Tag: First Amendment

The Treaty Clause Doesn’t Give Congress Unlimited Power

In 1920, the Supreme Court decided an obscure case concerning the implementation of a treaty between the United States and Canada regarding migratory birds. Tucked into Justice Oliver Wendell Holmes’s five-page decision in Missouri v. Holland was a sentence that expressed a truly startling idea: that Congress can transcend its enumerated powers via its power to implement treaties.

That is, although Congress has no enumerated power to pass, say, general criminal laws, if a ratified treaty with France demands that we pass such laws, then Congress’s power expands to allow for such legislation. Thus, foreign nations and the executive branch are given the power to change, almost at will, one of the most hotly debated and carefully crafted sections of the Constitution, the scope of Article I congressional power!

Now an equally obscure case relating to copyrights gives the Court an opportunity to revisit Missouri v. Holland’s starkly erroneous proposition and reaffirm the Framers’ vision of Congress’s powers as “few and defined.” Golan v. Holder concerns a law Congress passed after the president signed and the Senate duly ratified the “Uruguay Round” general trade agreement, which in part amended the 1971 Berne Convention on intellectual property. This new law reinstated copyright protection to works that were previously in the public domain.

A number of orchestra conductors, educators, performers, film archivists, and motion picture distributors who depend on the public domain for their livelihood challenged the law on two grounds: 1) that it violates the “promote progress in Science and the Useful arts” limitation on the congressional power to pass copyright laws (the Copyright Clause), and 2) it violates the First Amendment. Cato and Georgetown law professor Nicholas Quinn Rosenkranz filed a brief that supports this challenge by highlighting the problems with an expansive interpretation of the treaty power.

We argue that, as a matter of constitutional structure, history, and logic, a treaty cannot increase Congress’s legislative powers. Not only is the power to “make treaties” distinct from the power to execute treaties already made, but such an expansive interpretation of the treaty power would allow Congress and the Executive to circumvent the Article V amendment process.  Even more shockingly, it would allow foreign governments to have control over the scope of congressional power. In sum, Missouri v. Holland is a structural and doctrinal anomaly in tension with other precedent and based on a misreading of constitutional history. It should be overruled.

The Supreme Court will hear argument in Golan v. Holder this fall.

Government Control of Language and Other Protocols

It might be tempting to laugh at France’s ban on words like “Facebook” and Twitter” in the media. France’s Conseil Supérieur de l’Audiovisuel recently ruled that specific references to these sites (in stories not about them) would violate a 1992 law banning “secret” advertising. The council was created in 1989 to ensure fairness in French audiovisual communications, such as in allocation of television time to political candidates, and to protect children from some types of programming.

Sure, laugh at the French. But not for too long. The United States has similarly busy-bodied regulators, who, for example, have primly regulated such advertising themselves. American regulators carefully oversee non-secret advertising, too. Our government nannies equal the French in usurping parents’ decisions about children’s access to media. And the Federal Communications Commission endlessly plays footsie with speech regulation.

In the United States, banning words seems too blatant an affront to our First Amendment, but the United States has a fairly lively “English only” movement. Somehow, regulating an entire communications protocol doesn’t have the same censorious stink.

So it is that our Federal Communications Commission asserts a right to regulate the delivery of Internet service. The protocols on which the Internet runs are communications protocols, remember. Withdraw private control of them and you’ve got a more thoroughgoing and insidious form of speech control: it may look like speech rights remain with the people, but government controls the medium over which the speech travels.

The government has sought to control protocols in the past and will continue to do so in the future. The “crypto wars,” in which government tried to control secure communications protocols, merely presage struggles of the future. Perhaps the next battle will be over BitCoin, an online currency that is resistant to surveillance and confiscation. In BitCoin, communications and value transfer are melded together. To protect us from the scourge of illegal drugs and the recently manufactured crime of “money laundering,” governments will almost certainly seek to bar us from trading with one another and transferring our wealth securely and privately.

So laugh at France. But don’t laugh too hard. Leave the smugness to them.

What Did Orwell Say?

Steve Simpson and Paul Sherman of the Institute for Justice have written an excellent short essay about Stephen Colbert’s effort to undermine the Citizens United decision. But the joke is on Colbert:

Campaign-finance laws are so complicated that few can navigate them successfully and speak during elections—which is what the First Amendment is supposed to protect. As the Supreme Court noted in Citizens United, federal laws have created “71 distinct entities” that “are subject to different rules for 33 different types of political speech.” The FEC has adopted 568 pages of regulations and thousands of pages of explanations and opinions on what the laws mean. “Legalese” doesn’t begin to describe this mess.

So what is someone who wants to speak during elections to do? If you’re Stephen Colbert, the answer is to instruct high-priced attorneys to plead your case with the FEC: Last Friday, he filed a formal request with the FEC for a “media exemption” that would allow him to publicize his Super PAC on air without creating legal headaches for Viacom.

How’s that for a punch line? Rich and successful television personality needs powerful corporate lawyers to convince the FEC to allow him to continue making fun of the Supreme Court. Hilarious.

Of course, there’s nothing new about the argument Mr. Colbert’s lawyers are making to the FEC. Media companies’ exemption from campaign-finance laws has existed for decades. That was part of the Supreme Court’s point in Citizens United: Media corporations are allowed to spend lots of money on campaign speech, so why not other corporations?

Because some animals are more equal than other animals, I suppose.

Want Privacy? Nevermind. We Want to Censor!

Senator Chuck Schumer rounds out a trifecta of bloggable moments from the Senate Judiciary Subcommittee on Privacy, Technology, and the Law’s hearing this morning.

Ignoring the subject of the “mobile privacy” hearing, Schumer queried the witnesses from both Google and Apple on whether they will accede to his demand that they reject certain “apps” on Android phones and iPhones. The applications Senator Schumer dislikes alert people on their mobile phones to the locations of DUI checkpoints.

Senator Schumer says these apps “allow drunk drivers to evade police checkpoints,” but that statement fails to include other parties who might rightly wish to avoid police checkpoints—such as law-abiding citizens who wish to live free in this country, for example.

Recently, I landed at Harford’s Bradley International Airport late on a Friday night, heading to a Saturday morning meeting in Northampton, Massachusetts. From my shuttle bus to a remote rental car area, I saw a DUI checkpoint. After I completed the arrangements for my car, I asked the agent how I might leave so as to avoid the checkpoint. I wanted neither the delay nor the impingement on my sober liberty that a police checkpoint represents. He cheerfully directed me to a route I could freely travel.

Senator Schumer wants to prevent conversations like this from taking place on a mass scale, facilitated by advanced technologies. He stands a good chance of succeeding—RIM has already given in—because Google and Apple have repeat business before the federal government. Senator Schumer can raise their regulatory costs far higher than the value of allowing minor, but controversial apps on their systems.

If Senator Schumer succeeds, our right to freely and efficiently communicate about police activity will diminish in a way that is effectively insulated from First Amendment challenge. Privacy and freedom be damned. There are drunk drivers to catch.

Whistleblowing Scandal at UCLA

Lately I seem to have been blogging – and filing briefs – a fair bit on campus First Amendment issues, regarding both students and professors.  The threats to free speech and academic freedom stretch far beyond the halls of Widener Universty and concern more than just the rules of political correctness.

This month, UCLA’s James Enstrom (34 years a professor) is fighting his dismissal from UCLA for submitting a paper to a regulatory board that denied that diesel particulates cause 2,000 premature deaths in California per year.  The scientific literature published subsequent to his initial findings support his thesis and the conclusions his work refuted turned out to be written by a fraud who received his Ph.D. from a diploma mill.  In short, he was fired for telling the truth.

Reason.tv produced an excellent (and infuriating) video detailing the story.   The story exposes a corrupt political process, bogus credentials, cronyism, and trumped-up charges against a man guilty only of scientific rigor:

Thankfully, our friends at the Foundation for Individual Rights in Education have taken Professor Enstrom’s case. You can read more about the sorry tale here.  I wish the best of luck to FIRE and Prof. Enstrom in their fight.

School Officials Can’t Censor Student Speech, Not Even Religious Speech

Everyone knows that students have First Amendment rights, that the Constitution proverbially doesn’t stop at the schoolhouse door.  Yet students in the Plano Independent School District in Texas (against whose speech code Cato previously filed a brief) were prohibited from handing out pencils with messages such as “Jesus is the reason for the season” and “Jesus loves me, this I know, for the Bible tells me so,” or sending holiday cards to retirement homes that said “Merry Christmas.”

The students, through their parents, sued the district on First Amendment grounds, and were successful through a Fifth Circuit panel ruling that “qualified immunity,” a doctrine that prevents government officials from being held personally liable under certain circumstances for violating constitutional rights, did not apply in this case.  The panel’s holding is as important as it is unremarkable: School officials have fair warning that viewpoint-based discrimination against student speech during non-curricular activities violates the First Amendment.  The government certainly cannot do so simply because the speech happens to be religious.

The Fifth Circuit en banc (as a whole) vacated the panel’s decision, however, and decided to rehear the case.  Cato has filed a brief supporting the students and their parents; not only is it settled law that students have the right to free speech in public schools, but school officials should be held liable for violating those rights on the basis of the content of that speech.

Indeed, if the First Amendment means anything, it is that the government cannot suppress speech based solely on its content.  More specifically, when an area of the law is “clearly established,” officials cannot escape liability under the doctrine of qualified immunity.  Qualified immunity simply doesn’t apply to public school officials who suppress speech in a non-curricular setting merely because the school district points to some legal disagreement in a dissent, concurrence, or other non-binding judicial opinion that disagrees with settled doctrine regarding viewpoint-based discrimination against student speech.

The en banc Fifth Circuit will hear the case, Morgan v. Swanson, later this spring.  Thanks to legal associate Michael Wilt for his help with the brief and this post.

New Evidence on the Costs of Mandating Disclosure

Over the next few years, most arguments about campaign finance regulation will be about extending mandated disclosure to some of the independent spending freed up by the Citizens United decision.

Writing in the Wall Street Journal, James L. Huffman offers a unique perspective on mandated disclosure: he was a candidate for the U.S. Senate last year. He argues that mandated disclosure means incumbents know who funded the campaigns of their challengers.  Incumbents do not have to actually threaten anyone; disclosure plus circumstances means a cautious businessperson will stay clear of electoral participation. Huffman also claims that some people who might have contributed to his campaign heard from associates of his opponent who said contributing to Huffman might be a bad idea.

We have heard such testimony before about the malign effects of disclosure. George Soros said some potential contributors to his efforts to unseat former President George W. Bush stayed on the sidelines because of concerns about publicity (see James V. Grimaldi and Thomas B. Edsall, “Super Rich Step Into Political Vacuum; McCain-Feingold Paved Way for 527s” The Washington Post, October 17, 2004).  Now we have a Senate candidate citing “dozens” of examples of a similar chilling of political speech.

Some might think incumbent protection is no longer a problem since 69 House seats changed hands in 2010 (and a similar number in the two previous House elections). If you think that, please recall that the House has 435 seats, all of which could potentially change hands. Yes, the advantages of incumbency have become somewhat smaller in recent years. But those advantages remain significant, and disclosure does increase the risk of contributing to a challenger, especially when the odds are overwhelming that those now in office will win re-election.

What should be done? Huffman notes that many Americans consider mandated disclosure to be all benefits and no costs. We might begin by gaining a more realistic view of the disclosure calculus. That more realistic view should include the costs of disclosure including lower participation and the ways mandated disclosure make public debates more irrational. At a minimum, existing disclosure thresholds should be dramatically raised. Forcing disclosure of the names of those who contribute less than $1,000 serves no public purpose.

We also should not mandate disclosure of the names of those who support speech independently of candidates and the parties. The only justification for such a mandate would be educating the voters. In other words, voters are thought to look for cues about who to vote for by considering who spends money on speech favoring a candidate. Does that seem plausible? If not, forced disclosure of independent spenders would not be constitutional. If Congress nonetheless enacts disclosure for independent spending, the U.S. Supreme Court should rigorously consider both the end served by such laws and the relationship between the means of disclosure to that end. Does disclosure of independent spending really educate any voters? If so, what about the costs to free speech identified by Professor Huffman? Once we set aside conventional pieties, does forcing people to tell government officials about their political activities really offer much to nation? Or does such coercion do little more than indulge those who equate politics with the pleasures of preaching hatred of those they despise?

Last year I wrote a Cato policy analysis of the justifications for disclosure after Citizens United.