Talked to Death

Recently, the Minnesota Supreme Court upheld the appeal of a man convicted and sentenced to a one-year prison term for having aided the suicides of two depressed people through advice and encouragement he had offered them over the Internet.

The grounds on which the appellant successfully challenged his conviction were that the statute under which he had been prosecuted and convicted — and which proscribed ‘encouraging, advising or assisting another in committing suicide’ — violated his First Amendment right to free speech.

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Elane Photography is a Bad Vehicle For Religious Liberty Case (Post Updated)

Update 3/23/14: I mistakenly assumed that petitioners appealed the Free Speech and Free Exercise clause. I now see that they only appealed the compelled speech issue. Here is the only question presented:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

Of course the Justices can also grant the Free Exercise issue, even though it was not mentioned in the Cert petition. I’ll leave the remainder of the post as is.


Currently pending before the Supreme Court is the certiorari petition in Elane Photography v. Willock, which involves a case where a photographer refused to photograph a same-sex civil commitment ceremony.  While much of the attention to this case focuses on religious liberty, Eugene Volokh and Ilya Shapiro have a great Op-Ed arguing that forcing Elane to photograph a same-sex wedding, against her wishes, would not only implicate religious liberty, but free expression. They would be forcing her to speak–or more precisely create art in the form of photographs:

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A Parliament of Lawyers and Rights

One of the great advantages of the ever-increasing plethora of rights conferred upon us by government (except that of keeping the product of our own labor) is that it requires lawyers to adjudicate between them when they conflict, as they so often do. It prevents unemployment among the ever-increasing number of lawyers: and you have only to consider the career of Robespierre to know where the disgruntlement of lawyers may lead.

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Friday Roundup, August 2nd

  • The Liberty Forum for August is an attempt to answer the question if the courts should assume a more prominent role in reining in the administrative state.  Joseph Postell’s lead essay argues that

Today’s administrative state, therefore, makes a mess of the constitutional separation of powers and its careful adjustment of incentives, checks and balances. In such a system, what role can and should the courts play in reviewing agency decision-making? Here is where a deeper understanding of the courts’ historical role in administration is most needed.

Excellent responses from Gary Lawson and Mark Seidenfeld question Postell’s argument in favor of heightened judicial review.

  • In our Books section this week, Ken Masugi reviews Jim Ceaser, Andrew Busch, and John Pitney’s After Hope and Change: The 2012 Elections and American Politics:

The authors advise that “after all the noise and diversions, campaigns often tend to make clear the fundamentals that prevail in the country.” In other words, the campaign itself is “most unlikely” to decide the outcome but it “remains an important object of study for what the candidates say and for how the victor frames the choice, which can influence the course of American politics.” While not denying possible turning points, especially the debates, the authors also contrast Romney and Obama campaign tactics, Anchorman Ron Burgundy versus The Social Network, TV ads versus a targeted electronic media and personal campaign.

  • Speaking of the great Masugi, he is back for the month of August on Law and Liberty as a guest blogger. Known for his capacity to cut to the core of what is true and what is false, he will be, in short order, causing many individuals to have all manner of physical and mental disturbances.
  • Should the institutional scaffolding of free speech shape rather than be superfluous for the law of free speech? That’s the subject of Paul Horwitz’s new book First Amendment Institutions, and the subject of the current Liberty Law Talk.

First Amendment Institutions

First Amendment Institutions

The next Liberty Law Talk is with Paul Horwitz on his new book, First Amendment Institutions. Horwitz challenges the dominant legal perspective on free speech in American law, which focuses on speaker and state. Instead of this acontextual approach, Horwitz poses that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the “scaffolding” of the individual’s right to free speech and should be accorded greater autonomy from the state in their self-government. Horwitz would include many state institutions in this category. Thus, the law, in regulating or permitting speech, must be guided by the shape and contour of these institutions and their meaning to civil society. When this is done the legal results will seem surprising but more in tune with how citizens actually live as neighbors, students, members of religious bodies, volunteers, etc.

The Delights of Stanley Fish, Master Sophist

fishThe distinguished literary scholar Stanley Fish can teach one a great deal about argumentation. Lacking a law degree, he has also served on law faculties and even as an assistant dean in the Duke Law School. What business does this academic superstar, portrayed as lusty professor Morris Zapp in a David Lodge novel and derided by Camille Paglia as a “totalitarian Tinker Bell,” have teaching law?

I have seen this man of the political left outrage and delight audiences at scholarly conferences and venues, including a Federalist Society convention.  A friend also reported to me that Fish once asked him the difference between a West and an East coast Straussian, and, upon hearing a brief explanation, Fish declared himself to be a West coast one.  (See comment 2 below.) That is, I infer, Fish agreed with these Declaration of Independence conservatives on the vital importance of the political context for establishing the meaning of a text.

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The De-Eroticized University

Most readers of this blog will already know the speech codes—viz. sex codes—that the Department of Education seeks to impose on universities, under the guise of preventing sexual harassment. Eugene Volokh has a lucid summary and the Office of Civil Rights of the Department of Education a tedious tongue-lashing about what constitutes sexual harassment.  The acts that keep Diversity Offices at full employment can range from telling a dirty joke to reading Anna Karenina. Similar directives go back into previous administrations, so, once again, the battle is not about a personality (even a powerful one such as Obama) but about the Administrative State.

It turns out, as Volokh notes, that sexual harassment at an institution of higher education might be found in any public or private discussion of sex, love, or eroticism. This means that the speech constituting the core purpose of higher education would have to be scrutinized by Washington bureaucrats. This is dangerous professionally—terrify your favorite male professor by sending him a DVD of David Mamet’s Oleanna, about a supposed episode of sexual harassment. And, more important, the vague codes enforce a debilitating self-censorship on professors and students that simultaneously increases the blandness and the freakishness of higher education.

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Curbing Campaign Cash

Curbing Campaign Cash

The next Liberty Law Talk is a conversation with Paula Baker about her new book, Curbing Campaign Cash. You might recall former FEC Commissioner Brad Smith’s review of the book in this space. Smith observed that Baker’s book uncovers for the reader the perennial tale of campaign finance legislation and its many untoward consequences that distort a system of fully competitive elections. “Before Super PACs, McCain-Feingold, “soft money,” and the Keating 5; before Watergate, and even before Teapot Dome, there was the Michigan Senate race of 1918. . . . one of the nation’s most contested elections and earliest campaign finance “scandals.””  As Smith also notes, “Unlike the typical political saga, however, Baker presents the story not as a morality tale of honest government corrupted by big money, but rather as a cautionary story about big government regulation of honest money and the political choices of the electorate.” I hope you enjoy this conversation about one of the first attempts by campaign finance rules and the self-interested incumbents who enforce them to restrict basic constitutional freedoms in the name of equalizing politics.


Friday Roundup, April 12th

  • So the future is predictable, boring even. A respected Seattle florist refuses to create a wedding floral arrangement for a same-sex ceremony, and, of course,  she’s being sued by the Washington Attorney General’s office for allegedly violating that state’s Consumer Protection Act.

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Can’t Words Hurt as Much as Sticks and Stones?

The curious case of Lars Hedegaard

Only actions, not words, can break bones. People can, however, be just as badly damaged by hateful things said about them. So why should not the criminal law be made to protect people as much from malicious words as from physical assault?

I raise this question in light of a common reaction that I have discerned among several North American commentators to news of the recent acquittal by the Danish Supreme Court on hate crime charges of free-speech campaigner Lars Hedegaard.

Hedegaard had incurred these charges as result of having made some disparaging remarks about Muslims in an interview with a journalist who subsequently published them verbatim. After being earlier found guilty under an article in Denmark’s criminal code that makes it a criminal offence to publish insulting remarks about people on account of their religion, Hedegaard was two weeks ago eventually acquitted on a technicality.

The seven Supreme Court judges who heard Hedegaard’s case unanimously accepted the plea of his counsel that his offensive remarks had not been intended for public consumption, and that, had be been shown an advance copy of where they were quoted, he would have ensured they were suitably amended to prevent any possible misconstrual of them as insulting to Muslims.

Although pleased by the acquittal, several American commentators have deplored the fact that anyone could possibly face criminal charges on account of such a statute as had brought Hedegaard to trial, and which are now common throughout Europe as well as much else of the western world.

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