This is the hottest issue in campaign finance litigation right now. – James Bopp, Jr.
James Bopp
What is the next big campaign finance class of cases, the ones most likely to go the Supreme Court? Ask different people and you will get pretty much the same answers, ranging from “soft money” cases to certain kinds of campaign disclosure cases to campaign speech and judicial elections cases to certain kinds of contributions made by for-profit and non-profit corporations cases, among others.
James Bopp, a noted campaign finance lawyer, has his own views on the matter. Here is the issue that he thinks will get considerably more judicial attention in the near future: “whether an issue advocacy group, that does some political speech, can be deemed to be a Political Action Committee even though it is not under the control of a candidate and it’s major purpose is not the election or nomination of candidates.” Moreover, he stressed that this “is an important issue since deeming a group to be a PAC vitiates the right to political speech that groups won in Citizens United, since no issue advocacy group wants to suffer PAC burdens to do a small amount of political speech.”
Circuit split
Most recently, this issue was examined by a three-judge panel of the Second Circuit in a case familiarly named Vermont Right to Life Committee, et al v. Sorrell (June 28, 2014). The opinion was written by Judge Christopher Droney and joined in by Judges Richard Wesley and Vincent Briccetti. The case for the Petitioners was argued by Randy Elf (with James Bopp, Jr., on the brief).
In a variety of challenges to Vermont’s campaign laws, the Court rejected the Petitioners’ argument that the state’s PAC disclosure requirements violate the First Amendment because Vermont may only impose a disclosure regime on an organization if “the major purpose” of the organization is to advance a candidacy.” Here is Judge Droney’s reply to that argument:
Prior to Citizens United, the Fourth Circuit held that an organization could only be subjected to a political committee regulatory regime if the organization met “the major purpose” test. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288‐89, 295 (4th Cir. 2008) (“NCRL III”). However, since Citizens United and its approval of extensive disclosure regimes, two Circuits have concluded that the major purpose test is not a constitutional requirement. See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 490 (7th Cir. 2012) (“[T]he line‐drawing concerns that led the [Supreme] Court to adopt the major purpose limitation for contribution expenditure limits in Buckley do not control our overbreadth analysis of the disclosure requirements . . . .”). Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (“We find no reason to believe that this so called ‘major purpose’ test, like the other narrowing constructions adopted in Buckley, is anything more than an artifact of the Court’s construction of a federal statute.”); see also Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990, at 1009‐11 (9th Cir., 2010) (concluding that Buckley did not lay down a bright‐line test requiring that the major purpose of an organization must be to support or oppose a candidate, and that a state law regulating organizations with a major purpose of engaging in such actions was constitutional).
We join the Circuits that have considered PAC definitions in this context after Citizens United and hold that the Constitution does not require disclosure regulatory statutes to be limited to groups having “the major purpose” of nominating or electing a candidate.
→ Counsel for Respondent: Eve R. Jacobs‐Carnahan (Megan J. Shafritz, on the brief), Assistant Attorneys General for the State of Vermont.
→ Amicus briefs in support of the Respondent were filed by J. Gerald Hebert, the Campaign Legal Center and Democracy 21.
→ Additionally, George Jepsen, Attorney General for the State of Connecticut and Maura Murphy Osborne, Assistant Attorney General for the State of Connecticut, filed an amicus brief for the States of Connecticut, New York, Hawaii, Iowa, Kentucky, Minnesota, Montana, New1 Mexico, and Washington, all joined in support of the Respondent.
→ The next move: “Several cases raising this issue,” says Bopp, “will be filed with the Supreme Court, including one this Friday contesting the decision of the Second Circuit in Vermont Right to Life v Sorrell.”
→ See also below re C-SPAN link on Heritage event (Sept., 18) on campaign finance law and the First Amendment (with Floyd Abrams, Ronald Collins, Adam Liptak, Erin Murphy, and James Swanson).
New Litigation
Challenge to bans on controversial subway ads
Dana DiFilippo, “SEPTA’s ad refusal sparks free-speech fight,” Philly.com, Sept. 23, 2014:
“WHEN an anti-Islamic group decided to advertise on city buses and billboards this fall with photos of a terrorist poised to behead an American and a Muslim leader smiling at Adolf Hitler, transit officials in New York and Washington, D.C., huffed their disapproval – but allowed the ads to run. They had no choice, they said, because the ads were protected under the First Amendment. SEPTA’s officials disagreed and rejected the ads.”
→ But check out this: Dean Obeidallah, “To Fight Pam Geller, Join Our Comedy Jihad at the MTA,” The Daily Beast, Sept. 23, 2014 (“Anti-Muslim hate monger Pam Geller’s subway and bus poster campaign launches this week. I say we launch our own to fight her with laughs.”)
Challenge to Arizona law banning nude images
Arizona ACLU Press Release (Sept. 23, 2014):
“A broad coalition of bookstores, newspapers, photographers, publishers, and librarians filed a federal lawsuit today challenging a new Arizona law that criminalizes speech protected by the First Amendment. The plaintiffs are represented by the American Civil Liberties Union, the ACLU Foundation of Arizona, and the law firm Dentons US LLP, which is general counsel to the Media Coalition.”
“The ‘nude photo law’ makes the display, publication, or sale of nude or sexual images without the subject’s explicit consent a felony punishable by nearly four years in prison. As written, the law could be applied to any person who distributes or displays an image of nudity – including pictures that are newsworthy, artistic, educational, or historic – without the depicted person’s consent, even images for which consent was impossible to obtain or is difficult to prove.”
“‘This law will have an unconstitutional chilling effect on free speech,’ said David Horowitz, executive director of the Media Coalition, whose members include the plaintiff associations of publishers, librarians, and booksellers. ‘To comply with the law, booksellers and librarians will have to spend countless hours looking over books, magazines, and newspapers to determine if a nude picture was distributed with consent. Many store owners will simply decline to carry any materials containing nude images to avoid the risk of going to prison.'”
→ The case: Antigone Books v. Horne
→ The complaint: see here
→ Counsel for Plaintiffs: Joshua S. Akbar (also: Michael A. Bamberger, Daniel J. Pochoda, Lee Rowland & Richard M. Zuckerman)
Commentaries:
Jacob Sullum, “Going After ‘Revenge Porn’ with a Sledgehammer, Arizona Smashes the First Amendment,” Reason, Sept. 23, 2014
Sarah Jeong, “Is Arizona’s Revenge Porn Law Overbroad?,” Forbes, Sept. 23, 2014
Privacy in Public? Texas Court Strikes down “improper photography” ban
Judge Sharon Keller
In Ex Parte Thompson (Sept. 17, 2014), the Texas Court of Criminal Appeals held, by an 8-1 margin, that “Section 21.15(b)(1) of the Texas Penal Code, to the extent it proscribes the taking of photographs and the recording of visual images, is unconstitutional on its face in violation of the Free Speech clause of the First Amendment.” Presiding Judge Sharon Keller wrote the majority opinion and Judge Lawrence Meyers dissented, though without an opinion.
→ The facts: “The case involved Ronald Thompson, who was charged in 2011 with 26 counts of improper photography after taking underwater pictures of clothed children – most wearing swimsuits – at a San Antonio water park.” [source here]
In striking down the law as a facially-invalid content-based restriction subject to strict scrutiny, Judge Keller rejected all seven of the State’s arguments:
“The First Amendment is not even implicated by the statute because the act of photography is conduct and is not inherently expressive”;
“The act of pushing the button on the camera to take a picture was not necessarily communicative”;
“The improper-photography statute does not implicate the First Amendment because the elements of specific intent and lack of consent limit the scope of the regulated conduct to that which invades the privacy of another in an essentially intolerable manner”;
“The lack-of-consent requirement means that the statute does not apply to a photograph of a person in public as long as the photograph is of an area of that person that was exposed to the public”;
“Even if the First Amendment is implicated, the improper-photography statute constitutes a reasonable content-neutral restriction that serves legitimate and important government interests;”
“The statute serves the important government interest of protecting privacy by “protecting individuals from invasive covert photography” and “protecting individuals from having their images unconsensually exploited for the sexual gratifications of others”; and
“A statute may not be struck down on overbreadth grounds merely because it may apply to some protected speech.”
→ In commenting on the decision, University of Houston Law Center Professor Peter Linzer, who teaches First Amendment law, said: “It’s hard to see how you could make taking a picture a crime.”
→ “An amicus brief supporting Thompson was filed by the Reporters Committee for Freedom of the Press, which argued that the state could revise the law to avoid First Amendment challenges by focusing on circumstances that are not in public.” [source here]
→ Merits brief for Defendant-Respondent — Donald Flannery, III
→ Prevailing Amicus Counsel — Professor Eugene Volokh: “I had the great pleasure and honor of arguing in Ex parte Thompson yesterday morning in the Texas Court of Criminal Appeals, representing the Reporters Committee for Freedom of the Press (as a friend of the court), through the UCLA First Amendment Amicus Brief Clinic — defense counsel agreed to split his time with me, and the court granted our motion for leave to do so.” [source here; amicus brief here]
In Memoriam: C. Thomas Dienes (1940-2014)
Although Tom was a brilliant man, he was very modest. . . . He had an astonishing knowledge of constitutional law and media law, and he was also deeply conversant in political theory and political philosophy. Despite all these accomplishments, Tom never insisted on his distinction. — Jerome Barron
Tom Dienes
The news of Professor Dienes’ death was slow in finding its ways to me. I was surprised and saddened to hear of his passing from Dan Solove. Tom died on April 24th of this year. Though I did not know him well, what I did know of him was that he was quite congenial and thoughtful. I was, however, very familiar with his work on the First Amendment and freedom of the press.
Tom was the Lyle T. Alverson Professor Emeritus of Law at George Washington University School of Law. “After receiving his J.D. and Ph.D. (as a Russell Sage Fellow in Law and the Social Sciences), Dienes began teaching law and political science at the University of Houston. He subsequently held a similar joint appointment at American University before joining the Law School faculty at George Washington University in 1980. . . . Tom took a year’s leave of absence in 1988 to serve as general counsel to U.S. News and World Report, and he continued to serve as a legal consultant to the magazine until August 2002.” [source here]
He co-authored Constitutional Law: Principles and Policy, Cases and Materials (8th edition, 2012) and a variety of other works on constitutional law. His books on the First Amendment included his Newsgathering and the Law, co-authored with Lee Levine and Robert Lind and Handbook of Free Speech and Free Press (1979), co-authored with Jerome Barron. His scholarly articles in this area included:
“Trial Participants in the Newsgathering Process” (2000)
“Protecting Investigative Journalism” (1998)
“Implied Libel, Defamatory Meaning, and State of Mind: The Promise of New York Times Co. v. Sullivan” (1992) (with Lee Levine)
“Libel Reform: An Appraisal” (1989)
“When Students Speak: Judicial Review in the Academic Marketplace” (1989) (with Annemargaret Connolly)
“When the First Amendment Is Not Preferred: The Military and Other Special Contexts” (1987)
“Trashing of the Public Forum: Problems in First Amendment Analysis” (1986)
“Tom was a very special person who, because he was so modest, never received the recognition he deserved,” said his friend and co-author Lee Levine.
Of course, the work he is most commonly known for is one that has long aided jurists, lawyers, law professors, and law students — his First Amendment in a Nutshell, co-authored with Jerry Barron. Countless times have I turned to that work for a concise and accurate rendition of this or that point of First Amendment law, and never once have I been disappointed.
And then there was his remarkable talent as a teacher. “While many know Tom as an intellectual,” recalled his colleague Jonathan Turley, “he would probably brush away such a label in favor of the title he cherished to the day of his passing: teacher. Tom was a true teacher. He lived to educate others; to convey not only his knowledge but his deep love for the law. He measured his success not in the library of publications that he left but in the literally thousands of students that he touched in his lifetime. They are his truest legacy. His books merely memorialized his legal theories. It is his students who continue his true work and passion. For Tom, law was a living and a joyous thing.”
FYI: Law professors who argued 1-A free expression cases in the Supreme Court
Professor Mel Nimmer
Below is a list of law professors who while on law faculties argued free expression cases that were decided by the Supreme Court on First Amendment grounds. Thus, though Laurence Tribe argued Nike v. Kasky (2003), the case was dismissed after it was argued. And then there is the case that was argued by Dean Erwin Chemerinsky — United States v. Apel (2013), which was decided on statutory grounds though First Amendment claims had been raised.
Here, then, is the updated list as I have compiled it. Please let me know if I have overlooked some names, which I suspect I may have.
Thomas Emerson: Sweezy v. New Hampshire (1957)
Herbert Wechsler: New York Times v. Sullivan (1964)
Mel Nimmer: Cohen v. California (1971)
Alexander Bickel: New York Times Co. v. United States (1971)
Jerome A. Barron: Miami Herald Publishing Co. v. Tornilllo (1974)
William Canby: Bates v. State Bar of Arizona (1977)
Telford Taylor, Central Hudson Gas & Elec. v. Public Serv. Comm’n (1980)
Laurence Tribe: Richmond Newspapers v. Virginia (1980)
____________: Heffron v. International Society for Krishna Consciousness (1981)
____________: Sable Communications v. FCC (1989)
____________: Rust v. Sullivan (1991)
____________: United States v. United Foods (2001)
____________: Johanns v. Livestock Marketing Association (2005)
Michael McConnell: Rosenberger v. University of Virginia (1995)
_______________: Christian Legal Society Chapter v. Martinez (2010)
James Blumstein: Brentwood Academcy v. Tennessee Secondary School Athletic Assn. (2001)
Rodney Smolla, Virginia v. Black (2002)
Laurence Lessig, Eldred v. Ashcroft (2003)
Erwin Chemerinsky, Tory v. Cochran (2005)
David Cole: National Endowment for the Arts v. Finley (1998)
_________: Holder v. Humanitarian Law Project (2010)
(Hat tip to Eugene Volokh & David Hudson)
Protests on plaza in front of Supreme Court — Constitutional?
This from Tony Mauro writing in Legal Times (Sept. 23, 2014):
A federal appeals court panel appeared ready on Tuesday to uphold a disputed law that makes it a crime to protest on the marble plaza in front of the U.S. Supreme Court. During an hourlong oral argument, three judges on the U.S. Court of Appeals for the D.C. Circuit seemed generally accepting of one of the government’s main justifications for the law—an argument that First Amendment advocates have viewed as weak.
The case: Hodge v. Talkin
The facts (per Mauro): “Harold Hodge Jr. of Maryland, who was arrested under the law in January 2011 for standing on the plaza while holding a small sign that read ‘The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans and Hispanic People.'”
The governing federal statute: 40 U.S.C. 6135
For the Petitioner: Jeffrey Light, the Rutherford Institute
For the Government: Deputy Assistant Attorney General Beth Brinkmann
ACLU amicus brief (per Arthur Spitzer & Adam Pulver)
New Knight Foundation study of high school students & First Amendment
According to a Knight Blog post: “During the past 10 years, Knight Foundation has funded five ‘Future of the First Amendment’ surveys, each probing what American high school students know and think about our most fundamental freedoms.This year, for the first time, American high school students show a greater overall appreciation for the First Amendment than do adults. More students than ever before say they are thinking about the First Amendment. Nine in 10 say people should be able to express unpopular opinions. Six in 10 say the press should not be censored by the government.” More than 10,000 high school students were surveyed.
Banned Books Week: Celebrating the Freedom to Read: Sept. 21-27, 2014
→ See link here for more information.
→ See also UNC observes First Amendment Day, September 23, 2014.
→ Related news item: Melissa Repko, “Highland Park ISD suspends seven books after parents protest their content,” Dallas News, Sept. 21, 2014
Video Flashback
→ Michael W. McConnell: “The Architecture of the First Amendment, The Meiklejohn Lecture: The Architecture of the First Amendment,” Wednesday, November 7, 2012
New book on history of censorship
The book: Robert Darton, Censors at Work: How States Shaped Literature (Norton, 2014, pp. 304)
→ See here for a review by Jonathan Yardley in the Washington Post, and here for review from Publishers Weekly.
→ See here for an excerpt that appeared in the New York Review of Books, and here for an excerpt that appeared in the Huffington Post.
Quick Hits
Nota Bene
→ Justice John Paul Stevens, “Oops!” (re “right” to contribute to out-of state elections), Administrative Law Section of the D.C. Bar, 2014 Harold Leventhal Lecture, Sept, 12, 2014 (hat tip to Josh Blackman)
→ William Baude, “Is there a right to contribute to out-of-state elections?,” Volokh Conspiracy, Sept. 22, 2014
Erin Murphy @ Heritage event on Campaign Finance Laws (on C-SPAN — go here)
Editorials, Op-eds, Q & As, News Stories & TV-YouTube Coverage
September 23, 2014
Rob Davis, “Forest Service says media needs photography permit in wilderness areas, alarming First Amendment advocates,” The Oregonian, Sept. 23, 2014
Charles Dickerson, “Morrisey, other AGs file brief in Arizona First Amendment case,” West Virginia Record, Sept. 23, 2014
Katie Kilmrtin, “Q & A with First Amendment Day speaker Greg Lukianoff,” Daily Tarheel, Sept. 23, 2014
September 22, 2014
Elizabeth Nolan Brown, “FEC Chairman Talks ‘Dark Money’ and the Fine Line Between Free Speech and Censorship,” Reason, Sept. 22, 2014
Marsha Thompson, “Madison County parents file freedom of speech lawsuit,” Ms News Now, Sept. 22, 2014
Frances Dinkelspiel, “Events mark 50th anniversary of Free Speech Movement,” Berkeleyside, Sept. 22, 2014
Eugene Volokh, “Mass. D.A. drops charges against protesters engaged in illegal blockade — because he agrees with their political opinions,” Volokh Conspiracy, Sept. 22, 2014
Gene Policinski, “First Amendment: Social media no longer just free expression ‘toy box’,” GazetteXtra, Sept. 22, 2014
September 21, 2014
Erik Eckholm & Richard Oppel, Jr., “Child Pornography Case Spurs Debate on Military’s Role in Law Enforcement,” N.Y.T., Sept. 21, 2014
Jessica A. Levinson, “Expand free speech by limiting political money,” Sacramento Bee, Sept. 21, 2014
September 15-19, 2014
Kristin Tate, “Texas Court: Ban on ‘Upskirt’ Photos Violates First Amendment Rights,” Breitbart, Sept. 19, 2014
Bill Maurer, “First battle in the battle for the First Amendment,” The Hill, Sept. 15, 2014
→ Today in Civil Liberties History — Sept. 24, 1927: “Jay Near Publishes ‘Defamatory’ Articles, Heads for Supreme Court”
Last Scheduled FAN Column: #32 — “PA prosecutor targets teenager in Facebook-posting desecration case“
Last FAN Columns: #32.1 — “Cato hosts panel on First Amendment: Strossen discusses McCutcheon & history of ACLU stance“
#32.2 — “Upcoming Sullivan conference at University of Oregon“
Next Scheduled FAN Column: #34 — Wednesday, October 1st