threats to “any individual.” The change was urged on Congress by, among others, Justice Antonin Scalia, who testified on the matter in 1980, when he was a law professor at theUniversity of Chicago.

“Why only law enforcement personnel?” Mr. Scalia asked. “Why not their spouses and children? Come to think of it, why not anyone, even you and me?”

Still, it is one thing to broaden an exemption concerning law enforcement records to protect not only undercover police officers but also, say, witnesses in Mafia prosecutions. It is another to broaden that exemption, and only that exemption, to encompass potential violence by foreign extremists directed at soldiers and others only tangentially connected to law enforcement.

The A.C.L.U., supported by human rights groups and news organizations, including The New York Times, urged the Supreme Court to refuse to hear the case.

“Photographs of human rights abuses have been used throughout history to bring attention to victims and advance the cause of human rights,” said Jameel Jaffer of the A.C.L.U. “It’s an awful idea to give violent extremists veto power over the Freedom of Information Act.”

Congress can, of course, enact a law to take account of the issues posed here. And it may yet. But the law that exists today must be stretched to address Mr. Obama’s concerns.

Scott A. Hodes, a lawyer who used to run an F.B.I. unit responsible for lawsuits involving the Freedom of Information Act, said the case was “actually kind of simple” and had “nothing to do with the political outcry.”

“Both sides actually make legitimate arguments,” he said. But he added that he was inclined to come down on the side of making the photographs public. “I have a hard time,” Mr. Hodes said, “with the nonspecificity of the government’s argument.”

Copyright 2009 The New York Times Company

The Supreme Court will cut short its summer break to hear rare re-arguments on a case first heard in March that could result in their overturning curbs on corporate spending on political candidates. -DB

The New York Times
August 30, 2009
By Adam Liptak

WASHINGTON, D.C. — The Supreme Court will cut short its summer break in early September to hear a new argument in a momentous case that could transform the way political campaigns are conducted.

The case, which arises from a minor political documentary called “Hillary: The Movie,” seemed an oddity when it was first argued in March. Just six months later, it has turned into a juggernaut with the potential to shatter a century-long understanding about the government’s ability to bar corporations from spending money to support political candidates.

The case has also deepened a profound split among liberals, dividing those who view government regulation of political speech as an affront to the First Amendment from those who believe that unlimited corporate campaign spending is a threat to democracy.

At issue is whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. Re-arguments in the Supreme Court are rare, and the justices’ decision to call for one here may have been prompted by lingering questions about just how far campaign finance laws, including McCain-Feingold, may go in regulating campaign spending by corporations.

The argument, scheduled for Sept. 9, comes at a crucial historical moment, as corporations today almost certainly have more to gain or fear from government action than at any time since the New Deal.

The court’s order calling for re-argument, issued in June, has generated more than 40 friend-of-the-court briefs. As a group, they depict an array of strange bedfellows and uneasy alliances as they debate whether corporations should be free to spend millions of dollars to support the candidates of their choice.

The American Civil Liberties Union and its usual allies are on opposite sides, with the civil rights group fighting shoulder to shoulder with the National Rifle Association to support the corporation that made the film.

To the dismay of many of his liberal friends and clients, Floyd Abrams, the celebrated First Amendment lawyer, is representing Senator Mitch McConnell of Kentucky, the Republican leader, a longtime foe of campaign finance laws.

“Criminalizing a movie about Hillary Clinton is a constitutional desecration,” Mr. Abrams said.

Most of the rest of the liberal establishment is on the other side, saying that allowing corporate money to flood the airwaves would pollute and corrupt political discourse.

“This is rough business,” said Fred Wertheimer, a veteran advocate of tighter campaign regulations. “We’re not dealing with campaign finance laws. We’re dealing with the essence of power in America.”

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.

A lower court agreed with the F.E.C.’s position, saying that the sole purpose of the documentary was “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her.”

At the first Supreme Court argument in March, a government lawyer, answering a hypothetical question, said the government could also make it a crime to distribute books advocating the election or defeat of political candidates so long as they were paid for by corporations and not their political action committees.
That position seemed to astound several of the more conservative justices, and there were gasps in the courtroom.
“That’s pretty incredible,” said Justice Samuel A. Alito Jr.
The discussion of book banning may have helped prompt the request for re-argument. In addition, some of the broader issues implicated by the case were only glancingly discussed in the first round of briefs, and some justices may have felt reluctant to take a major step without fuller consideration.
The question of what Congress may do to regulate books is a hypothetical one: the relevant law, the Bipartisan Campaign Reform Act of 2002, more commonly called McCain-Feingold, applies only to broadcast, satellite or cable transmissions. That leaves out old technologies, like newspapers and books, and new ones, like the Internet. But the constitutional principles involved, some of the justices suggested, ought to apply regardless of the medium.

In an interview, Mr. Wertheimer seemed reluctant to answer questions about the government regulation of books. Pressed, Mr. Wertheimer finally said, “A campaign document in the form of a book can be banned.”

The McCain-Feingold law does contain an exception for broadcast news reports, commentaries and editorials. But a brief supporting Citizens United filed in January by the Reporters Committee for Freedom of the Press questioned whether the government should be making decisions about what is and is not news.

“ ‘Hillary: The Movie,’ ” the brief said, “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.”

In a measure of the importance of that group’s support, Theodore B. Olson, who represents Citizens United, referred twice to the brief at the argument in March. (He stumbled both times, though, calling the group the “Reporters Committee for Freedom of Speech” and the “Reporters Committee for the Right to Life.”)

After the argument, Mr. Wertheimer pushed hard to persuade the group to alter its stance.
“He e-mailed, he memo-ed, he advocated, he called a couple of people who were donors, and he cost us some money,” said Lucy Dalglish, the executive director of the committee.

But the group filed a second brief supporting Citizens United in July. “I got fair treatment,” Mr. Wertheimer said, “and they basically disagreed with my position.”

The disagreement echoes one within the civil rights community, said Burt Neuborne, the legal director of the Brennan Center for Justice at New York University School of Law and a former official of the A.C.L.U.

Mr. Neuborne said he disagreed with the A.C.L.U.’s longstanding position that regulation of corporate campaign spending may violate the First Amendment. The A.C.L.U.’s position was the product of “a huge fight” within the group, he said, adding that “it never was more than a 60-40 split on the board.”

The Brennan Center filed a brief supporting the government in the case, Citizens United v. Federal Election Commission, No. 08-205, while the A.C.L.U. filed one supporting Citizens United.

Mr. Neuborne and four other former A.C.L.U. officials took a middle ground, urging the court to rule narrowly to protect the documentary without making a major constitutional statement.

Indeed, it would not be hard for the court to rule in favor of Citizens United on narrow grounds. The court could say the film was not the sort of “electioneering communication” that McCain-Feingold, which mostly concerned television advertisements, was meant to address. It could say that communications that people had to seek out might be treated differently from uninvited advertisements. Or it could say that Citizens United was not the sort of corporation that can be regulated.

But the request for re-argument suggests that the court is on the verge of bolder action.

Editors’ Note: September 1, 2009

A front-page article on Sunday about a re-argument in a Supreme Court campaign finance case described the unsuccessful efforts of Fred Wertheimer, a veteran advocate of tighter campaign regulations, to persuade the Reporters Committee for Freedom of the Press to change its position that the government should not have the power under the First Amendment to limit the distribution of “Hillary: The Movie,” a polemical documentary. The article quoted the committee’s executive director, Lucy Dalglish, as saying that Mr. Wertheimer “called a couple of people who were donors, and he cost us some money.”

Mr. Wertheimer said on Monday that he had contacted some current and former members of the committee and submitted a memorandum to it but did not call donors to urge them to lobby the committee or withdraw financial support. In interviewing Mr. Wertheimer, The Times should have asked him for a specific response to Ms. Dalglish’s assertion.

Copyright 2009 The New York Times Company

After Google revealed the identity of an anonymous blogger, her lawyer promised to sue citing the First Amendment right to speak anonymously. -DB

Wired
August 24, 2009
By Kim Zetter

An anonymous blogger unmasked by Google last week following a court order has vowed to sue the internet giant for violating her privacy.

Rosemary Port, who operated a blog called “Skanks in NYC,” was outed last week after failing in her efforts to quash a subpoena served on Google, whose Blogger service hosted Skanks.

Port’s lawyer, Salvatore Strazzullo, now plans to sue Google for $15 million for breaching its “fiduciary duty to protect her expectation of anonymity.” He told the New York Daily News that he’s prepared to take the case all the way to the Supreme Court.

“Our Founding Fathers wrote ‘The Federalist Papers’ under pseudonyms,” Strazzullo told the Daily News. “Inherent in the First Amendment is the right to speak anonymously. Shouldn’t that right extend to the new public square of the Internet?”

Port, a 29-year-old student at New York’s Fashion Institute of Technology, launched Skanks last year. It published only five posts, all devoted to attacking model Liskula Cohen, a 37-year-old who has reportedly modeled for Australian Vogue, Georgio Armani and Versace. In the posts, Cohen was called a “psychotic, lying, whoring . . . skank” and an “old hag,” and was depicted as a desperate “fortysomething” who was past her prime.

Cohen then subpoenaed Google in an effort to unmask her critic’s identity with the aim of filing a defamation suit against the blog author once the identity was known. Google provided Port with notice of the subpoena, giving the blogger an opportunity to anonymously challenge the subpoena in court.

Cohen charged that the blog comments harmed her career and caused potential clients to question her suitability to represent their products. Port’s lawyer argued that the posts in question amounted to nothing more than vague insults on par with calling someone a “jerk.”

Manhattan Supreme Court Judge Joan Madden ruled that Cohen demonstrated sufficient claims for the defamation lawsuit, and ordered Google to comply with the subpoena. Madden said that the words, posted in conjunction with provocative photos of Cohen, implied that the model was “a sexually promiscuous woman,” belying that the comments were merely opinion or hyperbole.

Google complied with the order, but Port essentially asserts that Google should have defied the court to protect her First Amendment right to call Cohen a skank anonymously.

Port has blamed Cohen for any negative attention the blog might have brought her, telling the Daily News that until Cohen sued Google no one had seen the blog, and that by filing a public suit that brought attention to the matter, Cohen had “defamed herself.”

“Before her suit, there were probably two hits on my website: One from me looking at it, and one from her looking at it,” Port told the paper. “That was before it became a spectacle. I feel my right to privacy has been violated.”

The Daily News reports that the two women were acquainted through Manhattan’s fashion scene and had quarreled after Cohen badmouthed Port to her ex-boyfriend. Cohen told the paper that she has decided not to proceed with filing a $3 million defamation suit against Port and is satisfied that the blogger was identified.

Update: This post has been corrected to properly reflect the legislative history of the case and note that the discovery subpoena against Google was filed prior to a defamation suit being filed.

Copyright 2009 Condé Nast Digital

The Supreme Court’s Web site does not offer much information including oral arguments and briefs, merit briefs and petitions. -DB

NextGov
August 7, 2009
By Aliya Sternstein

The public had ample opportunity to parse the words of Justice Sonia Sotomayor on Senate Web sites before she was confirmed on Thursday, but when she begins hearing cases from the nation’s top bench in September, the Supreme Court Web site will not provide the same level of accessibility.

The Court’s Web site does not contain much information about its day-to-day business, including oral argument recordings and briefs, partly because it views proceedings as ancillary to making final decisions, say legal specialists.

“The Supreme Court just doesn’t have the tradition” of the Government Printing Office, the executive branch’s publishing arm, said Thomas Goldstein, who helps lead the Supreme Court practice at law firm Akin Gump and is the primary contributor to SCOTUSblog. “It’s always viewed its job in publishing information [as simply] putting out its decisions. The oral arguments aren’t binding. The thing that matters for them is their decisions.”

To find searchable and comprehensive databases of Court documents, the public must consult unofficial Web sites such as SCOTUSblog, Thomson Reuters’ free legal information service Findlaw and its paid-subscriber service Westlaw.

“Anybody can get whatever they need to know about the Supreme Court and get it for free and get it pretty efficiently [elsewhere],” Goldstein said. SCOTUSblog provides commentary on the Court’s selection of cases and decisions.

But some legal scholars and open government groups said the Supreme Court has the obligation to publish online. Currently, only electronic copies of opinions dating back to 1991 are available on the Court’s site. But they are listed by case book volume, and the opinions are not in a searchable database.

The Sunlight Foundation recently created a mock redesign of the site and recommended the Court upload briefs filed by the opposing parties. The site does not provide direct access to merit briefs. Instead, it links to a free American Bar Association site that warehouses the merit briefs, which are the parties’ explanations of the legal issues at stake in a case.

Most of the thousands of petitions filed every year requesting the Court to hear a case never go before the bench—or online for the public to see. Petitions for a writ of certiorari with the Supreme Court—briefs that request justices review a lower court’s decision—are not posted on the site. Of the 8,517 petitions filed in the Court’s 2005-06 term, only 78 were granted argument, according to a 2009 empirical analysis of certiorari petition procedures in the George Mason Law Review.

Many of the approximate 8,000 certiorari petitions submitted annually do not exist in electronic form, Supreme Court officials said. Court rules only require digital copies of briefs that justices agree to review. Entries on SCOTUSblog often provide links to petitions, but the copies are obtained through lawyers working on the cases, not the court, Goldstein said.

To be sure, the Supreme Court’s Web site has undergone enhancements. In October 2006, the site began providing free access to transcripts of oral arguments on the same day the arguments were heard by the Court. Still, contemporaneous audio recordings of arguments are not available on the site.

Uploading audio recordings daily would not be expensive or time-intensive, Goldstein said. However, it could cost many hundreds of thousands of dollars were the Court to post the thousands of certiorari briefs filed each year, he added. “That’s not to say the Supreme Court site couldn’t be improved,” Goldstein said.

GPO has maintained the Court’s Web site for about a decade. But in April, the Court testified before a House Appropriations subcommittee that it take over the job to expand the data and services offered. “The Court’s current Web site at GPO . . . is outdated and must be upgraded to more current technology (both hardware and software) regardless of whether it remains at GPO or is brought into the Court,” the written testimony states.

Court officials requested $303,000 for purchasing additional hardware, software, network components and other electronic support for the site; $418,000 to hire four full-time information technology specialists; and $78,000 for a composition specialist to prepare and post data on the site.

Court officials on Thursday said they are working on interim improvements. “In the meantime, the Court’s technical staff have made considerable progress, working in-house, to design a better site with enhanced services,” said Kathy Arberg, a public information officer. “Once the Web site has been moved in-house and necessary additional staff are in place, it will begin to reflect the planned improvements and upgrades.”

Audio recordings of arguments typically are made available to the public through the National Archives and Records Administration at the beginning of the following term. But the Court expedites the release of audio from high-profile cases—sometimes on the same day the argument is completed, Arberg said Justices probably care about transparency on the Internet, but they have little motivation to meddle with tradition, some legal specialists said.

“In general, agencies and legislatures have been ahead of the judiciary because they have a very good reason for wanting people to see what they are doing,” such as getting elected to keep their jobs, said Thomas Bruce, research associate and director at Cornell University’s Legal Information Institute. The institute, an electronic publishing outfit, houses a widely used Supreme Court collection that includes opinions since 1992, plus 600 earlier decisions deemed historically significant. It is supported by donations, staffers’ consulting fees and the Cornell Law School.

Bruce said he would prefer to see the Court publish its own work to ensure access, should third-party sites go out of business or lose interest in the subject matter.

“There is a stability question,” he said. “There is a real problem in that the people who are in a position to promote change in the way that legal information is delivered to the public,” such as lawyers, law students and professors, “tend to be well-served by the commercial public interests. So, there hasn’t been a huge amount of incentive for change.”

Copyright 2009 NextGov

The Obama administration is refusing to name those who conducted practice sessions for Supreme Court nominee Sonia Sotomayor, withholding information of significant public interest. -DB

Legal Times
July 22, 2009
By David Ingram

At the request of a Democratic Senate, the Bush administration in 2006 opened a rare window on the process for preparing a Supreme Court nominee for a confirmation hearing. The administration produced a list of 38 people — members of the Republican legal elite, from inside and outside government — who had helped Samuel Alito Jr. practice the answers he would give to the Senate Judiciary Committee.
Don’t expect a similar list this time around.

The Obama administration says it won’t name those who participated in practice sessions with its nominee, Sonia Sotomayor, refusing even to give a clear reason for keeping the information hidden. Republicans haven’t pressed the White House to release a list, and the Democrat who procured Alito’s said he’s not interested in Sotomayor’s.

The practice sessions — nicknamed “murder boards” for their intensity — typically last for hours at time. Constitutional scholars and other lawyers pose as senators, giving the nominee an idea of what questions to expect and a chance to try out some answers. The nomination of then-White House Counsel Harriet Miers failed in 2005 in part because she performed poorly in practice sessions.

But the sessions also help identify which law firms, interest groups, and academics hold the most sway with an administration because only a handful of lawyers from outside government participate. Alito’s helpers included former Solicitor General Theodore Olson, a partner at Gibson, Dunn & Crutcher; Michael Carvin, a partner at Jones Day; and Benjamin Powell, then an associate White House counsel whom Sen. Russ Feingold (D-Wis.) targeted for his advice on intelligence matters.

The sessions are a privilege for the participants, too. They offer a rare opportunity to meet with and assist a likely future justice on the Supreme Court.

Ben LaBolt, a spokesman for the Obama White House, wrote in an e-mail that it “won’t be possible” to release a list of those who worked with Sotomayor. Pressed for a reason, LaBolt replied: “Fly on the wall stories aren’t our style.”

Feingold, a member of the Judiciary Committee, asked for and received a list of those who helped prepare Alito in 2005 and early 2006. He raised the issue further when he had the chance to question Alito.

“I’m going to say that I am still somewhat troubled by the idea that you were prepared for this hearing by some lawyers who were very much involved in promoting the purported legal justification for the NSA wiretapping program,” said Feingold, a critic of warrantless wiretapping conducted by the National Security Agency.

Feingold questioned, in particular, the involvement of Miers and Powell, who he said were involved in advising President George W. Bush on wiretapping. At the time, it was clear that Alito might have to rule on the legality of the wiretapping program if he were confirmed to the Supreme Court — forcing him to weigh in on legal justifications authored by those who helped put him on the Court. “I’m just going to continue to think about this issue,” Feingold told Alito. “And I hope that you and the department will, too. I think you would agree that at some point, in a situation like this, an ethical issue could arise.”

A spokesman for Feingold said the senator did not ask about participants in Sotomayor’s practice sessions because “there was no similar situation in this instance.” It is possible, though, that Sotomayor would also end up hearing cases on issues that the White House lawyers who advised her provided guidance on.

A spokesman for Republicans on the Judiciary Committee said he was not aware of any GOP senators who had asked the White House for a list of participants in the practice sessions.

Copyright 2009 incisivemedia.com

BY PETER SCHEER—With one unforgettable gesture–the uncrossing and crossing of her legs—actress Sharon Stone famously demonstrated that, physically speaking, she has nothing to hide. Her legal affairs, however, are another matter.

Despite court rules mandating openness in judicial proceedings, Stone was recently allowed to file a suit in Los Angeles Superior Court under conditions of secrecy so strict they would make the CIA blush. According to the Los Angles Times, which exposed the Stone suit, even the existence of her case had been erased from the public record.

Secret justice is an oxymoron. In America, the courts’ business is the public’s business. Public access serves to safeguard the parties’ right to a fair trial and citizens’ right to be informed about a judicial system meting out justice in their name. So the US Supreme Court has held, and so the California Supreme Court has held, in repeated decisions narrowly circumscribing judges’ discretion to close off court documents and hearings from public view.

Although these decisions (and a California procedural rule codifying them) could not be more clear, they are regularly ignored by both lawyers and judges. Stone’s lawsuit is a case in point. Despite the actress’ celebrity, her secret suit was a garden variety breach of contract claim involving no issues or evidence of special sensitivity. The lawyers wanted the case sealed, and the judge accommodated, merely to avoid the inconvenience of litigating publicly.

Why the widespread disregard for rules against secret justice?

One reason is that there are no adverse consequences for noncompliance–even when one is caught. A trial court’s rulings on evidence and a host of legal issues may, if challenged on appeal, result in the overturning of the court’s judgment. That is an adverse consequence that gets the attention of a judge. But there are no similar risks associated with the improper sealing of records or clearing of a courtroom. Those legal errors are deemed “harmless” because they are presumed not to affect the correctness of the trial court’s final judgment.

Another reason: The issue of secrecy almost always arises in a setting in which all of the parties—plaintiffs and defendants–have in common an interest in excluding the public. In criminal cases, prosecutors want to protect witnesses or avoid publicity that could trigger a change in venue, while defense lawyers want to protect their clients’ reputation.

In civil cases the dynamic is similar. Both sides to business disputes typically favor limiting public access in order to protect their respective “trade secrets.” In personal injury cases, plaintiff’s lawyers often want secrecy (with its implicit threat of disclosure) as leverage for a settlement, while defense lawyers favor secrecy because they’re concerned about harm to their clients’ business interests.

Although the parties to these cases may be in accord about sealing records or taking other steps to pull a curtain around their case, conspicuously absent from this consensus is anyone who speaks for the public interest.

In theory judges should play that role, compensating for the absence of an advocate for the public. In reality, however, they rarely do. Judges are loath to push back when counsel for all parties—who usually can’t even agree on what day it is—present the court with a gift-wrapped secrecy agreement, in the form of a stipulation, ready for the judge’s signature.

Traditionally it has fallen to the press to crash this party and object on behalf of an absent public. But court procedures make this very costly. A news organization must hire a lawyer who first has to intervene in the case and establish standing before being allowed to tell the court what it already should know—namely, that the secrecy sought by the parties is patently illegal.

While never fully satisfactory as a counterweight to the parties’ mutual interest in secrecy, reliance on the media as a check no longer works. News organizations, many of which are now staring into the Chapter 11 abyss, are not able to fulfill this role.

What to do?

A few modest steps would go a long way to enforcing the Supreme Court’s openness rules. One possibility: To impose sanctions against counsel who obtain a protective order on grounds that are clearly deficient under applicable rules. Consideration should also be given to requiring notice to news organizations (and other self-selected interested parties) of secrecy motions, and permitting them to weigh in quickly and inexpensively, through letters to the court or appearance by nonlawyers.

California has long had judicial openness rules that are exemplary—on paper. The time has come to insist that they be followed.
——
Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition This Op-Ed also appeared in the San Francisco Chronicle, the Huffington Post, and the Los Angeles and San Francisco Daily Journal newspapers, among other locations.

By Peter Scheer

The California Supreme Court’s hearing yesterday in the Prop 8 case–broadcast live over the internet via streaming video–erased any doubt about the wisdom of allowing cameras into the nation’s courts.

Let’s hope US Supreme Court Justices David Souter, Stephen Breyer, Anthony Kennedy, Antonin Scalia and Clarence Thomas were watching the oral arguments on Prop 8′s constitutional amendment banning same-sex marriage. They are the camera-allergic justices who have publicly stated their opposition to televising the US Supreme Court’s oral arguments (and other public proceedings).

The video coverage of the Prop 8 proceeding is important not merely because of its educational value–although it certainly was educationally eye-opening to anyone who has not attended a Supreme Court argument. Broad public access to the Prop 8 arguments is essential because it will enhance the legitimacy of the Court’s eventual decision in a politically-charged and divisive case.

Viewers on both sides of Prop 8 saw the California Supreme Court justices struggling to make sense of the parties’ positions in the context of a continuum of legal precedent. While they may have expected to see a partisan foodfight, instead they saw thoughtful and well-informed judges asking questions of the lawyers to test the applicability of general legal principles to the specific facts of this case. It is an exercise that, among other things, highlights the complexity of the legal issues.

If, as seems likely from the justices’ questions, the Court upholds Prop 8 (while leaving intact the marriages held prior to the November election), Prop 8′s opponents will–because of the video coverage–be more inclined to respect that outcome. They will disagree with it; they will organize to reverse it through the political process; but they are not likely to believe in large numbers that they have been cheated by the judicial system.

Legitimacy, the most valuable asset of any court, is diminished by judicial secrecy and enhanced by openness. Justices of the US Supreme Court, take note.