Social Norms, Not the Constitution, Should Regulate Protests at Sport Ceremonies

President Obama weighed in recently on the controversy created by a football player refusing to standing during the playing of the national anthem at the beginning of a game. Colin Kaepernick, a San Francisco 49er’s quarterback, wants to call attention to his view that people of color are oppressed. The President supported him, saying Kaepernick was exercising his constitutional right under the First Amendment.  A  few days ago Jeffrey Toobin more specifically analogized this issue to a case in which the Supreme Court struck down a law requiring school children to salute the flag, because it violated their beliefs as Jehovah’s Witnesses.

The President’s and Toobin’s comments represent a characteristic bit of Progressive misdirection, failing to distinguish between legal and social norms. It is absolutely correct that the government has no right to penalize Kaepernick for his action. Expressive conduct up to burning the American flag should indeed be immune to criminal penalties. But no government official is threatening Kaepernick with official sanctions, although some politicians are exercising their own First Amendment rights to criticize his behavior.

The real question is whether Kaepernick is right to use the time for the national anthem for protest. A directly related question is whether his team or the NFL should tell him to desist and penalize him if he does not. That is an issue to be decided in light of his contract with his team and his team’s contractual relation to the NFL. It is one of private ordering about which the Constitution has nothing to say.

The optimal content of social norms cannot be decided by First Amendment case law.

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The New Eco Tyranny

N.Y. Attorney General Eric Schneiderman speaks at a news conference in Manhattan with other state attorneys general to announce a states-based effort to combat climate change, March 29, 2016. REUTERS/Mike Segar

Last week, the attorneys general of 20 states met at a conference “dedicated to coming up with creative ways to enforce laws being flouted by the fossil fuel industry,” in the words of the conference’s host, New York Attorney General Eric Schneiderman. The environmental website Ecowatch called it “an unprecedented, multi-state effort to investigate and prosecute” oil companies that the AGs say “stymied attempts to combat global warming.”

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Why the Roberts Court Is Right about Campaign Finance and Free Speech

The Roberts Court’s decisions on campaign finance are its most important, because campaign regulation shapes the elections that affect all policy outcomes. No issue has generated more unyielding divisions on the Court. A fault line generally divides the principles of one set of the Justices—Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito—from those generally in dissent—Justices Ginsburg, Breyer, Sotomayor, and Kagan currently (and Souter and Stevens when they were on the Court).

I have a new paper that explains the division of the justices. The majority believes that campaign finance regulations should be analyzed under free speech principles established in other contexts. The latter generally seeks to decide campaign finance regulation issues by considerations unique to campaign finance regulation.

This doctrinal disagreement plays out at a variety of levels. The Citizens United majority protected corporations in the context of campaign finance regulation as the Supreme Court has in other areas of the First Amendment. The dissenters would not have. That majority rejected as interests asserted for the regulation, like concerns over distortion or equality, when they were rejected elsewhere in First Amendment jurisprudence. The dissenters would have accepted such interests as justifications. The Justices also disagreed on the doctrinal tests to be applied to assess the bona fides of campaign finance regulation. The Citizens United and McCutcheon majorities applied traditionally stringent tests for justifying intrusion on First Amendment interests. The dissenters would have given deference to the legislature.

Finally, the majority and the dissenters persistently disagreed on the structure of the First Amendment itself.

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The Candidate of Coercive Democracy

Donald Trump is not the most usual candidate in this campaign season. That distinction belongs to Lawrence Lessig, a professor at Harvard Law School and now a candidate for the Democratic Party’s nomination.  It is unusual for a professor to choose the Presidency as his starter office and doubly so when he is running on a single issue—reform of the electoral system. Perhaps triply so, when he promises to resign immediately after getting his reforms enacted.

While I admire citizens of accomplishment who are willing to put themselves forward,  some of Lessig’s core ideas pose a threat to free speech and indeed to liberal democracy itself.   In his book, Republic Lost, Professor Lessig argues that the Framers believed that elections should make the government dependent upon the people alone. That dependence, according to Lessig, was the basic principle of republican government at the time.  As result, Congress can legitimately regulate campaign expenditures to prevent “the distortion” that would occur from permitting legislators from becoming dependent on those who make campaign contributions or expend large sums of money on elections.

Lessig tries to use the rhetoric of republican government to recast the equality argument  against permitting citizens to spend independently on campaigns or make substantial contributions to candidates.  These interventions, according to this argument, make some citizens more politically influential than others.  But Lessig’s focus on dependence demonstrates why an equality argument cannot be rooted in the original Constitution.

The Constitution emphatically does not provide any measure for deciding how public opinion becomes “distorted.”  The constitutional dependence of representatives does not come from their being in sync with the opinions of their constituents on any set of issues but on their getting the most votes at periodic elections.  

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A Flying Leap at Vitiating the First Amendment

 

White-House-Drone

Let us, for a moment, imagine someone who breaches the no-fly zone over the U.S. Capitol, calling forth bomb squads, triggering investigations at the FBI and NORAD, to protest perceived violations of the Second Amendment. Could the editorial pages of Washington find a limb high enough from which to hang him?

Probably not. But if a mail carrier pulls the same stunt to advocate restricting the First Amendment in the name of campaign finance reform—as gyrocopter pilot Doug Hughes did in April, for which he was indicted last week—his apologia is printed on the op-ed page of the Washington Post.

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Justice Breyer Needs an Originalist Law Clerk

breyer

McCutcheon v. FEC reveals fundamental differences between the Roberts Court majority and the dissenters about the First Amendment’s protection of political speech. The justices in the majority asserted the traditional view that the First Amendment is an individual right.   In contrast, Justice Breyer argues for the McCutcheon dissenters that the First Amendment is in part a “collective right,” and thus government interests in favor of campaign finance regulation are not “to be weighed against the constitutional right to political speech. Rather they are interests represented in the First Amendment itself.”  The latter view makes it much easier to upheld government restrictions that are targeted at resources to support speech at election time.

To support his view of the First Amendment as embodying a “collective right,” Breyer appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents.  But the materials he cites undermine his claims. First, he purports to demonstrate that James Wilson believed that “the First Amendment would facilitate a ‘chain of communications between the people and those to whom they have committed the exercise of the powers of government,” by quoting a snippet from a lecture by Wilson on the Constitution.

But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer states, but in a discussion of the novelty and virtue of representative government, as opposed to “monarchical, aristocratical, and democratical” forms of government. 

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People Against the American Way

We have only begun to digest the full implication of the assault on Sony pictures.   Assuming it indeed was perpetrated by North Korea, (and evidence is building that it may have been, at least partly, an inside job) in order to block a movie it does not like, the hack, and the extortion of a private corporation is an assault on the very idea of civil society that we Americans cherish. 

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Assessing the Blowback from Hobby Lobby

Supreme Court Hears Arguments In Case Challenging Affordable Care Act

The Hobby Lobby case, “one of most publicized controversies in decades involving a religious claim,” in the words of Columbia law professor Kent Greenawalt, prevented the Obama administration from mandating under the Affordable Care Act (ACA) that all employers cover all contraceptives approved by the Food and Drug Administration—even those drugs and devices that objecting employers believe “cause the demise of an already conceived but not-yet-attached human embryo.”

The U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) prohibits the government from forcing closely held, family-owned corporations to cover such drugs and devices if a less restrictive means is available. One less restrictive means available to the administration, the Court noted, was to extend to such corporations the significant concessions the Obama administration already made for objecting, religious non-profits. This is a step the administration is now taking.

It was a high-profile win for religious objectors. Nonetheless, the highest percentage of Americans in a decade, according to the Pew Research Center, see religion’s influence as waning. How can this be?

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Political Decisions Must Be “Secular”? Since When?

Hovering like a stern schoolmarm over much of our political discourse and decision-making is a sort of lurking censor, monitoring political decisions to ensure that they are based on “secular” grounds and purposes. Let us call this regulator “the secularism constraint.”

In many cultural neighborhoods, the secularism constraint seems almost as natural and ineluctable as the law of gravity. Legal scholars and political theorists argue for one or another variant of the constraint (a/k/a “public reason”), or more often just take it for granted. Constitutional doctrine– the so-called Lemon test, from the case of Lemon v. Kurtzman (1971)– provides at least ambiguous validation with its “secular purpose” requirement for government action.

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If Not Exemptions, Then What?

This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.”

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