First Amendment Cynicism and Redemption

Here’s a draft of my latest paper for downloading.  I’ve been bouncing these ideas around for a while and am glad I got the chance to think about them more deeply and systematically — and to memorialize them in a full-length article.  The abstract is below.

Abstract

In this article, I propose a way out of the vicious cycle of “First Amendment cynicism.” I define this term as the disingenuous application or non-application of the First Amendment to further political ends unrelated to freedom of expression. The cycle is facilitated by either accurate or inaccurate perceptions of First Amendment cynicism by one’s political opponents.

As one example, the perception by those on the political left that the right is applying the First Amendment cynically –turning the First Amendment into the “New Lochner” — leads the left to lose faith in First Amendment principles. Some on the left then engage in First Amendment cynicism, not applying the First Amendment to those that harm their agenda. This approach is then observed by the right, and the cycle continues. Further, improper accusations of First Amendment cynicism, or what I term “second-order First Amendment cynicism” render this cycle ever more vicious.

To restore both the perception and the reality of a First Amendment that serves the entire political spectrum, I first demonstrate why the increasing accusations of First Amendment cynicism are overstated and ahistorical. I then argue that the First Amendment can be both nonpartisan — treating equally speech of all political stripes — and apolitical — leading to outcomes and social arrangements that favor no political ideology. The best way to ensure that free speech doctrine remains nonpartisan and apolitical is to favor a civil libertarian approach.  However, courts should ensure that the First Amendment is egalitarian in cases where the government must intervene, such as cases involving speech on government land or cases involving the heckler’s veto. Finally, I propose ways for the Supreme Court to manage its docket and refine existing First Amendment doctrine so that the First Amendment serves those who most need its protections.

Is Public Discourse Useful?

The 90th birthday of political philosopher Jorgen Habermas has re-ignited a debate that also undergirds a good portion of First Amendment theory.  In an age of increasing polarization and discord, scholars and laypeople are questioning whether discussions can be rational, productive, and socially beneficial.  Habermas articulated a vision of “communicative rationality,” in which discussion leads to greater human understanding and rational insight.  Social and cultural crisis comes when people no longer care about, as one Habermas defender puts it “intergenerational cultural transmission” or reaching understanding with our political and cultural opponents.

Other philosophers and even legal scholars take the position that more speech is not always better, does not lead to better outcomes, and does not make us more rational – because we care more about identity and emotion (or faith) than logic and evidence.  Just look at Brexit, or climate change, they argue – issues where public discourse leads us away from the proper course of action.  Action, some argue, is what is needed right now to alleviate human suffering, and dialog often obscures more than it illuminates.  I recommend you read the highly edifying debate over Habermas and his ideas.  I would like to take the opportunity, fully amenable to discussion myself, to confront some aspects of whether unfettered discourse is or can be beneficial.

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“Veggie Burger” Labeling Ban Presents Meaty First Amendment Case

In a case that may cause partisans to switch their views on free speech, plant-based food companies are suing Mississippi officials to protect their commercial speech so they can label their products with terms like “vegan jerky.”

Plant-based food companies, including Upton’s Naturals, have filed a lawsuit over a ban that prevents using terms associated with meat to sell plant-based products.  According to the lawsuit, Upton’s Naturals and other plant-based food manufacturers would no longer be permitted to use terms like “vegan chorizo” and “meatless meatballs,” even though these terms are not misleading to consumers.  The complaint seeks to invalidate the Mississippi law as a violation of plant-based food companies’ First Amendment rights.  This case is particularly meaty because it may alter the usual political alliances generally associated with the protection of corporate speech.

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The “FUCT” Trademark Decision, Another Harvard Revocation, and the Paradox of Tolerance

The Supreme Court decided today in Iancu v. Brunetti that a federal statute barring “immoral[] or scandalous” trademarks violates the First Amendment.   This means that the Patent and Trademark Office (PTO) cannot deny a trademark to Erik Brunetti’s FUCT clothing line simply because it is immoral or scandalous.  A ban on immoral and scandalous trademarks impermissibly denies a government benefit based on viewpoint — the substance of ideas, not only the mode of expression.  Justice Kagan’s majority opinion therefore did not need to answer the question of whether Congress could simply ban vulgar and sexually explicit trademarks, or trademarks involving racial epithets, as bans on the mode of expression instead of the underlying viewpoint.  However, Justice Sotomayor, in a partial concurrence and partial dissent, feared that people will rush to register these types of marks before Congress amends its trademark statute.

Brunetti, although different in a number of dimensions, thus also calls to mind Harvard’s recent revocation of the acceptance of Parkland survivor and gun-rights activist Kyle Kashuv.  Harvard, as a private university, is not subject to the First Amendment, but does have an ethical obligation as an academic institution to aid in the open pursuit of knowledge and truth, both free speech values.  Two years ago, a blog I wrote — on Harvard’s rescinding of acceptances of 10 students who had participated in a private, offensive meme-sharing Facebook chat group — was cited in The Washington Post.  I criticized Harvard for trying to police humor that occurs in private forums.  Kashuv’s revocation is both more and less justified.  Kashuv’s situation does illustrate why I believe Harvard is erring in its position on the increasingly relevant “paradox of tolerance.”  The decision in Iancu v. Brunetti could be instructive here.

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Crim Pro Final Exam (and answer)

Dara was riding in a bus in the State of Goldbergia when the bus suffered a mechanical failure.  The bus driver pulled over in a parking lot, waiting for a mechanic, and told the passengers that they could either sit on the bus or roam around nearby until the bus was fixed.

Three police officers eating nearby came to see what the problem was.  They couldn’t find the driver, so they walked onto the bus.  Dara was the only passenger who opted to stay on the bus, so the officers surrounded Dara and casually asked her what had happened.  She explained that the bus had broken down, and everyone else was eating or walking around nearby.  The officers asked Dara if they could search her bags, and she said yes.  Unbeknownst to Dara, another passenger on the bus had put a new street drug, Mintata, in her bag.  The officers found the Mintata.

The police arrested Dara for possession of Mintata.  They read Dara her Miranda rights and took her to the police station.  They asked her if she wanted to talk and she said, “I don’t know.”  After two hours of questioning, Dara asked for a peppermint.

Questions:    

  1. The police seek to admit the Mintata found in Dara’s bag at Dara’s trial. What is the likely result?
  2. The police seek to admit Dara’s asking for a peppermint under the theory that Mintata makes people crave peppermints. What is the likely result?

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Federal Courts Examining BDS Movement Boycott Restrictions

State laws targeting the Boycott, Divestment, Sanctions (BDS) movement have required various lower courts to consider the constitutional status of boycotts.  Several states now limit the availability of government contracts for those who refuse to deal with Israeli businesses, prompting legal challenges claiming that certain types of boycotts are constitutionally protected speech.  Whether the government may restrict contracts for those who participate in BDS-type boycotts depends on whether refusals to deal, when part of a larger social boycott movement, are protected expressive conduct under the First Amendment.

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Criminal Procedure Midterm

Respond fully in essay form to the question below.  Make sure to save time for organization and polish. 

An anonymous tipster called the Goldbergia Police Department (GPD) and told detectives the following:  “There is a white Subaru Hatchback driving down Highway 45 that is filled with glow-cocaine, a new kind of street drug that glows in the dark and sets off a black light detector.  I don’t want to disclose my identity, but I have given reliable tips in the past – including a tip that lead to the capture and arrest of Martin Mondale, a mid-level drug dealer in Goldbergia.  The owner of the Hatchback lives at 20 Green Lane, and her house is filled with guns and money.”

The GPD decided to walk up to 20 Green Lane and knock on the door.  No one answered.  As police were about to walk away, they saw a large vase sitting in an open window filled with stacks of cash, estimated at $5,000.

The police then found the Hatchback further down Highway 45 and shone a BlackLight3000 on the vehicle.  The inside of the vehicle illuminated with many white spots, leading the police to believe that glow-cocaine was inside the vehicle.  The police pulled over the vehicle and searched the entire vehicle, trunk, and backpacks inside the car.  Inside, the police found glow-cocaine and $100,000 in cash.

Ultimately, the driver and owner of the home at 20 Green Lane, Ferica, was arrested for distributing glow-cocaine.  At her trial, she seeks to exclude the evidence found in the car.  Will her motion to suppress be successful?

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Torts Final Essay (and Answer Key)

Test your knowledge of the doctrine, your ability to organize information, and your reasoning skills with my Fall 2018 exam essay.

Part II. Essay

Respond fully in essay form to the question below. 

Dennis Defendant took his sister Beth’s car without her permission to go joyriding for an hour.  During the joyride, Paul Plaintiff, a neighbor, saw Dennis take Beth’s car and wanted to put a stop to it.  Paul jumped, quickly, into the middle of the street, and Dennis, who was driving at a reasonable speed, couldn’t swerve away in time.  Paul was lightly hit, and on his ride to the hospital, the ambulance driver, who was extremely tired that day, crashed into a telephone poll.  Paul’s initial injury cost him $100,000, and the ambulance driver’s telephone poll crash added another $500,000 to Paul’s damages.

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Presidential Tweets, Obstruction of Justice, and the First Amendment

President Trump’s prolific and sometimes irresponsible use of Twitter has intersected with several significant free speech issues.  Earlier this year, a federal district court ruled that President Trump cannot block Twitter users based on their viewpoints.  Twitter itself is a private forum, not subject to First Amendment protections.  However, @realDonaldTrump’s “interactive space” was deemed a designated public forum incompatible with viewpoint discrimination based on the expressive nature of the medium and President Trump’s use of the account to deliver official pronouncements.

President Trump’s tweets about Muslims who are foreign nationals entering the United States were scrutinized closely by litigants and appellate court judges.  However, the tweets were ultimately not considered relevant to a majority of the Supreme Court in upholding President Trump’s third executive order, which placed entry restrictions on citizens of eight countries.  (Justice Sotomayor’s dissent in Trump v. Hawaii did note his tweets about the entry ban.)  According to Chief Justice Roberts’s majority opinion, the facially neutral executive order, which implicated national security concerns, passed rational basis review and was therefore constitutionally justified “quite apart from any religious hostility.”

Currently, Special Counsel Robert Mueller may be investigating President Trump’s tweets for obstruction of justice offenses.  Specifically, President Trump may have tweeted threats to government officials, like Jeff Sessions, James Comey, and Roger Stone, to attempt to induce them not to offer evidence to Robert Mueller in his investigation of potential Russian interference in the Presidential election.  The relevance of President Trump’s tweets depends upon their constitutional status and whether they provide evidence of the elements of obstruction of justice.

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