Tag: free speech

Even University Presidents Are Bound by the Constitution

Few could imagine a more troubling free speech and due process case than that of Hayden Barnes. 

Barnes, a student at Valdosta State University in Georgia, peacefully protested the planned construction of a $30 million campus parking garage that was the pet project of university president Ronald Zaccari.  A “personally embarrassed” Zaccari did not take kindly to that criticism and endeavored to retaliate against Barnes — ignoring longstanding legal precedent, the Valdosta State University Student Handbook (a legally binding contract), and the counsel of fellow administrators.  Zaccari even ordered staff to look into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office!

The district court found that Barnes’s due process rights had indeed been violated and denied Zaccari qualified immunity from liability for his actions. Now on appeal, Cato joined a brief filed by the Foundation for Individual Rights in Education on behalf of 15 organizations arguing that qualified immunity is inappropriate here given Zaccari’s brazen violation of Barnes’s constitutional rights to free speech and due process.  As stated in the brief, the “desire of some administrators to censor unwanted, unpopular, or merely inconvenient speech on campus is matched by a willingness to seize upon developments in the law that grant them greater leeway to do so.”  The brief thus asks the Eleventh Circuit to affirm the denial of qualified immunity on both First Amendment and due process grounds.

First, the immense importance of constitutional rights on public university campus is due in no small part to the reluctance of school administrators to abide by clearly established law protecting student rights.  Second, Zaccari knew or should have known that his actions violated Barnes’ rights and were illegal retaliation against constitutionally protected speech. 

Qualified immunity is intended to protect public officials who sincerely believe their actions are reasonable and constitutional, not those who willfully and maliciously ignore well known law in a determined effort to deprive another of constitutional rights. A denial of qualified immunity here would vindicate those rights and reinforce school administrators’ obligation to protect and abide by them. 

The case of Barnes v. Zaccari will be heard by the Eleventh Circuit this spring or summer.  Thanks to legal associate Nicholas Mosvick for his help on the brief and with this post.

Free Speech Belongs on Campuses Too

Speaking of free speech, last night I had an Obamacare panel at Widener University, which is currently having its own little speech-related brouhaha.  (Getting there was a bit of a hassle because I was held up at the Wilmington Amtrak station by Vice President Biden’s entourage — but I didn’t end up in a closet, so I guess it could have been worse.)

There are strange things afoot at the tiny Delaware law school, specifically to tenured professor Lawrence Connell, who also happens to be the adviser to the school’s Federalist Society chapter. From the Foundation for Individual Rights in Education:

Widener University School of Law is attempting to fire longtime criminal law professor Lawrence Connell by charging him with dubious violations of the school’s harassment code, such as using the term “black folks” in class and using the names of law school Dean Linda L. Ammons and other law school colleagues as characters in class hypotheticals. Although a faculty panel has already recommended that Widener drop its “dismissal for cause” proceedings against Connell, administrators have reportedly induced students to issue further complaints under a new process that forces Connell to keep the details of the proceedings secret. Connell, who is represented by attorney Thomas S. Neuberger, also requested help from the Foundation for Individual Rights in Education (FIRE).

“Not only do the charges against Professor Connell appear to be either unsubstantiated or totally meritless, but even after the faculty refused to assent to his firing Widener has found a new, ‘confidential’ procedure to use against him,” FIRE President Greg Lukianoff said. “Professor Connell has already addressed the charges, but now he cannot publicly discuss the details of his prosecution out of fear of punishment for ‘retaliatory action’ if he reveals them.”

Although Widener is a private university, a faculty member receiving such treatment on dubious charges should raise some eyebrows in legal academia. If there is something to the charges, let them be aired in public. While this is not a constitutional issue, I’m sure the law school administration is well aware of the importance of both due process and intellectual freedom. To that end, either the professor should be afforded the dignity of defending himself to his accusers or this nonsense should be put to bed.

You can read more about the case here. Also, if the state of today’s law schools interests you, I cannot recommend strongly enough my colleague Walter Olson’s new book, Schools for Misrule: Legal Academia and an Overlawyered America.

Thanks to Jonathan Blanks for his help with this blogpost.

If the Government Gives Your Election Opponent More Money the More Money You Spend, It Burdens Your Speech

Yesterday the Supreme Court heard oral arguments in the Arizona matching-public-campaign-funding case, McComish v. Bennett, spearheaded by our friends at the Goldwater Institute and the Institute for Justice.

Here’s the background:  In 1998, after years of scandals ranging from governors being indicted to legislators taking bribes, Arizona passed the Citizens Clean Elections Act. This law was intended to “clean up” state politics by creating a system for publicly funding campaigns.  Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. In short, if a privately funded candidate spends more than his publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the law, the effects have been to significantly chill political speech. Indeed, ample evidence introduced at trial showed that privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. Notably, in a case where a privately funded candidate is running against more than one publicly assisted opponent, the matching funds act as a multiplier: if privately funded candidate A is running against publicly funded candidates B, C, and D, every dollar A spends will effectively fund his opposition three-fold. In elections where there is no effective speech without spending money, the matching funds provision unquestionably chills speech and thus is clearly unconstitutional.  For more, see Roger Pilon’s policy forum featuring Goldwater lawyer Nick Dranias, which Cato hosted last week and you can view here.

The oral arguments were entertaining, if predictable. A nice debate opened up between Justices Scalia and Kagan about the burden that publicly financed speech imposes on candidats who trigger that sort of financing mechanism under Arizona law. Justice Kennedy then entered the fray, starting out in his usual place — open to both sides — but soon was laying into the Arizona’s counsel alongside Justice Alito and the Chief Justice.

The United States was granted argument time to support Arizona’s law, but Justice Alito walked the relatively young lawyer from the Solicitor General’s office right into what I consider to be his (Alito’s) best majority opinion to date, the federal “millionaire’s amendment” case (paraphrasing; here’s the transcript):

Alito:  Do you agree that “leveling the playing field” is not a valid rationale for restricting speech?

US:  Sort of.

Alito:  Have you read FEC v. Davis?

Note to aspiring SCOTUS litigators: try not to finesse away direct precedent written by a sitting justice.

My prediction is that the Court will decide this as they did Davis, 5-4, with Alito writing the opinion striking down the law and upholding free speech.  Cato’s amicus briefs in this case, which you can read here and here, focused on the similarities to Davis, so I’m keeping my fingers crossed that we’ll get cited.

NB: I got to the Court too late to get into the courtroom today but live-tweeted (@ishapiro) the oral arguments from the (overflow) bar members’ lounge, which has a live audio feed. I was later informed that such a practice violates the Court rules, however – ironic given how pro-free-speech this Court is – so I will not be repeating the short-lived experiment.  (That said, you should still follow me on Twitter – and also be sure to follow our friends @IJ and @GoldwaterInst!)

Arrested for Pamphlets

The feds are seeking to jail 78-year old Julian Heicklen for distributing pamphlets.  Heicklen knows that jurors are supposed to be able to vote their conscience in criminal cases – so he distributes pamphlets on that subject near the federal courthouse.  The feds are evidently worried about the contents of those pamphlets and assert that Heicklen’s conduct amounts to “jury tampering.”  But if Heicklen just gave the pamphlets to anyone and everyone, as he claims, without attempting to sway the outcome of any particular case, his conduct is free speech, plain and simple.   Heicklen should get a jury trial to fight the free speech violation – since our Constitution says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” but prosecutors are going to invoke wrongheaded precedents that say this case can be tried before a judge, not a jury.  Oh, and the police arrested another guy for simply videotaping Heicklen’s arrest.  No pamphlets, no photography, no jury trial. 

Cato co-published a book in defense of jury nullification in 1998.   More here and here.   (I am betting that books, blog posts, and law review articles are still legal should this post reach readers in New York City, but we’ll see about that.)

Corporations Aren’t People But They Are (Legal) Persons

Recently, activist and filmmaker Annie Leonard released a video titled “The Story of Citizens United v. FEC,” an eight-and-a-half-minute criticism of last year’s Supreme Court case of the same name.

Well, sort of.

Competitive Enterprise Institute’s Lee Doren made his own video critique in response to Ms. Leonard’s offering, and points out quite clearly that Ms. Leonard doesn’t really deal with any actual constitutional problems in her position—essentially ignoring the decision and its rationale—and instead spends most of her time corporation bashing.

Lee was kind enough to cite, inter alia, a blogpost I wrote last year about what “corporate personhood” does and does not mean. If Ms. Leonard was going to ignore the decision, it may have at least served her well to read that post before producing her video. As I pointed out, under the logic she puts forth, “individuals acting through corporations should be denied their freedom of speech because corporations are ‘state-created entities.’ The theory goes that if a state has the power to create corporations, then it has the power to define those entities’ rights.” Ms Leonard’s video was made by (or coordination with) Free Range Studios—a corporation—and thus she’s making the argument that Congress should be able to keep her from or punish her for making that video because Free Range Studios shouldn’t have rights.

Despite the misinformation in Ms. Leonard’s video, we believe she and Free Range Studios have every right to be wrong as publicly as they see fit, even if she doesn’t.

Please watch Lee’s full video below, and look for the Cato shout-out around the 12:20 mark. If you’re in the Chicagoland area, I’ll be speaking about corporate rights and corporate personhood at John Marshall Law School tomorrow at 10:15AM local time. Feel free to stop by and please introduce yourself. 


Defending the Undefendable

Freedom requires tolerance. That principle will be put to the test today as Americans respond to the Supreme Court decision in Snyder v. Phelps.

As Ilya Shapiro first noted below, Chief Justice John Roberts, writing for the Court, with a thoughtful dissent by Justice Samuel Alito, upheld the right of Rev. Fred Phelps and members of the Westboro Baptist Church to picket at military funerals, carrying signs that read “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell.” It is a mark of our liberty that in most cases we defend even the most despicable speech. And in that we stand in stark contrast to much of the world.

In truth, we should also defend most (but not all) despicable actions — short of those that violate the rights of others. But at least we defend speech, even though the line between speech and action is not always clear. But here, the Court set forth the issues carefully and correctly, examining the content, form, and context of the speech as revealed by the whole record — none of which is to say that governments cannot regulate the time, place, and manner of speech under content-neutral provisions. But as Chief Justice Roberts concluded, “As a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

By contrast, just today the New York Times reports that Shahbaz Bhatti, the only Christian member of Pakistan’s cabinet, was shot dead as he left his home this morning. His sin? He opposed Pakistan’s blasphemy law, despite threats to his life by Islamist extremists. And only two months ago the governor of Pakistan’s Punjab province, Salman Taseer, was shot and killed by one of his guards for speaking out in defense of a Christian woman sentenced to death under Pakistan’s blasphemy law. Tolerance is all too rare around the world, but it is the foundation of liberty. We’re fortunate to live in a nation whose Founders implanted that principle in our Constitution.

A Year After Citizens United, Campaign Finance Back at the Court

As Caleb noted earlier, today marks the one-year anniversary of Citizens United, a case I first thought ”just” concerned some weird regulation of pay-per-view movies, but turned out to be about asserted government power to ban political speech — including books and TV commercials — simply because the speaker was not one individual but a group (in corporate or or other associational form).  See also this op-ed by ACLU lawyer Joel Gora.

Roger similarly noted the continuing discussion in Congress and elsewhere about the public financing of elections.  As it turns out, the Supreme Court has agreed to hear a challenge to such a system, specifically Arizona’s Clean Elections Act.  Brought by our friends at the Institute for Justice and the Goldwater Institute and supported by our brief at the cert petition stage, this lawsuit challenges a law that aimed to “clean up” state politics by creating a system for publicly funding campaigns.

Participation in the public funding is not mandatory, however, and those who do not participate are subject to rules that match their “excess” private funds with disbursals to their opponent from the public fund. That is, if a privately funded candidate spends more than her publicly funded opponent, then the publicly funded candidate receives public “matching funds.”

Whatever the motivations behind the Clean Elections Act, the effects have been to significantly chill political speech: privately funded candidates changed their spending — and thus their speaking — as a result of the matching funds provisions. In elections, where there is no effective speech without spending money, matching funds provisions such as those at issue here diminish the quality and quantity of political speech.

In 2008, however, the Supreme Court struck down a similar part of the federal McCain-Feingold law in which individually wealthy candidates were penalized for spending their own money by triggering increased contribution limits for their opponents (Davis v. FEC, in which Cato also filed a brief). Even this modest opportunity for opponents to raise more money was found to be an unconstitutional burden on political speech.

Cato’s latest brief thus asks the following question: Whether Arizona may give a publicly funded candidate extra money because a privately funded opponent or his supporters have, in the state’s judgment, spoken too much. We highlight Davis and numerous other cases that point to a clear answer: if the mere possibility of your opponent getting more money is unconstitutional, then the guarantee that your opponent will get more money is even more so. Allowing the government to abridge political speech in this fashion not only diminishes the quality of political debate, but ignores the fundamental principle upon which the First Amendment is premised: that the government cannot be trusted to regulate political speech for the public benefit. Moreover, the state cannot condition the exercise of the right to speak on the promotion of a viewpoint contrary to the speaker’s.

The case is McComish v. Bennett, consolidated with Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.  The Court will hear it March 28, with a decision expected by the end of June.